Magwire v. Tyler

25 Mo. 484

• Court: Supreme Court of Missouri
• Decided: October 15, 1857
• Status: Published

Opinion

Scott, Judge.

This is a proceeding in equity, and the plaintiff’s right to a recovery is based on the pretension that in justice and good conscience he is entitled to the relief sought from the defendants. On the 19th of May, 1798, Joseph Brazeau, in a deed to Louis Labeaume, reserved to himself four by four arpens of a concession which was thereby conveyed from Brazeau to Labeaume. This reservation was also witnessed by Lieutenant Governor Trudeau, in a certificate dated the 12th day of May of the same year, endorsed on the concession for the purpose of authenticating the transfer from Brazeau to Labeaume. By the board of commissioners acting under the law of Congress of the 3d of March, 1807, respecting land claims in Louisiana territory, this reservation was confirmed to Joseph Brazeau or his legal representatives, as is maintained by the plaintiff. It is conceded on all sides that there was but one such reservation, and that the government of the United States was under obligation to make but one satisfaction of the claim or reservation of Brazeau. If those entitled by law to that reservation have had it located and have made an appropriation of it as located, there can be no valid claim to that reservation existing in any other person, nor can it be of any importance whether the location of the claim was made north or south of the Labeaume ditch. If those entitled to the claim are satisfied with the location as it has been made, it is not for third persons, claiming by a subsequent conveyance, to object to that location, and insist on its being placed in some other locality.

By a deed of July 26th, 1816, Brazeau having conveyed his reservation to Pierre Chouteau, Chouteau, by a deed of June 1st, 1826, conveyed the same to George E. Strother. This latter deed, by its terms, beyond all doubt, included the reservation of four by four arpens originally belonging to Brazeau, and by him convoyed to Chouteau. Strother, by a deed of September 3d, 1830, conveyed to John O’Eallon and John Mullanphy, in trust for the St-. Louis Marine Railway company, the reservation as it was conveyed to him by Chou-teau, reference being made to Chouteau’s deed. It will not be contended, it is presumed, that the deed from Strother to the trustees of the Marine Railway company did not convey the reservation in as ample a manner as it was conveyed by Chouteau to Strother. The answer denies that the title of the Marine Railway company passed to the plaintiff by virtue of the deed of January 2d, 1852 ; and as it was agreed on the argument that any state of facts might be assumed consistent with the pleadings which would show that the plaintiff is not entitled to recover, we will take it that the Marine Railway company, without any regard to its location, conveyed away the reservation acquired-from Strother by his deed of September 3d, 1830. Now, if afterwards that company conveyed its interest in the reservation, by the description of the land north of the ditch called Labeaume’s ditch, to the plaintiff, then he took it subject to the preexisting rights of the company’s alienees. Those alienees taking the reservation wherever it might be located, they or their assigns would have a right prior to that of the plaintiff to assent to the location ; and if they should have ajjpropriated the land as located and patented, there could be no right in the plaintiff to have it surveyed in any other locality. Indeed, if the reservation was conveyed by the Marine Railway company to its alienees as it was received from Strother, it is not easy to see how the plaintiff could derive any right, title or interest by a subsequent conveyance. If the conveyance to the plaintiff had been in as ample a manner as those to the prior alienees, he could not derive any title from it, and it can not be perceived how his situation is bettered by taking a deed for the company’s land north of the Labeaume ditch. It will not be contended that the company’s deed to the plaintiff was designed in any way to affect the rights of its prior alienees in the event of the reservation being patented south of the ditch.

How, then, does the case stand ? They to whom the reservation rightfully belonged have appropriated it, and its survey and patent include the land as appropriated. Survey No. 3333 locates the reservation south of the ditch, and the patent on that survey conveys the land to Brazeau’s representatives. Now as the representatives of Brazeau, prior in point of time and of right, have appropriated the land as located by the United States, how can there be any right in any other person to have that land located a second time ? Such pretension can only find support in the idea that there were two reservations belonging to Brazeau — one north and one south of the ditch. As there was but one reservation, and as the government of the United States has satisfied its obligations to the legal representatives of that claim, there can not exist, in law or equity, any claim or right in any other person arising out of a conveyance subsequent to those under which the land had been previously appropriated.

We do not see what the deed of the administrator of Strother has to do in this controversy. Even admitting it was available for any purpose, we do not consider that there is any necessity for inquiring how far the deed from the plaintiff to Bogy would operate as an estoppel against his right of recovery in this action. The existence of this deed is averred in the answer.

I have not placed my opinion on the ground maintained by Judge Napton. Deference to the intimation of the Supreme Court of the United States, when this case was before it on a writ of error on its law side, disinclines me to enter on that question. It is obvious that if such an objection is tenable, unless the general government will issue a patent to each claimant of the same tract of land, the action of its officers in making a survey will be conclusive on the courts both at law and in equity. On the other hand, if the intimation of the court is carried out, then, by a change of the form of the action, the whole doctrine of the conclusiveness of surveys will be evaded.

.We do not see how the action of the court below in dismissing the bill under the circumstances can be sustained. An answer to the petition was filed. If the parties had so wished, the answer might have been withdrawn and a demurrer entered. But that was not done. There was no trial but on the petition and answer. The bill was dismissed ; no facts were found. It does not appear why the petition was dismissed. The judgment will be reversed, and the cause remanded.

Napton, Judge.

It was determined in the case of West v. Cochran, 17 How. 414, that in relation to confirmations under the act of 1807, where the claim was uncertain, and' the confirmation is accompanied with the condition that the land should be surveyed, such survey is to be made under the authority of the United States by her officers; and that the location is not a question for the investigation of the judiciary. This principle is distinctly declared in the instructions of the judge who tried the case oh the circuit and who subsequently delivered the opinion of the court at Washington. The principle is moreover applied to the very matter now in controversy here, as will be seen by the instructions, which are these : “ We are of opinion that the United States reserved the power to locate, by survey, the land eore-jftrmed to Brazeau, and by such survey to separate it from the public lands and from the lands claimed by others, and to issue a patent therefor, as was done in this instance ; that this reserved power was vested in the executive department, whose acts, in this instance, bound Brazeau and others claiming wider him ; nor can they extend their claim and recover land beyond the boundaries described in the patent to Bra-zeau or his legal representatives.” But this is the very matter now proposed to be inquired into by Brazeau’s legal representatives, to-wit, that the fact of where this land is shall be investigated. It is true that one of the judges of the Supreme Court declared it to be understood, in the decision of West v. Cochran, that the equities of the parties were still open ; but if the grounds upon which the ejectment was determined, both on the circuit and at Washington, are to be understood as the basis of the decision and judgment, it is not perceived how this declaration of Mr. Justice McLean can help the plaintiff’s case.

If the assertion in this bill, that Brazeau’s entire concession of four by twenty arpens and his confirmation of four by four arpens lay north of Labeaume’s ditch, is to be assumed as a fact, the case might present a different aspect; but this assertion is coupled with an exposition of the title papers, with the concessions to Labeaume and Brazeau, the survey of Sou-lard, the confirmations — in short, with a complete history of the case. The confirmation to Brazeau produced is the identical confirmation which the Supreme Court passed upon in the case of West v. Cochran, and which they declared only operated upon land which the United States executive should subsequently designate. “ Until the survey was made” the court say “ the plaintiff’s title attached to no land, nor could a cowrb of justice ascertain its boundaries.” It strikes me that this is a very distinct enunciation, that the surveying department of the federal government settles the question of location, and that the courts have nothing to do with it. The principle is just as applicable in a court of equity as of law.

There is no doubt that where a complete title has emanated from the federal government to a specific tract of land, and an equity attaches to that land in behalf of some other person than the patentee, a court of justice, either state or federal, may enforce such equity, and transfer to its owner the legal title. This, however, proceeds upon the assumption that there is an equity against the United States to a specific tract of land. It can not be doubted that Brazeau’s confirmation was at least an equity ; but to what ? To what specific land did Brazeau’s equity attach ? To the land within the confirmation, of course. But what land is within the confirmation, and who is to determine it ? The answer settles this controversy. If it is a question of fact to be investigated and determined by courts of justice, the bill in this case is not subject to demurrer ; but if, as the Supreme Court said in West v. Cochran, it is a question to be determined by the executive department of the United States, then Brazeau’s equity is to the land which they designate, and not to that which we might determine. No doubt the acts of executive officers, federal or state, whether President or surveyor, if contrary to law, are void ; and so any court of justice, federal or state, would decide. But the Supreme Court declares that the law itself, the act of 1807, has entrusted the surveyor with authority to determine where this confirmation is, and that until a survey is made the con-firmee has no standing in court. If injustice is done him, it is by the political sovereignty, and to redress such injuries is not within the province of courts.

This controversy is obviously purely one of locality. Pursuing it through all its ramifications, and looking at it in all its diversified shapes, it still resolves itself at last into this, and nothing else. There is no dispute that Brazeau had a confirmation; there is no dispute that this gave him at least an equitable, if not (as was once supposed) a legal, title; there is no dispute that a court of justice, either state or federal, which has jurisdiction, will enforce this title; but the dispute is, where is the land confirmed ? Who is to decide this ? I am laboring under a singular delusion if I am mistaken in saying that the Supreme Court of the United States have deliberately adjudged, in reference to this very case, that the United States surveyor is alone to determine this question.

That the case of West v. Cochran is not misunderstood is seen by wliat the same court have since said in Kissell v. The Public Schools, 18 How. 19. “ Our opinion is that the school lands were in the condition of Spanish claims after confirmation by the United States, without having established and conclusive boundaries made by public authority, and which claims depended for their specific identity on surveys to be executed by the government. The case of West v. Cochran lays down the dividing line between the executive and judicial poioers in such cases, to-wit: that until a designation, accompanied by a survey or description, was made by the surveyor general, the title attached to no land, nor had a court of justice jurisdiction to ascertain its boundwies.” In Stanford v. Taylor, 18 How. 412, the Supreme Court say : “ Where the claim has no certain limits, and the judgment of confirmation carries along with it the condition that the land shall be surveyed and severed from the public domain and the land of others, there it is not open to controversy that the title attaches to no land; nor has a court of justice any authority in law to ascertain and establish its boundaries, this being reserved to the executive department.”

These cases do not proceed upon any distinctions between legal and equitable titles, or legal and equitable remedies. They are based upon a division line between the executive and judiciary departments, and assert that the latter have no jurisdiction of this question of location, which Congress have assigned to the former in certain enumerated cases, and that this is one of the cases referred to.

The entire scope of this bill is simply to ask the court to locate the Brazeau reservation within the linos of a tract confirmed to Labeaume, and to which Labeaume has a survey and patent. The whole argument to support this application is founded on the assumption that Brazeau’s confirmation is to a special tract of land, and this, specific tract of land lies within Brazeau’s patent. But it has been authoritatively decided that Brazeau’s confirmation was not specific, but was merely to such lands as the government surveyor should point out. The surveyor has determined its locality, and that is not at the place where the plaintiff insists it ought to be. He is then without any equitable title to any specific tract if he declines to recognize the surrey of the government ; and if justice has been done through mistake or fraud, this is not the forum, or this proceeding the remedy, by which it can be corrected. If this court can now declare to him that his land is within Labeaume’s surrey, and is not where the government has located it, we must do so upon the ground that his confirmation gave him an equitable title to a specific piece of ground — one that could be located by the courts without the aid of surveyors; and consequently that any location of such tract by a government surveyor would merely be evidence of its locality, the propriety of which would be for the decision of courts of justice as in ordinary surveys of complete titles. But this is distinctly at variance with my understanding of the opinion of the Supreme Court of the United States in relation to this identical confirmation.

Upon a point of practice it is agreed that the judgment be reversed.