It is a general rule that evidence by comparison of hands is not
admissible when the witness has had no previous knowledge of the
handwriting, but is called upon to testify merely from a comparison
of hands. There may be cases where, from the antiquity of the
writing, it is impossible for any living witness to swear that he
ever saw the party write. Comparison of handwriting with documents
in a known handwriting have been admitted. But these are
extraordinary instances arising from the necessity of the case.
Foreign laws should be proved; the court cannot be charged with
knowledge of foreign laws.
It was objected that the claim of the plaintiff in error, which
was for two arpens of land adjoining the City of St. Louis,
Missouri, was, from his own showing, no more than an equitable
right, for which an action of ejectment would not lie. There is in
the State of Missouri an act of the legislature regulating the
action of ejectment and enumerating various classes of cases of
claims to lands where the action will lie, among which is a claim
under any French or Spanish grant warrant or order of survey which,
prior to 10 March, 1804, had been surveyed by proper authority
under the French or Spanish governments
and recorded according to the custom and usages of the country.
This would seem broad enough to embrace the claim in question and
authorize the right to be tried in an action of ejectment.
Quaere if under this law an ejectment could be maintained
on an equitable title in the courts of the United States in the
State of Missouri.
Construction of the Act of Congress of 2 March, 1805, entitled
"An act for ascertaining and adjusting the titles and claims to
land within the Territory of Orleans and the District of
Louisiana," passed March 2, 1805, and of the fourth section of "An
act respecting claims of land in the Territories of Orleans and
Louisiana," passed March 3, 1807.
This was an action of ejectment in the District Court of
Missouri brought by Daniel F. Strother of Kentucky against John B.
C. Lucas of Missouri to recover a tract of land, particularly
described in the declaration, containing eighty arpens, adjoining
the City of St. Louis. The defendant pleaded the general issue, and
the cause was tried at the September term, 1830, when there was a
verdict for the defendant and judgment rendered thereon, to reverse
which this writ of error is prosecuted. The record contains a bill
of exceptions which sets out at large all the testimony given at
the trial and the decisions of the court which were excepted
to.
Page 31 U. S. 764
The premises in dispute consist of two common field lots, of one
by forty arpens each. The common field of St. Louis (of which the
premises in question are a part) is a large tract of land lying
immediately west of the former boundary of the Town of St. Louis
and extending for some distance north and south of it. The lots are
parallelograms of one or more arpens in front and extending
westward to the uniform depth of forty arpens. The common field was
separated from the town and town lots by a fence extending the
whole length of the eastern front; there were no division fences,
though the lots were held and cultivated separately and each
proprietor was bound to keep up the fence in front of his lot. The
witnesses, when speaking of these lots, use the term one arpen, two
arpens, &c., meaning always the front of the lot spoken of, and
the depth must be understood to be forty arpens; thus a lot of one
by forty arpens, is called one arpen, &c.
The facts of this cause are these. Sometime in the year 1772,
Don Manuel Duralde surveyed and laid off into lots the common field
of St. Louis. It does not appear, however, that he was an official
surveyor, nor does any authority for the survey appear. Among the
lots laid off were the two mentioned in the plaintiff's
declaration. One of these appear to have been surveyed for Joseph
Gamache, and the other for Rene Kiercereau. These surveys are shown
by two documents set forth in the bill of exceptions as extracts
from the Livre terrien, purporting to be a registry of the returns
made by Duralde. In the margin of the registry of the survey for
Kiercereau are these words: "1798, St. Cir, 1 arpen" and on the
margin of the registry of the return of Gamache's survey, these
words are found: "1793, St. Cir, 1 arpen," and a memorandum in
French, which rendered into English is as follows: "the name of
said Gamache is Baptiste instead of Joseph." There was also some
other evidence given at the trial to establish the fact that the
person for whom the survey was made was not Joseph, but Baptiste or
John Baptiste Gamache; the lots thus surveyed adjoined each other,
that of Gamache being on the north and Kiercereau's on the south;
the northern lot was bounded on the north by a lot of Bissonet,
alias Bijou, and the southern on the south by a lot of
Bequette.
On 9 January, 1773, John Baptiste Gamache, by deed of exchange,
conveyed to Louis Chancillier the northern half
Page 31 U. S. 765
of the northern lot, and on 6 April, 1781, a deed was executed
by one Marie Reneux Robillar purporting to convey to Louis
Chancillier the southern, or Kiercereau's lot. In the body of this
deed, Rene Kiercereau is stated to be a subscribing witness, and
there is a signature to the deed as such, alleged to be his. There
is also some evidence to show that the whole name of the grantor
was not written by herself; both these deeds were, however,
admitted as evidence. Chancillier cultivated a part of the two lots
until his death, which happened in 1785. That is to say he
cultivated the whole front of the southern lot, and the southern
half of the northern lot, to the extent of a few arpens in depth.
On 8 June, 1785, after the death of Chancillier, an inventory of
his estate was taken, and among the items is found one arpen and a
half of land in the common fields, which was admitted to have been
regularly sold to, and all the title which Chancillier had vested
in, Madam Chancillier, the widow. It does not appear that any part
of the land in question was ever occupied, possessed, or cultivated
after the death of Chancillier by anybody claiming under him. The
widow remained about two years at St. Louis, when she intermarried
with one Beauchamp, and she and her husband removed immediately to
St. Charles in the same state and at a distance of about twenty
miles from St. Louis, where Beauchamp died. The widow sometime
after was married to one Basil Laroque, who died in 1828. The widow
of Chancillier, from the time of her marriage with Beauchamp until
the commencement of this suit, resided in St. Charles, and it does
not appear that she claimed the premises in dispute until about the
year 1818, and, it was alleged, not until she was urged to it by
others. On 12 September, 1828, she transferred her claim by deed to
George F. Strother, who conveyed to the plaintiff.
Soon after the death of Chancillier and sometime in the year
1785 or 1786, Hyacinth St. Cyr was put into the possession of the
two lots in question by the syndic of the district, the fence in
front not having been kept up, and the lots therefore considered as
abandoned. St. Cyr soon after purchased of Gamache and Kiercereau
their claims; he continued to cultivate and possess both lots in
his own right from the time of his first entry in 1785 or 1786, and
kept up his part of the fence until the
Page 31 U. S. 766
whole common field enclosure was destroyed in 1798 or 1799. In
1801, Auguste Choteau became the purchaser of the two lots, at the
public sale, of the effects of St. Cyr, who was an insolvent
debtor, and in 1810 the two lots were confirmed to Auguste Choteau
by the board of commissioners appointed for the adjustment of land
claims. Choteau had, previously to the confirmation, conveyed the
lots to the defendant, Jean B. C. Lucas, who has been in the
uninterrupted possession ever since the year 1808. These are the
material facts of the case as they appear by the bill of
exceptions.
At the trial, the plaintiff offered sundry depositions to prove
the signature of Kiercereau as witness to the deed of Marie Reneux
Robillar. These depositions were rejected. It appeared that not one
of the witnesses ever saw him write or knew his handwriting, but it
having been proved that Kiercereau had been a chantre in the
Catholic church at St. Louis, the witnesses had examined the
register of the interments and marriages, and the name of
Kiercereau appearing subscribed to some of the entries as witness,
they were asked to deliver their opinion as to the signature on the
deed by comparison with the signatures in the registry, not one of
which was proved to have been made by Kiercereau, nor did it appear
to have been a part of his official duty to sign the register, and
it did appear that there were living witnesses who had seen
Kiercereau write and knew his signature, one of whom (Pierre
Choteau) was actually examined as a witness in the cause.
On the testimony before the jury, the court, on the prayer of
the defendant, gave the following instruction, to-wit:
"If the jury find from the evidence that the two confirmations
to Auguste Choteau, given in evidence by the plaintiff in this
case, are for the same land and include all the premises in the
declaration mentioned, the plaintiff cannot recover in this
action."
The jury found a verdict for the defendant, upon which judgment
was entered by the district court. The plaintiff prosecuted this
writ of error.
Page 31 U. S. 767
MR. JUSTICE THOMPSON delivered the opinion of the Court.
This case was an action of ejectment for two arpens of land in
front and forty arpens in depth in and adjoining the City of St.
Louis in the State of Missouri.
The material question in the case arises upon an instruction
given to the jury upon the prayer of the defendant below, who is
the defendant here.
Upon the trial no evidence was given on the part of the
defendant, and the plaintiff having closed his case, the defendant
moved the court to instruct the jury as follows:
"That if the jury find from the evidence that the two
confirmations made by the board of commissioners to Auguste
Choteau, given in evidence by the plaintiff in this case, are for
the same land and include all the premises in the declaration
mentioned, the plaintiff cannot recover in this action."
Which instruction was given, and the jury found a verdict for
the defendant.
In the course of the trial, certain depositions were offered in
evidence which, among other things, went to prove the handwriting
of Rene Kiercereau, whose name appeared as a witness to one of the
deeds which had been admitted in evidence (and who, in the body of
the deed, was described as a witness of assistance) by comparing
the handwriting of the witness with the handwriting of entries made
in a certain register of marriages and interments alleged to have
been made by the witness, of which, however, there was no direct
evidence. The depositions, so far as they went to prove the
handwriting of the witness to the deed by comparison, were objected
to and overruled by the court, to which exception was taken.
It is a general rule that evidence by comparison of hands is not
admissible where the witness has had no previous knowledge of the
handwriting, but is called upon to testify merely from a comparison
of hands. There may be cases where, from the antiquity of the
writing it is impossible for any living witness to swear that he
ever saw the party write, comparison of handwriting with documents
known to be in his handwriting has been admitted. But these are
extraordinary instances arising from the necessity of the case, and
which do not apply to the one before the Court. For there were
living witnesses examined as to the handwriting, and besides,
the
Page 31 U. S. 768
deed was received and read in evidence and the plaintiff had the
full benefit of it. But it is said the evidence was offered for the
purpose of identifying the witness, and to show that he was the
original grantee of the forty arpens and the husband of Marie
Reneux Robillar, and being named in the deed as a witness of
assistance, it operated by the Spanish and French law as a
conveyance of his own title, the same as if he had signed the deed
as grantor.
There are two answers to be given to the objection made to the
ruling of the judge in the court below in the view now presented.
In the first place, that was not stated as the purpose for which it
was offered, nor was it shown that such was the operation of the
deed thus witnessed by the Spanish or French law, and, these being
foreign laws, should have been proved. The court cannot be charged
with knowledge of foreign laws. But in the second place the record
does not show that the judge was called upon to express any opinion
with respect to the legal effect and operation of the deed or that
the plaintiff had not the full benefit of its being considered his
deed. And indeed it would seem from the course of the trial that it
was so considered, or at all events the contrary does not appear
from any question presented to the court on the subject.
Two other points have been made and argued here which do not
appear to have been raised in the court below and which will be
very briefly noticed.
It is objected on the part of the defendant that the plaintiff's
claim, even from his own showing, is no more than an equitable
right, for which an action of ejectment will not lie.
There is in the State of Missouri an act of the legislature
regulating the action of ejectment and enumerating various classes
of cases of claims to land where the action will lie, among which a
claim under any French or Spanish grant, warrant, or order of
survey which, prior to 10 March 1804, had been surveyed by proper
authority under the French or Spanish governments and recorded
according to the customs and usages of the country. Rev.Laws Mo.
343.
This would seem broad enough to embrace the claim now in
question and authorize the right to be tried in an action of
ejectment in the state courts. How far the courts of the
Page 31 U. S. 769
United States will adopt such practice, has come under the
consideration of this Court in several cases,
Robinson
v. Campbell, 3 Wheat. 212;
De la
Croix v. Chamberlain, 12 Wheat. 599, and the Court
has been strongly inclined against sustaining the action upon a
mere equitable title, except perhaps where, by the statutes of a
state, a title which would otherwise be deemed merely equitable is
recognized as a legal title or a title which would be valid at law.
We do not mean, however, to be understood as expressing any opinion
upon this question in the present case. But as the cause has been
tried upon the merits and so argued here, we think best to decide
upon the merits without noticing the objection to the forms of the
action.
An objection rather of a novel character has been made on the
part of the plaintiff to the confirmation of the title in Choteau
because the defendant was one of the commissioners who confirmed
the claim and had purchased the lots of Choteau before the
confirmation. On reference to the proceedings of the commissioners,
the allegation does not appear to be founded in fact: although he
was one of the commissioners, he did not sit with them when this
claim was confirmed. But it is a little singular that the plaintiff
should himself give this confirmation in evidence in support of his
own title, and then attempt to impeach it.
The main question in the cause, however, grows out of the
instructions given by the court to the jury, and to a right
understanding of that question a brief statement of the case as it
stood when the instruction was given becomes necessary.
The plaintiff, as the origin of his title, gave in evidence two
certified copies of entries of surveys from what is called the
Livre Terrien. The one, purporting to be an entry of a survey made
for Rene Kiercereau of one by forty arpens, the other a survey
purporting to have been made for Joseph Gamache for the same
quantity. On 29 January, 1773, Gamache conveyed to Louis
Chancillier one-half of the lot surveyed for him, and on 6 April,
1781, Marie Reneux Robillar (the wife of Rene Kiercereau) conveyed
to Louis Chancillier the lot surveyed for him. Chancillier
cultivated a part of these lots until his death in 1785; after his
death, his widow, Madame Chancillier, became the purchaser of the
one and a
Page 31 U. S. 770
half arpens of land, but did not take possession of or cultivate
these lots; nor does it appear that she laid claim to them until
about the year 1818, and in September, 1828 she sold the lots to
George F. Strother, who conveyed the same to the plaintiff. Soon
after the death of Chancillier and some time in the year 1785 or
1786, Hyacinth St. Cyr was put into possession of the two lots by
the syndic of the district, the fence in front not having been kept
up, and from the proceedings of the commissioners, introduced by
the plaintiff himself, it appears that Kiercereau, on 23 October,
1793, conveyed to St. Cyr his claim to the lot surveyed for him,
and on the same day Gamache conveyed to St. Cyr his claim to the
lot surveyed for him. And by the same proceedings it appears that
at a public sale in the year 1801 made of the property of St. Cyr,
Auguste Choteau became the purchaser of these lots, and on 11
January 1808, he conveyed the same to the defendant. St. Cyr, from
the time of his first entry on the lots in 1785 or 1786, continued
to cultivate and possess them, and keep up his part of the fence
until the whole common field enclosure was destroyed about the year
1798, and Choteau, from the time of his purchase in 1801 until he
sold to the defendant, and the defendant from the time of his
purchase, have continued to occupy the same to the present time,
and in the year 1820 the claim to the two lots was confirmed to
Auguste Choteau by the commissioners.
From this statement of the case, according to the plaintiff's
own showing, there is a regular deduction of title or claim, from
the persons for whom the lots were surveyed to the defendant. But
it appears that those persons, Kiercereau and Gamache, sold their
claim twice, in the first place to Louis Chancillier, under whom
the plaintiff claims, and in the second place to St. Cyr, under
whom the defendant claims. If these title papers were to be
considered independent of the acts of Congress and the proceedings
of the commissioners, the plaintiff, being prior in point of time,
would prevail so far as depended upon the deduction of a paper
title and independent of the question of possession.
It becomes necessary, therefore, to inquire how far the acts of
Congress apply to and affect any part of these title papers,
keeping in mind that it is all the plaintiff's own evidence, he
Page 31 U. S. 771
having produced the proceedings before the commissioners, is not
now at liberty to deny the facts therein stated.
No grant has been shown under which the plaintiff sets up his
claim; his title was therefore incomplete, and by the fourth
section of the act of 1805, 3 L.U.S. 653, the person claiming the
land was bound to deliver to the register of the land office or
recorder of land titles within the district where the land lies a
notice in writing stating the nature and extent of his claim, and
also to deliver to the said register or recorder, for the purpose
of being recorded, every grant, order of survey, deed, conveyance,
or other written evidence of his claim. And the law directs that
they shall be recorded by the register or recorder, &c., with a
proviso, however, that where the lands are claimed by virtue of a
complete French or Spanish grant, it shall not be necessary for the
claimant to have any other evidence of his claim recorded than the
original grant or patent, together with the warrant or order of
survey and the plat; but all the other conveyances or deeds shall
be deposited with the register or recorder, to be laid before the
commissioners. And the act then declares that if such person shall
neglect to deliver such notice in writing of his claim, or cause to
be recorded such written evidence of the same, all his right, so
far as the same is derived from the two first sections of the act,
shall become void and forever thereafter barred.
If any doubt should arise whether the original right claimed in
this case comes within the two first sections of the act, that is
removed by the act of 1807, 4 L.U.S. 112, which repeals the proviso
to the first section of the act of 1805, and the power of the
commissioners is enlarged. The fourth section declares that the
commissioners shall have full power to decide, according to the
laws and the established usages and customs of the French and
Spanish governments, upon all claims to land within their
respective districts, where the claim is made by any person or
persons, or the legal representative of any person or persons who
were, on 20 December, 1803, inhabitants of Louisiana, and for a
tract not exceeding the quantity of acres contained in a league
square, &c., which decision of the commissioners, when in favor
of the claimant, shall be final against the United States. And the
time is extended for delivering notices and evidences of
Page 31 U. S. 772
the claim, but declaring that the rights of such persons as
shall neglect so doing, shall, so far as they are derived from or
founded on any act of Congress, ever after be barred and become
void, and the evidences of their claims never after admitted as
evidence in any court of law whatever. There is no evidence that
notice of the claim, now set up, was ever given as required by
these laws or that the deeds from Kiercereau and Gamache to
Chancillier were ever delivered to be recorded as required by the
law. And Madam Chancillier, having slept upon this claim for so
great a length of time, from the year 1785 to 1818, there is every
reason to conclude she had abandoned it, and these deeds cannot
now, under the provisions of these laws, be received as evidence of
any right to be established under the acts of Congress. And it must
have been understood upon the trial that the plaintiff sought to
establish his right under these acts of Congress, or he would not
have produced the confirmation of the commissioners as evidence of
his right. But having relied upon it in support of his own claim,
he ought not now to be permitted to deny that it was one properly
submitted to the commissioners. Had he rested his claim upon a
title derived from Chancillier, without the aid of the acts of
Congress, the evidences of his title would not have been affected
by those acts, but the defendant would in that case have been fully
protected by his length of possession. When, however, a part of the
plaintiff's evidence was the proceedings of the commissioners upon
this very claim, this Court must consider the instruction of the
judge as referring only to the effect and operation of the
confirmation under the laws in relation to such claims. And in that
view of the case, the instruction was perfectly correct.
There is, however, some obscurity in the application of the
instruction given by the court; but from the evidence set out in
the bill of exceptions, we cannot say there was any error. Any the
justice and law of the case, growing out of such a length of
possession, are so manifestly with the judgment in the court below,
if we look at the whole evidences on the record, that we feel
disposed to give the most favorable interpretation to the
instructions of the court. And we the more readily incline to think
the light in which the instruction is here considered was that in
which it was understood on the
Page 31 U. S. 773
trial because the counsel for the plaintiff in error has
contended on the argument here that this confirmation enures to the
benefit of the owner of the claim; that the commissioners decide
only the abstract right, as against the United States, without
regard to the person who sets up the claim. And it is upon this
ground only that the plaintiff would have introduced in evidence
the decision of the commissioners which was directly against his
own right, he thereby probably expecting to destroy the effect of
the adverse possession and make the possession as well as the
confirmation of the commissioners enure to his benefit. But this
view of the case cannot be sustained, and the judgment of the court
below must be
Affirmed.
This cause came on to be heard on the transcript of the record
from the District Court of the United States for the District of
Missouri and was argued by counsel, on consideration whereof it is
adjudged and ordered that the judgment of the said district court
in this cause be and the same is hereby affirmed with costs.
