Papin v. Ryan & Walker

32 Mo. 21 | Mo. | 1862

Bates, Judge,

delivered the opinion of the court.

This is an action of ejectment for possession of a piece of land in the city of St. Louis.

The same claim was before this court in the case of Papin v. Hines, 23 Mo. 275. That case was taken by writ of error to the Supreme Court of the United States, but was dismissed there for want of jurisdiction, there having been no final judgment in the case.

In that case the defendant showed title in himself by an entry, and a patent from the United States in 1826. In the present case the defendants showed no title. After the plaintiff had given evidence of his title, the court instructed the jury that “ under the evidence in this case the jury should find for the defendants.” Under that instruction a verdict was given for the defendants and judgment rendered in accordance with it, from which the plaintiffs appealed to this court. The plaintiffs claim to be the representatives of Joseph Brazeau. At the trial of this case evidence was given of a confirmation by the act of July 4,1836. The evidence given was of the proceedings of the board of commissioners under the act of 1833, whose report was confirmed by the act of 1836.

The defendants contend that the proof of confirmation was not complete because the act itself was not given in evidence.

We do not consider the act of 1886 a mere private act. It concerned the public lands as well as the mere private claims confirmed by it. The courts will take judicial notice of it. The defendants also contended that as the land in dispute was within the out-boundary of the town of St. Louis, surveyed under the act of 13th June, 1812, that the plaintiffs could have no title under a confirmation by the act of 1836, because all the vacant lands within that out-boundary were by the act of 1812 reserved, and by the act of 1831 granted for the use of schools. The defendants, who stand as mere trespassers, cannot make this objection, which, if made by the schools themselves, could not be maintained.

There was no evidence that this land was ever designated and set apart for the use of schools. The act of 1812 is a reservation only, and the act of 1831 is a grant; but the act of 26th of May, 1824, supplementary to the act of 1812, required the surveyor general to survey, designate, and set apart the school lands, and until such designation is made, the grant by the act of 1831 is only general, and does not attach to any particular land.

In the case of Kissell v. St. Louis Public Schools, (16 Mo. 553,) this question is fully considered and decided. The objections to the confirmation by the act of 1836 cannot be sustained, and as by means of that confirmation the plaintiffs did make a prima facie case, the instruction given was erroneous, and the judgment must be reversed.

The plaintiffs also gave evidence which they claim showed a confirmation by the act of 1812. It is not perceived that any opinion given on the case as made will be of any assistance in the final determination of the cause, as upon a new trial the evidence may vai'y so greatly from that now given. As to any confirmation by the act of 1814, the case of Papin v. Hines, 23 Mo. 275, fully disj>oses of that subject.

Judgment reversed and cause remanded.

Judges Bay and Dryden concur.