Soulard v. Clark

19 Mo. 570

Opinion

Scott, Judge,

delivered the opinion of the court.

This controversy involves the comparative merits of titles under the act of the 13th of June, 1812, resting upon bare inhabitation, cultivation or possession, without any proofs before the recorder of land titles under the aet of 26th of May, 1824, and a confirmation under the act of 29th of April, 1816, or of the 4th of July, 1836. The claims of both parties to this suit were barred and made void by the aet of the 3d of March, 1807, for the reason that notices, in writing, and the written evidences of their claims, were not delivered to the recorder of land titles prior to the 1st of July, 1808. The concession under which Clark, the defendant, claims, was made in 1767; that under which the plaintiffs claim wTas made in 1798. Much was said in relation to a condition annexed to the concession granted to Cambas & Ortiz, the non-compliance with which had caused a forfeiture of their grant, which being thereby annexed to the royal domain, the land covered by it was lawfully conceded to Antoine Soulard, under whom the plaintiffs claim. The first American civil commandant of Upper Louisiana, speaking of land titles, says : “ That the same formality and solemnity- were observed1 in- the annexation of lands to the domain, as when they were granted- or conceded. All annexations were declared by an ordinance of Louis XV, in 1743, to.be null and void and of no effect, unless they were judicially ' decreed. The same- principle obtained under the Spanish authorities, and they deemed it obligatory.” Stoddard’s Sketches, 247. There is no evidence that the concescion to Cambas & Ortiz-was ever re-annexed to the domain, in any manner-, or that there ever was a design to do so. These remarks are made, not as having any influence in the determination of this controversy, but to remove all complaints.of hardship, as it is- obvious that, after the 1st of July, 1808, all incomplete French or Spanish grants, of which no notice had been given prior to that time, must derive their validity from the laws of the United States. So, whether we look to the laws of France, Spain, or the United States, the claim- of Cambas is prior, in point of time, to that of Soulard. As to the various. objections that were urged against the claim of Cambas, they cannot now be entertained in this court. The law and facts on which that, claim is based, have been passed upon by the court and jury which tried this cause. The law, as maintained by the plaintiffs, was declared to.the jury. All the law of their instructions was pronounced fey the court. No specific complaint is made of any instruction asked by the defendant. If there is. any error in the cause, it is in the finding of the facts,. and that is a matter with which -this court does Pot interfere.

1. It was urged by the plaintiff's that the court committed error in permitting the record of the proceedings of the last board of commissioners, under the act of the 9th of July, 1832, on the claim of Cambas, to be read-in evidence. The proceedings of the same board, on the claim of Soulard, were given in evidence. If they were proper evidence in the one case, they were in the other. The record contained matters, it is true, which were not evidence against the plaintiffs. But the rule of practice is well settled that, where a record is proper evidence-of a fact, it will he admitted, and the opposite party is left to his motion to exclude the irrelevant matter from the consideration of the jury. An instruction was given, that the record was no evidence that the title of Cambas to the land therein described, was confirmed by the act of the 13th of June, 1812. If this did not reach the objection, it should have been made more specific.

2. It was said that the claim of Cambas was not recommended for confirmation by the board, and therefore it was not within the provisions of the act of July 4th, 18E6. That act does not require that a claim should, in terms, be recommended for confirmation, in order that it may come within its purview. The act confirms £ £ the decisions in favor of land claimants.” Now, the opinion of the board, that the claim of Cambas was confirmed by the act of the 13th of June, 1812, is certainly a decision in his favor.

3. Whether the claim of Cambas was a lot, whether it was inhabited, cultivated or possessed prior to the 20th of December, 1803, and whether it was abandoned, were questions submitted to the jury under directions from the court, in conformity to the views of the plaintiffs themselves ; and as there has been a finding in relation to those facts, this court cannot now interfere. There was evidence from which the jury might have found that there was a partition of the joint concession to Cambas & Ortiz. If such was the fact, then each of them had a claim, and we are not aware of any law which would prohibit each claimant, under such circumstances, from receiving a confirmation for his separate interest, nor of any principle which would prevent the act of 1812 from enuring in that manner. The thing is so reasonable in itself, that an argument i§ scarcely needed to show its propriety. The government loses nothing by such a course. No more land is granted in the end than if the entire confirmation had been made to the claimants jointly.

As Clark, the defendant, is in possession, and as the jury have found a confirmation of the claim under which he holds by the act of 1812, no purpose is subserved by attacking his title as derived from the proceedings of the Court of Probate. The confirmation by the act of 1812 is a superior title to any claimed by the plaintiffs, and must defeat their recovery, whether there is any title in Clark or not.

The preceding observations answer the objections urged against the admission of the survey of the Cambas lot, in evidence. None of the instructions raised any question in relation either to the law of prescription or the statute of limitations. Adverse possession of sufficient duration, no doubt, will confer title, both under our law and the Spanish law. If there was possession in Soulard, of a sufficient length of time to confer title, it is unfortunate that he permitted the defendant to occupy the premises undisturbed, so long as to enable him to make the improvements which the record shows are upon the lot in controversy. No reason appears why a more summary remedy than an ejectment was not adopted.

4. An intimation was made that a confirmation under the act of the 13th June, 1812, is unavailing as a title, unless the claimant has, in pursuance to the provisions of the act of 26th May, 1824, made proof before the recorder of land titles of his inhabitation, cultivation or possession, prior to the 20th of December, 1808. By the last mentioned act, claimants were only allowed the period of eighteen months to make their proofs ; so if any has failed to do so, it mattered not for what cause, and however inevitable it may have been, under this view, his title is gone. The act itself, by its terms, creates no such forfeiture or consequence. So far from it, its obvious intent was, to enable the government to survey and set apart the lots .reserved for school purposes by the act of 1812, to the several villages therein named. So, the only inconvenience which a failure to make the necessary proof could superinduce, would be a collision of the title of a claimant with that of the schools. But, in the event of such conflict, the act no where pretends that the title of the claimant shall give way to that of the schools. No principle is known which warrants a court in implying a destruction of a right, in the interpretation of statutes. So penal a consequence should never be left to inference. By an act of the same date with that of the 26th May, 1824, congress has shown that it understands the terms that are to be employed when a right is to be barred or made void, as may be seen by the provisions of the act for organizing a court for the final adjustment of land claims in Missouri. The same thing appears by the act of the 3d of March, 1807, respecting claims in this state, then a territory.

The act of the 18th of June, 1812, though enacted by con■gress, yet is local, but, though local, is of very great concern to the city of St. Louis. The principles involved in its construction cannot affect even remotely other portions of the United States. That act is familiar to our courts and has been for a great many years. Indeed, it is believed that it is as often cited in connection with the land litigation of St. Louis as any other statute, state or federal. These considerations induce us humbly to claim this act as one of our own, and to indulge the hope that it may always receive that interpretation which has been put upon it by our courts, acquiesced in for a long time by the bar, and acted on by the community.

Ever since the opinion in the caso of Vasseur v. Benton, which was decided by this court in 1823, the doctrine has prevailed that the act of the 13th of June, 1812, operated as a full confirmation of claims to town or village lots, out lots or common field lots, which were inhabited, cultivated or possessed, prior to the 20th of December, 1803. That act was considered as the title paper, and the party showed his right by proof of the required act, just as he would have done, had he produced a patent conveying him a lot which he inhabited, cultivated or possessed prior to the 20th of December, 1803. No case is known in which this doctrine has been departed from.. It was always supposed to be confirmed by the principles announced by the Supreme Court of the United States, in the case of Strother v. Lucas, 12 Peters. Since the case first referred to, the point has arisen in many cases, and it has always been regarded as settled. It has never been brought up here for revision. In pronouncing opinions, the matter has always been considered as so well settled, that it has merely been mentioned as an axiom would be. Montgomery & wife v. Landusky, 9 Mo. Rep. 717. Gurno v. Janis, 6 Mo. Rep. 330. The title having passed by the confirmation of the act of 1812, no subsequent legislation of congress could affect it. When the act of 1824 passed, these titles, having been previously confirmed, could only be affected by the legislation of this state. If they were- confirmed, and that confirmation was a full title, (as is asserted in Strother v. Lucas,) there was no power in congress to affect them by its legislation. In what a novel condition are these titles placed, on the supposition that congress could affect them by subsequent legislation. What was their state from the act of 1812 until that of 1824? There is nothing in the act of 1812 which shows that there could or would be legislation thereafter in relation to private claims. Future legislation in relation to the reserved lands might have been contemplated, but on no principle could it be supposed that claims, which had already been confirmed, would bo affected by the imposition of subsequent conditions. The acts of 1812 and 1824 may be regarded as in pari materia, so far as the school lands are concerned, and the principles of construction applicable to such statutes may have play in relation to them, but to apply such principles to the individual claims would be like considering the terms of an act annulling a grant, in connection with the previous one conferring it, in order to ascertain the intent of the law makers.

No inconvenience can result from adhering to the received construction of the aet of 1812. Á claim now for the first time presented, disconnected with any possession, and relying solely on proof of inhabitation, cultivation or possession, prior to the 20th of December, 1803, to defeat another title, would not receive much consideration, and might, without any apprehension of injurious consequences, be submitted to the consideration of a jury acting under the directions of the court. But to declare those titles invalid, in which occupants under them have confided for more than thirty years, might bring ruin on many families that have never dreamed that there was any defect in their titles.

Judge Ryl-and concurring,

the judgment will be affirmed.

Judge Gamble did not sit in the case.