Holmes, Judge,
delivered the opinion of the cdurt.
This was an action of ejectment, to recover possession of a lot situated within the U. S. survey No. 8003 of St. Louis lands. The plaintiff claimed title under a survey and designation to the St. Louis Public Schools. The answers merely denied the wrongful entry and the plaintiff’s right to the-possession.
The plaintiff relied upon the survey and assignment of the land contained in the survey No. 3003 to the Schools, made in 1837, and upon the acts of Congress vesting title under said survey.
The defendants objected to the admission of this survey and designation, on the ground that it was no compliance with the act of Congress- of the 26th of May, 1824, so as to confer title on the Schools. They relied also upon a supposed confirmation by the act of Congress of June 13,1812, on the ground of inhabitation, cultivation or possession of the com[77]*77mon-field lot in question by one James Mackay, prior to the 20th of December, 1803. In support of this claim of titles they offered in evidence—
1. Certain depositions in perpetuam, taken under the statute of 1825, together with a certified copy of the record of the same from the office of the recorder of the. county of St. Louis, having no notice attached thereto or recorded therewith.
2. Certain affidavits respecting the notice and the publication thereof, with the testimony of a witness in relation to his examination of the files of the “Republican” newspaper for a publication of notice therein.
3. A Spanish concession to Joseph Chartrau, dated April 29,1778, together with a certified copy of the same from the office of the recorder of said county, as recorded in 1818, as tending to show occupation, cultivation and possession prior to 1803, and a claim of title.
4. A contract between Joseph Chartrau and James Mac-kay, dated August 24,1804, with a certified copy of the same from the recorder’s office of said county, as recorded in 1818, the original of which appeared on its face to have been materially interlined in another handwriting and a different ink, without any explanation thereof.
5. A certified extract from Recorder Hunt’s Minutes of Testimony, taken July 30,1825, under the act of Congress of May 26,1824, together with a copy of a letter of the Surveyor General to the Commissioner of the General Land Office, as tending to show that the survey and designation of the lot contained in survey No. 3003 to' the Schools was improperly made, so late as the year 1837, and gave no title to the Schools.
All these documents were .excluded. There were no instructions.
The questions presentéd by the exceptions taken will be considered in their order. And first, as to the survey and designation of this land to the Schools. This matter may be ■regarded as settled and determined by the former adjudica[78]*78tions of this court. In Kissell v. Public Schools, 16 Mo. 553, the subject was thoroughly examined, and it was decided that the acts of Congress of 1824 and 1831, and a survey officially made, under instructions from the General Land Office, designating and setting apart a particular lot to the Schools, passed to them the whole title dl the Government, legal and equitable. The acts and the survey were considered as equivalent to a patent, where all previous steps required by law before its emanation are to be presumed. The fact that the survey was made after the year 1831 was not deemed material. It was held that the survey and the act of 1831 showed a legal title in complete form, and that it devolved on the adverse party to show a better title, or that the title thus set up against him was. null and void. It is contended that this survey is null and void, for the reason that the authority of the Surveyor General to make it, in 1837, had expired. No definite limitation of the time is prescribed by the act of 1824; but it is made the duty of the Surveyor General to proceed, “immediately after the expiration” of the term allowed for proving claims before the Recorder of Land Titles, to make the proper surveys and designations to the Schools ; and the Recorder, “ so soon as the said term shall have expired,” was to furnish the Surveyor General with a list of the lots so proved before him, “to serve as his guide in distinguishing them from the vacant lots to be set apart” to the Schools. These proved lots are not to be set apart to the Schools. Vacant lots only can be so set apart and surveyed and designated for the Schools. But it does not by any means follow, that all lots not so proved are to be considered as vacant lots, and subject to be assigned to the Schools. It has been uniformly held, that the fact of inhabitation, cultivation, or possession, and the location and boundaries of the lot, may be proved in the courts by any competent evidence, and that such lots were confirmed by the act of 1812, directly, presently, and by its own immediate force. A survey and designation of such a lot to the Schools would be unquestionably null and void; and when such proof shall be made, [79]*79the survey and designation to the Schools will be completely rebutted and avoided. The power and duty of making these official surveys belong to- the executive department of the Government. . Whether or not there can be any limit to its exercise, in point of time, short of exhaustion in a full execution of the power and a complete performance of the duty, it will be unnecessary for us to undertake to determine now; but we are of opinion that both the power and the duty still existed in 1887, when this survey was made.
As to the depositions in perpetuam, there can scarcely be any room for doubt that they were properly excluded. The statute expressly required that the notice, when given by publication, should be published “once a week for one month,” which should be at least two months previous to the day of taking such depositions. No such publication was shown by the evidence ; on the contrary, it tended strongly to show that the notice had never been inserted but once. Neither the certificate of the clerk nor the deposition showed that the “questions and answers” were reduced to writing “ as near as possible in the very words of the witness”; nor that the deposition was “ distinctly read over to said witness ” ; nor does it appear that the depositions were “ forwarded to the clerk of the Circuit Court within thirty days,” for the purpose of being recorded. They were not in fact recorded until than eighteen months after they were taken. All these things were required by the words of' the statute — R. C. 1825, p. 617.
The rule must be considered as established beyond question, that, in case of depositions taken in perpetuam, the forms of the law under which they are taken must be strictly pursued, or they cannot be read in evidence — 1 Greenl. Ev. § 552. “ The authority to take depositions in this manner has always been construed strictly,” says Mr. Justice Story, “ and therefore it is necessary to establish that all the requisites of the law have been complied with, before such testimony is admissible”—Bell v. Morrison, 1 Pet. 351. And of this there must be distinct proof: no just presumption can [80]*80be made in favor of it. The authority of the magistrate must appear on the face of the instrument, and what must so appear cannot be supplied by parol proof—Harris v. Wall, 7 How., U. S. 704. The notice is the most material thing of all. The proceeding is one against strangers who can be no otherwise parties to it, and by force of the statute itself.
Free access — add to your briefcase to read the full text and ask questions with AI
Holmes, Judge,
delivered the opinion of the cdurt.
This was an action of ejectment, to recover possession of a lot situated within the U. S. survey No. 8003 of St. Louis lands. The plaintiff claimed title under a survey and designation to the St. Louis Public Schools. The answers merely denied the wrongful entry and the plaintiff’s right to the-possession.
The plaintiff relied upon the survey and assignment of the land contained in the survey No. 3003 to the Schools, made in 1837, and upon the acts of Congress vesting title under said survey.
The defendants objected to the admission of this survey and designation, on the ground that it was no compliance with the act of Congress- of the 26th of May, 1824, so as to confer title on the Schools. They relied also upon a supposed confirmation by the act of Congress of June 13,1812, on the ground of inhabitation, cultivation or possession of the com[77]*77mon-field lot in question by one James Mackay, prior to the 20th of December, 1803. In support of this claim of titles they offered in evidence—
1. Certain depositions in perpetuam, taken under the statute of 1825, together with a certified copy of the record of the same from the office of the recorder of the. county of St. Louis, having no notice attached thereto or recorded therewith.
2. Certain affidavits respecting the notice and the publication thereof, with the testimony of a witness in relation to his examination of the files of the “Republican” newspaper for a publication of notice therein.
3. A Spanish concession to Joseph Chartrau, dated April 29,1778, together with a certified copy of the same from the office of the recorder of said county, as recorded in 1818, as tending to show occupation, cultivation and possession prior to 1803, and a claim of title.
4. A contract between Joseph Chartrau and James Mac-kay, dated August 24,1804, with a certified copy of the same from the recorder’s office of said county, as recorded in 1818, the original of which appeared on its face to have been materially interlined in another handwriting and a different ink, without any explanation thereof.
5. A certified extract from Recorder Hunt’s Minutes of Testimony, taken July 30,1825, under the act of Congress of May 26,1824, together with a copy of a letter of the Surveyor General to the Commissioner of the General Land Office, as tending to show that the survey and designation of the lot contained in survey No. 3003 to' the Schools was improperly made, so late as the year 1837, and gave no title to the Schools.
All these documents were .excluded. There were no instructions.
The questions presentéd by the exceptions taken will be considered in their order. And first, as to the survey and designation of this land to the Schools. This matter may be ■regarded as settled and determined by the former adjudica[78]*78tions of this court. In Kissell v. Public Schools, 16 Mo. 553, the subject was thoroughly examined, and it was decided that the acts of Congress of 1824 and 1831, and a survey officially made, under instructions from the General Land Office, designating and setting apart a particular lot to the Schools, passed to them the whole title dl the Government, legal and equitable. The acts and the survey were considered as equivalent to a patent, where all previous steps required by law before its emanation are to be presumed. The fact that the survey was made after the year 1831 was not deemed material. It was held that the survey and the act of 1831 showed a legal title in complete form, and that it devolved on the adverse party to show a better title, or that the title thus set up against him was. null and void. It is contended that this survey is null and void, for the reason that the authority of the Surveyor General to make it, in 1837, had expired. No definite limitation of the time is prescribed by the act of 1824; but it is made the duty of the Surveyor General to proceed, “immediately after the expiration” of the term allowed for proving claims before the Recorder of Land Titles, to make the proper surveys and designations to the Schools ; and the Recorder, “ so soon as the said term shall have expired,” was to furnish the Surveyor General with a list of the lots so proved before him, “to serve as his guide in distinguishing them from the vacant lots to be set apart” to the Schools. These proved lots are not to be set apart to the Schools. Vacant lots only can be so set apart and surveyed and designated for the Schools. But it does not by any means follow, that all lots not so proved are to be considered as vacant lots, and subject to be assigned to the Schools. It has been uniformly held, that the fact of inhabitation, cultivation, or possession, and the location and boundaries of the lot, may be proved in the courts by any competent evidence, and that such lots were confirmed by the act of 1812, directly, presently, and by its own immediate force. A survey and designation of such a lot to the Schools would be unquestionably null and void; and when such proof shall be made, [79]*79the survey and designation to the Schools will be completely rebutted and avoided. The power and duty of making these official surveys belong to- the executive department of the Government. . Whether or not there can be any limit to its exercise, in point of time, short of exhaustion in a full execution of the power and a complete performance of the duty, it will be unnecessary for us to undertake to determine now; but we are of opinion that both the power and the duty still existed in 1887, when this survey was made.
As to the depositions in perpetuam, there can scarcely be any room for doubt that they were properly excluded. The statute expressly required that the notice, when given by publication, should be published “once a week for one month,” which should be at least two months previous to the day of taking such depositions. No such publication was shown by the evidence ; on the contrary, it tended strongly to show that the notice had never been inserted but once. Neither the certificate of the clerk nor the deposition showed that the “questions and answers” were reduced to writing “ as near as possible in the very words of the witness”; nor that the deposition was “ distinctly read over to said witness ” ; nor does it appear that the depositions were “ forwarded to the clerk of the Circuit Court within thirty days,” for the purpose of being recorded. They were not in fact recorded until than eighteen months after they were taken. All these things were required by the words of' the statute — R. C. 1825, p. 617.
The rule must be considered as established beyond question, that, in case of depositions taken in perpetuam, the forms of the law under which they are taken must be strictly pursued, or they cannot be read in evidence — 1 Greenl. Ev. § 552. “ The authority to take depositions in this manner has always been construed strictly,” says Mr. Justice Story, “ and therefore it is necessary to establish that all the requisites of the law have been complied with, before such testimony is admissible”—Bell v. Morrison, 1 Pet. 351. And of this there must be distinct proof: no just presumption can [80]*80be made in favor of it. The authority of the magistrate must appear on the face of the instrument, and what must so appear cannot be supplied by parol proof—Harris v. Wall, 7 How., U. S. 704. The notice is the most material thing of all. The proceeding is one against strangers who can be no otherwise parties to it, and by force of the statute itself. Without notice, thei'e is no opportunity for cross-examination, and the statements made are mere hearsay. Where the notice is by publication, it must be made in strict accordance with the statute. A publication by one insertion only, when the law inquired as many as four, was no better than no publication at all. Even in case of a sale under an ordinary deed of trust, where a continuous publication is required, one insertion will not be sufficient—Stine v. Wilkison, 10 Mo. 75. In Bell v. Morrison, the deposition was excluded because the certificate of the officer did not state that the deposition was reduced to writing “ in his presence.” The same strictness would exclude this deposition for the reason that the certificate did not state that the depositions, when reduced to writing, were distinctly read over to the witnesses, and also for the reason that the questions and answers were not “ reduced to writing, and included in said deposition.” It is equally clear that the express requirement of the statute, that the deposition should be forwarded within thirty days to the clerk of the Circuit C#g’t for record, was not strictly complied with. The clerk who took the deposition was also the ex officio recorder; but, though the deposition remained in his possession, the result is the same ; for it is evident that the duty was not performed, whatever may have been the reason. The want of a proper publication of notice may have been the very reason of the omission; and it would be a sufficient reason.
It is argued that the officer had jurisdiction and authority to take the deposition, and that being taken under an order of court upon a petition presented for the purpose, under the statute, the proceeding was in some sort judicial in its nature, and that everything necessary in respect of notice, and other [81]*81mere formalities, ought therefore to be presumed to have been rightly done. This principle has been recognized in certain cases, in respect of judicial proceedings of courts of general jurisdiction, and in support of judicial sales therein, where the proper parties were before the court, or where an actual service or citation must have been made, or might have been waived—Gibson v. Foster, 2 La. Ann. 508. Rut this was not a judicial proceeding of that kind. Here, there could be no party defendant without notice, or an actual appearance. But this doctrine is not applied to courts of limited and special jurisdiction, much less to a mere commission to take a deposition iu perpetuam. In Grignon v. Astor, 2 How., U. S. 319, it was said by Baldwin, J., that where a court is so constituted that its judgment can be looked through for the facts and evidence which are necessary to. sustain it, and whose decision is not evidence of itself to show jurisdiction and its lawful’ exercise, every requisite for either must appear on the face of the proceedings, or they are nullifies. There is still greater reason for the application of the principle in a case of this kind.
It is contended, also, that the act required notice to be given to those only who were interested; that the Schools had then no interest in this land; and that it was not necessary to give notice to the United States. We do not see much force in these arguments. It is true, the Government was then the owner of the legal title, unless the same had been granted to some individual. As such, it stood in the same position as any private owner. The lot, if vacant, was reserved, and the Schools hold in privity with the title of the United States.
The statute is compared with the act of Congress in relation to the Recorder of Land Titles, which did not require any other notice to claimants than the act itself. This act was a public law, and it gave'full power and authority to the Recorder to proceed in the manner pointed out by the act. His action bore chiefly on the title and the interest of the Government. In reference to claimants, the act itself was [82]*82public notice to all concerned. No particular notice was required. This statute of 1825 was a public act; but it gave no more power or authority than is therein expressed. It expressly required notice as a condition precedent of the power and authority-that were given; and the rules of legal construction demand a strict compliance with all its provisions. It does not operate merely upon any title of'the State, but affects the rights and interests of private owners and claimants. It was simply a commission to take depositions in per-petuara, which is a proceeding in derogation of common law; and such being the nature of it, it must be governed by the principles of law applicable to such cases.
It was urged, also, that it might be read as an ancient document, or deed, in support of an ancient possession. This cannot avail. There is not even a plausible analogy between this and such a case. Neither can it be admitted as hearsay declarations of deceased persons, as in cases of pedigree, or as reputation, as in cases of ancient rights or boundaries. It is not offered for any such purpose, but to establish title in a matter of private right, where a controversy had already arisen. It must stand or fall as a deposition, and nothing else; and as such we think it was clearly inadmissible.
It can scarcely be necessary to notice the several affidavits which were offered to prove notice. They, were not admissible evidence for any purpose. The persons who made them might have been called as witnesses. The affidavit of the printer was not admissible under the statute, which evidently relates only to the printer or publisher who makes the publication, and in whose personal knowledge the facts are supposed to lie. Of the facts in question here, he could have no more knowledge than any other man might learn from an examination of the files of the newspaper. If a competent witness otherwise, he should have been called as such.
It appears that the concession to Ohartrau was offered for the purpose of proving an occupation, cultivation and possession of the lot prior to 1803, with a claim of title. It could have no tendency to prove such fact; and as showing [83]*83a claim of title, it was of no importance by itself. It did not appear to have come from the Spanish archives, and there was nothing to show that it was ever entitled to be recorded. It is claimed that it came within the 58th section of the “Act concerning evidence” (R. C. 1855, p. 733), which dispenses with proof of the execution and genuineness of any writing, instrument, or deed, affecting real estate, where such real estate, or any right or interest in the same, shall have been claimed and enjoyed by any person by or through such writing, instrument, or deed, for a period of ten consecutive years after the recording of the same. It is very questionable whether this was such an instrument at all. No estate, right or interest in the land could be claimed and enjoyed by or through this writing alone,
The defendants were endeavoring to show a title by confirmation under the act of 1812: that title rested, and alone could rest, on the act and the fact of inhabitation, cultivation, or possession, prior to 1803, actually proved. It has been repeatly decided, that no concession, survey, or other title paper, from the Spanish government, need be shown in such case. The bare fact of inhabitation, cultivation, or possession, is enough, together with the existence of a lot with a given extent and boundary. These concessions, when shown to have come from the proper source, have been admitted as evidence for some purposes, as to show the existence of a lot, and its location and boundaries, and the identity of the lot claimed with that proved to have been inhabited, cultivated, or possessed. But it is not an instrument which, of itself, gives any real estate, or any right, title or interest in real estate, or by or through which alone any such estate or interest could be claimed and enjoyed, otherwise than as a permissive possession merely, under the former government. There was no time after the recording of it, when any estate or interest in this lot could have been held, claimed, and enjoyed, under this paper alone. There being no proof of the facts necessary to give title under the act of Congress, the [84]*84exclusion of this document, even if by any construction it could be brought within that section, was immaterial.
The paper called a contract of Ohartrau with Mackay was rightly excluded also. It was not entitled to be recorded. There was no proof of its execution. It was admitted to have been materially interlined, without any attempt at explanation. It did not purport to convey any title, interest, or estate in the land in controversy. "We think it was wholly inadmissible on the issues made.
The certified extract from Recorder Hunt’s minutes, containing the testimony of two witnesses, not in proof of any particular lot in claim, but in relation to the St. Louis prairie common-field in general, and giving the order of the several lots, with the names of the respective cultivators, prior to 1808, was offered in evidence by the defendants, as it is stated, for the purpose of showing that the survey and designation of this lot to the Schools, in 1837, was improperly made, and gave no title. It is not apparent how it was conceived that this document could have any such tendency. The only thing contained in it which could be imagined to have any bearing on the lot in controversy, was the bare mention of the name of one Yiferenne, as a cultivator between Condé and Guión, at some period prior to the change of government. It does not show that Yiferenne, or any one else, ever claimed or proved this lot before Recorder Hunt. The witness stated that the persons named in the list owned and cultivated these several field lots “ forty years ago and upwards,” and that “itliey continued under cultivation for many years.” Notwithstanding all that is here stated, this lot may have been abandoned, and left vacant, long before 1803. The survey and designation wore at least prima facie evidence that the lot had become vacant. There is nothing in this paper which tends in any way to rebut that presumption, much less to show that the Surveyor General had no authority to make the survey and designation. This being so, it becomes wholly unnecessary to consider for what [85]*85purposes, or to what extent, these minutes of testimony may be admissible in evidence in any case. We think this document, as well as the letter of the Surveyor General, offered for the same purpose, were properly excluded.
There being no material error in the action of the court below, the judgment will be affirmed.
Judge Wagner concurs ; Judge Lovelace absent.