12 Mo. 538 | Mo. | 1848
An attempt will not be made to review each instruction that was given and refused in this cause. They are numerous, and such' a course would lead to great prolixity. It will be sufficient to advert to the main questions of law arising on the facts, and when they are determined, they can with facility be applied in adjusting this controversy.
The view taken of the effect of the act of confirmation by the board of commissioners, will do away with the necessity of investigating the validity of the judicial proceedings in the case of Sarpy against Glamorgan, and of the sheriff’s deed under those proceedings, dated July 8,1808. But it must be said that when consideration is made of the loose manner in which business was transacted in those days, that the ministers of the law were mostly instructed in one system, and acting under another of which they were ignorant, a state of circumstances can scarcely be conceived which would warrant a court in overturning a sheriff’s sale of that date, especially as possession has followed and continued with the act. Every consideration of policy in such a state of things requires a liberal indulgence of the maxim ex diuturnitate temporis omnia presumuntur rite ét solemniter esse acta. As to the 'alleged want of notice by Clam-organ of the proceedings against him, the cases heretofore decided by this court answer this objection. His appearance is entered of record, and surely that fact cannot be controverted in a collateral proceeding. Indeed, if a writ of error was brought on this judgment, the ground is not perceived on which it could be reversed. 1 Greenl. Ev. § 19; Hart and others v. Seixas, 21 Wend. 40. But if a judgment is merely erroneous, its validity oannot be questioned collaterally; it can only be affected by a direct proceeding to reverse or vacate it.
A question of importance in the cause, is, as to the operation of the confirmation to Glamorgan : whether it conveyed the legal title of the lot to him or to Conner. After much deliberation, no tenable grounds have been perceived on which the opinion can be based, that by the confirmation the legal title of the lot became vested in Conner. By purchasing Glamorgan’s interest in the lot during its pendency for confirmation, Conner became the beneficiary owner of the same, and, under our system of law, he was entitled to a. conveyance of the legal title. But there is a marked difference between a right to a legal title and the actual possession of it. That difference is as well defined and as well established as any principle of the law. The profession have acted upon it, and the consequences may be foreseen, which may result from its overthrow. That such a cause may disturb titles, is unquestionable. Under the laws involving this question, a confirmation is equivalent to a patent.
Nothing is to be found in the acts of 1805 or 1807 which warrants the opinion that the confirmation passed the legal title of the estate confirmed to any other person than the claimant. The act of 1807 speaks of the claimant or his legal representatives ; but clearly it contemplates only those representatives who file their claims before the board as assignees under the original claimant from the Spanish government. If one is a representative, and he does not prefer his claim as such for confirmation, he is not regarded by the act. That Conner’s title did not accrue until after the time for filing claims, cannot affect this question. The 4th section of the act of 1805 prescribes that every person claiming lands shall file his claim. The 6th section of the act of 1807 directs that reports of the final decisions in favor of claimants be made to the secretary of the treasury, and that a certificate shall be issued to the claimant showing that he is entitled to a patent; thus clearly evincing that in the contemplation of Congress, the legal title could only pass to the claimant.
The Spanish law of abandonment declared that if a man be dissatisfied with his immovable estate and abandon it, immediatelyihe departs from it corporeally with an intention that it shall no longer be his, it will become the property of him who first enters thereon. That although the owner had no corporeal possession of this estate, he would nevertheless retain the property of it in his mind, and therefore no other person ought or can enter upon it. 1 Partidas, law 50, p. 865. The common law not being in force in this State prior to 1816, the law of abandonment prevailed here previous to that time. From this law it is manifest that whether a party abandoned his property or not, depended altogether upon his intention to be ascertained from circumstances. It is a question peculiarly appropriate to be submitted to the consideration of a jury. The law is plain when the facts are ascertained. The instruction asked on this subject was properly refused. The phrases “well aware,” “free to do or say,” “under no improper restraint,” were not sufficiently pointed, and might have misled the jury. No doubt an abandonment must be voluntary, nor can there be an intent to abandon without some consciousness of the ownership of the thing abandoned.
The common law of England was introduced into this State by an act passed 19th January, 1816. By the common law no limitation of time was fixed Within which actions were required to be brought. Prior to the fourth year
The lot having been confirmed Movembcr 13, 1811, ten years, the shortest period -within which a title could have been acquired by prescription, had not elapsed before that law was abolished by the statute of limitations. The title only passing from the government by the act of confirmation, the statute did not run but from that time. It has been repeatedly held that the statute of limitations does not run against the United States. Lindsay v. Miller, 6 Peters, 666. So the statute of limitations does not run against the government or its gruntee in favor of one who does not hold the entire title. Until the title emanates, the possession is not adverse, but under the government. It is analogous to ilie case of one entering under a contract to purchase. 5 Bin. 77, Morris v. Thomas; 5 Cowen, 92; 12 Mass. 327; Johnson v. Irwin, 3 Serg. & Rawle, 292; Duke v. Thompson et al. 16 Ohio R. 34.
The statute of limitations relative to real actions first introduced into this State is a copy (as were many other of our early laws), of the statute of Pennsylvania. In the construction of the Pennsylvania statute (as it has been of all other statutes on the subject) it has been held that when the bar once begins to run no subsequent disability is regarded, but the action must be brought within twenty years from the time the statute commenced running. Hall v. Vanderbright, 5 Bin. 374. Whatever may be the meaning of the last clause in our statute of limitations which is not found in the act of 21st James I, it cannot apply to this case, as the parties do not come within its provisions. Cyprian and Apoline, under whom the plaintiffs claim, were born in June and February, 1803. They consequently attained their majority in' 1824, and the statute commenced running against them from that time. Their deaths after-wards, within the twenty years, within which they were required to bring suit, although their title may have devolved on those who were under a disability, did not prevent the running of the statute. The suit was not brought until 1845, consequently the plaintiffs were barred if there were twenty years’ continued adverse possession.
This court has not adopted the principle that in a contest between two alienees under the same alienor, one of them is estopped from showing an outstanding title adverse to that of his grantor.
It is a matter of history of which this court will take judicial notice, that at the time of the cession of Louisiana to the United States, in that portion of the territory of which this State is composed, nineteen-twentieths of the titles to lands were like that involved in this case prior to its .confirmation. There were very few complete grants. Most of the inhabitants were too poor to defray the expenses attending the completion of their titles, but they liad faith in their government, and rested as quietly under their mclioate titles as though they had been perfect. Stoddart’s Sketches, 245. As early as October, 1804, we find the Legislature speaking of freeholders, and authorizing executions against lands and tenements. See law establishing Courts for the trial of small causes, passed October, 1804, § 10. There being so few complete titles, the Legislature in subjecting lands and tenements generally to execution, must have contemplated a seizure and sale of those incomplete titles which existed under the Spanish government. At the-date of the act above referred to, no titles had been confirmed by the United States. An instance is not- recollected in which a question has been ¿nade as to the liability of such titles as Glamorgan’s under the Spanish government to sale under execution. It is believed that such titles nave been made the subject of judicial sales without question ever since the change of government. As this question was involved in the cause and discussed, we have noticed it, although it is not within the course prescribed at the beginning of this opinion.
No error is seen in the refusal of the court to give the instructions relative to the appropriateness of the description of the lot contained in the advertisement under which the sale was made to O’Fallon & Lindell. Glamorgan owned the whole lot and the whole was sold. In this respect the case differs from that of Evans v. Ashley. That the lot was subdivided into streets and alleys, that it was sold in mass, and that a greater quantity was sold than was necessary to bring this case, so far as these objections are concerned, within the principle of the case of Hartt v. Rector, reported in 7 Mo. R. 531. It is there shown that sucli irregularities in a sheriff's sale will avoid them in direct proceedings instituted to vacate them, but that they cannot be annulled collaterally. The authorities are there cited and the argument made, and it is useless to repeat it here.
Whether the description of the premises sold was sufficient, would depend on extrinsic circumstances. If the lot was known by the description given, the sale would be valid according to the principle settled in the case of Hartt v. Rector, 7 Mo. R., and parol evidence was admissible to establish that fact.
The seventh instruction given for the plaintiffs, recognized this principle, and so far was correct. That a part of the description was false, will not vitiate the sale, according to the maxim falsa demonstratio non nocet, when the thing itself is certainly described; as in the instance of the farm called A., now in the occupation of B.; here the farm is correctly designated as farm A., but the demonstration would be false if O. and not B. was the occupier, and yet it would not vitiate the grant.
The objection to the form of the execution is not sufficient to invalidate the
Prior to the act of December 30th, 1826, the sale of the lands of deceased persons was authorized under executions against their personal representatives. Such sales are expressly allowed by the Administration law of 1825, § 49, after the expiration of eighteen months from the granting letters testamentary or of administration. Indeed, the right to an execution against a decedent’s real-estate was never doubted. Scott v. Whitehill & Finch, 1 Mo. R. 691, 764; Rankin v. Schatzell, 12 Wheat. 177.
The instruction to the effect that the statute of limitations did not commence running until the survey of the lot in 1826, was properly refused. The confirmation was a grant of the claim confirmed. A survey of the claim was filed with the board. Our statute relative to Ejectments gave an action on a confirmation by the board of commissioners. The survey contemplated by the act of 1807, was a private act, and as it was to be at the costs of the confirmee, it is to be presumed that he would take the initiative in having it made. The other Judges concurring, the judgment will be reversed, and the cause remanded.
а) Montgomery v. Farley, 5 Mo. R. 233; Perryman v. State, 8 Mo. R. 208. But where judgment void—McNair v. Biddle, 8 Mo. R. 257; State v. Stephenson, 12 Mo. R. 178. See Reed v. Vaughn, 15 Mo. R. 137; Draper v. Bryson, 17 Mo. R. 71; Chouteau v. Nickolls, 20 Mo. R. 442; State v. St. Gemme, 31 Mo. R. 230; State v. Rogers; 36 Mo. R. 138; Forder v. Davis, 38 Mo. R. 107; Lamothe v. Lippott, 40 Mo. R. 142; O’Reilly v. Nicholson, 45 Mo. R. 160.
See Page v. Scheibel, 11 Mo. R. 167. Also, Ashley v. Cramer, 7 Mo. R. 98; Harrold v. Simmonds, 9 Mo. R. 323; Cottle v. Sydnor, 10 Mo. R. 763. But the act of April 12th, 1814, -does not proprio vigore confer illegal title — Papin v. Hines, 23 Mo. R. 274; Robbins v. Eckler, 36 Mo. R. 494; Fenwick v. Gill, 38 Mo. R. 510. But see as to railroad land grants — Pacific R. R. v. Lindell’s Heirs, 39 Mo. R. 329; H. & St. Jo. R. R. v. Smith, 41 Mo. R. 310.
Keeton v. Keeton, 29 Mo. R. 530; Billon v. Larimore, 37 Mo. R. 375.
See Blair v. Smith, 16 Mo. R. 279.
Yeldell v. Stemmons, 15 Mo. R. 413. But see Boyce v. Smith, 16 Mo. R. 317; Rankin v. Harper, 23 Mo. R. 579.
Schultz v. Lindell’s Heirs, 40 Mo. R. 331.
Carson et al. v. Walker et al., 16 Mo. R. 85.