SCOTT, J.
An attempt will not be made to review each instruction that was given and refused in this cause. They are numerous, and such' a course would lead to great prolixity. It will be sufficient to advert to the main questions of law arising on the facts, and when they are determined, they can with facility be applied in adjusting this controversy.
The view taken of the effect of the act of confirmation by the board of commissioners, will do away with the necessity of investigating the validity of the judicial proceedings in the case of Sarpy against Glamorgan, and of the sheriff’s deed under those proceedings, dated July 8,1808. But it must be said that when consideration is made of the loose manner in which business was transacted in those days, that the ministers of the law were mostly instructed in one system, and acting under another of which they were ignorant, a state of circumstances can scarcely be conceived which would warrant a court in overturning a sheriff’s sale of that date, especially as possession has followed and continued with the act. Every consideration of policy in such a state of things requires a liberal indulgence of the maxim ex diuturnitate temporis omnia presumuntur rite ét solemniter esse acta. As to the 'alleged want of notice by Clam-organ of the proceedings against him, the cases heretofore decided by this court answer this objection. His appearance is entered of record, and surely that fact cannot be controverted in a collateral proceeding. Indeed, if a writ of error was brought on this judgment, the ground is not perceived on which it could be reversed. 1 Greenl. Ev. § 19; Hart and others v. Seixas, 21 Wend. 40. But if a judgment is merely erroneous, its validity oannot be questioned collaterally; it can only be affected by a direct proceeding to reverse or vacate it.
A question of importance in the cause, is, as to the operation of the confirmation to Glamorgan : whether it conveyed the legal title of the lot to him or to Conner. After much deliberation, no tenable grounds have been perceived on which the opinion can be based, that by the confirmation the legal title of the lot became vested in Conner. By purchasing Glamorgan’s interest in the lot during its pendency for confirmation, Conner became the beneficiary owner of the same, and, under our system of law, he was entitled to a. conveyance of the legal title. But there is a marked difference between a right to a legal title and the actual possession of it. That difference is as well defined and as well established as any principle of the law. The profession have acted upon it, and the consequences may be foreseen, which may result from its overthrow. That such a cause may disturb titles, is unquestionable. Under the laws involving this question, a confirmation is equivalent to a patent.(b) If the principle contended for is applicable to a confirmation, it is equally so to a patent. When Congress enacted that the death of a patentee at the date of the patent should not avoid the grant, but that it should enure to the benefit of the heirs or assignees of the patentee, it clearly expressed its sense of this question.
Nothing is to be found in the acts of 1805 or 1807 which warrants the opinion that the confirmation passed the legal title of the estate confirmed to any other person than the claimant. The act of 1807 speaks of the claimant or his legal representatives ; but clearly it contemplates only those representatives who file their claims before the board as assignees under the original claimant from the Spanish government. If one is a representative, and he does not prefer his claim as such for confirmation, he is not regarded by the act. That Conner’s title did not accrue until after the time for filing claims, cannot affect this question. The 4th section of the act of 1805 prescribes that every person claiming lands shall file his claim. The 6th section of the act of 1807 directs that reports of the final decisions in favor of claimants be made to the secretary of the treasury, and that a certificate shall be issued to the claimant showing that he is entitled to a patent; thus clearly evincing that in the contemplation of Congress, the legal title could only pass to the claimant.
[166]*166The force of the argument drawn from the nature of titles existing in the then territory, is not percei-ved. Whether they be termed legal or equitable, complete or inchoate, does not affect the question. It is admitted on all hands that the fee of the lot was in the United States, and,that an action of ejectment can only be maintained by him in .whom that fee has been vested. When a particular person claims a tract of land, and it is confirmed to him by name, and that confirmation passes the title, how can it be maintained that the title did not pass to the claimant but to some other person. It may be that it ought to have passed to him, but that is not the inquiry. It is, to whom did it actually pass ? Nor is it perceived that the fact that there was no distinction between courts of law and equity at that day, affects this question. It may be that there was no such distinction, but are we therefore to infer that the Spanish system of jurisprudence was so defective as not to furnish any redress in cases where one obtained a title to land which belonged to another ? If, by that system of law, a beneficiary, owner .could have maintained an action againt the owner of the fee, does it follow that he would at this day be entitled to such remedy under an entire different system ? The commissioners had no authority under the laws which controlled their action to pass the fee of the government to any other person than the claimant on the record before them. Had they expressly confirmed .the claim to any one except the claimant, their act would have been void. If,, then they could not convey the legal title to any one else than the claimant directly by name, on what principle can their act be held to havedone that indirectly which they could not do directly. The law declared that the action of the board should be final between the United States and the claimant. The United States and Glamorgan were the only parties to the proceeding before the board, and .the board declare that as between them the title is in Glamorgan. By law, then, it must have gone to him. Under the act of 1807 the decision of the commissioners had the same effect as an act of Congress would have had on claims reported under the act of 1805. Now will any one contend that the act of confirmation passed by Congress conveyed the legal title of the lands confirmed to any others than those in whose names the claims were reported ? The case of Strother v. Lucas, reported in 6th and 12th Peters, is one involving the construction of the acts under which this confirmation was made. It is conceded that that case is different from this, but it affords no ground for the opinion, •that a confirmation of the commissioners enured to the benefit of any one else than the claimant. On the contrary, it fully maintains that a confirmation under a law is as fully and to all intents and purposes, a grant, as. if it contained in terms a grant de novo ; and that it is inconsistent with all the acts of Congress which have organized boards, that the confirmations of the commissioners should enure to any other'uses, or to any other person than the person or persons claiming the confirmation.
The Spanish law of abandonment declared that if a man be dissatisfied with his immovable estate and abandon it, immediatelyihe departs from it corporeally with an intention that it shall no longer be his, it will become the property of him who first enters thereon.
Free access — add to your briefcase to read the full text and ask questions with AI
SCOTT, J.
An attempt will not be made to review each instruction that was given and refused in this cause. They are numerous, and such' a course would lead to great prolixity. It will be sufficient to advert to the main questions of law arising on the facts, and when they are determined, they can with facility be applied in adjusting this controversy.
The view taken of the effect of the act of confirmation by the board of commissioners, will do away with the necessity of investigating the validity of the judicial proceedings in the case of Sarpy against Glamorgan, and of the sheriff’s deed under those proceedings, dated July 8,1808. But it must be said that when consideration is made of the loose manner in which business was transacted in those days, that the ministers of the law were mostly instructed in one system, and acting under another of which they were ignorant, a state of circumstances can scarcely be conceived which would warrant a court in overturning a sheriff’s sale of that date, especially as possession has followed and continued with the act. Every consideration of policy in such a state of things requires a liberal indulgence of the maxim ex diuturnitate temporis omnia presumuntur rite ét solemniter esse acta. As to the 'alleged want of notice by Clam-organ of the proceedings against him, the cases heretofore decided by this court answer this objection. His appearance is entered of record, and surely that fact cannot be controverted in a collateral proceeding. Indeed, if a writ of error was brought on this judgment, the ground is not perceived on which it could be reversed. 1 Greenl. Ev. § 19; Hart and others v. Seixas, 21 Wend. 40. But if a judgment is merely erroneous, its validity oannot be questioned collaterally; it can only be affected by a direct proceeding to reverse or vacate it.
A question of importance in the cause, is, as to the operation of the confirmation to Glamorgan : whether it conveyed the legal title of the lot to him or to Conner. After much deliberation, no tenable grounds have been perceived on which the opinion can be based, that by the confirmation the legal title of the lot became vested in Conner. By purchasing Glamorgan’s interest in the lot during its pendency for confirmation, Conner became the beneficiary owner of the same, and, under our system of law, he was entitled to a. conveyance of the legal title. But there is a marked difference between a right to a legal title and the actual possession of it. That difference is as well defined and as well established as any principle of the law. The profession have acted upon it, and the consequences may be foreseen, which may result from its overthrow. That such a cause may disturb titles, is unquestionable. Under the laws involving this question, a confirmation is equivalent to a patent.(b) If the principle contended for is applicable to a confirmation, it is equally so to a patent. When Congress enacted that the death of a patentee at the date of the patent should not avoid the grant, but that it should enure to the benefit of the heirs or assignees of the patentee, it clearly expressed its sense of this question.
Nothing is to be found in the acts of 1805 or 1807 which warrants the opinion that the confirmation passed the legal title of the estate confirmed to any other person than the claimant. The act of 1807 speaks of the claimant or his legal representatives ; but clearly it contemplates only those representatives who file their claims before the board as assignees under the original claimant from the Spanish government. If one is a representative, and he does not prefer his claim as such for confirmation, he is not regarded by the act. That Conner’s title did not accrue until after the time for filing claims, cannot affect this question. The 4th section of the act of 1805 prescribes that every person claiming lands shall file his claim. The 6th section of the act of 1807 directs that reports of the final decisions in favor of claimants be made to the secretary of the treasury, and that a certificate shall be issued to the claimant showing that he is entitled to a patent; thus clearly evincing that in the contemplation of Congress, the legal title could only pass to the claimant.
[166]*166The force of the argument drawn from the nature of titles existing in the then territory, is not percei-ved. Whether they be termed legal or equitable, complete or inchoate, does not affect the question. It is admitted on all hands that the fee of the lot was in the United States, and,that an action of ejectment can only be maintained by him in .whom that fee has been vested. When a particular person claims a tract of land, and it is confirmed to him by name, and that confirmation passes the title, how can it be maintained that the title did not pass to the claimant but to some other person. It may be that it ought to have passed to him, but that is not the inquiry. It is, to whom did it actually pass ? Nor is it perceived that the fact that there was no distinction between courts of law and equity at that day, affects this question. It may be that there was no such distinction, but are we therefore to infer that the Spanish system of jurisprudence was so defective as not to furnish any redress in cases where one obtained a title to land which belonged to another ? If, by that system of law, a beneficiary, owner .could have maintained an action againt the owner of the fee, does it follow that he would at this day be entitled to such remedy under an entire different system ? The commissioners had no authority under the laws which controlled their action to pass the fee of the government to any other person than the claimant on the record before them. Had they expressly confirmed .the claim to any one except the claimant, their act would have been void. If,, then they could not convey the legal title to any one else than the claimant directly by name, on what principle can their act be held to havedone that indirectly which they could not do directly. The law declared that the action of the board should be final between the United States and the claimant. The United States and Glamorgan were the only parties to the proceeding before the board, and .the board declare that as between them the title is in Glamorgan. By law, then, it must have gone to him. Under the act of 1807 the decision of the commissioners had the same effect as an act of Congress would have had on claims reported under the act of 1805. Now will any one contend that the act of confirmation passed by Congress conveyed the legal title of the lands confirmed to any others than those in whose names the claims were reported ? The case of Strother v. Lucas, reported in 6th and 12th Peters, is one involving the construction of the acts under which this confirmation was made. It is conceded that that case is different from this, but it affords no ground for the opinion, •that a confirmation of the commissioners enured to the benefit of any one else than the claimant. On the contrary, it fully maintains that a confirmation under a law is as fully and to all intents and purposes, a grant, as. if it contained in terms a grant de novo ; and that it is inconsistent with all the acts of Congress which have organized boards, that the confirmations of the commissioners should enure to any other'uses, or to any other person than the person or persons claiming the confirmation.
The Spanish law of abandonment declared that if a man be dissatisfied with his immovable estate and abandon it, immediatelyihe departs from it corporeally with an intention that it shall no longer be his, it will become the property of him who first enters thereon. That although the owner had no corporeal possession of this estate, he would nevertheless retain the property of it in his mind, and therefore no other person ought or can enter upon it. 1 Partidas, law 50, p. 865. The common law not being in force in this State prior to 1816, the law of abandonment prevailed here previous to that time. From this law it is manifest that whether a party abandoned his property or not, depended altogether upon his intention to be ascertained from circumstances. It is a question peculiarly appropriate to be submitted to the consideration of a jury. The law is plain when the facts are ascertained. The instruction asked on this subject was properly refused. The phrases “well aware,” “free to do or say,” “under no improper restraint,” were not sufficiently pointed, and might have misled the jury. No doubt an abandonment must be voluntary, nor can there be an intent to abandon without some consciousness of the ownership of the thing abandoned.
The common law of England was introduced into this State by an act passed 19th January, 1816. By the common law no limitation of time was fixed Within which actions were required to be brought. Prior to the fourth year [167]*167of the reign of James I, the act of the 82nd Henry Yin, limiting the time within which real actions should he brought, had been enacted in England ; yet from the preamble to the act of limitations, passed 17th December, 1818, it would seem that the Legislature, acted under the belief that no limitation existed at that time, fixing the period within which real actions should be brought. Hence it might be inferred that the law of prescription did not prevail at the introduction of the common law. Be that as it may, the act of limitations must have abolished all prescription. The proviso of that act permits all persons then having a right of entry, without regard to the period when it accrued, to bring their actions within twenty years. How ten, twenty, or thirty years would give a right by prescription, according to the circumstances under which the possession commenced. But it is said that as to existing rights of entry, the statutes ought to be construed cumulative to the law of prescription; otherwise a person within a few days of the period at which his title would be perfected by the law of prescription, would be exposed .to an action for twenty years after the passage of the act. But take the case where the right had accrued but a few days before the enactment of the statute, could a party under any circumstances, in the very teeth of the law, acquire a right within ten years, as it might have been done under the law of prescription ?
The lot having been confirmed Movembcr 13, 1811, ten years, the shortest period -within which a title could have been acquired by prescription, had not elapsed before that law was abolished by the statute of limitations. The title only passing from the government by the act of confirmation, the statute did not run but from that time. It has been repeatedly held that the statute of limitations does not run against the United States. Lindsay v. Miller, 6 Peters, 666. So the statute of limitations does not run against the government or its gruntee in favor of one who does not hold the entire title. Until the title emanates, the possession is not adverse, but under the government. It is analogous to ilie case of one entering under a contract to purchase. 5 Bin. 77, Morris v. Thomas; 5 Cowen, 92; 12 Mass. 327; Johnson v. Irwin, 3 Serg. & Rawle, 292; Duke v. Thompson et al. 16 Ohio R. 34.
The statute of limitations relative to real actions first introduced into this State is a copy (as were many other of our early laws), of the statute of Pennsylvania. In the construction of the Pennsylvania statute (as it has been of all other statutes on the subject) it has been held that when the bar once begins to run no subsequent disability is regarded, but the action must be brought within twenty years from the time the statute commenced running. Hall v. Vanderbright, 5 Bin. 374. Whatever may be the meaning of the last clause in our statute of limitations which is not found in the act of 21st James I, it cannot apply to this case, as the parties do not come within its provisions. Cyprian and Apoline, under whom the plaintiffs claim, were born in June and February, 1803. They consequently attained their majority in' 1824, and the statute commenced running against them from that time. Their deaths after-wards, within the twenty years, within which they were required to bring suit, although their title may have devolved on those who were under a disability, did not prevent the running of the statute. The suit was not brought until 1845, consequently the plaintiffs were barred if there were twenty years’ continued adverse possession.(c)
This court has not adopted the principle that in a contest between two alienees under the same alienor, one of them is estopped from showing an outstanding title adverse to that of his grantor.(d) This doctrine, though prevailing in some courts, was not sanctioned by others, and from the disinclination to receive it, this court thought itself warranted in refusing its sanction. The cases in New York which seem to give countenance to the doctrine that one accepting a title is estopped from claiming adversely to it, prevailed when it was the law of her courts that a grantee could not dispute the title of a grantor. Macklot v. Dubreuil, and the cases there cited. The acceptance of the sheriff’s deed in 1826 did not estop those under whom defendant claims. We maintain that a purchaser holds adversely to his vendor. The question of adverse possession, is one of law and fact. We willnot undertake to saythat a purchase may not be made under circumstances which would warrant the jury [168]*168in finding a recognition of the title of the vendor, hut we do say that the mere fact of purchasing a title does not by operation of law prevent the vendee from insisting on a possession adverse to that title. A person may be in possession of lands, claiming title, and in his anxiety to secure his estate beyond all cavil, or to prevent litigation, buys in an outstanding title of whose defects he knows nothing, nor does he care for them, as he relies on his own original title, If a .suit is afterwards brought by one claiming under him from whom the outstanding title is derived, it would be extremely unreasonable that he who purchased the outstanding title, for the sake of quiet and repose, should be precluded from setting up, as a defense to the action, his possession under his original title. Why should men be restrained from buying their peace under the penalty of losing their estates ? Are not men daily buying titles adverse to those under which they hold, without any confidence in their validity, but merely to remove specks or shadows from their titles, which may affect the price of their lands in market ? A contrary doctrine must have its origin in feudal reasons which have long since ceased to have any influence. Gessante rations eessat et ipsa lex.
It is a matter of history of which this court will take judicial notice, that at the time of the cession of Louisiana to the United States, in that portion of the territory of which this State is composed, nineteen-twentieths of the titles to lands were like that involved in this case prior to its .confirmation. There were very few complete grants. Most of the inhabitants were too poor to defray the expenses attending the completion of their titles, but they liad faith in their government, and rested as quietly under their mclioate titles as though they had been perfect. Stoddart’s Sketches, 245. As early as October, 1804, we find the Legislature speaking of freeholders, and authorizing executions against lands and tenements. See law establishing Courts for the trial of small causes, passed October, 1804, § 10. There being so few complete titles, the Legislature in subjecting lands and tenements generally to execution, must have contemplated a seizure and sale of those incomplete titles which existed under the Spanish government. At the-date of the act above referred to, no titles had been confirmed by the United States. An instance is not- recollected in which a question has been ¿nade as to the liability of such titles as Glamorgan’s under the Spanish government to sale under execution. It is believed that such titles nave been made the subject of judicial sales without question ever since the change of government. As this question was involved in the cause and discussed, we have noticed it, although it is not within the course prescribed at the beginning of this opinion.(e)
No error is seen in the refusal of the court to give the instructions relative to the appropriateness of the description of the lot contained in the advertisement under which the sale was made to O’Fallon & Lindell. Glamorgan owned the whole lot and the whole was sold. In this respect the case differs from that of Evans v. Ashley. That the lot was subdivided into streets and alleys, that it was sold in mass, and that a greater quantity was sold than was necessary to bring this case, so far as these objections are concerned, within the principle of the case of Hartt v. Rector, reported in 7 Mo. R. 531. It is there shown that sucli irregularities in a sheriff's sale will avoid them in direct proceedings instituted to vacate them, but that they cannot be annulled collaterally. The authorities are there cited and the argument made, and it is useless to repeat it here.
Whether the description of the premises sold was sufficient, would depend on extrinsic circumstances. If the lot was known by the description given, the sale would be valid according to the principle settled in the case of Hartt v. Rector, 7 Mo. R., and parol evidence was admissible to establish that fact.
The seventh instruction given for the plaintiffs, recognized this principle, and so far was correct. That a part of the description was false, will not vitiate the sale, according to the maxim falsa demonstratio non nocet, when the thing itself is certainly described; as in the instance of the farm called A., now in the occupation of B.; here the farm is correctly designated as farm A., but the demonstration would be false if O. and not B. was the occupier, and yet it would not vitiate the grant.(f)
The objection to the form of the execution is not sufficient to invalidate the [169]*169sale to O’Eallon & Lindell. It is important to the interests both of plaintiffs and defendants that the title of a bona fide purchaser at a sheriff’s sale, should not be affected on account of any error or irregularity in the judgment or execution. A writ of error will be upon the award of an erroneous execution. Coke’s Ins. If on such writ the execution should be avoided, a previous sale upder it would not be affected, more than a sale under an erroneous judgment. Manning’s case, 8 Coke. The authorities cited by the plaintiffs do not support the objection. Under the execution iaw it was in the power of the defendants to elect on what property an execution should be levied, whether on real or personal. Dig, 1825, § 11.. No inconvenience then would likely arise from the form of the execution adopted in this case. Courts might • interfere with such process and amend it, or might restrain its execution in any other manner than that authorized by law, but there is no principle on •which a sale under it could be declared void in a collateral proceeding.
Prior to the act of December 30th, 1826, the sale of the lands of deceased persons was authorized under executions against their personal representatives. Such sales are expressly allowed by the Administration law of 1825, § 49, after the expiration of eighteen months from the granting letters testamentary or of administration. Indeed, the right to an execution against a decedent’s real-estate was never doubted. Scott v. Whitehill & Finch, 1 Mo. R. 691, 764; Rankin v. Schatzell, 12 Wheat. 177.(g)
The instruction to the effect that the statute of limitations did not commence running until the survey of the lot in 1826, was properly refused. The confirmation was a grant of the claim confirmed. A survey of the claim was filed with the board. Our statute relative to Ejectments gave an action on a confirmation by the board of commissioners. The survey contemplated by the act of 1807, was a private act, and as it was to be at the costs of the confirmee, it is to be presumed that he would take the initiative in having it made. The other Judges concurring, the judgment will be reversed, and the cause remanded.
а) Montgomery v. Farley, 5 Mo. R. 233; Perryman v. State, 8 Mo. R. 208. But where judgment void—McNair v. Biddle, 8 Mo. R. 257; State v. Stephenson, 12 Mo. R. 178. See Reed v. Vaughn, 15 Mo. R. 137; Draper v. Bryson, 17 Mo. R. 71; Chouteau v. Nickolls, 20 Mo. R. 442; State v. St. Gemme, 31 Mo. R. 230; State v. Rogers; 36 Mo. R. 138; Forder v. Davis, 38 Mo. R. 107; Lamothe v. Lippott, 40 Mo. R. 142; O’Reilly v. Nicholson, 45 Mo. R. 160.