*1 SUPREME COURT. 410 B. plaintiff C. Strother, Daniel Lucas, v. John F. in error defendant. Louis, jiad for lots of
Ejectment ground plaintiff two in Missouri. The brought error, ejectment, the a an which before Court on writ of and the ,Hc Peters, of judgment favour the defendant affirmed. 6 afterwards brought ejectment another of By action same land. the this the. Court—Had former, merits, with the the case identical we should followed therein; opinion delivered judgment deliberate but as is con- ejectment one not right on of either-possession property clusive the premises or in- the in contro- suit; versy, the has a a right bring to must now the court considet case, it .respects former, if is in all the even identical the though theymay with by opinion it to be given. hold decided therein It- is otherwise when plaintiff's presents casé fact, of right, second defendant’s on matters law or or. decision, record; to its not before appearing in it then becomes material n duty pertinent of the questions Court decide record, on the arising all if time, tnannér as before them for the first same case-came save such arise .as case, identical as to merits. it peculiar duty; on In this we deem a upon by case, us enjoined nature the course of the aide and learned arguments Spain colonies, as to law of and .her bearing in its on interestj question us, ing together consequences with a view our final questions thereon. Were any decision we to leave undecided which fairly arise record;.or to points importance on minor only; cause the value decide . premises ;t\vhich wo'uldjustify no litigation might future court chancery proper enjoin so developed, think as new and facts could be or long material points of law pertinent, remain unsettled. formerly part, France, state of ot territory, Missouri was first The next France, Spain, .1803, then by treaty Qf who it the United States c.oded dominion, propriety, acquired held,it; she had sovereignty full Peters, 301, put government place &c.: which this itself in of the former sovereigns, rights, subject and became with all their their concomitant invested nations, obligations to regulated by the inhabitants. Both were the law accord- ing rights protected, conquered which are even the case of. country; treaty, and'held is sacred and it ceded or inviolable with with- when j whether, effect; any stipulation laws, out uch writing, or evidenced by .the usage and conquered customs of continue in force country, or ceded altered until new sovereign. *1 comprehends This Court has also uniformly treaty, grant,” held that the term in a ' only form, warrant, concession, those which are-made in but or also order permission survey, possess settle, writing whether evidenced parol, presumed possession; “laws,” and that in the included custom and term is “ usage, settled; when date, once though may comparatively be recent is not of those to contrary not, of man runneth memory one^ which contributed so up code, much to make is so justly the common law venerated.” “ principle y Court, No can than be better that established the aulhol TERM, 1.838. ' [Strother, v. Lucas.] officer, a'public, duty assigned by an acts whom his' king,' within tiife 1! prima sphere duty, power.” facia taken to prin- within-his. reason, ciples it'rests, deeply on which are believed tó be too founded in law and successfijlly to be assailed. He who a. ever would grant Icontrovert executed all authority, required the lawful the solemnities by law, takes himself *2 showing the burthen of that the officer has powers transcended the conferred him; upon or that the transaction is tainted with fraud.” pass Where the act of an officer to the to according Spanish law, title land to the produced trial, to order of the contrary king, .done the written at the without exceedeS; any presumed that the explanation, pouter it shall be not been that .has therein; act the set out and to according the was done -motives some on order officers, though subjects: and his not to his and- king known to courts ought require proof, powers, they to very full that he had transcended his before so determine it.” displace conquest, of does no more than conqueror Even cases sovereign, “ and dominion A cession of is. country. over the never territory 'assume under- king stood to be a cession of the of the inhabitants. The cedes only him; previously granted, that which to lands he had not belongs jtis to cede. were treaty. party so Neither could party Neither could understand itself consider individuals, condemned civilized attempting as ‘ a to whole world. wrong pass be to necessarily á territory’ The of should understood sove- cession private property.” not No only, and to interfere with construction of a reignty private property, impair security that to the laws treaty, and wl[ich which would conferred, stipulation llave would usages of nations would without seem express “ it, require. positive Without be further than Its words to admissible they goverAment, as remain as under the new were under individuals would valid consummate, titles, they old; might so far as and those least bé States, independently of this article." of the United the courts asserted in royal domain in disposition Louisiana, to the Spain laws of while The as Spain. was held Louisiana made, exceptions were and no .his Court treaty cession Louisiana has In the Peters, 463. be The United can thereafter made. States declared none which, transfer, them at the contented when with that content remain must Spain. United position The States precise king have so assumed 1805, 1804, 1807, remained, By the acts appqars by as laws. and. Spain legitimate to be laws, and customs they recognised usages, sources Louis,' of St. titles; and, confirmed to the inhabitants by the act and rights of common right thereto, or to their several villages, according .the other lots, lots, lots, common field rights,-titles, village to or out and claims town and depended same, parof titles commons, in, adjoining which belonging recognition grants extended local customs. The same actual grants customs; laws, to acts done such usages settlers, such pursuant settlers thereto, persons claiming title If actually'settled, or grant of lands to obtain a December, was made before 20th settlement territory-tov Louisiana, the cession unwritten The law United .of Stales. every thing which fayour of-long possession appropriation, and ancient donó In done; it does though appear.to'', not rightfully presumed shall have necessary has been presume that whatever done, the law done. will have been law; to a patent pursuant and a as a by law, a con- made well maybe A grant COURT. SUPREME [Strdther Lucas.] law, is fully grant, all intents as if it firraation contained purposes grafit de novo. in terms appointed Louisiana, land adjust ef the settle titles acts commissioners same, congress authorizing confirming under the acts conclusive lands, provisions been'confirmed as to all titles to subject. congress acts of the different organized congress with all acts'of which have boards of com- is inconsistent It titles, board, and the laws adjusting proceedings land missioners them,“that the confirmations of the commissioners shall have'confirmed uses, person, person claim- to'any persons other than enure to other laws, object defeat of these the confirmation: would the whole introduce ing mischief; by the public were the Court to decide that the confirmations infinite congress, expressly claim commissioners those who derivative titles, operate to their use. did own to the district court the United for the district IN error States Missouri. error, for the exhibited state-
The counsel following of the case:— ment *3 Strother, of an action of Daniel F.
“This was by ejectment brought Lucas, Jno. B. C. of tract Missouri) a recover Kentucky, against described in the declaration, as follows: land of particularly “Lying of Louis, Missouri, St. of city state county and and being in breadth, two arpents by forty super- containing depth, eighty measure; French one of which was forty ficial .arpents, arpénts by. heirs, to one Rene Kiersereau and his autho- by prbper granted other, wit, the northern of was and the said two arpents, rity; apd to one heirs; Gamache and his which said granted originally lot, are bounded north on the forty by by forty arpent two,arpents Bissonet; to one Louis and the south by forty granted originally to one John and lot, originally granted Baptiste Bequette; arpent bounded, two so above been con- lots, said havé forty arpent which the United States authority firmed by congress Gamache, re- the-said Rene and Kiersereau, representatives legal spectively.” was tried issue, and the cause
The defendant pleaded general term, for the de- 1835, when there was a verdict September which writ and rendered this fendant, thereon; to reverse judgment error is prosecuted. Louis, of St. evidence, 1764, that in post By appears French, under M. Louisiana, first established by Upper 1838, TERM, v. Lucas.] [Sl.rother 1770, In treaty 1762, May, Spaniards, Laclede. Louis,, and Louisiana. Between took St. Upper of land divers Louisiana 1772, Upper and were grants year authorities, the French Spanish respectively. by Amongst from each one those were or. some forty fifty, containing arpent grants in the located prairie to four by by forty, .forty, arpents immediately wegt Louis, then distance extending some village These lots extend westward the uniform north south of it. sides are parallelograms whose-opposite depth forty arpents, being and on the south, the north and east forty arpents length; four west from one arpents. arpent Í772, made,
Some time in de- above year survey scribed, Duralde, Martin authorized lots, these surveyor of St. Louis. post
Abofit that time a fence was established -on eastern boundary lots, above which them range separated village, what was no commons; called the there was division fence, nor fence on the the lots western were boundary; each contiguous other; held but each lot was and cultivated separately, separately, by who w'as its bound proprietor occupant, regulations the fence front of his lot of whatever number post, keep (or lots he occupied,) good repair. Duralde,
The so made were entered in a surveys book called the Livre Terrain. entered, the lots so the two surveyed lots in
Amongst described and bounded as in the declaration in question, this cause. entered, The so and the virtue of surveys grants made, were surveys solemnly affirmed recognised Don Piernas; lieutenant Pedro Spanish governor, prede- cessor, commandant, the French de Bellerive. S’Ange Terrain, Livre No. entry contains 2,p. of said *4 has grants and,surveys, printed by authority recognition to be -found in & congress, Gales Seaton’s American State I‘n vol. the Livre Terrein Papers, p. entry Gamache’s is called survey arpent, grantee “Joseph” Ga- mistake, mache. This was a as is shown by fully evidence in the cause. It is name that the conclusively proved Gamache, the was no John Gamache, and that such man grantee, as Baptiste “Jo- seph” Gamache, existed at that time Louisiana. in-Upper SUPREME COURT. Lucas.] defendant admits the record, Gamache, upon that the grantee, known as well
was name of John Gamache, and of Baptiste Gamache, as .Gamache; but Baptiste Joseph fact, proved Baptiste that his evidence, name Gamache, .is was John and none other.' after the
Immediately and-Gamacne, so made to Kiersereau grants of their lots, took the cul- possession respective and'commenced thereof, owners and tivation acknowledged by virtue proprietors, John surveys. Baptiste grants of-’said Gamache continued about and cultivate' until when Chan- January, Louis occupy and Rene Kiersereau about the year took until possession; cellier said Chancellier succeeded him in the occu- Louis 1780, when of his lot. continued in and cultivation Louis Chancellier pation lots, of both the same as and cultivation claiming these from the until 'his thereof by grantees, purchase original proprietor his death, Previous death, marriage in April, contract was between executed Dechairip, marriage Louise Marie Louise, communaute, Marie (partnership) said him law, between them. was enacted to the-Spanish accordin g Chancelliér, wid~w, Louis husband,.the said of her the death On communaute, in lawful under the was posses; of her rights virtue husband, and, conse- herself common -property sion June, On the 8th forty question. of the two árpentsby quently, moveable “of all the inventory property, 1785, an appraised - deceased, to the said is ascertained moveable, belong" was wife, Louise anct-to his Dona-' Dechamp,” Chancellier,) (Louis Francisco Don law, the lieutenant governor, in due-form Cruzat. are described question the-two arpents inventory,
In and a half “two of land bounds; that is say, arpents their metes.and the n on the land on the one side Bequette, hy bounded prairie, Bis- The names Louis Bijou, of Mr. Bijou.” land other by individual. to mean-the same and proved sonet, are admitted to the lieutenant June, Í785, petition presented 11th theOn of Tayon; pro- and Charles guardian widow said (cid:127)governor, and Marie Louis Chancellier son said infant perty Louise^ should sold “in possession,” said property praying an petition, on the same day, pursuance sale; and public wdt, the 12th made; day-following, of sale order *5 TERM, . v. [Strother Lucas.] June, 1785, Cruzat, the lieutenant to sell the governor, proceeded pro- did described sell a actually considerable perty inventory, other the two de- amongst property, arpents quantity-thereof; above, were sold and to the said scribed Marie Louise adjudicated Cba'ncellier, for-the sum one hundred and livres. fifty-five on thé was also sold the slave salé, Fidel, At the same day, same in said estate described one inventory, Hya- belonging St, for mo- security cinthe Cyr,'whose payment purchase thousand one hundred (two Chot.eau; was livres,) ney, August sale, former his mark in latter margin signing sign- in full name thereon. The first article sold was said Fidel, ing was and the sixth two sale declared arpents question. made widow, to have been at said “in whose dwelling pos- session are! said all (“bienes” means Spanish, goods,” June, 1785, order of the 14th “property” Afterwards,by generally). the sale was and the want suspended competent purchasers, balance to be unsold ordered delivered to the widow the valua- tion, on she condition that with the same final charged parti- tion between her and her son.
On June, 1786, the 8th the said widow petition" guar- dian, a was ordered to made between partition bé the widow and infant; an account and said was made, accordingly partition aqd that said widow was sum whereby one appears charged livres, hundred and .fifty-five two price being arpents by her at the sale of forty, by purchased' her husband’s It property. minor, that the balance to'the to six thou- appears coming amounting livres, three hundred and sous, sand seven six thirty-four deniers, to his over said Charles duly guardian; the sum paid Tayon, dollars, lots, three thousand one valued at hundred (including said to said widow. fifty-five livres,) duly paid "and made on This final the 13th settlement partition day -1787, in of the decree pursuance September, governor gene- date 25th ral, Miro, Don Estaban all which bearing February, the record. is set out at large .upon of a final
Thus it decree pursuance appears, Louis Louisiana, the widow of Chaneellier was authority supreme to be the lawful owner declared possessor adjudged arpents, this cause; said two bounded described the declaration made, and -final so and .that the settlement judgment partition SUPREME court. Lucas.] tavour of said Maria Louisa Chancellier, the 13th bears date day of. September,
In addition to the above Chan- proof title Marie Louise *6 evidence;— lots, cellier said two in plaintiff gave 1st. An authentic of Gamache,. deed between Jno. B. exchange and said Chancellier; Louis 1773, acknow- date bearing 23d«January, ¿f executed in lieutenant Piernas, .Don Pedro ledged-and presence of Gamache, as governor Louisiana; said Jno. B.' Upper whereby, of said oné the- northern forty original grantee ¿rpents, conveys half thereof to said in Chancellier, Louis exchange. 1781,
2d. deed, An authentic 6th acknowledged dated April,' Loui- Cruzat, Francisco lieutenant presence Upper governor Louis siana, said Marie Robillard whereby conveying Magdalene Jno. B. Chancellier, one bounded Béquette, arpent by forty, Kier- to Rene same Jno. B. arpent, being granted Gamache’s Kiersereau, the name of Rene sereau. In deed is signed this is men- witness, and his name also witness;” assisting party “ deed. tioned body other man the' existed that no than
It is in evidence grantee that Marie Kiersereau; of Rene and. of the name Louisiana Upper Robillard, this, the wife of said Rene. Besides Magdalene as is to this deed is Rene Kiersereau duly proved; of said signature that of deed, and also to of the 'lieutenant also that governor that said Rene Kiersereau It is fully Jno. B. Gamache. proved lot, from 1780; his year' or cultivate ceased occupy in the him succeeded possession immediately Louis Chancellier till stated, remained in and, as above thereof; cultivation death, April, Chancellier intermarried of Louis 1788, the widow In September, Charles, to St. about and removed Beauchamp, Joseph one the Missouri Louis, St. left river. from miles twenty banffof and wife St. of said Beauchamp time after removal Some who purchased Charles, St.’Cyr, same (about 1790,) Hyacinth entered of Louis Chancellier’s property, at the sale Fidel slave cultivation and commenced two arpents question, upon Louise; . which permission, of said Marie by permission the same her Louise, Marié said testimony .according testi- husband, Beauchamp: second Joseph said St. Cyr, of-said Hyacinth S.t. of Madame widow Cyr, mony TERM, 1838. y. Lucas.] and cultivate, and that St. odcupy said Cyr authorized syndic from Kiersereau and Gamache, his deeds husband her afterwards told her. as her. husband of those fence ’98, only forty arpent. the eastern-and
In 1797 wilderness, became unoccupied- down; and they lots fell again when 1808, some time year until body, uncultivated by them, and enclosed part took possession the defendant Cho- a deed thereof, under conveyance Augustus end eastern teau, Cyr, who security the.margin same signed as as before-stated. Chancellier’s of sale of property, record- 1812, the above two lots the act .1815, under congress In representatives original grantees; confirmed legal makes reference to confirmation, the recorder special 12, -which .in Terrein, 2, the..surveys No. pages Livre recorded. and Gamache Kiersereau favour 1, sect. the<29th April, .congress In by'-act are ratified. aforesaid confirmations *7 in a deed of from then evidence conveyance
The gave plaintiff of the two sons and heirs of John Gamache, survivor Augustus it in one estate, be, whatever Gamache, by forty might B. said his father, Gamache, his John B. to Basil to Laroque arpents granted Basil his wife. was the third Louise Laroque Marie Laroque Louise, the of Louis Marie widow Chancellier. said husband of in deeds ac- then evidence conveyance duly gave plaintiff Louise, and Marie the' from said Basil said Laroque knowledged F'. and a Strother, to from said two 'deed forty arpents George by to Strother plaintiff. case,.and closed his the defendant then in
Hére gave evidence: October, 1783, date same -¿feeds,
1st. Two day, 23d bearing to said Rene Kiersereau to be a by the one conveyance purporting one said St. by forty arpents said Hyacinth Cyr, granted- from Kiersereau; to be a deed Rene “Joseph” purporting the.other Gamache; Gamache, of the one aDd forty(cid:127) arpents granted deed is Batís Gamache. which X signed recited,
In both those it that for deeds several -years previous date said St. in and was then in Cyr possession, pos- of the-lots session in question.
The defendant then certain dated gave proceedings, evidence XII. —3 G
Von. SUPREME COURT. [Strothev Lucas.] 1801, in the matter of St. Hyacinth Cyr, which it. bankrupt; by sold property appears, amongst syndic that oc- “ casion, two land in first of St. arpents Louis, near the prairie tower, bounded by forty arpents depth, one side Bissonet, and on the other widow Mr. were adjudicated Hortiz/’ to, Mr. Choteau for twelve Auguste dollars. The defendant then evidence extracts from the gave proceed- commissioners, of which ings board said board .of defendant member; to be a was a confirmation of said purporting two arpents Choteau, as assigned-of by forty Hyacinth St. Auguste C.yr,. of said original assignee grantees. a deed, in evidence also dated
He gave 11th'January, Choteau wife to said said Auguste defendant,"-purporting fee, defendant, to said said two convey, “of árpente by forty; have been ceded forty arpents originally' Kiersereau, Rene been, forty other arpents to- originally Joseph ceded Gamache, the whole bounded a tract of land originally conceded B. and by John another tract conceded to Beguette, originally Bissonet; whole Louis to us, (the belonging said Choteau and of it wife,) having purchasers -at the sale- become .public of Mr. Hyacinth Cyr.” . The defendant then read certain extracts from jury the-pro- the board of commissioners, of which'he member; was a ceedings.of that the said' board met at appeared S't. Charles on the and held their session until there August, 3d the 8th of the same month year.
The defendant read an lastly extract from the record in. of a action an district judgment ejectment lots, in. States, the United court of which the said Daniel F. Strother was and said JohnB. Lucas defendant; and thére plaintiff, clósed in defence. case (cid:127) The *8 of extracts from the records- the plaintiff reply,-proved by (cid:127) that, commissioners,- of board the a of defendant was the. member board before Choteau his as of filed Auguste claim assignee of St. the and that while said claim Cyr, assignee original grantees; and before upon it, of any the board .pending, action of; still board, Lucas took member'of being convey- deed aforesaid, ll'th ance said January,.1808, from Auguste-Cho- teau. record,
It is admitted on the that the of Ken- is citizen plaintiff 1838. TERM,
[Strothejr v. 'Lucas.] are worth more than two in dispute and that the tucky, premises . dollars. thousand side, then moved each plaintiff ease closed being as follows: court instruct jury of before jury possession
1. That is evidence there owners Gamache, B. as absolute and John title Kiersereau Rene de- lots of the two described forty arpents proprietors claration.' That is evidence possession 2. jury there^ two forty as Chancellier, owner proprietor Louis said of said Rene Kiersereau and lots
arpents question, assignee .in Gamache, John B. respectively. the death after
3. is evidence possession That there’ actual Louise, said Marie -widow, Chancellier of' said Louis same as' absolute owner lots, two thereof. forty claiming arpents of Marie his title has established assignee That the plaintiff her her and Loipse estate and interest vested Chancellier, heirs, in and to the two forty arpents question.
5. That the deed' Auguste given enures wife, Louise, his Gamache to Bazil and Marie Laroque the benefit of the plaintiff. evidence, from the
6. That if the shall be of opinion jury of the lots St. obtained possession ques- Hyacinth Cyr originally Chancellier, tion, Louise, as tenant Marie the widow of Louis St. cultivate, to said virtue permission occupy St. Louis; possession Cyr, by syndic village,of obtained, law, the so shall be taken inas, Cyr, jury said Marie Louise. commissioners, on of the board of 7. That the confirmations could, member, was a 2 3d of which the defendant July, in favour most, United States as a only operate quit-claim and could not decide derivative question original grantees; title, under said original grantees. confirmation
8. That the described in the mere fact of the land Chote^u, evi- and the land described in the confirmation given identical, does not dence declaration being plaintiff, (cid:127)entitle the in his favour. defendant a verdict Ma- has accrued That no forfeiture or against disqualification her Chancellier, Louise, dame against Marie the widow Louis under, are barred she assigns, whereby act congress, *9 SUPREME COURT. v. Lucas.j lots equitable' in legal asserting rights question b,eforethis court.
Which instructions were the court. by given also that the moved be instructions following given to the jury:
1. That the sale, and final decree, which partition,-and certi- duly fied copies evidence beemgiven by plaintiff,-establish in of the Chancellier, title widow' Louis Madame Marie Louise Des .heirs, and her to the land described said sale Champs parti- .in sold and tion, her, as allotted which said land part'of consists the two in 'by described, the declaration bounded arpents forty by side, on the one John on the other. Bijou by Bequette B. 2. That the title of Rene'Kiersereau John independently sufficient, Gamache,
B. would be before the evidence there jury establish a title Louis by heirs, Chancellier prescription, Louise, heirs, her Marie his widow and to the two forty arpents described the declaration. St; took no title in and .Hyacinth Cyr by That prescription, lots,.
said ,of if the shall' be That St. opinion' Hyacinth jury, Cyr notice of the sale of said lots Louise to Marie by,the proper Spanish authority, evidence of said by given plaintiff; St. Hyacinth, said was not such as could be Cyr adverse arpents, Marie Louise, or could an estate prescription .create (cid:127) of said St. favour Cyr. 5. That if the shall from the jury opinion that St. n Cyr awas at. the purchaser sale'of'the public Louis ,his Chancellier, of his name, or made mark signed on purchaser sale; of said these facts are facie margin prima evidence that said Cyr had.notice said Marie Louise as purchaser said sale of the lots described, therein as sold to her.
6th. That the deeds in evidence the defendant from Rene Kiersereau, datedhe 23d of October, bearing 1793, conveyed nothing to St. Cyr; out of being person possession, con- whose veyance the same land another- Chancellier, person record, who, upon therefore, crime,of “Este- guilty lionato,” fine punishable by ánd banishment, law then Spanish force. 7th. That in evidence from. defendant Joseph deed,given Gamache Hyacinth St. dated Cyr, void, 23d October, TERM, 1838.
.JANUARY [Strother Lucas.] “ Gamache, Estelionato,” that he ground tile Batis supposing 2d, the deed: itself, in ground uncertainty de.ed .made *10 this, Gamache, that it to be a'deed'of and is Joseph purports signed Batis >4 Garriaehe. (cid:127) 8th. That Choteau- took no estate' in- Apguste by prescription either of said forty.arpent question. lots
9th. That there is.no evidence of ad whatever, possession, verse.or otherwise, Choteau, of two or of by forty lots, Auguste arpents said thereof: any, part
10th. shall be of from the if-the opinion, before jury That evidence them, that the said Choteau had notice' of Auguste sale' the,public said lots to Marie Chancellier, Madame Louise. or claim said under void, lots is fraüdúlent Hyacinth Cyr' as said Loüise and her against assigns. Marie- he.irs 11th. That the1 and sale certified'copy proceedings in, syndic the matter of St Hyacinth is .Cyr,'a bankrupt, evi- to either of the St,Cyr’s lots question, dence either.of that the same were sold said said syndic Choteau, Auguste said St. part'of Cyr’s property. n shown, 12th. That'the defendant has no title'by prescription (cid:127)the ór law, .civil statute's Spanish (in bar limitation^ under the plaintiff,) the lots Anglo-American question.. laws That title of the defeádaní, of Auguste Cho- assignee
..13th. feau,-is the fraud'which vitiated'by title of Choteau and vitiates St; Cyr..
14th. That the deed from ChoteaU Lucas, wife Auguste lots in 1808, dated is void question, fraud; 11th for if in January, the' it was a sale opinion to Lucas of .jury and.conv'eyahce .a and interest before said Lucas himself for pending adjudication. .claim if, the claim was opinion jury, That
15th- pending .the it, before' Lucas as commissioner when he the adjudication bought of.it the 23d the board of July, confirmation -com- missioners, of which member, Lucas-was and void at fraudulent ' law and equity. . 16th. That the statute 6f limitation, neither nor law Spánish Lucas, can avail the defendant, of' prescription independently St: possession- Cyr Choteau.
17th. orders of survey That defend- evidence ant,- and made and his^two by himself favour colleagues Choteau, June-10, fraudulent Auguste daté bearmg COURT. SUPREME ¡Lucas.] rStrother' v-. that the void; of'opinion -if shall from-the the-jury .be defend- sold said therein ordered be-surveyed-, claims and. order, While of said to the date ant said Chotead previ,ous defendant,-as said claims were adjudication pending'for commissioners, order pf of-the board in.said member "mentioned. resulted, . congress act. frdm-any That if effect 18th: .penal -representatives'of- and her or to Mád. Chancéllier assigns, lega.1 the. Kiprsereau January, the act Gamache; and J. B. congress Rene “ act entitled to the afct an further an entitled act supplemental 1831] in the terri- lands the claims to further provisions settling making thousand of-June,-one the thirteenth tory day passed Missouri/’ n eight-hundred twelve'; 'legal remits parties original such, b,ad no acts ever'been titles, as if penal rights and equitable in forcé. he is entitled-to ver- case made
19th: That by,plaintiff upon the two árpents in-'qüestion, dict forty situated part.of lots for.all *11 street, of 'ae-' arid lots east street, Louis, in St. all the west 7th 7th of as of above. to the^admissions defendant cording of the- is ordinance there no law or 20th. That in binding this case thpsé Madame claim- which Chancellier Spanish- government, by of the the state evi- her under deprived* according ing could.bé land in title she the in of whatever case, acquired dence' this' the made of it under' her -as tHe purchase property question,- her husband.. that St. Cyr. from the believe evidence
21st.'That .if the jury in.dis-' of the be in premises to cultivate.and actual-possession ceased favour, in his ceased run prescription from to. pute that, from that time.. of those who claim undér him the but the court refused instructions Which to-give; instructed first in instruction the relation matters referred iñ jury “- decree, final sale, refused: that and partition, above in evidence by certified have been copies record said Chancellier, title of Louis pro- did pass mentioned.in plaintiff, it death, sale, at as such as the time of his or such ceedings Louise, at time of said sale to Madame Marie was in heirs' hi? her, in said heirs to widow,-mentioned proceedings,.and .lands allotted sale and as sold-and described in said record of partition, her.” to the matters men-
And. instructed the relation further jury, should that if the tioned in the fifth instruction re'fused: above jury “ TERM, 1838. 423' ' v. Lincas.} that St. under whom the claims, be Cyr, was a opinion defendant at said sale said Louis public purchaser property- of Chancel- lier, name or did or .make his on the of the sign-.his margin mark facts, sale; of said' these or either of them, record proper for them to consider whether said St. ascertaining hád Cyr notice of the said title of -said Marie as Louise said sale purchaser sold, in the record the lots to her.” described thereof And further instructed the relation to jury matters referred “ 'to in eleventh above instruction that the refused: certified copy sale proceedings syndic estate fhe St. was not bankrupt, evidence of-a Cyr title to toCyr lots in either them.” question, in, further instructed
And relation tp the jury matters referred to in the twélfth ahove refused, instruction and to the statutes of “ limitation referred to that refused instruction: that the-defend- no ant- had shown in. nor. bar to question, any lots recovery statute or plaintiff’s statutes any limitation.” .And further instructed the in relation to the matters jury referred to in the sixteenth above refused: “that statute instruction limitation's could not avail defendant-Lucas,.either inde- with’or of the- of St. Cyr.” pendent And further instructed jury matters referred relation “
‘to instruction 'in refused: above eighteenth although the of. act 31st referred congress January, said re- fused mentioned, instruction-last does not remit the as .in penalties that refused instruction is-supposed by that in yet, fact plaintiff; results effect act no,penal bars or any stands congress way plaintiff’s action, recovery which in present manner affects his title, or. evidence of title, under, or to de- acts,, from said of them, under the *12 rived of the admissions in the case.” parties present for the counsel to the plaintiff excepted
. of the opinion court opihion the several instructions; as refusing give as to the well of the court in1 the instructions which giving did they give. the,court
The defendant then moved to instruct the as follows: jury -1st'.That if the from -the .find evidence that jury St. Hyaeinth Cyr, those-.lawfully him, under claiming the two- possessed for'.Gamachp arpents. forty, surveyed Kiersereau, without in- COURT. SUPREME Lucas.]. ['Strother thirty for years, prior and with claim of title consecutively, terruptión, recover in this action.1 not 'entitled 1818, the plaintiff tó evidence, fro,m Cyr, the that Hyacinth . find 2d. jury lithe -the",two' lots in the him, under possessed lawfully those claiming until to ahd consecutively, prior mentioned ten' declaration years, the lands 1810; Auguste. and-that 23d day of-July,' the confirmed men- lands in the'declaration the' sam'e on that are. day Choteau action; in this cannot recover tioned, the plaintiff 3d; defendant possessed If the find from evidence . jury consecu- mentioned for-ten1years, land in the lots'of declaration recover cannot October,-1818, 1st of plaintiff timely¡,prior in' this action. ' further to the court gave jury, instructions .Which be an must open “That the possession Instruction; mentioned that'if should such possession, add find they possession; notorious law; which under, and to the civil title Spanish according gave n was which the' date the treaty t)y force Louisiana at Upper in force' United.States; Louisiana was’acquired by remained of Mis- law of the district of Louisiana by any unabrogated October, a Thát down to late as possession period'as souri other, or the title, a would thirty years often give the-ónéperiod under ob-. possession circumstances That the ten tained. prescrip- years possession give-a would faith; title, must be made tive purchase good possession that the he and where believed pur- purchaser person whom title; á chased where the-owner good prescribed fiad in the ten same the said country years. during against That resided evidence, from' of St. if believe that the possession 'jury claims, under whom the under a obtained Cyr, pur- defendant faith, chase by him in belief good that-the per- under-the. title; whom he son of purchased' and that had a-good possession Choteau, under whom the defendant dbtáined in like claims, was manner, and under belief; made with add that th'e like purchase ,in mentioned the possession second, instruction asked for on and.that defendant; the-part said Marie Louise was country' Cannotrecover during ten‘years: in this action.”' . 'further instructed men-
And relation to the jury defendant, tioned third instruction for on asked part “that to make the possessionthere mentioned a bar:to the plaintiff’s *13 n TERM, 183S. v. Lucas.}. [Strother of the action, in the defendant must present possession recovery ,he-believed under a where have been obtained parchase, he had a title; .whom and that the said purchased good; person the said Louise was ten which, Marie country during years, cannot find for the believe, unless defendant such jury upon they possession.”
To opinion plaintiff excepted. motion, of his own further instructed Afterwards judge, as follows: jury said
That'the Louis Chanceffier possession heirs, his and afterwards widow, time his déath' to his passed Louise, under the said Marie her .purchase said at.the and Louis, of the estate of said that the sale possession public- be said Marie Louise would contin her and her presumed 'in the. shown; heirs, an was until adverse and woutu continue in possession heirs until an her, her adverse possession or assigns, actually taken. that if from the
And-further instructed should find jury; they St. or that said took was. possession; Qyr possession them, or- under the said Marie the lands any, controversy, tenant, held, his so taken or be Louise, or as her' possession, would a Louise, of the said Marie would be the possession posses- him or him,.under in St. those under C.yr,available by claiming sion that if the But, the law of should prescription jury mentioned. that said St. came land in Cyr possession of-opinion Louise; Marie or tenant of said under not as the controversy, her, title adverse to claim under claim and such adverse her, but a would constitute possession pre- .upon.which possession force, law to, referred then civil Spanish scription, him, him, and those would run favour claiming begin notorious; actual, that such such open, if St. commenced, would constitute1 said so preserve possession, the law of available under- heirs or possession, Cyr, assigns, of those de-- to, Cyr, referred notwithstanding prescription actual cease to him, title from leave the possession, should riving actual cultivate, possession, that abandonment if occupy return, cultivation, was with the intention with- occupancy, mental abandonment possession. out any should be of that if And further instructed jury, opinion under whom Kiersereau, evidence, from the that Rene parties H Von. XII. —3 SUPREME COURT. v. Lucas.] sale, did attest lot in
claim.,, which both controversy,, *14 casé, him, in claim under tlie present made parties,., alleged Reno Robillia to said Louis Chancellier, Marie by becoming by pn witness to the .ihstrUment sale iii be- 'evidence subscribing the and .to. be half of said Marie plaintiff, purporting by signed, of, and that Robillia, Rene Reno the-time .be- Kiprsereau, said at witness, such was the husband of said subscribing Marie coming the title would, said Rene Kierseréau Reno, presumed his sale, assent to said presumed the consideration ex- receipt instrument; Renno, in said husband of said Marie pressed as’.the of law, in said sale to That Louis presumption by pass Chanc.ellier." to a sale in a notary subscribing.witnesses writing, the such, or other-officer as are informed been- acting presumed contents of the s'ale; because, written instrument of the by to, Louisiana, law civil or which was Spanish in referred' force if the of bther officer to make' known to the duty notary witness, as well as to the the contents- of the parties, writing sider, attested and But coi they would that jury subscribed. evidence, case,, from the evidence, circumstances the,- Reno, Rene, said husband of whether Marie being -said if, did witness to become And instrument. subscribing they said be of he not, should that the opinion op did fraudulent,, same is. him, his title if That against passed by alleged sale. find that the title said -Rene did Kiersereau said jqry by pass Louis'-Chancellier, to said and that him, sale so acquired by. land the land derived by Gamáche,are also said lands mentioned in declaration; will said .the verdict they .find lands, for the those much plaintiff-for or so described thereof the ieclaration: unless find that the title been they has by lost under whom him, or those he by according claims prescription, already stated principles court And further instructed the that if from the should find jury, they evidence, mentioned, that the declaration, residue the-land thereof,, possession was in the part Louis at the Chancellier those; death, of his time that he had under "him claiming for thirty such find for years,- would consecutively, they residue, for such so unless find possessed; should plaintiff, that, so right, under an acquired^ lost prescription, possession, adverse stated. principles already 1838; TERM, v. Luoas.] Mr; was, Benton for The cáse Mr. argued plain Lawless Jones for defendant.* Mr.' Mr. Geyer tiff error: plaintiffs case., errors in this" In assignment’ support "counsel contended’: the lots in constituted grantees
1. That the. a'property question which was protected'and and their heirs assigns; guaran- tjhereof, cession’¿f tied Louisiana -bjfFrance treaty United' ' States. France That cession Louisiana by the date ofth’e treaty 2. United, title offthe vested, lots States,-the. Question to-the Chancellier; who. Louise, Louis order, in Marie widow highest died in April, has not lots, only respectively, original grant That .the *15 far Louisq, order, in vested, been title of the Marie as- highest by - while Louisiana, in title said could be supreme power by'the given (sinee- the been confirmed government a of but by has province Spain; their, repre- arid said; legál
of United States grantees the original sentative?. States,'the the.United of confirmation by 4..-That date said.' at'the ,of true Chancellier, was-the Louise, said Marie the widow Louis of said grantees.. the original assignee legal.representative graptees the Marie -Louise of original 5. That title of Said is now' vested 'in the fully plaintiff. Louise, of Marie ás title of assignee plaintiff, That.the widow, i'n has' Chancellier, fully of Bouis lots been question, and has cause; in this out made and established by the defendant,’either- showing rebutted by invalidated’or . in a title or him better title'under by showing original grantees, :thé or esta- escheat; or limitation,. forfeiture, Or by prescription, to that plaintiff, adverse blishing any other Mr; of Court: delivered opinion Bald,WIN Justice plaintiff the district Mis- in. court The’ an brought ejectment * arguments Messrs. reporter been most with The has furnished kindly been prepared, by has plaintiff, Mr.' the counsel which Benton, for.the (cid:127)Lawless ¿nd.intention to insert it wish Ability learning. was his great It Lawless case, in time. defendant the'report argument for had he received ;” will where also Appendix argument, the- will be found “ completion -the before defendant, it bb argument found for the should received volume. 42s. court. supreme; [Strother Lucas.] souri, to laud, recover of two tracts pieces possession formerly Of common field lots and now city adjacent village, part .the g Louis; verdict and defendant, rendered' for the St. judgment on' which writ of error The whole merits plaintiff brought of the case us, have been before the whole evidence brodght trial; at -.the asked, refused, or instructions forty-three [given, interest, out in record; which spread present great case well in reference as the value controversy, decision.’ involved its principles necessarily Both Kiersereau, Gamache; claim under and JohnB. Rene parties each whom were in lots, one these possession very early after' period 1764, of. Louis in while the’founding village Louisiana was under the dominion she had ceded though France, it to two secret Spain Fontainebleau. years treaty took Spain from which time province 1769— 1800; she held till it she ceded it to France in the laws of Spain were it, established in but title of those had received who grants local authorities, ór settlements, made either villages domain, public before the actual surrender of the province 'France, respected. appears, Accordingly instrument was between the executed French following Spanish, found in 3d Am. State governors, Papers Yol. —Public Lands, ahd is of the tenor purport following: Translation of a C., French marked the third document published
volume of the Lands, American State Papers p. 676,‘truly —Public ahd me, Greenhow, trans- and written Robert faithfully lator of in the' state of the United foreign languages department *16 26, 1838. Washington, February, States. — me, Durálde, formed Martin Cadastre* by surveyor, appointed Mons. Don by Piernas, Pedro of and lieutenant captain infantry, establishments other of governor Spanish dejpendeneies of of the said Illinois, archives government' deposited 'in form' to to government serve proces-verbal, designate of tracts of to the inhabit various larid of in the name king granted .the ants tbis verbal of St. post Louis; by as well title by [deed] consent; foundation chiefs from the by who them have governed * by Note quantity the translator.—A of the. is an statement official cadastre district, justly apportioning value real any purpose made for the payable the taxes property. such G.—R. TERM, v.' Lucas.] to moment, this I which have government] surveyed; and [of sales which,' after cessions or which exchanges, may them, for the convenience or each advantage person, are in the named, hereinafter actually persons agreeably attestations and to their Own reciprocal situated acknowledgments, this same in the order and prairies contiguous post, the directions detailed as follows:- n Í attest it thus my by signature, unanimous acknow of all abovementioned assembled at ledgments proprietors, moment,'with Sr. said Don approbation Pedro my Piernas, in chamber -to serve mutual witnesses, government, and to fact, affirm the some their the others, from not signatures, being able to declarations in of Messrs. Don presence Pedro sign, Piernas, abovementioned and Don lieutenant-governor, Lotus St retired de-Bellerive, and first Ange captain predecessor command of this said latter, both to wit: post, serving, his certify by in ‘his said and in virtue signature, quality, power confided to him, that he had either granted verbally Jhe above- [deed] lands, mentioned in the of his name (the majesty king France); Piernas,1 Sr. likewise, confirm my approve, ratify in -his actual.character of signature, governor, lieutenant whereby he is with the same provided power granting pos [conceder] be sessions allowed to -said Sieur de by my St. good [accordées]* (cid:127) cadastre, of this I Ange,'and specified body deposite, pages present, sixty-eight writing, including containing in.the of this archives forever, be there góvernment, and to preserved uses, serve for the assurance, of all authenticity testimony forth, Louis, set St. in the twenty-third May, therein one thoúsand seven hundred year seventy-two. Duralde,
M. Amable Guyon, Liyuest, Laclede Sarpy, n Dodie, Cotte, - St. Conde, A. Ange, Rene Pedro Eiersereau, Piehnas. Beequet. Leduc, . M. P. T. B. C. L. T. Louis, January.7, 2.N. Book Terreyi, extract from Livre
True * accorder, grants conceder means to the translator. —The French Note w.ord one, acknowledging or has grant among significations, many appears .true; context, such and from the proposition good be declaring R. G-. paper here its translated. sense *17 court;.' .430 SUPREME v, [St/óther Lucas.] act, lots to most solemn were made the surveys Pursuant and Kiersereau Gamache, by, and possessed by claimed respectively bf and entered record on land'book surveyor, public .of bf the lots in they-continued quiet enjoyment from province; law's,. to thd time, held them previously they'' according that' - n usages, of the France, while ./the government customs ’under n the Illinois. province in The ’claims under controversy right' premises Gamache, of 'Kiersereau and chaiii of title: following Rubellar, from 178Í, á deed made Marie Magdalena By IV one of 'Kiersereau, Chancejlier,- wife bf to Louis Rpne conveying one, containing lots in owned Kiersereau,) question, fay (being one front, which, as the by.forty plaintiff alleged, arpent'in depth; witness, his an' -whereby right.passéd assisting Kiersereau force in wife, .of to the law-of his' Spain, grantee livres; eighty four hundred- ecjual consideration was province.-'. dollars. , Chanc'ellier mademu.1773, 2. deed of between ,By exchange, , one-half Gamache, the latter to'the whereby conveyed former ,one-haif„ back, in lot, in'front forty exchange his being arpept from, which'Chan- ox; and for an 'a Half same depth, appent,,by cellier had: owned before. in the' deeds were executed in the
Both hall-of government, The witnesses him. by. local’governor, signed presence latter were; hf.Duralde, "the of assistance surveyor general, Alvarez, the witnesses to. a'sergeántin former, garrison'; deed, aá named were, assistance 'clause conducing - Gueircero,” in the- Rene attestation,££ Rene Kirgeaux,” Louis Rover.. ’ , from, heirs, Gamache, fhp: 3i conveying By deed one apd Chahcellfer,) Madame Basil (formerly Laroque Marie Louise to. for lot, half of Gamache’s con- arid right remainining June,. of one'dollar. 1827. sideration bears This-deed date.-22d March, 1827, and .deeds wife, from By Laroque-and 182S, two Strother, arpents. September, George’F.. conveying Kiersereau, and Gamache, claimed by forty,, fight she Chancellieiyin- dollars; of three 'consideration hundred ' ’ F, Strother, .deed F. Strother By Daniel George dated .1827,' in controversy plaintiff, premises July; conveying -dollars; him hundred three consideratiori
JANUARY TÉRM, 1838. *18 [Strother Lucas.] The title of and wife is deduced: thus Laroque Louis Chancellier took possession lots to him conveyed tneip- before, and his death,'in cultivated till 1785; when, held by.a in, before judicial his proceeding .the lieutenant governor, ca- judicial in conducted with pacity, laws conformity whole Spain, estate of inventoried, Chancellier was sworn apprised by ap- was, which-was, that final praisers; adjudication result in 1787 was him and the by by parties' governor, signed concerned, real who consented thereto. By adjudication, of,his estate of Chancellier, debts,-was after the personal payment between his child, divided widow and their- to the' only laws the one distribution'in were province; a-half arpents to allotted one to livres, the widow at hundred and fifty-five, equal dollars, thirty-one for-the cents arpents, being fifty-one per sixty was-also, livres, at half to-her arpent-: arpent equal eight allotted one, dollar, to cents cents sixty twenty, arpejits, eight being acre, which is a little Of per-arpent; the English -more than four-fifths between them as one .hundred proportion being the'former of the latter. eighty-five Madame two or’8, Chancellier married about again in. n after
a-half-years death, Chancellier’s removed and immediately her about Charles, with one husband,' village Beauchamp, twenty-five or twenty miles from where St.-Louis; she-continued -reside, about claim to: the 1818: lots,-till without-making any no suit till thepresent recover brought possession-thereof -and in.the, claim, his her between the' prosecuted under case right, ,6 same in parties, Peters, 763. reported, for the raised present, the a question
Waiving, consideration- trial, Gueircero, at the the real whether Rene or Rene .-Kirgeaux, the, Kiersereau, part and true of the' property owner Rene rightful gr clearly in controversy parties, person,,yre another between 1787, in Chancelliér, opinion, that Madaíne good arpents Kiersereau, twtenty owned forty arpents formerly, by and the arid Chanc'elliei, right, stich conveyed Gamáehé by4 exchange (cid:127) such the laws Spain, prescribed tenure.as-was- and the that considered; we which will be province, hereafter cannot'now of .the .¡the local validity acts question governor, those whether here- his or for reasons acting political judicial capacity, .to after be given.
As written Gamaehe, .to is'ho twenty held there by. arpents COURT. SUPREME v. Lucas.] thereto was whole ever or conveyed evidence right part, claims; whom any person plaintiff, he found in the record, nor is other evidence any there'to Chancellier, unless thereto in it may right We1find in the mere of his es- claim. inventory appraisement that the wheat, then tate, valued sixty arpents dollars, livres, one hundred six hundred equal twenty dollars the twenty two per arpent, crop .and ground; livres, dollars, at fifteen three valued or fifteen equal cents ar.pents, also that the whole' allotted arpent; arpents were per eighty fo is, widow, This undoubtedly, adjudication final Cbancellier, a claim and its the local recognition authorities, of its so far existence, extends, rightful coinpetent *19 below, But, for the court and for we consider. the jury, present, Chancellier, take these and shall any by proceedings, possession se, to the title of to the divest Gamache .lawful per operating, such as it was under the laws of of twenty the acts' arpents, Spain, local, authorities, and his and cultivation possession the pursuant Whether there is in the record which -can- thereto. effect, that will be matter future it consideration, should for. deemed important. de- title, Thus to state that of the We taking plaintiff's proceed who fendant, who, claims under and in of St. Hyacinth Cyr, right lots, took of the two and continued to culti- about 1788, possession ten till 179S, 99, the front thereof for when consecutive years, vate the lots till fence remained-open having .been destroyed, 1808. of a sale Madame-Chancellier-to claimed in'virtue parol by St. Cyr his him the delivered to after the him, adjudication, officer, the common field lots with supervision.of local charged laws, customs, to the' its and local usages village; agreeably n with laws conformably Spain, uninterrupted together as aforesaid. cultivation 2; other, Gamache, from deeds, KiersereaU, two one from By found October,. 1793, dated both among great both originals, 2.3d and country, the ancient of the delivered deeds in archives number after the cession of St. county, over to the recorder Louis handed of, and both presence -by executed parties, 1803, of as- witnesses two attestation signed governor, with a Owned Each deed lot by the., grantor, conveys sistance. been in St. .possession clause warranty, reciting' Cyr havihg 1838. TERM, 433 v.-Luc.as.] for, that of Kiersereaú the consideration of five years; being several Gamache, for twenty-five, three hundred hundred to one iivres;. dollars for sixty-five both'. equal hundred on the Land Book, 3. the re By following containing entries the'official for Rene Kiersereau, “1793, St. sur.vey Cyr, cord on the Gamache, Arpent;’’ and following survey “Joseph 1793; is, St. name of Gamache Cyr, instead Arpent; Baptiste, entries must be denote, taken that.St. then Joseph/’.-which Cyr the lots claimed for whom the parties surveys, original - were.made recorded. St. aBy judicial proceeding against Cyr,-as-a bankrupt, the lieutenant in his governor, capacity, judicial lots seized,' sworn 'at appraised appraisers two a,s dollars, Choteau, ten of St. sold'to Auguste Cyr, door, church at the mass, at the for high conclusion' dol- twelve -in at the current- peltries lars/payable price, -1802; Tor April, one which- The whole Sanguinet security. proceeding in was executed-in the sale,; of the-witnesses presence of'assistance; one wpom suryeyor .general; appraisers, Cyr, 'syn die, and the lieutenant who all governor,, signed proceedings. thé By board commissioners of the proceedings .United States, Missouri., land in 1809, for titlés adjusting appears-that'Choteau filed'his claim these lots in 1806, St; to the acts of as the Cyr, congress, assignee assignee Kiersereaú, of.Rene Gamache. He Joseph produced board the concessions thé samé, ih Livre registered Terrein, plots survéys, deeds Kiersereaú and copies Ga- *20 mache, to St. awith certified Cyr, the bank- copy of. proceeding ruptcy him, which became the .against purchaser the Choteau lots’; two and that .board, Mr. Pénrosé consisting and,Bates, confirmed the to.C.hpteau, lots. to the-recorded according, surveys in the Land Book, No. 2, folio 11. .a deed from to the'defendant,’ By dqted Auguste Choteau him the two lots in for the
January, conveying Con- question, of. four hundred and dollars. fifty sideration 7; By confirmation1of and claims titles town or rights,- lots, out village lots, aqd lots, common field commons,1 or adjoining to the belonging town of ..Louais, others, have been which inhabited, cultivated, or possessed, to the 20th prior December, Vor. XII. —31 COURT, SUPREME v., Lucas.] to-their inhabitants several thereof,'according right-or rights
in. common thereto.
S. the actual of the two By lots the de- continued-possession fendant, trial,, from 1808 till-the as then admitted-by plaintiff arose below as to iden-
Waiving present question of the tity Gamache in 1793, with conveyed Cyr Sf. who' Gamache ownpr' lot, who' was the of-the account of-the name .of on. Gamache,” deed-, and the “Joseph being granting part of .the mark foot, Gamache” at the with the mark of “Baptiste Hyacinth' Sb. as has done relation to similar objection Cyr, Chancéllier, deed from M. in 1781; we are Robillar deafly, M. of the that' the title of defendant be held valid opinion; must' unless the has sustained thereto, some plaintiff .by objections case, law, a's they evidence, facts appeared which the must on instructions the court be táken founded, to be is matter,-to which a reference subject as.thé necessarily the counsel in the below. court
When this cause was -before us in on 1832, it was' decided case, as made out -trial; on' the the defendant offered plaintiff no, neither evidence; or Could decido court'did on rights as on the written and parties, may' depend parol record, evidence, for consideration in the record. Had presentéd present 'this case been identical with former, merits, we should háve the deliberate therein; followed delivered but opinion' as one is -not judgment on the of either ejectment conclusive right posses- sion or in che has a premises controversy, plaintiff right - suit; new and the court must considér the bring case,'.even if it with,the is in all identical respects former: hold they may though otherwise, it'to be decided It opinion therein'given. when the second case' presents defendant’s matters right, law fact, óf material do its-decision; .not "the-record appearing before; then becomes the of the Court to all décide duty pertinent on the record, in the same as if questions manner arising case before came them for time, the first such' save .'arise identical as to the merits. case, In this we deem it a peculiar duty, us case, the nature of the the course of the upon enjoined able learned colonies,'in as to-the law-of and her arguments its Spain on the bearing us; with a interesting question view together of our consequences final decision thereon. Were we to leave ojc any questions undecided arise fairly record, on the de- *21 TERM, v. Lucas.] minor Value only, importance on points the' cide Cause which courtof future no litigation; chancery would justify premises material so and facts could long think to'enjoin new .might proper unsettled. be remained points law or.pertinent developed, m rela- consideration'of imperious' consequence There is another claimed virtue public private tion rights-of property deeds, or informal formal of sales by grants,,, judicial-process,, time, alone, for or by possession long writings parol agreements, those, new and and all the country; especially flourishing, parts of held under the' when originally property most emphatically, and all, in such a above and government; laws 'foreign usages a case this. sales, which, before us of the record judicial By title, both and transfer vendee possesr admitted laws Spain, which, lapse fifty-one years sion after virtue adjudication, n after .other, must, bf the sale, and we every such thirty-seven "one - -in take, absolute all' of law verity things as-importing
.principle It it to be suffer record;- ap-: contained -in not questioned. such bf was sold thereof,, a'record Chancellier pears by right and of St. cent's; for Cyr,in dollars thirty-two sixty of both sales dollars; only forty-four twelve the aggregate being in this cents, sum, dollars' printing sufficient sixty pay is, or be What case. value may premises.now of.the' future* all láw of- this is the known; well be but as the law of case' cannot duty arise, similar now it is our plain which may ones existing, law it on such That while we do as" enjoins, decide principle. due effect give respect-ancient-titles, posséssion appropriation, ánd local laws, and to the acts, general presumptions, lawful legal do not her-colonies; we adjudge usages, Spain customs tc vest, acts incompetent title to in either rests on. party,, whom the- to. that transfer, party-in hold in- opposition property, rules and land, and established exists, prin- the laws of the right its transmission-and vest enjoy- ciples, regulate ment. situated formerly part state which premises France, who then France, first of next territory, Spain, full 1803, in
ceded
to the United States
treaty
propriety,
.2
it;
Peters,
and held
dominion,
as she
acquired
sovereignty
itself,
former
301, &c.: which
place
'by
put
government
to subject
all their rights,
became
sovereigns,
invested
SUFREME COURT
*22
v. Lucas.]
4
9
512;
the
Peters,
Peters,
to
inhabitants.
concomitant obligations
335,
Both
Peters,
726, 732, 736.
330,
10
734;
regulated
nations,
are
the law
rights
property
whicn
held
even in
and
sacred
case
country,
conquered
protected,
is ceded
with or without
and
when it
treaty,
any
inviolable
laws,'
or
effect;
and the
whether
such
writing,
stipulation
in.
ceded coun
customs
or
and-
conquered
usage
evidenced
new
Wheat.
altered
force
continue
till
try,
sovereign. 8
87; 8
535;
Peters,
Peters,
Every country both and. local usage law of a those generalato people, especially conquered which-the one, ceded .with- than laws, to their written ding tenacity more all The of Kent contended with the' sovereigns'respect people them.. till he .confirmed their local conqueror customs and England, continue, tepure,’which to this affords no history day; instance where the submitted to people abrogation without strug in Louisiana, thé'Case when found that gle; the-laws. France thé custom of Were Paris about to those superseded Partid, 1 White, vide Spain; preface; authority of be better principle es'hblished by.
No can. Court, than that whom a officer, the acts an to duty public .“ his within of that assigned by are duty, sphere prima king, facia taken to be rests, within his “The on principles power.”. CQURT. SUPREME.
438
v. Lucas.]
reason,
founded m
to
law
evér
be suc
too
to be
deeply
believed
He who would controvert
assailed..
grant
cessfully
executed
law;
the. solemnities
takes
with- all
required
'authority,
lawful
that
officer has
.of
transcended
burthen
showing,
Himself the
is' tainted with
him, or that the transaction
conferred upon
powers
134, 734-5;
6
Peters,
Peters,
9
S. P.
8 Peters,452-3-5, 464;
fraud/’
&c.;
Paine,
10
S. P. 1
The
Peters, 331;
469 — 70.'
cited:
and cases
of local officer?,
to
proceedings
páss
applies
judicial
same rule
the course and
practice
Spanish
according
land
act
440 SUPREME v. Lucas.] {Strother :cannot how demand stipulation'afforded,.and this security; All his other grounds. farther and concessions additional authorities, territories, in the ceded his lawful- catholic majesty, Peters, 463, 8 qession had not been as as valid if. made.” áre 88. 741-2; Peters, 6 7 734; Peters, Peters, .By 9P.,S. 464; intér alia, was a inhabitants 1803, there stipulation that treaty in free be maintained ánd shall territory protected of the ceded and the of their property, liberty, religion profess; enjoyment of this CoUrt. which, this is the language “(cid:127) inviolability security among That the perfect 10 133; S. P., Peters, 9 all will assert and maintain.” these rights, to be 718, 722, 736. -was considered*as Peters, property, What Smith, held the United States was,-as this stipulation, “ whether, case, -in the oh court depénd question, rules, tó its and the laws consider could, Spain, .according equity own, liis to be so affected ..the acts conscience king he had a trus-. become the-province, of-.the lawful authorities for, -it, and held the an claimant, equity upon tee land'claimed 'of, his to, domain, so much from -severance amounting Missouri, and the March, 18Q4, 1818,'in 24th January, 10th of in one (of case, the law Florida; periods congress) fixed S. 331, 722, 36, othér.” P. Peters, in the treaty It;is to-consider, in order were the laws to' next what Spain domain-, Louisiana, »f- while she it. the royal held disposition ordained,-for' reasons set By royal-ordinance it-.is 1. That from' date thereof, forth preamble;' power lands, for uncultivated selling parts sub-delegates appointing dominions-, shall local au exclusively the. belong king’s . 8 Peters, colonies- 451. officers 2.'The thorities,, being. lands, for officers to whom' the sale of shall be sub-dele jurisdiction mildness, with moderation, shall.proceed gentleness, gated, verbal, the .case lands possessed judicial proceeding, .not the-Indians, or labour, they may require for tillage,-&c. - In to the communities, 3. lands of and those to the regárd granted no common, towns be made; shall pasturage' change shall be maintained in. them-; towns shall seized, 'those be.-résto:éd, and their extent to -the of-the wants enlarged accdrding used, nor shall severe strictness towards those population;' persons -of who possession according requirements laws. (Those lands, who been in acts have' not con- possession. TERM, *26 , . [Strother Lucas.] retain free thereof without mo- firmed may If warrants, lestation. not have their persons proof long posses- be sion shall held have not they prescription. a. If' lands, be or cultivated the three months shall whatever given, tiipe be be that if fail sufficient,; notice shall may they thought given, the-lands, to cultivate shall be to those shall who they lodge thereof, theip. information' under the sainé condition cultivating White’s 51. Comp. conditions, be for
Town's founded ..which de- may prescribed 34, 59. founder shall finite rewards are -White’s The Comp. given.. settlement, who each building grant person joins .contract' he cultivation, lots and and land's to .what for pastures, proportionate mar- White, 62. A town ten will No! improve. containing agree men, with an to what stipu- ried extent territory proportioned offi- alcaldes, and lated, themselves, elect-from ordinary may among White, cers the council. No. 63. The territory granted.to out. of a be shall settlement, founder shall thus distributed. They lay exidor, sufficient town, for the site necessary the. maybe whatever much inhabitants, and and abundant for the cattle of the pasture theOf ba- shall to the town besides for proprias.. belong one-fourth, three-fourths tract, founder to lance of have and. The lots No. 66. White, the settlers. to be divided equally among those ad- settlers, lot be distributed among.the beginning to be reserved king, main the remainder square, joining will, and otherwise, at his plot as rewards to new settlers give shall be White, Commons No. 67. the settlement-to made out. cultivation, in tracts equal the remainder laid out -for reserved, and ' If White, No. 70. lot. lots,-to be drawn by to the town in number term of the settlement accident should completion prevent and the forfeiture shall incur no penalty,, prescribed, settlers to the cir- of the district extend term may governor be distributed' shall White, of the case. No. 73. There cumstances size lands, lots varying villages, settlers among and labour- merit, and after living to their rank and extent, according own property. as their them four sell years, they therein may ing if ope settlement, lands White, No. No have shall persons former, and their left another, lands in unless have they possess four the first residence, or resided new removed'to relin- fee simple right, to entitle them to the necessary years White, No. 75. obligations. it for fulfilled their having quished K XII. —3 Von.
442 SUPREME COURT. v! [Str.other Lucas.]
The lots shall be built the houses upon, occupied, arable lands divided, cleared, worked those planted, destined for pasture, stocked time, within a limited or the shall be grants forfeited, with a White, No. penalty. distribution shall be made go vernors, under the advice of the council White, No. villages. 78, (Vide Document All to whom lands 1772.) shall be distri buted, shall, within take months, &c., three possession, penalty that it land., be vacated and forfeited to forfeiting may some settler; other so as to the settlements and improvements they may hold within White, No.'81; also, Partidas, 123; (Vide villages. Partidas, 338, 339, 373, 440.)* * Definition of regimiento, alcaldes, regidor, Spanish empire &c. in the laws *27 of the Indies. In the laws, administration of the matters, in and and regulation civil the criminal of the.police, the Spanish territories of the empire of the Indies were divided settled a sections, extent; number of differing into in placed royal over each of which was a officer,'appointed for a period by supreme limited the council of the Indies. The larger provinces, sections were termed or more “properly gobernaciones govern- or ments, superintended and were by governors, many parts in were also com- who mandants captains and general, that say, military political is to and exercising Tbe,sections sway. extent, of importance, lesser but often of great comprising from capital some or other large city, were corregimientos, termed and their chiefs were called corregidors. The important separate smallest or least of jurisdictions these placed were under the of an mayor. places direction alcalde In in resided which an audiencia, high or president court of the justice, the was sometimes administrator in chief of police. the and lav? administration, The capitals divisions, of generally .seats or of these the were laigest them, towns in every in almost instance the section took its which name. In every capital of jurisdiction, ayuntamiento a a council the or called cabildo; is, cabildo, the.ayuntamiento council, place the strictly speaking, the and the of its meeting; are, however, the indifferently convey two both signi- words used fications. municipal This of a composed, place, council was in the first number of re- gidores, ; twelve, never composed the officeof exceeding regimiento regidor who the life; was held supreme for say, pleasure the of the during authority; is places most purchased; it cities, however, regidores some the were chosen persons district, of-the vote, styled who capitulares. were .allowed to and In were places in governor resided, which no years, for or regidores .chose two one .two persons who were employ ordinarios, not in the government, of the as alcaldes or magistrates who held their justice courts and all the cases in administered a governor decide; could except had seats ayuntamiento, "nd votes in the when governor a or corregidor happened present. of the The chief district had a seat, but rid voice in the ayuntamiento; alfarez, bearer, right the standard or had of a pre-eminent place and a vote. ayuntamiento Thus the or governor, cabildo óf the or alcalde corregidor consisted mayor of place, alfarez, ordinarios, body regimiento, alcaldes or regidores.
The word
does
official
syndick
or
appear
recapilacion
compilation
TERM,
'
Lucas.]
'
what lands
For
purpose
ascertaining
belonged'
(king,
of; land
it
that the
should
was ordered
owners
officers
exhibit
Spanish
The
dictionary
academy,
laws of
Indies.
French authors
care,
jurisprudence,
defining
person
on
to mean the
agree
charged
with the
de-,
France,
fence,
community.
interests of a
present,'
advancement of the
In
property
bankrupt,
holds the-
le
styled
trustee who
is
syndic.
n
propios n p'roprios,
With-regard to the
or
egidas
words
or
exidos
and fepesas.
Spanish America,
portions
When a
founded in
town was
certain
fermed
ground
town,
propios,
laid off and
as
of the
for
reserved
the unaiienable
the'
markets; &ci, or to
purpose
public buildings,
way,
be used in
other
erecting
any
for the
under the
advancement
direction
the municipality
the"'revenues
-were,also
spaces
the vicinity,
prosperity
place.
There
reserved
certain
depesas:
ground
pasturage,
were called
public
for
vacant
commons
spaces
uses,
exorcise,
general
corn or'other
thrashing
for
for
The
called.exidos.
hand,
depesas
one
and the
propios
exidos
difference between
other,
specific
appro-
purposes,
not be
the latter were
could
was.that
intended
priated
others;
propios, to
municipality
might
while the
convert
uses
convenient,
judge
which it
most
should
respect
ground
fanegas
called
huebras.
With
to the measures
authority
on the
academy,
highest
signifi*.
mere
djctionáry
Spanish
ground
as
as a
fanega
fanega
cation of
defines a
to mean much
thatlanguage,
words
(a
half)
and a
wheat will
equivalent to
than a bushel
serve
measure
a little more
sow;
(or
equal
to four hundred estadales
it is generally
adding that
considered
Cambist,
spaces
square. Kelly,
fanega
Spanish feet)
in his
makes
eleven
of.
about
equal
square yards, or
an acre and
fanegada
hundred
five thousand five
third.
as much
dictionary
being
ground
two
designated by
The huebra
same
up
day.
can
in a
plough
oxen
give my translation of the lav'
only
I can
subject
and/peonias,
On the
of caballerías
(cid:127)
defining them.
4th,
12th,
Reeapüacion
Leyes de Indias.
1st,
Law
Title
Book
Translation
fe
Madrid;17&l.
*28
to
assigned
and
be
to
Indians
are
be
to new settlers
lands and lots
to
That
-
caballería;
Valladolid,
V.
Fernando
in
them;
and
by peonía
and
meant
what are
JO.
Carlos,
28th
on the
1513,
emperor, D.
18,
9th,
Chap. I. The
August
June
and
Philip
Second,
in his
May,
D.
June,
Toledo on
19th of
1525.
and in
Toledo,
25th,
May
1596.
chapter
Instructions
Indies,
and
and settlement
encourage
discovery
our
to
vassals
order
In
which
desire
convenience
we
them]:
that comfort and
may
[for
with
they
that
live
may be
peonias
and
lands,
and
caballerías
will,
houses, building-lots,
our
that
It is
villages' and towns
óf
lands in the
new
assigned
may
all who
as settlers
be
to
go
shall
settlement, making a distinc-
by the
new
they
governor
may be directed
to
degree
worth;
and
labourers,
lesser
and those of
gentlemen
family, and
tion between
quality, according
and in
to
be
extent
[houses,
may
increased in
these
and that
&c.]
to the.
cultivation
they may attend
settlers,
order that
of such
the services
on
and
thése
.cattle;
dwelt
laboured
they
have
and after
"shall
soil,
raising
and to
-power,
years,
grant
we
four
them
in the said settlements
resided
[houses,
and
&c.]
as their
them,
own will
agreeably to their
use
and' otherwise
thenceforward, to sell
COURT,
SUFREME
v. Luoas.]
to lands,' estates, huts,
for
their
titles
and
thé. purpose
appointed
such as hold the
cabellerias; who, after
possession.of
confirming
titles, or
a
same
virtue'of
just
good
legal
prescription,
No. 84. Officérs were ordered
to
restore the remainder.
shall
with
to
admitted to
acts of their
alter the
lands
regard
predecessors
the holders thereof in
and.
leave
possession;
quiet
composition,
encroached,
held more than
en-
who
they
and those
have
are
(cid:127)
be
moderate
and new
shall
allowed' to
a
to,
composition,
titled
pay
be
them.- Where titles to land
is-
titles shall
have been
issued
authorized, and
officers who were not
confirmed
sued by
letters of confirmation
council,
holders of
are ordered to re-
in their
them,'
tain
that
be confirmed
within
they may
as
their
and,
encroachments
limits
regards
beyond
prescribed;
N°-
of this
to the benefits
law.
limits,
entitled
one,
cannot be
any
which the
ták'en
Those
king gives
things
else,
the-
or
one
withdut some fault of his;
from'him
any
king,
as' of
will,
of them at his
other
shall
he
dispose
things belonging
to,
of a
White, 82, No.
When the
him.
regidores
justices
quality,
or
agreeably
governor
may-
bwn
and likewise
whoever
property;
them, in
Indians to
the distribution
may
a’ssign
he
faculty,
hold our
shall]
[or
service,
of the term of
may make,
they may
order that
avail themselves
and-the
Indians, according
arid
established.
proficienciesof
to the rates
rules
such
subject
104,105
on the
Settlements.
Thesame Ordinance
may
of the lands
be
happen
assignment
-that in the
may possibly
And as it
there
peonia comprises
fifty
a lot
feet
that a
regard
doubts
We declare
measures:
wide,
of land
cultivation wheat
fanegas
a hundred
for
long;
and á hundred
eight
planting
á
for
com;
garden,
land for
barley;
huebras of
ten
Indian
two
cows,
landj
sows,
pasture
breeding
twenty
for ten
ground
growing
trees
drier
o.ther
is to consist of a lot
horses,
sheep,
twenty goats.
a
A caballería
hundred
five
respects equal to
and in all other
five
long,
one
hundred
hundred feet wide
two
peonías;
say,
ground
for cultivation wheat
fanegas
that is to
hundred
five
garden; forty
grow-
for other trees
barley,
corn;
huebras of land
fifty of Indian
ten
co.ws,
barrep
sows, a hundred
land;
fifty breeding
ing
ground for
pasture
more
order, that the
goats. And
tWenty horses,
and a hundred
we
sheep,
five hundred
good,
may participate in the
assignment
fprm',
that
so
all
portion be allotted to
neither,
tó
each.
regards
and in that
middling,
which is
peonia
portion
a
means
Spanish academy,
According to
dictionary
war;
conquered in a
and caballería
taken,
granted
spoils
to a
or lands
foot-soldierof
law it would
pbrtion
By
soldier.
above
granted
occasions
a horse
such
to be'
(escuderos)
allowed
seem,
arms
gentlemen
persons
entitled
bear
soldiers.
.foot
degree
were to share
horseman,
persons
share of a
lower
quantity
measure, without-any
appears
strictly
to be
reference
fanega
huebra.
and-so does
ground;
seed to be
sown
*29
'
1838.
445
TERM,
n v. Lucas.]
haye
make
made, and continue
"or
ordinances
town,
city,
village,'
functionaries,
and
and superintendents'of
for their officers
limits
which are
matters
as for other
and commons in
country,
the auditors
(or capitulores,)
and
resort of
regidores,
judiciary
therein,
interfere
and In
exeept by appeal,
are
and alcaldes
be made of
No
shall
83.
.White,
case of
the.rights,
damages.
grants
and all
revenues, or
domains
thereof
grants
yillages;
municipal
Congress, villages, extent, went justly wisely perhaps, pówers, their for the all security claim providing private rights, directing board, their before a to file claims ants appointed specially adjust to lands. had and Settle all claims another They view conflicting what so States, to ascertain United object; belonged important , made; the settled in that sales could be safely country peace, to disturb titles not either ancient permitted posses dormant their sion; holders.the valuable improvements -by give cities, or the sites built up, by purchasers, Peters, find, we va vicie.10 Accordingly enterprise; limited; after acts, the time such claim rious filing void, so ás act declared far they depend any congress; court, any not be received against per and shall from the United States. Story, son claiming grant *32 1260, 1301. 1061, 1216, limitations, for to acts of are. laws recording
These analogous for to awards of commissioners effect the settling deeds, giving of the time manner states; the and under the laws of land claims to on the sound them, to the depend and exceptions their operation, titles, the the to the nature of of the discretion legislature, calls [heir the which of the country, emergency situation to adop- led the sound have policy general Reasons enactment.' of be cannot validity ques- of both laws tion of descriptions, be may of a law occur, where the Cases may provisions tioned. these but courts; of the for the under such to call as interposition been uni- Peters, 3 289—90. They not. Vide consideration do 537-39-43, 601— 528-29, Court, in 12 Wh. formly by approved Peters, 90 Peters, 771-72; ought 7 2; passim; 1838. TERM; v. Lucas.] decision, in all cases to of as considered .'(cid:127)rules they settled appty- must, we case, written law of the -the. next reviewed Having' law can ¡unwritten the examiné'what was the place, appear ¡record, in the as to from the custom or evidence only usage, most solemn áct fuero, and is most manifest. l..'In the by . of all the officers the two in presence government, governors, and recorded with all of the together proceedings village, people with the in book of the it at district, surveys under the,land large, were, will What those entered on proceedings sixty-eight- pages. referred to document .copies in in.‘general, appear book, lot, in relation to.eách contained entries in land from the th.e in the In the deeds executed record. 2. presence selected to attest the witnesses of assistance specially governor, were called attest the the common law sale'; livery as by entries of the 244, &c.; 8 Cr. names feoffment, on a seisin sold, property margin survey purchasers land book-of the recorded village. in a ca-
3. In by the-governor judicial adjudications Chancellier and St. of the a sale Cyr, by pacity, making record, in the and most out at set solemnly process, length judicial attested. doubt,.that record, beyond showing By the authorities has an
there universal political acquiescence of the district; of the council officers village, municipal inhabitants, acts, well as the in all these quiet pos- testified The document session'held that year under themi of the titles be considered as ancient only muniment the. of the but as an conclusive authentic and- recogn:tion villagers, relation, custom, facts, local to some important illustrating- with the local law the when taken connection testimony place, of the witnesses. the- clause,
IA solemn “to serve act there is this designate .(of name land, Spain) tracts king various granted the inhabitants of Stl as well Louis, (deed) this post-of them from the foun- consent, verbal the chiefs who have governed In to acts dation this -moment.”. (of alluding government) France, clause; is this done under the territory governor virtue “the latter to in his said quality, certify by signature, either, title, confided that he power him, granted, Vox.. XII. —3 L *33 COURT.. SUPREME
450 (cid:127) Laicas.] abovementioried lands verbally, name of his (deed) ma- (the France): king jesty” attests' the of'
This the word grant, both meaning govern,- ments, ones, to be inclusive verbal which were valid as equally deed-; and as the title ,the from the passed those king people so we find thé this uncontradicted way, testimony several that it from witnesses, one another the same passed with- way, when the land was of small It value. also, out writing, appears, evidence, that there was an in the called officer village, and in inhabitants a- syndick, Spanish rcgidore; l^ws were,- and authority to see that the duty common whose fences n forty,arpen-t lots were He would kept direct to be them repair.¡ and if were found would out direct the inspected; repair, lot, in front of which it defective, was the' owner to make of.the the.ownpp if Would journey,, repairs: syndick made, and make the owner .his share return; on his pay repairs he would the land to otherwise who. wdüld give, person, another share fence: make .the n awas Thus of the com regulation villages, by authority, . authorities, municipal mandant with the laws of conformity 10, Peters, 725, it 31; vide as well to' Spain; ¿pplied pro villagei domain; and it large royal grants .to perty appears by that, Morales, froip O’Reilley, Gáyoso, regulations 1770 in-1803, till the cession -universal application throughout White, 216, . Louisiana: passim. laws, were the
Such .customs Spain, relation usages transfers and There tenure remains grants, village property. must be case, other one rule unless the applied evi- . record, in the which was not former, dence in the present lead may result; a different we mean the of this Court, opinion .case between same Vide Pe parties, claiming same property. ters, 763, 7. instructions
Before we on which has as- plaintiff- consider.the 'errors, his decided in case be taken in points will the’ signed of the learned who delivered- the- judge, opinion order C.ourt. Kiersereau, On the who, Rene handwriting identity to, was one of the the 'deed alleged, witnesses.of-assistance Robillar, wife, M. Chan.cellier, from-M. to Louis as to thé which was court below rejected'certain'depositions, assigned overruled, “Thé,record error;' and the for this reason: objection TERM, 1838. *34 Luc;as..] [Strother was the called dogs that upon'to express any opinion; show judge not jor'that of the>deed; effect and the to the operátioñ with legal respect of its the full benefit his deed. not (Kierser.ea.ffs) being the' of the indeed, trial, would from course that it seem it was And; n the does or, events, at ail considered;' contrary appear so to the 6'Peter's, on the 768. Court subject.” any presented question ’ now, as was question then, Had same we presented- the an entire should concurrence not havé hesitated.to expressed it now a new state but as comes viéw;' facts, it de- up with On that a, occurs, further'consideration; as similar especially question serves 179,3. who to Gamache, conveyed to-the idgntityof Cyr as that similar, Both are so taken may they questions together of fact. -2. Of 1. As law. two aspects. questions Rene Kierseréau was -the It is admitted that owner of one of. is as on document of 1772, to apparent controversy, the lots is.affixed-gs ofOne "his name eleven inhabitants,-including'the which officers municipal who .village, political governor, names, to evidence, could write contained which* same-, he was the two Whether fifty, .and persons. hundred person wife, -the the deed from his we‘shall (as who was witness to as- .and lot, was fact for the of'the pure sume,) grantor question jury, it,was that as to the on the whole so on subject; identity Gamache, admission on as following whom.there' admitted,that Gamache, record. “It for whom also was Joseph land, of one'of the one was arpents, made, tracts by forty survey known, óf Gamache, the name and of as well Jean Baptiste also Gamache;” which Gamáche; as Joseph- appears Baptiste (cid:127) X Gamache, Mark of JOhn Joseph deed Chaneellier. Baptiste ¡x¡Gamache Batis in his Gamache, in the the land book. survey deed Gamache, margin St.’Cyr) survey. Baptiste to the Before court could' instruction jury, give any. n “ must have be'en Kiersereau, Gamache, they either identity satisfied, in (the parol) that that .was-nothing there evi- subject, therefrom,” infer dence, lawfully or. fact jury'could lots. If of the respective were or were not the owners fact, “the Court any evidence conduced prove was. there exclusive province- must it is' the it to have been proved; assume evidence,” by competent decide what facts are thé-jury tp proved of their witnesses, and weight judge credibility on. relied fact “As or less to testimony, prove tending more SUPREME COURT. ' y. Lucas.] interfere, matters which the could not were these court asked, must on the depend opinion right instruction favour of court, defendant, finding jury, the. "any aon. evidence conduced matter which the prove, credence giving .full- him, and witnesses produced by discrediting'those' of v. Burnett, Peters, S. P. U. 52; S. v. plaintiff. Ewing Laub, 1838, 12 Peters. fact, In this that neither one of en question case]'we-think the' exécuted,.th.e in which deeds
tirely;
manner
Chaneellier,
one;
and held'uriderthem
and'St.
taken
Cyr, of.tibe
other;,
authorities, and
its
of. the
notoriety
people
village*
to..the
*35
com-,
with the nature of the
the-situation and
of
state
possession,
lots,
mon
cultivation within one
enclosure,
common
.field
with,
the’,
other
.police,
.circumstances of
.special
regulated
523;
case;
11 Peters;
Vide
incline us
to this
’strongly
conclusion.
after this
of
of
That
lapse
time,
legal presumption
Of.
validity
-
,
deeds,
attach
maxim,
both
would
long-pos-,
that
favour of
session
every
ancient
-which was
appropriation,
done
thing
shall
been
doné;
have
it
presumed
rightfully
does riot
though'
done,
will
that
appear to
law
was-
presume
whatever
760,
has/been done. 2 Peters,
cases
necessary,
cited.'
n The
ease,'was on
next’point-decided
former
an objection
counsel,
made by
defendants
that thé
had-riot
plaintiff
such á
title as to
an
sustain
;
ejectment
overruled.'
legal
Peters,
which-was
6
768;
And
think
in-accordance with the lead
very'properly,
we.
case
3
Irvine,
425, 54;
of
Dall.
Lessee
ing
Simmes’.
the authority
remains,
It
was
that the
unquestioned.
confirmation
objected
of.
of
the board
to Choteau,
void, because
the de
commissioners
was
ope
was
the time
board,
of the
fendant
and cláimed.the property
Choteau,
from
deed
before.the
.it
confirmation; was
overruled,
did
it
not
that he sat at
because
the' board at
appear
the time.'
Ib.
The same
has been-much
objection
now; with
ad
pressed
that
reason,
the defendant was
a.
ditional
also
the superior
judge
but as
territory;
court
the'record.show
confirmations
not
he was
that
we
present,-and
think the
objection
law;
good
concur with the decision of this
fully
we
in-the
point
former. Gase.
as,
evidence
recapitulating
in the then
appeared
record,
After
court-observedFrom
.the,
statement-of
case,
-the
own
there is
plaintiff’s
showing,
.deduction
title or
a-regular
claim
whom
from
the lots were
persons
to'.-the de*»
surveyed
TERM, 1838.
v. Lucas.]
But it
fendant.
Kiérsereau and
appears
persons,
these
Gamache,
twice;
claim-
(Gamache
sold their
the first place, to
one-half)
whom the
Chancellier,
claims;
Louis
under
plaintiff
in the second
whom the
under
defendant
If
claims.
Cyr,
these title
place
to- be considered,
-were
acts of
papers
independent
congress,
the.
commissioners,
and the
proceedings
plaintiff being prioi;
would
so far as
time,
point
prevail
deduc-
depended upon
title,
tion
.independent
question
paper
possession.
“It becomes
therefore,
how far the
necessary,
acts
con-
inquire
to, and affect
these title
The
apply
any part
gress
papers.”
.'Court
then,
1807,
the acts of 1805 and
the evidencé,
referring
held,
was no
that as there
that-Madame Chancellier had
evidence
eveb
her claim,
thereof,
filed
or the
law,
and the
pursuant
instruction
the court
of,
on the
complained
effect
con-
firmation
law;
it;
could derive no
plaintiff
benefit
By oi the recorder Story, *36 land-titles was with. invested same and to powers, enjoined per form duties, the same as- the board of commissioners, (which was then in relation to claims which before thf dissolved,) he.'filed might and-, been, 1st December, 1812; which have the claims heretofore filed, but not acted on de commissioners; that all his except cisions shall be subject to the of revision He was direct congress. ed .the of office, commissioner- the land á list all such report claims, with the-substance in thereof, evidence his support áríd such remarks as hé opinion, think to be laid before may, proper, sessiqn.', at their the act-of the time congress By next filing . claims 1306, 1384-5, was extended-to 1st 1814 2 January, Story, under which acts tlie1 made the confirmations -relied on by recorder November, 1815, the 1st plaintiff which liras confirmed-by 2d sec. of the act 1816. 3 1604. But thése confirmations Story, cannot avail the as a acts Under -these or other any claimant COURT. SUPREME
454 v. .Lucas.] [Sfrothér 1; That the of 'the authority for the reasons: following .of'congress, of 1812 acts titles was, by land express-terms recorder board1 commis- on which ’13, confined' to' claims and those acted; that’after’the it/óllows, from which sioners h'ad riot previously claim, of a. the ac- made a confirmation specific commissioners of, arid so inoperative; merely.cumulative, tion recorder-is'either void, an as adverse, assumption usurpation or'-if merely power be .a action must he in a case on which not jurisdiction, jhad identical decided Here commissioners-had mér.e’nullíty. confirmation 10-; made'a claim all general congress'had 180&— title to the corii- Louis, of of the then inhabitants of St.' claims -their there- an -1812, lots when defendant moii field inhabitant the act of, controversy; actual possession those to- confirmed-claims an.y it .that it should provided, was. not-affect -madé, to be thereof were directed plots lánds. the -same Surveys land recorder made,out, oifice transmitted'to general no the act directed further'steps 1257-8. As Story,' land titles. and the recorder thenceforth taken, td.be title -becamecomplete, lots, save over' perform have any-power confirmed chased as the duties of his ordinary ministerial acts directed bylaw; any it did Him could, authority If never give office. congréss the,commissioners, acts supervise .either confirmations ‘ of the law. defendant,-as one 'must, 2. -We then,take the holding premises , - States, the United a from"1 contrqversy by grant of the all the laws grantee, protection appropriate entitled Liter, of this Court, case. The unanswerable Green reasoning author founded, 'the on which with the admitted law it.is principles received, refer with which has been save ity. necessity any 'the 8 Cr. 244-49. That a ence to other source for its any grant support. law, law-, bé a is un well as a a may patént pursuant all doubted, 128; Cr. and a confirmation is as law, fully to intents and a' as if' it contained -in terms a fife purposes grant grant, two within th'e novo.. plaintiff, therefore,-is-brought provisions laws; filed her claim Chancellier having Madame. law, withiri the'time limited set claim she could not any ..by up or be any any-act permitted give thereof congress, Slates, court, from the United person having grant agáinst the act of 1812. commissioners, under the confirmation *37 him of 1831- released contended, has that the act has plaintiff TERMj 1838. 455 > Lucas], and all these act con imposed by any from provisions, penalties act to the act confirmation of June, supplement gress. .This 1257-8; of which '1812; 2 the first section the titles of Story, were confirmed inhabitants their or according private right rights, thereto, 2d section, as has been Stated all in cdmmon By before. field included in town, lots, and common out, surveys,' therein direeted, owned or claimed by individual, or held any rightfully not to the or common, towns or belonging villages, Reserved were .'reserved military purpo.sesl towns'and .president vil In order to for the schools. ascertain what lages support lots.were uals, the recorder owned or claimed by-individ the 8th section filed act on claims 1st December,'1813, empowered as-has before filed and seen,,and undecided. those The time for pre claims was such the ac*s enlarged,by senting of-April further 1814; 29—30;and certain Story, confirmations were made 14 acts., those Undér by- authority recorder- congress in the 3d State vol. which,appears Papers report, JAnds, —Public 'His confirmed 2d proceedings by the. section P¡ ,3 1816; 1604—5. Then comes the actoTApril, Story, act of Í831,tlie enacted, of which first States section “That United do"relinquish Bonis, &,c., to the of St. all inhabitants their right, and interest, lots, out lbts, common lots, the town field village commons in, to the towns and belonging adjoining, villages, confirmed to thém, of 1812; act to be held respectively, inhabitants' -full to their several therein,.to -property,'according rights (.be regu of for inhabitants, lated or the use disposed section, laws Missouri.-” second -By. United States relin title, and interest,-in quished the town, out, right, compion lots, Missouri, -field in the state of reservéd for schools by 1812; the act of. that the same shall be sold provided or disposed manner, "pf,'or for the in such regulated purposes, be di may Sa.me state. rected-by It is legislature Story, ob mos^ that this so vious from far confirmation of act, tAe Opening commis 1809-10, sioners, the act of 1812,' or relieving plaintiffs from’ thereof, is a effect new confirmation of the private of the inhabitants, and cannot aid common-rights plaintiff; of this case do purposes requirevus any,further give conside reasoris, .For.these we feel constrained to come to the Same ration. record, on .this conclusion which the Court did on the former; can neither benefit any act of congress, *38 COURT. SUPREME 4^6 (cid:127) v. Lucas.] claim, defendant, ox his by grant claiming against give p United from the States. (cid:127) cage was, in the former that next The position Court her claim till must -be 1818, Chancellier slept upon Madame having it; which'we not as only entirely’ having abandoned considered but clearer then, now, still this assent, .by. appeared as point, the trial, was.testified at that'Madame Chancellier hew It evidence. the two lots St. of. sale of credibility made a Cyr; had verbal ,the of his were matters exclu witness, testimony, .and weight that not find for say we did for the cannot sively jury;- evidence, it to' was,competent' oh that defendant conducing ground; fact; fact if found the that '.and the accordingly, we jury prove must, as we that the consequences.' Assuming, its consider only immaterial, established, it is whether such sale fact' of such sale is when taken in was, connexion-with the not; title or .passed if theuase, evidence, other conclusive powerful circumstances had abandoned as well the as.the to the lots that she possession right either; the intention to reclaim that without St. in controversy* Cyr faith, and faith held took.and possession good good pur .Gamache, which he do lawfully from Kiersereau might chased fact, If it was a then continued 'title. posses-' to complete defendant; entitled latter to all the of St. and the Cyr sioh benefit whether of or ten of the Spanish, prescription, thirty, twenty, law laid, down, as rules taken from the years, Recapi Partidas, White, 68-9. The destruction lacion and com lots, 1798-9; common was a fence field sufficient mon Choteau, not for St. the actual excuse Oyrmr continuing possession lots, of their until the ‘other owners would in re and cultivation join 18Ó4, The the fence. with the government building, change titles, -reason for the lots .uncertainty consequent leaving .Was that,there overlooked; not to be was no actual or ought open, well have been-found Cy.r, might intended abandonment by 1801; him, sale to Choteau in or from jury, judicial in-1808. On facts, these the sale defendant the laws Spain continued, 1808; would consider from 1798 to possession Court have if the of this opinions' bearing question abandonment, of a title, legal possession, presumption, rightful 8 Liter, &c.; Gratz, those in Green 244, to be found v. Barr v. Cr. Peters, 233; Pawlett, 4 480, 504-6; 4 Wh. Pr. Soc. v. Clark 513; Peters, 354-5; well, 5 6 Peters, v. v. Ho Barclay Courtney, TERM, 1838. 457 v. [Strother Lucas.] 743; Pearl, U. ib. Ellicott v. Arredondo, Peters, 442; S. 10 v. Ewing S.U. Mitchell Bernet, Peters, 3; 734-5, v. 9 Peters, 760; 51; Peters, 718-19, New The U. S. &c. are full most Orleans v. conclusive.
The much on have relied that St. plaintiffs Cyr took the.allegation, Chancellier, as the tenant of Madame her husband, that he an should keep Beauchamp, up agreement the fence while only evidence he'occupied lots.
fact was in- her in which -she stated it in testimony, her general cross-examination, stated terms: her she told Beauchamp so; her the court directed her evi *39 whereupon, jury reject is not, .did not material; dence. Whether the were they jury so.or not her; her; not believe and'we bound credit cannbt they might 50, did, Peters, that or hold that 51. they ought. presume which evidence, is fact in leads same another the There results. into trial, It at the that St. was testified was. Cyr put by the fence the -because the regulations, syndic, pursuant village of death Chancellier'. 'The were had not been after up jury .the kept we fact; from their must that óf this and. presume the finding, jüdges qf it the law be -that no taint and hold accordingly; was proved, he bad tn conduct of St. notice Cyr, by any faith can attach the may of Madame-Chancellier; had of title or claim was con the title, should hold it" the with her that she sistent established vil by tenure, which were regulations, municipal, lage subject autho of laws, rized the arid customs the It country by place. usages, evident, to a lot, is law which a title fee gave village that.the house,'neither did or could continued four residence years for lot, used to a coriamón'field cultivation' only apply pasturage, owner could no from his the derive mere.right advantage which fence did not cornmon if the owners property, keep.the adjoining it. That such" Regulations syndic repair, pay doing orders, written law Spain; royal authorized by were séén; that use, fuero, the unwritten law has custom custom, that in- valid; such and customs were local.usage usages law the relation municipal regulations, villages '.of but equally only, metropolis the.province,- binding able- and unanimous law; the local is' established by clearly States, 10 Court, of this New Orleans v. The opinion United Peters, 712, 724, 716, in the former the'Court
Another laid down principle case. Von, M XII. — SUPREME 458' COURT. [Strother v-Lucas.] “ that the our^entirevappr,obation; law of-the-case;
meets justice out of such so possession; with length manifestly growing below, ih the court if we look at.the whole evidence judgment feel record, that'we most on in- disposed favourable give the court-” Peters, instructions terpretations but one There remains other Court their point, gave in the former case, was then opinion by.the .plaintiffs case, counsel and has been Argument, in this .urged strongly "use, the confirmation of the that plaintiff’s commissioners enured The reasons for this are, that assigned position, the-only object acts of to' ascertain what congress being had been ac- individuals before cession, were.to quired commissioners claims, act only original confirming right original, leave, owner, to between, the derivative him right under entirely open The Court adverse claimants. before of this vieW opinion that be sustained; and we are now of case could'not opinion, inconsistent with all it is acts which have congress, organized boards commissioners titles, .of land proceedings fo.r.’adjusting board, and laws which have confirmed them. these it is laws that the
By provided, original grant shall be recorded; but other all and deeds shall.be conveyances deposited deeds, recorder of them laid register .to ' Vide 2 967, 968. Story, commissioners. The same provision in the numerous on this contained laws are noticed subject,’which, *40 reviewed 12 Court; and in'.the opinions, Wheat. 525 to 718, Peters, &c.; 6 543; Peters, 89, 90, &c.; 7 that this showing between the distinction and evidence to’ original derivative'rights been land, has observed uniformly by the congress, Court.- 'of the commissioners. are-to the confirmations present'case made and who claim them; proved and from the person boards, of all the published the State Papers, reports —Public ,3 it Lands, vol. has done, been passim; the acts con uniformly them, have been in terms of reference to gress,- general confirming aVide 1410, reports. 1430; 3 1604. Story, such It Would Story, whole of these laws, defeat the. and introduce infinite public object mischief, to decide that we he commis by the.-confirmations who-claim, sioners to those de Congress, by expressly titles, did not to operate rivative own.use. their that, seen, has-been the confirmation of lots It titles to.village “ Missouri, 2 1257, 1258, is,' in to Story, tile inhabi- express.terms, TERM, 1838, v. Lucas.] “ to their tants right .of village,” according rights several So in- the lots confirmed the act of by- Common thereto.” of the said “to be held the inhabitants towns and act by to their in full several therein.” property, villages rights construction; one and if 'we admit but re- These laws necessarily terms, face, on their their manifest gard object effects of the intended counsel evidently position plaintiff’s congress, untenable. utterly asked We the instructions now proGeed-to consider court, as as those .well and'refused ..modifications given on the those and those court prayer by plaintiff, given asked ' of the defendant. instructions, Plaintiff’s n decree, to the and final relative sale, estate partition, Tfiát of his wife Chancellier, premises established title but instructed the that refused; which the court jpry, controversy, was, Chancellier, as it vested thereto, the title such they passed well founded think'there'can be no her; we to.,which objection, as new decree'could such a as a operate no law-was produced If none vendee. the. existed a'right in. grant was a of an sold, it existing whose-estate was so transfer person .as not an title;' and in its nature effect original grant.. Gamache, there
2. That Edérsereau independent to establish title- was by pre- sufficient evidence before jury not heirs; which instruction-could in Chancellier arid his scription on the to decide jury given usurping provincé without was Peters, No instruction sufficiency'of evidence. asked, was, therefore, Onei pro-, its asked as competency; refused. perly a mixed This St,
3. That took no title by Cyr prescription. such instruction would .of law fact: have given question was no fact court, such an by. assumption there would St evidence, have brought from inferrible legally only There within the law Cyr prescription. must,take we suph facts but finding, jury, him, usage sale -cus- Madame Chancellier parol him in to put possesr tom of the syndic authorize village, into .thereto, so be- sion; was, possession, and that he put pursuant *41 which, of pre- facts to his possession-the protection would-give scription. COURT. SUPREME Lucas.] that St. had noticé of sale to
4. If the opinion Cyr jury Chancellier, adverse, his could not be or an Madame possession her, If St. from estate in Cyr purchased' him prescription. default the lots on account of her iñ not was into piit course, matter fence, notice of her claim was a repairing could not his by possession, subsequent purchase impair right from and Gamache. Kiersereau
5. if at the sale of Chancellier’s That St. was Cyr purchaser thereof, these estate, or name or mark as such on the his put margin title; her evidence, facie that he had notice of facts are prima for the answered, that this was evidence jury which court proper in- notice, and refused consider, whether he had deciding facts asked; on the which we think was correct. But struction as imma- instruction, was wholly to under the third notice referred taint his with fraud. terial, as it could not purchase who deed from Kiersereau to St. Cyr, That the record, Chancellier, conveyed nothing on deed conveyed estellionato, him', crime and that the penalties is made The law, were thereby, objection incurred. Spanish same 8. That the'deed Gamache; pur- St. to the deed to Cyr Gamache-¡xj'his and was Batis to be deed of ported Joseph, signed mark. such court, in their refusing facts fully justify foregoing deed from
instrqction deeds; and as to the the effect both for the Gamache, the fact was one of identity jury; only question instructions. reason's 8th, to the 9th and 10th equally apply was no 11. That the sale property, by-the syndic Cyr’s made. The first lots, evidence such sale the. for the reasons and' part given instruction properly, given, refused, because first instruction; the latter was properly part -is, se, record, war.a one per proceeding judicial 8 Pe- of the faets forth, set now be called cannot question. ters, 308',.3l0. case, and 16.- facts These instructions depend and could with the province without interfering part the court jury; favourably charged the 12th bar no title or 16th; that defendant' had shown under-the act of limitation. plantiff the,
14,15 official and 17. founded instructions were These *42 TERM, v. Lucas.] [Strother re- to, before defendant alluded situation and properly the the case. fused undfer decision of court in the former noticed, 18th The instruction is founded on the act for the reasons the which heretofore could avail given, plaintiff; and asked,; he cannot of the refusal it as of the court complain give as did instruct' the that from no effect resulted they jury, penal n act of bars or re- which in the congress, stands way plaintiff’s it would covery, have been of- an though by good ground exception defendant, the had a been him. verdict found against instructions, 19th, The 20th and 21st on court’ the depended the. that facts relied on the established assuming, by plaintiff were the evidence, 'and from the the what taking deciding jury right facts were proved; the court were to in- therefore refusing right struct as requested. defendant, the and instructions asked by the court, cause, were founded on the re- to the him; under lating possession those Cyr, claiming the consequent of the defendant as a to the bar right by prescription, plaintiff’s We think right they were recovery. fully justified the evidence, laid with the down the especially qualifications court, toas and of of such the title under possession, nature held, was in their instruction to which.it further appears jury. “ That must be an and notorious mentioned possession open pos- session', and that if should find such possession, they gave under, law, was in civil forcé Spanish Louisiana at the date of the Upper Louisianawas„ treaty States, the United and remained force and acquired by unabro- or of law of the district of Louisiana Missouri, down to .gated by any as late' October, 1818. That of ten or a.périod possession title, would or the thirty other, a the one accord- years give period under which the was ing possession circumstances obtained. a title, Thát the ten which would years’ give possession prescriptive faith, must under a made and where possess'on good purchase whom had a that the he believed purchaser person purchased title, re- owner of the title where thfe prescribed against good if the sided in the said ten That years. same country during under evidence, that the St. Cyr, 'believe jury possession,of made cláifns, whom the was obtained under purchase defendant bim of whom that faith, under the -belief persons good Chótéau, title, he had a- and that the possession purchased, good manner obtained in like claims, under whom the defendant COURT. '463 SUPREME v. Lucas.] belief, that like .the a.purchase under for mentioned inrthe second asked instruction part possession defendant, the coun- and-that Louise (cid:127)of IMfarie recpver said ten' in. this .cannot years, try during. action.”' men- in relation to the further jury, possession
And instructed the defendant: instruction asked in ihe.third tioned part there mentioned bar to the'plaintiff’s “that to make possession a. defendant must action, present recovery Of pbtained where that the he believed purchase, .said title, whom he had a purchased good .person *43 which,' the said ten the country years; during Marie Louise such believe, can'not for the defendant upon unless they jury find possession. laws, be -in of with the conformity appear, Spain, These rules of in Mr. White’s the books as'extracted authority from established laid down stricter 71; and.this has' never p. Co.urt Compilation, ones, on they strict questions prescription, perhaps as. of the rules law. have-decided common instructions no to have.been To the exception appears remaining, cannot, therefore, be considered: were made taken, -and .they not- trial, a motion for a new and are error. cognizable.in subject ' is affirmed, of the court below The consequently judgment Costs. Justice
Mr. Catron: court to instruct as follows:— moved jury .the. plaintiff is there before the That evidence possession jury Kiersereau, and as*absolute owners Gama'che, Jno. B. Rene two described lots forty proprietors arpent .decla-
ration. is and title
That of the evidence there possession jury ar- Chancellier, of Louis owner of the two as forty proprietor Kiersereau, lots in as said Rfene and said pent question, assignee Gamache, J. B. respectively.
That of the there evidence after death possession, actual said of said widow, Louise, his two Chancellier, Louis said Marie lots, thereof. forty same as absolute owner arpent claiming of Marie established his title as assignee has Tha^. TERM, v. Lucas.] ’ yested Chancellier, to the and interest estate' Louise her her in and to the two heirs, forty arpents question. the deed from Ga-
'That- given by plaintiff, Auguste, Louise; wife, Bazil Marie Laroque mache enures to henefit plaintiff. . evidence, if the shall
That from the opinion, jury Hya- St. obtained the lots in Cyr possession cinth originally question, Louise,' of Marie Chancellier, tenant the widow of or.by- Louis cultivate, of a to -said virtue permission St. occupy given Cyr of St. Louis, syndic. possession village Cyr ¿s shall be in law so obtained’ taken jury said Marie Louise. commissioners', of the board of
That confirmations July, 33d a-member,-could- which the defendant at most only claim the United States favour operate quit origi- a. and could not decide of derivative title question nal grantees, grantees. original fact of land the mere. described in the That confirmation land Choteau, and the in the' confirmation described evi- declaration, and the identical, does not dence by plaintiff, being defendant to verdict his favour. entitle the no forfeiture or has accrued That Madame disqualification against of Louis Louise, the widow Chancellier her Marie against assigns, act she are barred as- whereby under any congress; *44 lots in before equitable question legal rights serting this court. the court.
Which by instructions given Instructions asked refused court. by plaintiff, partly by. decree, That the-sale and and final 1st. partition, duly have been certified in- by establish copies given plaintiff, evidence Chancellier, the-title of the of Louis Madame widow Marie Louise ip described heirs, and her said sale arid Deschamps, the-land her; sold and which said land allotted consists partitionfas part described, declaration two by forty arpents bounded-by B. othei. side, oh the one on the J.' Bisdu, Bequette, by Kiersereau, of the title of Rene 2d. and J. That B. independently Garnache, there would be sufficient evidence to esta- jury blish a in- Chancellier and his heirs, Louis and' by prescription Louise, widow, Marie his her heirs,'.to two forty arpents de- scribed the declaration. SUPREME COURT. Lucas.] in and took no title
3d. That Cyr by prescription Hyacinth'St. lots. said shall be of that St. 4th. That if the Hyacinth Cyr jury opinion Louise, of the sale said lots to had notice by proper Marie evidence authority, posses- given plaintiff, Spanish as could of said St. was not such Hyacinth said Cyr arpents sion Marie an-estate Louise, could create adverse prescription of said St. Cyr. favour evidence, that be of 5th. That if the shall from the opinion, jury sale of the at Louis St. was purchaser public Cyr. mark as Chancellier, name, his or made his purchaser signed said that facts are facie evidence sale; of said these prima margin Louise, notice of the title of said Marie St. purchaser Cyr to her. described, lots therein as sold said sale to,Rene Kier- defendant deeds evidence by That the 6th. given October, 1793, the 23d of sereau, conveyed date nothing bearing con- and whose out St. possession, Cyr; being person Chancellier, was upon for the same land to another person, veyance “ Estellionato,” of the crime of who therefore record, and guilty and, law then banishment, fine Spanish punishable force. defendant Joseph the deed in evidence by That
7th. on' 1793, is void October, St. 23d dated Cyr, to Hyacinth Gamache “ he Gamache, in Batis that Estellionato” supposing the ground itself, deed deed; 2d, uncertainty on the made the ground Gamaehe, and is to be a deed.of this, Joseph purports ¡xj his mark. Gamache Batis signed in either took no estate Choteau That'
8th. Auguste prescription lots-in question. of said forty arpent whatever, adverse or no That possession there
9th. lots, Choteau, of said two otherwise, arpent forty by Auguste thereof. part ' be- from the evidence be of if the shall opinion, That 10th. jury 'of had notice Choteau the said them, that Auguste public fore Chancellier, Louise Marie lots sale of Madame is fraudulent- void Cyr to said lots Hyacinth or claim as, Louise, and her heirs said Marie assigns.- against and sale by 11th.' certified copy proceedings That *45 is not evi- of St. bankrupt, Hyacinth Cyr, matter syndic, that. or lots in' title to either of the question., of-St. dence either Cyr’s TERM, 1838. v. Lucas.] of Choteau, as part to said Auguste said sold by syndic were same St. said property. Cyr’s no title shown defendant has by prescription,'under That the 12th. of bar limitation, (in the statutes law, civil the Spanish laws, to lots in question. American Anglo plaintiff,) Cho- defendant, as Auguste That the title assignee 13th. and Choteau the fraud' which vitiates the teau, is vitiated by Cyr. Lucas, of wife, and deed Choteau from 14th. That Auguste fraud; if, for is void dated 11th January, question, lots a claim Lucas of conveyance was a sale in' of jury, opinion himself for before said Lucas interest adjudication. pending and. the claim was if, That pending opinion jury,
15th! he commissioner, it, when- Lucas, bought adjudication before of com- the board it on' the 23d July) confirmation'of member, is fraudulent and void missioners, which Lucas was law equity. law nor the limitations, That neither the-statute of Spanish
16th. defendant, Lucas, can avail the independently prescription, of St. Cyr Choteau: ' That the evidence by defend- 17th. orders survey given of Au- ant, himself in favour colleagues two -Choteau, ÍOth, was fraudulent 1811,. date bearing .June guste the- evidence, from void; if the shall be jury opinion, defend- therein to be had been claims sold' surveyed, said ordered while, Choteau, ofder; to the date of ant said previous by said defendant, said claims -pending for-adjudication in said commissioners order mentioned. member board if 18th. That effect act any penal congress, resulted Madame Cháncelliér and her or to the representatives assigns, legal Uamache, of Rene J. act of Euersereau and B. congress “ 1831, entitled, to the .act,- an further January, supplemental act entitled) an act further making claims- provisions settling landp.in tor of Jupe, the tern Missouri, y-of day passed thirteenth one thousand to their twelve,” hundred and remits the éight parties act had as if. equitable titles, and. no such original penal rights (cid:127)ever been force.
(cid:127)19th.. That entitled to a upon case made by plaintiff, h§ for all verdict lots in that,part the two situ- forty arpertt question,
Von.XII^3N *46 SUPREME COURT. (cid:127) Lucas.] [Strother V-, in, St, street, Lbuis, óf and all the west Seventh lots east of ated to the admissions of street, defendant as Seventh above. case there is no or ffhát law ordinance of the >20th. in this binding which Mhdame claim- Chancellier, those Spanish government, could be of .her, under the state the evi- deprived,-,according ing of case, dence she to the land in in whatever acquiree ques- tion, under the made.of it her as the of her purchase property husband. n believes, evidence, That if from- the that Cyr 21st. the jury and be in ceased actual dis- cultivate premises'in 1798, favour, ceásed-to in run his prescription or pute, that of him those who claim'undér from that time. the court tne Which but instructed refused give; instructions matter,referred in relation to the to in the first above instruction jury apd pale, “that decree, refused: final of partition,'and the record certified -whieh in copies plaintiff, Chancellier, in, the'title Lours did mentioned said pass proceed- it;was sale, such as at the time of death,,or his it was such-as ings heirs at the'time of said Louise, his sale his .to Madame-Marie ,to in said widow, heirs, mentioned her the lands -proceedings, ands jp said sale described record as sold and allotted to partition, n - her; further instructed-the And relation the matters-men- jury, “ the fifth instruction refused: tioned- above that if should the jury that St. under Cyr, the. (cid:127)be defendant opinion claims, was whom at said sale of the public said Louis purchaser property Chaneel- did name or lier, make his' mark on the sign of the re- margin sale: of said facts, these either of them, js cord evidence proper to consider in for them said St'. ascertainingjwhether Cyr notice title of' said said Marie Louise, at the purchaser sale -lots described the record thereof as sold to her.” further instructed the And in relation to the' jury, matters"referred “ the' eleventh certified-, instruction above that refused: copy sale .and proceedings syndic-,' estate as a St. Cyr bankrupt,.was .evidence of- a title to said St. Cyr lots in .the either of them.” question, ' And instructed further in relation to the. the-jury, matters referred refused.,.and twelfth ábove instruction statutes limi- to in that tation'referred refused instruction: “that the defendant TERM, 1838. v. Lucas.] npr bar'to to the lots' in any no title plain- question, bad shown limitation.”,' or statutes of statute tiff’s recovery- in relation to the' matters referred instructed the And further jury, of limi- refused: “that statute instruction above to in sixteenth with or either inde- defendant, Lucas, not' avail the could tations St; Cyr.” pendent possession, referred the matters relation to And further.instructed jury, “ refused: above to in instruction although eighteenth re- to in said 31st of referred act of January, congress instruction, as in remit -mentioned, last does not penalties fused .the *47 fact that in is by supposed plaintiff;, yet, that refused instruction which bars or results from act no effect any congress penal stands in action; in the present recovery way plaintiff’s under, be de- title, jo manner his title or evidence any affect? acts, them, under the par- rived from said admissions ties in the case.” present
The not in the form it refused, instruction could be first háye yac/-and it would concluded-the cause'as to asked, was because the court law. 'The were by explanations, given proper. third on the The second' and asked the- court facts. pronounce
n declare, St.. had fourth asked that if notice The Cyr court be of Madame Chancellier’s could not confirmed purchase, St, him, could and those have' Cyr, by prescription. claiming such possessidn notwithstanding knowledge, prescribed had time. On continued sufficient this length point, charge to the the ’de-' by the district instructions asked in'response judge, fendant, accurate. substantially is asked,
The is .of fifth instruction highly favour- explanation able the jplaintiff. that asked to instruct the Kiersereau sixth court .was. jury The void; he it deed-;
not when made and therefore .was in'possession the. himself, If Sti Was for no forfeiture Cyr possession .could lawful. this him;-'and follow on'the by conveyance depended fact- was, How the civil law whether St. was Cyr possession. lawfully were in cases where the claimed lands conveyances, holden in adversely actual'possession, grantee ito. grantor immaterial, the time the deed was decided. made; is asked,\ The to re- seventh, ninth instructions eighth propose, fact, fer the court for. decision, questions pertaining jury- COURT,: SUPREME - v. -Lucas.]
The if he' void, tenth assumes that Choteau’s was possession fol- notice sale Madame Chancellier: This no means lows. He have faith, possessed notwithstanding; might good if-the bad , were to But was which- jury judge. faith, still its Choteau and those continuance years thirty thereof it, he from whom and the .subsequent continuance derived , Lucas, have authorized would prescription. The asked were eleventh twelfth instructions given; declare fact, on and to thirteenth asked the court to. charge thé called there was matter fraud: principal jury to try. the same fourteenth, instructions fifteenth and seventeenth
The was Court; that were cause it previously when indi- circumstances decided, that Lucas could under the purchase is the- such is not deemed The cated. point open investigation: ! cause, brethren that and with which who decided my opinion of concur. held sixtepnth the-fact, posses-
The how'Lucas charge asks refused. ;-and sion, and the its continuance. length properly court. the district eightéenth correctly explained effect, The nineteenth that the 'cause decided proposes, instruction-bepn with- Had thp would given,-it court-.. thé facts. jury determination drawn answered, twentieth, To bé Spain,' laws máy *48 Madame-,Chancellier’s against. have might prescribed' district court. -.The answered twenty-first correctly the evi- to the “That if said find from they jury.: judge should that dénce Cyr said.St. took;possession,,or possession or as Louisé, under them, or controversy, lands M&rie said held tenant, his' so .taken or be possession her possession would Louise; St. Marie not bé Cyr, the said would a and possession him under law him, pre- or those under the available claiming mentioned. But, that if the -opinion,. should scription jury St. said came to the Cyr controversy, that lánd’ín possession the tenant of under Louise, her, the said Marie but or'under her; -title a claim'and adverse to .such-adverse claim and possession a constitute a- would' possession upon- prescription, Span- ish or civil law to' in force, then would to run in .referred and begin jf and him, under him, favour those such claiming possession actual, and and that such notorious; so commenced, open, possession TERM, [Strother Lucas.] St. or to said heirs a Cyr, constitute and preserve assigns, would law of referred to; under the available .prescription notwith- possession him, St. or those title from should leave Cyr, deriving standing cultivate, or cease to and if that aban- occupy the actual .possession actual or of -the donment -waswith occupancy;-, possession, cultivation any mental return; and Without abandonment of intention n t possession.” defendant, asked and the court: Instructions -by That if the find from the evidence that 1st. Hyacinth St. jury ft him, under those possessed the two lawfully Cyr, claiming Kiersereau, Gamache in- surveyed arpents by forty, without claim of title for and -with thirty years; terruption, j consecutively 1818,, October; plaintiff is not to'recover in prior entitled action. -2d. from the evidénce that “If Hyacinth jur.y._find Cyr, him, and those under the two lots lawfully possessed claiming mentioned, declaration for ten years, consecutively,'prior to, until the 23d the lands July, confirmed to day Auguste Choteau on that are the lands in the day, samé declaration' mention- cannot in this action. ed; recover plaintiff ’“ 3d. If the from the jury‘find defendant that pos? the lots sessed of land in the declaration mentioned for ten years, October, to the first of consecutively, prior cannot in this action.” recover Which instructions the court with gave jury; further “
instruction v That mentioned must be an possession open, apd notorious that should possession.; find such possession, if title, under, and it-gave Spanish law, according .civil inwas force in Louisiana at the date of die Upper treaty, by which in;force Louisiana was acquired by States; United remained of the district of< unabrogated by any or of law. Louisiana Mis- souri, down a October, late as 1818. That period posses- sion-of -ten would the one thirty years title, give period other under to.the which the circumstances possession was obtained; That the ten which would possession years’ give prescrip- title, tive must be a purchase good faith; .in he, where'the purchaser believed whom person pur- *49 chased had title; and good owner where prescribed ' resided in the against the said ten country same during years. That if the belifevefrom evidence, that of St. possession jury Cyr, SUPREME, COURT.
.470 v. Lucas.] obtained under a claims, was purchase whom defendant .under that the. the belief and under faith, persons him in made by good of Cho- title; and that the he, possession had a good whom purchased obtained in like manner claims,'was the'defendant whom teau, under belief; 'and that the.like they made with and' purchase for. on the instruction asked in the second mentioned possession said Marie Louise was that the defendant; and part in- cannot recover the said ten years-, during country 'this .action.” men- in relation possession
-And further instructed jury, the defend- asked for on part third tioned in the instruction a bar to the there mentioned ant: make “that'to possession de- action, in the present plaintiff’s recovery under, where'he be- been obtained purchase, fendant must have title,, had a he good whom purchased' lieved that persons said ten in the country during that the- Marie Louise find for the de- cannot believe, unless the which, they years; jury G fendant such possession.” iipon the ex- defendant, with- for the instructions The.foregoing are correct. planations, substantially affirmance,-of the in' the case; judgment the whole
This is But there here stated. are.-various concur, for -which, the reasons Í introduced, the accuracy' into the opinion, preceding principles .of I apprehended they much .doubt. Furthermore: very and it is record; feared to-.the -presented case foreign do not .de- them a sanction it, lend may their introduction iijto embarrass, Court, in'future, in courts,, and this the inferior serve, to arise likely’ now controversies depending, numerous1 , Wisconsin, Florida, Louisiana, Missouri, Arkansas the titles .of of the -lawsof and construction- France application involving and-hence this has filed. opinion Spain:, separate (cid:127) that he Justice dissented opinion Mr. stated Wátne He Court, delivered was authorized to Justice Baldwin. by Mr. him in opinion, say concurred with .McKinley -that MK Justice (cid:127) time of his death. title-to lots Chancellier at the was.in obtained -a title fraud,- and- fraud Qyr continued pos-' he session; Chancellier, -is Choteau’s claim not such title of as divested the law. Spanish- *50 . JANUARY TERM, 47,1 [Strother Lucas.] Justice Mr. M£Lean dissented. Chief Justice-Ta.net diS
Mr. cause, not sit-in this been' having of counsel for one the parties.
This cause came on to be heard on the transcript record from the district court of the States for the United district of Mis- souri; counsel. On argued by consideration whereof, it is here .now adjudged, Court, by. ordered that the judgment .of the said district court this caiise be, and hereby... the same.is affirmed, with costs.