Wear v. Bryant

5 Mo. 147 | Mo. | 1838

Lead Opinion

Tompkins, Judge,

delivered the opinion of the court.

At the August term of this court for the year 1835, this cause was for the first time argued, and the judgment of the circuit court for the plaintiff being reversed; the cause was remanded to be further proceeded in con-'formably to the opinion of this court then given; for which see Second Semi-annual Part of the fourth volume of the decisions of this court,page 100. The judgment of the circuit court being again in favor of the plaintiff the defendants come again into this court to reverse that judgment. The evidence given on the last trial is the same as that given on the first, and the only points now to be decided are those left undecided on the first argument of the cause in this court; the rest, though made, are not insisted on now. Fora full statement of the ' case, reference may be made to t'ne first opinion delivered, as above cited. In order, however, to avoid the inconvenience of too frequently recurring to the opinion formerly delivered, some part of the evidence, and so much of the act of Congress of 17th. of February, 1815, as is necessary to the decision of this cause, will be transcribed. Its title is “anact foi the relief of- the inhabitants of the late county of New Madrid,in the territory of Missouri, who-suffered by earthquakes.” The first -section reads thus: “Any person or persons owning lands in the county of New Madrid, in Missouri territory, with the extent the said county had on the tenth day of November, 1812, and whose lands have been materially injured by earthquakes, shall be and they are hereby authorized to locate the like quantity of land on any of the public lands of said territory, the sale of which is authorized by law: provided, thatno person shall be permitted to locate any greater quantity of land under this actthan the quantity confirmed to him, except the owners of lots of ground or tracts of land of less quantity than one hundred and sixty acres, who are hereby authorized to locate and obtain any quantity of land not exceeding one hundred and sixty acres; nor shall any person be entitled to locate more than six hundred and forty acres,” &c. “And, provided, that in every case ■where such location shall be made according to the provisions of this act, the title of the person or persons to the land injured, as aforesaid, shall revert to, and become absolutely vested in, the United States.”

The second section is, that “whenever it shall appear to the recorder of land titles for the territory of Missouri, by the. oath or affirmation of a competent witness or witnesses, that any person or persons are entitled to a tract or tracts of land under the provisions of this act, it shall be the duty of said recorder to issue a certificate thereof to the claimant or claimants; and upon such certificate being issued, and the location made on the application of the claimants, by the principal deputy surveyor for said territory, or under his direction, whose duty it shall be to cause a survey thereof to be made, and return a plat of each location made to the said recorder, together with a notice in writing designating the tract or tracts thus located, and the name of the claimant on whose behalf the same shall be made; which notice and plat he shall cause to be recorded in his office,” &c. To carry this law into effect, Mr. Bates, then recorder of land titles, adopted a form of certificate with which that given in evidence corresponds. It is as follows: “I certify that a lot of one arpent, in the village of Little Prairie, in the county of JNew Madrid, which appears from the books of this office to be owned by Louis St. Aubin, has been materially injured by earthquakes, and that in conformity to the provisions of the act of the 17th February, 1815, the said Louis St. Aubin, or his legal representatives, is entitled to locate any quantiiy of land, not exceeding one hundred and sixty acres, on any of the public lands of the territory of Missouri, the sale of which is authorized by law.” The act of Congress seems itself to have suggested to the mind of the recorder the form of certificate which was most suitable for the occasion. In the first proviso of the first section, he found that no person was permitted to locate a greater quantity of land under this act than was confirmed to him, except, &c.,as in this case. It readily occured to him that many of the persons to whom the land had been confirmed might not be the owners at the time this act of Congress was passed. To obviate any difficulty arising from changes in the title to the property, he must have employed some words. He chose these words, “legal representatives. ” By referring to the books of the office, he could easily ascertain to whom any particular tract, of land had been confirmed; and the office of the term “legal representatives” was to designate the owner of the land which had been confirmed to Louis St, Aubin, in case he (St. Aubin) had in any manner parted with the title. The plaintiff claims as alienee of two of the heirs of Louis St. Aubin, and the defendants (plaintiffs in error in this court) reiy on the certificate of location. •

TIie act of Coa_ gress of Feb. 17, for the relief Ne^MadraT* who had suffered' earthquakes, title of the perse» who proposes to himself of gress^theinjmjl ed lands shall r«s yert to the United States. In estab-Jishmg’ his title under this act, the claimant need mal^relh) auish-°r~ ment to his New Madrid lands. His ®rovisitms^of C<rn* gressfas" e°i- °" denced by his Recorder ^nd his location by the Surveyor, is a vir-men^of his iíur ecfland, and''assuredly the United States only the wanuTf a for-pial conveyance, '

The location of the land in litigation, as certified, is in these words: “Thomas Hickman applies to locate, as the legal representative of Louis St. Aubin, one hundred and sixty acres of land, by virtue of a New Madrid or earthquake certificate, in the name of Louis St. Aubin or his legal representatives, which said certificate is numbered,” &c.

The first point now to be decided is the fifth, made on the first argument of the cause in this court, viz: That the circuit court erred in refusing to give the third and fourth instructions asked by the defendant, which in substance are, that unless Louis St. Aubin, or those claiming under him, have relinquished to the United States their lot in New Madrid, in lieu of which the recorder's certificate was granted, and by virtue of which the land in controversy was located, they must find for the defendant; and also, that there was no evidence before them to prove that Louis St. Aubin, or those claiming under him, have relinquished to the United States the lot in New Madrid, in lieu of which the recorder’s certificate was granted, and by virtue of which the land in controversy was located.

The second point made in this, and the sixth in the first argument is, that the court erred in refusing to instruct the jury that it was necessary for the plaintiff to show that the location was made by Louis St. Aubin, his children, or those claiming under him.

The third point in this, and the seventh in the first argument is, that the court erred in telling the jury that there was evidence of the consent of the heirs of Louis St. Aubin.

The fourth in this, and the seventh in the first argument is, that the court erred in refusing to instruct the jury, as piayed in the fourteenth instruction, viz: that the location read in evidence by the plaintiff is evidence to prove that Hickman located for himself, and not for Louis St. Aubin or those claiming under him.

1. Whether it be necessary for the plaintiff in the circuit court, and defendant in error, to prove that Louis St. Aubin, or those claiming under him, have relinquished the lot, in lieu of which the certificate was granted, and by virtue of which the land in controversy was located.

The right of location is granted by the first section the act of Congress above cited; and by the second proviso of that section it is declared, that in every case where a location shall be made according to the sionsof that act, the title of the person to the injured land shall revert to, and become absolutely vested in, the United States. To this condition] the owner of the injured land assents, when the location is made. The act of Congress requires nq other relinquishment than this to be made. The recorder of land titles, on proof of the. material injury to the land by earthquakes, issues his certificate in obedience to the requisitions of the law. The certificate is not granted by him, as the counsel for the plaintiff in error se.ems to have apprehended, but the rant (0 ian(j t0 be located proceeds from the United States to the owner of the injured land, m consideration of his individual sufferings in consequence of the earth-T-iakes. The certificate, then, is evidence only of the right of Louis St. Aubin, or his legal representatives, to locate, on the production of which it becomes the duty ^ie sul'veyor t° make the location on. the maps of his office, according to the application made by the claimant, being done, the United Slates require nothing more. *bis being done, a mere stranger steps in and requires that to be done which the Unite,d States' did not require, viz: a relinquishment to be made of the injured land by ^ee(l recorded; for, says he, if the United States wish to acquire land from a citizen of Missouri, they must comply with the local law, by taking a deed and having it re - corded. '

When the United States shall become party to a suit m this court, in which it may be necessary to contend for their right to the injured land, then it will be time enough for this court to determine whether the provision mad® in this act of Congress to secure that right is such as it ought to have been. At present, the only question before this court is, whether they have the right and power to grant their own land on such terms as they choose to prescribe, and in such manner as seems proper to themselves? Such a question, I should suppose, requires no decision. The circuit court, then, in my opinion, committed no error in refusing to instruct the jury that it was necessary for the plaintiff in the action to prove that Louis St. Aubin, or those claiming under him, have relinquished the injured land to the United Slates. Through abundance of caution, the circuit court was also required to tell the jury that there was no evidence before them to prove a relinquishment. When the court had refused to instruct the jury that it was necessary to prove a relinquishment, it seems to me that it would have done something worse thari useless if it had told them that there was no evidence before them to prove what they had,almost in the same instant, been told was not necessary to be proved. The memories of jurors ought not to be unnecessarily loaded. In deciding this first point against the plaintiff's in error, the circuit court, as it seems to me, committed no error.

underthe provisions of this act, con- or his legal representatives, ^v™ are^those*8* under by purchase certificate has * *S been issued, and ^ the'coñ-firmeeor his legal representatives, sequentlyeyassent, either expressly ’ ?r impliedly, th.e location will enure to their benefit,

The second point is, that the circuit court erred in refusing to instruct the jury, that it was necessary for the plaintiff to prove that the location was made by Louis St. Aubin, his children, or those claiming under him.

This point is made on the alleged refusal of the circuit court to give the first and eighth instructions, were, that the jury must be satisfied that the New drid certificate .given in evidence in this cause, was procured, and the location on the land was made, by the agency and consent of the said Louis St. Aubin, his ■dren, or those claiming under him. The circuit gave the instructions, with this explanation, viz: Although the certificate was granted and the location made, without the consent of those under whom .the claims, yet if they afterwards consented, it is sufficient. It is the same in point of legal, effect as if they had consented at the time, and that, there is evidence of such subsequent consent. The counsel for the defendants, who are here plaintiffs in error, being dissatisfied with this explanation, chose to consider the instructions as p j refused.

tore this point is investigated, it will perhaps be best to divest the subject, of what is mere verbiage, and to endeavor to ascertain the import of some of the tenps used. The term “New Madrid certificates” was once much used in popular language to designate the certificates issued by the recorder of land titles, as evidence that the owner of land, certified by him to be materially injured by earthquakes, was entitled to locate on any of the public land, the sale of which was authorized by law. The word “children,” it appears tome, is mere surplus-age. In Missouri, all children do not necessarily succeed to the estate of the father. Those children which do succeed or take by dissent, are heirs, and all others are purchasers, in the legal acceptation of the word purchaser. Then the words “those claiming under him,” (Louis St. Aubin,) include every person'who can, in any manner whatever, hold the injured land by title derived from him. The word “children” will therefore be hereafter omitted as a mere expletive, calculated to render the sense more obscure. And the words “those who claim under him,” will be used to designate all such persons ■as may derive title from him, whether as heirs or purchasers. Next in order come the words “legal representatives.”

The plaintiffs in error, (says their counsel,) do not claim-under Louis St. Aubin, but they claim the located land as the legal representatives of Louis St. Aubin, one of them having applied to locate the land in controversy as the legal representative of Louis St. Aubin, and in the name of the said St. Aubin and his legal representatives. The words, “legal representatives,” have no technical meaning, and must, therefore, whenever they are used, be construed according to the subject matter.

A “legal representative,” in the most extensive acceptation of those words, is one who legally or lawfully represents another in any matter or thing, of whatever nature or character it maybe. Thus, the supreme court of the State of Pennsylvania, in the case of Duncan v. Walker, say that the words “legal representatives” must, in legal contemplation, be the heirs, and not the administrator, because the subject matter in that case-was land or real estate; and in the case of Mulanphy's heirs v. Simpson, the president of this court, referring to the above mentioned ease of Duncan v. Walker, and admitting its authority, says that the representatives of the deceased must, in legal contemplation, be the executors or administrators, because the subject matter in that case was personal property,or the payment of the debts of the deceased; and the rest of the court concurred with Him in the construction of the word “ representatives.” For Duncan v. Walker, see 2 Dallas, 205; and for Mulanphy’s heirs v. Simpson, see 4th vol. Mo. Decisions, p. 319.

What, then, was the subject matter before the mind of the recorder when he certified that Louis St. Aubin, or his legal representatives, is entitled to locate, &c?' Lest we might possibly mistake, he points in his certificate to the subject matter, thusr “I certify that a lot of one arpent, in the village of Little Prairie, &c., which appears from the books of this office to be owned by Louis St. Aubin, has been materially injured by eartquakes,. and that, in conformity to-the provisions of the act of Congress of 17 th February, 1815, the said Louis St. Au-bin, or his legal representatives, is entitled to locate,” &c. The first, and principal provision of that act, i-twiil be recollected, was contained in the first section, to wit, that any person owning land in the county of New Madrid* whose land had been materially injured by earthquakes* shall be authorized to locate the like quantity on any of tha-public lands of the territory, the sale of which is authorized by law, provided that he locate no moré than had been confirmed to him, except in the case of lots like this of Louis St. Aubin. The recorder being satisfied that material injury had been done to the land, his next duty was to put the owner of that land into possession of such evidence as, under the act, would authorize him to locate. On opening the book in which the confirmations made by the board of commissioners were recorded, he finds that this lot in the village of Little Prairie was confirmed to Louis St. Aubin, and consequently was at the time owned by him; yet the title might have passed from him, and another person might then be the owner; and his business being to designate such person as might have become the owner, either as heir or purchaser, he certified, that Louis St. Aubin, or his legal representatives, is entitled to locate. Now, if the definition of the words “legal representatives,” above given, supported as it is by the authority of the supreme court of the State of Pennsylvania, and of this court also, be correct, more appropriate words could not have been selected out of the English language; for the legal representative of Louis St. Aubin may be one who legally represents him as owner of the land, either as heir or purchaser, or the legal representative may, according to that definition, be a mere agent, with an authority to locate without any interest inthe land located. But if that definition be not correct, then the provident recorder, in the act of certifying, has taken care to point to the provisions of the act of Congress of 17th February, 1815, which must ultimately govern the meaning of those words “legal representatives, ” as there used.

The legal representative, then, pointed out in the recorder’s certificate, can be no Other person than the owner of the land injured by earthquakes, and that owner must claim under Louis St. Aubin, either as heir ox purchaser. The legal representatives of Louis St. Au-bin, and those persons claiming under Louis St. Aubin, are then the same persons. But Hickman applied' to locate as the legal representative ofLouis St. Aubin, and in the name of said St. Aubin or his legal representatives. Therefore, he applied to locate the land as a person claiming under Louis St. Aubin, either as owner of the. Injured land, or as agent of some person who did owni it; that is to say, the lot of onearpent, in the village of Little Prairie, which the recorder had certified to be materially injured by earthquakes. The certificate of this location bad been read in evidence. If it proved that the location had been made on the application of a legal representative of Louis St. Aubin, it equally proved that it had been made by a-person claiming under Louis St. Aubin as owner of the injured land, or by some person authorized to represent such owner in the application to locate. The circuit court, then, in,giving the first and eighth instructions, with the explanations above mentioned, committed no error, in my opinion, of which the plaintiffs in error had a right to complain. It was, as it seems to me, very' useless to instruct the jury on the law of implied assent, a thing which, it may be supposed, is not very easy for them to understand. It would have been enough,! think, to tell them that the assent of Louis St. Aubin, or those claiming under him, was a matter which interested themselves and the United States only; that the certificate itself was evidence that the United States were content with the evidence of the assent of those claiming under him; and that even if Hickman had obtained that certificate of the recorder in the most unlawful manner, and had made the application to locate without the knowledge and against the will of those claiming under Louis St. Aubin, yet they alone had the right to disclaim his act; and that so long as they did not disclaim the act, the location must, in law, be considered as made on their application; that is to say, on the application of those claiming under Louis St. Aubin. No error then, as it seems to me, was committed by the circuit court in deciding the second point against the plaintiffs in error.

The intention of ft1® holder of a tifioate inloca-61" ting for himself, can have no influence m determining the rights of the parties. The bounty of thTownerTof the injured lands, and they only,.or those them ®r purohase, can entitled to locate, or to the benefií0Í t_hel°'-any other individual, by fraud or otherwise, get ofoert4Soate,it is 6 unavailable to bimi unless he be also the descend* ant or purchaser from the con-firmes. Any other w°o,uidUfrustrate the intentions of and aep^iv^the^BuF-ferer, for whose benefit the act 0f his New Ma--drid land,

The third point is, that the court erred in telling the jury that there was evidence of the consent of the heirs; of Louis St. Aubin. This is but the echo of the second point, and must, as I think, share its fate.

The fourth point is, that the circuit court erred in refusing to instruct the jury, as prayed in the fourteenth instruction, viz: That the location read in evidence by the plaintiff is evidence to prove that Hickman located for himself, and not for Louis St. Aubin, or those claiming under h. m.

. In the' argument of this point, we are told that it is evident Hickman located for himself, and that it is the duty °f the court to give such effect to the location as he intended it should have. When a man, by a written ¡nstrnmeht, makes a disposition of his own property, is undoubtedly the duty of a court to ascertain, from the writing, his intention, and to constrne that writing accordingly. But, in the present case, the defendant in error has set up a claim to the located land, and the duty of this court is so to decide as to ascertain in whom the property is vested by the act of location, not in whom Hickman intended it should vest. The first section of the act, it will be recollected, declared that any person, or persons, owning land in the county New Madrid, &c., whose lands have been materially injured by earthquakes, shall be authorized to locate the like quantity of land on any of the public lands of the territory, the sale of which is authorized by law: provided, that in every case where such location shall be made according to the provisions of this act, the title the person or persons to the land injured, as aforesaid, shall revert to, and become absolutely vested in, the Uni-in.. * ted States

In conformity to the provisions of the second section of the act, the recorder issued his certificate, above mentioned, as evidence that the owner of the one arpent of injured land was authorized to locate one hundred and sixty acres, in consideration of the injury he had edfrom earthquakes; and in consideration, also, that he agreed that, on the location being made, the lot of injured land shall revert to, and become absolutely vested in, the United States. The question then to be decided- i whether the defendant in error, (who- is a purchaser from two of the heirs of Louis St. Aubin, the confirmee of the Government ol the United States,) or Hickman, (whosfe only evidence of title is, that he, having obtained possession of this certificate, in some manner unexplained on the record, went before the surveyor, and applied to locate the land in litigation,) be, the rightful owner of the interest of these two heirs in the land? The avowed object of the law-making power, as explained both m the title of the act and in the body thereof, is to relieve the distress of those persons who had suffered by earthquakes, and the means provided, were to give uninjured land in exchange for théir injured land. If, then, the person who gets possession of this certificate of the recorder become, by that possesion, clothed with all the rights of the owner of the injured land, Congress have legislated to no purpose but to harass the sufferer by putting it into the power of any person who may happen to get possession of the certificate, even in thejmost-unlawful manner, not only to obtain the right of property in the located land, but also to strip the sufferer of his injured land, which, by the act of location, was to revert to, and become absolutely vested in, the United States— (see proviso to first section, above.) lithe language of the act had beén equivocal or ambiguous, it would not even then be probable that this construction could be agreeable to the intention of Congress, even at common law —see 1 Bl. Com. p. 91, note 21.

But when we take into consideration that Congress had, by the act of 4th June, 1812, transferred to the General Assembly, composed of a governor, legislative council, and house of representatives, all legislative power necessary for internal government; and to the superior and inferior courts, all judicial power, it is incredible that they should, by mere implication m this act, pretend to prescribe how the rights of property in this located land should be transferred from one citizen to another. And had the act declared in express terms, that any person coming to the possession, whether by accident or fraud, of such certificate, might apply to the surveyor to locate the land for his own use, and by such location, acquire a good title to the located land, to the prejudice of the owner of the injured land, it might well be doubted whether even the territorial courts would not have been in duty bound to declare so much of such act repugnant to the third article of the treaty of cession, of the 30th April, 1803, and therefore void? The language of the actcouldnot, as it seems to me, have been more clear and explicit than it is. The owner of the injured land, from the beginning to the end of the act, is before the mind of the legislature. No change of property is contemplated throughout; it was prudent to leave the transfer of title, whether by descent or purchase, to be regulated by the local law. Indeed, cautious language is used when the recorder is charged to perform his duty; he is directed to issue his certificate to the claimant, thereby intimating to the person receiving it, that he must claim at his own risk, and be prepared to make good his claim under the local law, if it be disputed. I should, myself, hardly have believed that an intimation of this kind could, in ordinary cases, have been necessary. But the act was passed for the relief of persons, most of whom were of the French population, then lately transferred by France from the domain of Spain to that of the United States. Most of them weie very imperfectly acquainted with our language, and still less with our laws and institutions. Some of the more uneducated sort might otherwise have believed that the United States intended to confer on the recorder of land titles, or on the surveyor of public lands, the judicial power necessary to to ascertain who was the true owner of these injured. and located lands; with less ceremony, too, than their commandants of posts, under the Spanish government, had decided their paltry actions on personal contracts. Our delegate, then in Congress, probably drew the bill. No person knew better than he did the simplicity of this people; and to his cautious prudence, we are probably indebted for the change of language from the word “owner,” used in the first section of the act, to the word “claimant,” used in the second section, when the act designates the person to whom the recorder of land titles is charged to issue the certificate, and on whose application the surveyor is charged to locate. The merit by which the counsel for the plaintiffs in error claims this located land for his client is, that he has, in some manner not explained on the record, got possession of a paper belonging to other persons, and that, personating them, he has, on the authority of this paper, applied to the surveyor to locate the land in dispute; and that the survey- or, on his application, did locate it. He says, too, that his client does not claim to hold this land under Louis St. Aubin, but by adverse title, viz: by the title of location. This location is made, too, under the authority of a certificate which no person could lawfully use, unless he derived his claim and right to it either mediately or immediately from Louis St. Aubin, by inheritance or purchase. If, indeed, there be such great merit in the act of location, that the locator should have the located land, then it should be the property of the surveyor, for his is the labor of opening the books belonging to his office to find the map of the township, and after it is found, of marking on the map of the township the plat of the located land; but the law fixes his compensation for this service of making the location, by declaring that he shall be entitled to the same compensation for his services from the party applying, as is allowed for surveying the public lands of the United States — (see second section of the act.) The property in the located land must then, as it seems to me, be vested, immediately on the act of location, in the owner of the injured land, to relieve whose sufferings the act was passed, and whose injured land the United Stales calculated on acquiring by, and immediately on, the act of location, in exchange for the located land, (see second proviso to first section of the act,) and not in the claimant in this case, who may, for any thing appearing to this court, have come to the possession of the certificate in the most unlawful mann'er; and the claimant on whose application the land is located, if he has acted without authority, is but in the situation of all other officious persons who porform the labor of another without request, he loses his labor and the money he has so inconsiderately expended; and he ought to be very grateful that the owner of the injured land was content with the location, and did not prefer to demand damages for this unauthorized act of applying to locate.

Nor has the locator the legalúüe. Such a location bears no analogy to the case of one man’s purchasing land with another’s money — the certificate under which the location is made, be-on^conduio^that the injured lands revert to the Dm-condiricmls'not complied with where the certifi-also the injured land or one certificate's The therefore valueless — nor is it lent to money any negotiable paper, and there-eome° within.0tthe principle alluded

But it is contended that the plaintiff in error, if he has not a perfect title to the located land, must have at least the legal title, having purchased it from the United States with the certificate of another, which, it is contended, is the same thing as if he had purchased the lo-. catedland with that person’s money. The similarity of the two cases is not obvious to me. In the first place, the United States do not offer the choice of their unsold lands in exchange for those certificates issued by the're-corder of land titles, but, as in this case, they grant to the owner of the injured land, in consideration of his having suffered by earthquakes, this located land in exchange f°r injcired land, then deemed of no value; and the certificate itself was of no value except that it furnished to the surveyor the necessary legal evidence that th« injured land was entitled to locate and set aside for his own use one hundred and sixty acres of the land. A deposition, taken in due form of law; or a copy from the books of the recorder, would have been necessary .to prove the same thing, had not the act of Congress made the certificate legal evidence. But who ^ie injured land, must necessarily be determined by the local law, when a doubt arises,

Secondly, this certificate, issusd by the recorder of ^anc* bears, neither in its character nor on its face, any resemblance to money. Money, intended to pass by delivery as a circulating medium, carries on its face the impression of the sovereign by whose order it is issued, and no' person can by inspection ascertain who is its owner. This certificate bears on its face all the information necessary to' enable the holder'to ascertain who is the owner of the injured land. It announces to him that, at the time of the confirmation, Louis St. Au-bin was' the owner of that land; and if an alienation, either by death or otherwise, had taken place, the local laws step in and point the attention of the holder of the certificate to the records of the circuit and county courts of New Madrid county for information on that head. This certificate, moreover, bears on its face the evidence of the consideration on which it was issued. It is therein stated, that this lot of one arpent of land had been materially injured by earthquaks; and it also aptly fers to the act of Congress, of 1815, which authorizes the recorder to certify that the owner of this injured land is authorized to locate, in consideration of the injury sustained, on condition that the injured land shall revert to, and become absolutely vested in, the United States. If such a certificate as this be money, or even negotiable paper, transferable by delivery, then every bond wfith a condition annexed, and for much better reason, every man’s moveable personal property, whether animate or inanimate, is also money, and may be lawfully aliened by any person who may, by chance or other-erwise, come into the possession thereof; for a man’s horse or cow can bear no mark about it to designate its owner, so distinctly as this certificate does the owner of the injured land, to whom alone the right of location is given by the act of Congress.

the intent °s‘ piain*'eontem-poraneous con-^ruction is enti-°j¡¡°“ the law — espe- a where that one-sídedor founded upon the opi-n-ions of those interested in fixing the construction contendelTfin by the party using their opinions as argument.

. Hickman, if he has purchased the interests of the two remaining heirs of Louis St. Aubin in this certificate, (as he probably has, although his counsel have chosen to exhibit him on the record as a mere trespasser,) may have himself a very-good equitable title to one half of the located land, but nothing more. If he purchased the interests of those two, believing there were no bthers interested, he is innocent, and is to be pitied for his misfortune, whether it be the result of negligence or blameless ignorance. But he must, like all others who have been so unfortunate as to purchase from those having no authority to sell, abide the consequences of this-misfortune. '

If any other construction of this act shall obtain, and be admitted as a precedent in the construction of other laws, it will, in my opinion, amount to a virtual repeal of all the laws by which the rights of property are now guarded and maintained in society.

But it was contended,'also, that such was the poraneous construction of this act of Congress, of 17th Febiuary', 1815; and that a greater part of the titles of located lands depends upon the principle that the person applying to locate as the legal representative of the firmee of the United States, does thereby acquire the right of property in the located land. Moreover, said, that among the owners of the injured land, there were many dishonest persons who did not hesitate to sell their lands twice, or oftener, when they could find apuiv chaser; and that unless this court do decide that the person applying to locate, as the legal representative of the confirmee, acquires by the location a good title to the located land, many honest men who have purchased such ]an(js anc) made considerable improvements on them, will l°se their lands, together with the fruits of their labor, It is admitted that the opinion of the bar, at the time these locations were made, was unfavorable to the title by loca-ti°n? but the subject, it was said, had not then been discussed, and the bar, for want of books, was not then what js now.

The jate Q^ief Justice of the United States, delivering the opinion of the supreme court, in the case of the United States v. Fisher, says, that where the intent (of the lawmaking power) is plain,there is nothing left for construction—2 Cranch, 386. If my view of this statute has been correct, it is one of those where nothing is left for construction. But much deference is due to the opinion of others, whose views of this act of Congress do not correspond with mine. I will therefore bestow some attention on the statement made, with a view to influence the decision of the court. First, with regard to the dishonesty of the vendors of the injured lands. This is so plainly a subject of legislative action in futuro, that it seems to me no person could urge it seriously on the attention of a court with a view to influence its decision. Long previous to the passage of this act of Congress of 17th of February, 1815, it had been provided by an act of the territorial legislature, that deeds should be recorded in a given time, on pain of such deed being held fraudulent and void against subsequent purchasers. The time within which they were required to be recorded was several times changed, till at last the first recorded deed was declared to be good, without regard to the time of execution. If the plaintiff, or those under whom he claims, had been guilty of any fraud in this matter against the rights of the defendants, it should have been put in issue before the jury.

Next, then, as to this contemporaneous construction of the act of Congress. It is my misfortune to differ in opinion with the counsel of the plaintiffs in error, so much, that I do not believe that any one purchaser or vendor in the country, either under the territorial or State government, ever calculated at the time of the sala on securing his land by what he calls the title by location. In what manner these applications to locate may have been made, I know not. I may not, perhaps, have a due respect for the learning to be derived from a knowledge of the practical construction given to that act by thfc persons who applied to locate; for I have long been accustomed to believe that no man’s construction of a law ought to be respected unless he has read it. The applications in one of the cases now pending before this court is urged upon its attention by the same counsel, as a specimen of the learned construction put upon this act of Congress by men whose opinions, it is insisted, could be properly estimated only in the present enlightened state of the bar. In this application, the certificate" issued by the recorder is called a New Madrid or earthquake certificate. When these expounders of the law are not sufficiently acquainted with it to describe the certificate, the most charitable conclusion is, that they have not had the means of becoming acquainted with it. It might also be reasonably supposed that the surveyor, asa man of common prudence, would" leqtiire every claimant who applied to locate to state in what character he applied, in order to prevent, as much as he could, unauthorized persons from interrupting him with applications, and to give persons injured by such unauthorized acts an opportunity of finding out who weie the authors of the injury done them. This, in my opinion, is the true origin of the title by location, a thing, as I have good reason to believe, never thought of bjr any body who purchased or sold either certificates or located lands,, about the time it is asserted this contemporaneous construction was so much relied on.

Without troubling myself to refer to the records of deeds to be found in the office oí the clerk of the circuit court in Howard county, I could now with very little trouble recollect numerous instances of contracts made and suits decided in the circuit courts, and in the supreme court, too, the history of which plainly showst that purchases were made with a view to securing the-title by a regular chain of title, (after a patent could be obtained,) from the confirmee of the United States down to the last purchaser.

But let it be granted, that every purchaser in Missouri, when he made his purchase, did rely on this title by location; and, also, that there is some obscurity in this act of Congress, which appears to me to be expressed in terms the most plain and perspicuous, let us also move the consideration of the injustice that would result to others from such a construction of this act; still this general belief of purchasers would be no such contemporaneous construction as ought to be listened to in a court of law. In the case of Stuart v. Laird, 1 Cranch, 309, Patterson, Justice, delivering the opinion of the court, says: “ Another reason for the reversal is, that the judges of the supreme court have no right to sit as circuit judges, not being appointed as such; or, in other words, that they ought to have distinct commissions for that purpose. To this objection, which is of recent date, it is sufficient to observe that practice and acquiescence under it for a period of several jears, commencing with the organization of the judicial system, affords an irresistible answer, and has indeed fixed a construction. It is contemporary construction of the most forcible nature.”

It had been contended by counsel, that the chief justiee, who decided this cause in the circuit court, could not exercise the duties or jurisdiction assigned to the court of the fifth circuit, because, by the constitution of the United States, the supreme court has only appellate jurisdiction, except in. cases where a State ora foreign minister shall be a party; whence it was concluded that the jurisdiction of the supreme court, being appellate only, no judge of that court, as such, is authorized to hold a court of original jurisdiction. In this case, the contemporary construction was made by all the parties interested. The constitution was the work of the people of the United States. They beheld their representatives in Congress while they were organizing the judicial system. They had not complained of that organization, and the constitution consequently remained unchanged. In the case now before this court, there is an acquiescence of Hickman only. The purchaser from iwo of the heirs of Louis St. Aubin, and the others similarly situated, did not participate in settling this construction of the law.

Again, Mr, Madison, as in his latter days he informed the people of the United States, surrendered to contemporary construction his constitutional objections to chartering a Batik of the United States, The charter of the first bank was granted by an act of Congress of 1791, and expired on the 4th of March, 1811. In the year 1816, the people of the United States expressed their will, through their representatives in Congress, to charter another bank. If he had, before the 4th of March, 1811, surrendered his constitutional scruples to the contemporaneous construction of stockholders in the old bank, that would have been bad enough; for the interest which they probably felt in continuing an establishment in which their stoclr was invested, might have influenced their judgment. But bad as it would have been to respect the construction that might have been put on the constitution by the stockholders in the old bank, much worse would it be to respect this contemporaneous construction of the act of Congress of 17th February, 1815, said to have been given by men much more interested. For the stockholder, in all events sure of his capital, could have felt no interest but that of continuing to receive his accustomed dividend of the profits, instead of profits to be derived from the same capital otherwise employed. Whereas, the claimant under this new title by location is, by his own construction of the act of Congress of 17th February, 1815, to gain the tract of land located, in éxchange for the. land certified to be materially injured by earthquakes, which is owned by another person, in consideration that the person owning the injured land was one of those who suffered by earthquakes.

Thus much for the fourth point, in which is involved the consideration of this titie by location; a title, it is said, not much esteemed by the bar of the daj' where the locations were made, a bar less enlightened than the bar of the present day for want of books, and because the subject had not been discussed; a title yet well understood by purchasers, without discussion, and generally relied on by them, although they might fairly be presumed to have no law books; a title yet unheard of by me, and as it seems unknown to the circuit judge who has twice decided this cause against the plaintiffs in error, although we two weie, during the most busy time of making these locations, the only practising lawyers and conveyancers residing in that extensive tract of country then included in Howard county, in which most of the locations were made; a title yet well known to the counsel for the plaintiffs in error to have been much relied on by purchasers, although he was a stranger in the country till most, if not all, of these locations had been made.

I have not been able to learn from the argument what are the,books so necessary to elucidate this- title by location, It seems, however, to me, that it would not contribute much to the reputation of thp age, either for intelligence or probity, to have given birth to books to sustain such a title. For, unless my views of the subject are very incorrect, the same rule of construing laws which would maintain the plaintiffs in error in this (to me) new title by location, would equally maintain all those persons (who have hitherto acquired property by means deemed wrongful from time immemorial,) in the possession and enjoyment of whatever thing they may have, acquired in their several pursuits. What the several members of the bar of that day may have thought of the title by location, is unknown to me, although personally acquainted with almost every one in the territory; and how the counsel for the plaintiffs in error acquired his knowledge of their opinions, is alike unknown to me, for he was a stranger in the country until some of the prominent members of the bar of that day were no more, and until most of theiest had retired from the bar. All those, whose opinion^ could be reasonably supposed to have any material influence with the public, resided at St. Louis, which place (because the offices of the recorder of land titles and of surveyor of public lands were there established,) became the principal place of resort for all the land speculators; first, to procure their supply of certificates; and next, to make application to have their locations made. It is true, as he says, that the title by location was but little, if at all, discussed. .And so-líale had I been accustomed to consider it as a point open for discussion, that I cannot now recollect that I ever had even entertained an opinion on the subject till the August term of this court, for the year 1835, when for the first time I heard it proposed for {hat purpose. I should as soon have expected to acquire a title in fee simple to the lands of my neighbor, purchased from- the-United States at public or private sale, by delivering a list of them to the county assessor to be taxed in my name as his legal representative, as that Hickman could acquire a title in fee simple, or any other title known by law writers, to this located land, by applying to the surveyor as the legal representative of Louis St. Aubm, to locate “by virtue of this New Madrid or earthquake certificate, in the name of said St. Aubin or his legal representatives.” The assessor would much more probably be correctly informed who was the proprietor of each particular tract of land in his own county, than the surveyor, residing in St. Louis, would be informed who was the proprietor of each particular tract of the injured land lying in the county of New Madrid, and consequently of the located land. And the State of Missouri has as much authority to direct the assessor, in his annual progress through 'each county, to decide the right to all taxable property, on the testimony of the person delivering him the list thereof, as the United States bad to direct the surveyor to decide the right of property in these located lands on the testimony of `he claimant applying to locate. Bat if, on a strict examination, it should be found that the counsel for the plain tifl~ in error has committed asgreatamistake in counting the number of applications to locates framed like this above mentioned, as I feel well assured h~ has committed in ascertaining pqblic opinion concerning this title by location, then, according to his own mode of reasoning, his claim will stand on very narrow ground. The act of Oongress, as it seems to n~e, never contemplated any person owning the located land but the person owning the injured land; and I do not believe that even the person who made this application to locate was weak enough to rest his claim to the located land on such a title, and even if he were so weak, he is not to acquire for that r&ison what the law did not and could not intend to give him.

Eawians, Ja~}ge~ dissented from th~c opinion of the court-affirming the judgment below, on the ground that the plaintiff below failed tomake ou~ a complete legal title, having ed in evidence only the certifi-derVnd'the ction to the veyorto locate— cation — no «urvey — no notice of the Surveyor, hy°'the ■¿«m.

For the reasons above given, I am of opinion that the circuit court committed no error in refusing to instruct the jury as prayed in the fourteenth instruction, which is the fourth point made. Being also of opinion that that court committed no error in deciding the three first points for the defendants in error, its judgment ought, in my opinion, to be affirmed; and. Judge MoGiax concurring, it is affirmed.

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Concurrence Opinion

EDWARDS, Judge.

On the first point in the opinion just delivered, I entertain no doubt; in regard to that, I concur with the other Judges. On the second point, my opinion is not so clear, but as at present advised, I concur. Oci the third point, I have no doubt, and con-~ur also. In my view of this particular case, the fourth point is immaterial to either party. In affirming the judgment of the court below, I do not concur with the other Judges.

The defendant below asked the court to instruct the jury, that there was no legal evidence before them to enable them to find for the plaintiff. This instruction the court refused, and' this Te isal, among other matters, Is assigned for error. This instruction is broad. Where there is any evidence to support a recovery, such an instruction should i~ot be given. But here, as I understand the testimony, there was nothing to enable the jury to find for the plaintiff below, and the instruction should therefore have been giren.

In support of his right to recover, the plaintiff below relies upon a written instrument given in evidence, and, in this case, miscalled a location, as I ¡nn inclined to be-]jeve# The language of this pape.r is this: “Thomas applies to locate,” and the paper is signed by “Ihomas Hickman.” If the language had been: “John B. Wallace locates,” as in the case of Tindall v. Johnson, it would not have varied the matter. This instru-t is not a location, but a mere application to locate, Every person who wished to avail himself of the benefit act °f Congress, had first to get his eertiucate from the recorder of land titles; next, to make his application to the deputy surveyor for a locution; and the inhere offered in evidence, is Hickman's application to locate, and in my opinion nothing more. It was competent for any person to make the same, application, at the same time, and for the same tract of land. But the application to locate was one thing, and.ihe location made by the “deputy surveyor, or under his direction,” was another and a very different thing. Suppose two persons, Hickman and another, for example, had applied at the same time, in the very same terms, to locate the same tract of land, (a thing that might w'ell have happened,) would each application have amount! d to a location of the land applied for? If so, each would have had, at the same time, a location for the same land; and as a “New Madrid location,” under our statute, will maintain ejectment, each might have maintained ejectment at the same time for the same land. But this instrument, in my opinion, cannot amount to a location; some subsequent action was required upon it. It does not appear that any subsequent step was taken. The deputy surveyor may have rejected it; he may have thought Hickman showed no authority entitling him to claim a location. When a claimant applied for a location, and showed himself entitled to one, it was the duty of the deputy surveyor to make the location' — “to cause a survey thereof to be made — to return a plat of such location to the recorder — to return a notice in writing, designating the tract located, and the name of the claimant on' whose behalf the location was made; and this notice and plat the recorder was required to cause to be recorded in. his office” — see act of Congress, 2, 485, Geyer’s Digest. In this case, where fa the application to locate? The paper in evidence, signed by “Thomas Hickman,” is the.apphcation. Where is the ¡location by the surveyor?. Thi§ is not in. evidence; Where is ¡thfe plat of the survey? This is not in evidence. Whereas the notice of the surveyor ..to the recorder, designating the tract located, and the claimant? This is not imevi-dence either.; The plaintiffs’, right to recover, then, rests upon the naked application of Hickman- to .locate; If we had the notice of the surveyor to the recorder, it might then be presumed that all the preceding steps necessary in making the location had been taken; but on the mere application of-Hickman to locate, itnughtnot to be presumed that all the subsequent steps necessary to make the location had been taken. This might be presuming the. very thing which the officers refused to do. The surveyor may have decided at the very threshold that Hickman had no right to locate. The surveyor was not bound to make a location for every man ¡who applied for one. He was not even,.authorized to do so^ except when the claimant showed himself entitled to a locationaccor-ding to the provisions of the act of Congress: It might well have become the surveyor’s duty -to reject' applications made without authority to locate.

1 am of opinion, then, that this -instrument, wasffiot a “New Madiid location;” that- there- wasmo evidence.to support the-.plaintiffs’ action; that the court erred-in-refusing the above instruction; and that the judgmenl.-bf the circuit court ought to be reversed and remanded.

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Concurrence Opinion

McGirk, Judge.

I concur in affirming the foregoing ~-udgment, but lam not well satisfied.