Vasquez v. Ewing

| Mo. | Oct 15, 1856

Scott, Judge,

delivered the opinion of the court.

1. The case of LeBois v. Bramell, (4 How. U. S. 449,) establishes the doctrine that the approved survey of the commons of a village, confirmed by the act of June 13, 1812, is equivalent to a patent. If this is so, then the city of St. Louis had as perfect a title from the general government to her commons as could be obtained. That title being perfect, it could only be surmounted by tbe proof of facts which stowed that she could not have had title. Her title could not be assailed by the government, nor any one claiming subsequently to her confirmation. By the act of 1812, if one could actually show that he inhabited, cultivated or possessed a lot, within its meaning, prior to the 20th December, 1803, within the boundary of the survey of the commons, he would have a better title than the city ; for, being a lot inhabited, cultivated or possessed, it could not have been commons. But the city having a perfect title against the government and against all the world except such a claimant, in order to dispossess her or those claiming under her, the fact of cultivation, inhabitation or possession prior to the 20th December, 1803, must be actually proved. Prima facie evidence of such fact is not -sufficient. The city having a perfect title against all who do not show actual inhab-itation, cultivation or possession, on what principle, in law or reason, can one, who has only prima facie evidence of one of these facts, overthrow her title ? Her perfect title is of no avail, if, when it is attacked, she has to disprove her assailant’s title. As against the perfect title, nothing but an actual showing of the existence of the fact which will overcome it, can be deemed sufficient. The villages, whose commons were confirmed by the act of 1812, were not authorized to prove their claims before the recorder under the act of 1824. How unjust, then, to make the proof taken by an individual claimant of such effect as to throw the burden of disproving it on the villages. If the villages could have proved their claims, then they would have prima facie evidence against prima facie, and, being in possession, they could not be disturbed. By the act of 1812, the title of the villages to commons could only be overcome by actual proof of the inhabitation, cultivation or possession of part of them prior to the 20th December, 1803, by inhabitants of the villages, as a lot, out-lot, or common field lot. If it was competent to Congress to do so, we will not presume that they intended, by the act of 1824, to require evidence less strong than the act of 1812 to overthrow the claims of the villages enumerated in the act to their commons.

We are not aware of any case in which the precise point involved in this controversy has arisen. The doctrine that the certificates and proofs taken before the recorder, under the act of 1824, were ¡¡rima facie, evidence, was not established without a struggle. Taken as it has been received, that the certificates were ¡¡rima facie evidence against the government, there is not much to be said against it. Being evidence against the government, those claiming subsequently to the act of 1812 can not occupy a more advantageous position than the government itself maintained. But we can see no reason, nor perceive any principle, on which a certificate of the recorder should have a prevailing effect, unless disproved, against one claiming under the act of 1812, or any act prior thereto. Indeed, it would be against principle, as it would be assuming that Congress may pass a title, and then, by a subsequent act, require less evidence to defeat that title than was required when it was first conveyed. The certificate would prevail against one claiming under the act of 1812 ? who had none, and who could not prove inhabitation, cultivation or possession before the 20th December, 1803 ; because, in that case, there would on one side be no evidence of any fact which was requisite to confer title by the act of 1812.

2. It is maintained by the plaintiffs that Quinette, having been a tenant in common with them, and having been in possession of the premises in controversy, the defendant Ewing, succeeding to Quinette’s possession by a deed from him, held likewise as a co-tenant, and was estopped from denying the right of his co-tenants, the plaintiffs, to the possession of the disputed lot. The facts preserved in the record do not sustain this point. It appears that Ewing sued Quinette to recover possession of the lot; that he obtained a judgment, and that a writ for the delivery of the possession was in the hands of the officer when Quinette conveyed to Ewing. This we consider such an ouster as terminated tbe co-tenancy. An actual execution of tbe writ was not necessary to effect that object.

It is next insisted that tbe purchase by the defendant Ewing of Quinette’s interest in this land, and tbe recitals in the deeds under which Ewing and Quinette held possession, amounted to such a recognition of the Yasquez title as estops Ewing from denying that there was such a title to this land. Inasmuch as Ewing claims by a distinct title, wholly disconnected with that of Yasquez, we hold that the doctrine of estoppel does not apply. There is nothing in the nature of an estoppel which precludes a party from setting up a title like that interposed by Ewing against the recovery of the plaintiffs. (Landes v. Perkins, 12 Mo. 259; Blight’s Lessee v. Rochester, 7 Wheat. 635.)

3. The. plaintiffs, moreover, contend that the deed of the city to Lane enured to the joint use of himself and his co-tenants, inasmuch as he compromised the Yasquez title with the city, and by means of it obtained the commons’ title from her. Whatever equity there may be in the defendants, growing out of the compromise with the city, about which we express no opinion, it is evident that the petition filed in this cause is not so framed as to obtain any such relief. This action was .brought to try the legal title of the parties; it is in the nature of an ejectment, and the allegations in the bill are only suited to that purpose. If the defendants have any equity, it must be sought in a proceeding so ordered as to show that they are entitled. Surely,- the defendants could not expect that the court would hold that they were legally entitled to the right acquired from the city, when they had neither paid nor offered to pay any portion of the sum by means of which Lane obtained her title.

Judge Ryland concurring,

the judgment will be affirmed.