Ejectment for two lots of ground in St. Louis, Missouri. The
plaintiff had brought an ejectment, which was before the Court on a
writ of error, in 1832, and the judgment in favor of the defendant
was affirmed.
31 U. S. 6 Pet.
763. He afterwards brought another action of ejectment for the same
land. By the Court --
"Had this case been identical with the former, as to the merits
we should have followed the deliberate opinion delivered therein;
but as one judgment in ejectment is not conclusive on the right of
either possession or property in the premises in controversy, the
plaintiff has a right to bring a new suit, and the Court must
consider the case even if it is in all respects identical with the
former, though they may hold it to be decided by the opinion
therein given. It is otherwise when the second case presents a
plaintiff's or defendants right, on matters of law or fact,
material to its decision, not before appearing in the record; it
then becomes the duty of the Court to decide all pertinent
questions arising on the record in the same manner as if the case
came before them for the first time, save such as arise on evidence
identical as to the merits. In this case, we deem it a peculiar
duty, enjoined upon us by the nature of the case, the course of the
able and learned arguments as to the law of Spain and her colonies,
in its bearing on the interesting question before us, together with
a view of the consequences of our final decision thereon. Were we
to leave any questions undecided which fairly arise on the record,
or to decide the cause on points of minor importance only, the
value of the premises would justify future litigation, which no
court of chancery might think proper to enjoin so long as new and
material facts could be developed or pertinent points of law remain
unsettled."
The State of Missouri was formerly a part of the territory first
of France, next of Spain, then of France, who ceded it to the
United States by the treaty of 1803 in full propriety, sovereignty,
and dominion, as she had acquired and held it;
27 U. S. 2 Pet.
301, by which this government put itself in place of the former
sovereigns and became invested with all their rights, subject to
their concomitant obligations to the inhabitants. Both were
regulated by the law of nations, according to which the rights of
property are protected even in the case of a conquered country, and
held sacred and inviolable when it is ceded by treaty, with or
without any stipulation to such effect, and the laws, whether in
writing or evidenced by the usage and customs of the conquered or
ceded country, continue in force until altered by the new
sovereign.
This Court has also uniformly held that the term "grant" in a
treaty comprehends not only those which are made in form, but also
any concession, warrant, order or permission to survey, possess, or
settle, whether evidenced by writing or parol, or presumed from
possession, and that in the term "laws" is included custom and
usage, when once settled, though it may be
"comparatively of recent date, and is not one of those to the
contrary of which the memory of man runneth not, which contributed
so much to make up the common law code, which is so justly
venerated."
No principle can be better established by the authority of this
Court than
"that
Page 37 U. S. 411
acts of an officer to whom a public duty is assigned by his King
within the sphere of that duty are
prima facie taken to be
within his power. . . . The principles on which it rests are
believed to be too deeply founded in law and reason ever to be
successfully assailed. He who would controvert a grant executed by
the lawful authority, with all the solemnities required by law,
takes on himself the burden of showing that the officer has
transcended the powers conferred upon him, or that the transaction
is tainted with fraud."
Where the act of an officer to pass the title to land according
to the Spanish law is done contrary to the written order of the
King, produced at the trial, without any explanation, it shall be
presumed that the power has not been exceeded; that the act was
done on the motives set out therein; and according to some order
known to the King and his officers, though not to his subjects, and
courts ought to require very full proof that he had transcended his
powers, before they so determine it.
Even in cases of conquest, the conqueror does no more than
displace the sovereign and assume dominion over the country.
"A cession of territory is never understood to be a cession of
the property of the inhabitants. The King cedes only that which
belongs to him; lands he had previously granted were not his to
cede. Neither party could so understand the treaty. Neither party
could consider itself as attempting a wrong to individuals
condemned by the whole civilized world. 'The cession of a
territory' should necessarily be understood to pass the sovereignty
only, and not to interfere with private property."
No construction of a treaty which would impair that security to
private property which the laws and usages of nations would without
express stipulation have conferred would seem to be admissible
further than its positive words require.
"Without it, the title of individuals would remain as valid
under the new government as they were under the old, and those
titles, at least so far as they were consummate, might be asserted
in the courts of the United States independently of this
article."
The laws of Spain as to the disposition of the royal domain in
Louisiana while Louisiana was held by Spain.
In the treaty of cession of Louisiana no exceptions were made,
and this Court has declared that none can thereafter be made.
33 U. S. 8 Pet.
463. The United States must remain content with that which
contented them at the transfer when they assumed the precise
position of the King of Spain. The United States has so remained,
as appears by its laws. By the acts of 1804, 1805, 1807, and 1816,
it recognized the laws, usages, and customs of Spain to be
legitimate sources of titles, and by the act of 1812 confirmed to
the inhabitants of St. Louis and other villages, according to their
several right or rights of common thereto, the rights, titles, and
claims to town or village lots, out lots, common field lots, and
commons, in, belonging or adjoining to the same, which titles
depended on parol grants and local customs. The same recognition
extended to grants to actual settlers, pursuant to such laws,
usages and customs; to acts done by such settlers to obtain a grant
of lands actually settled, or persons claiming title thereto, if
the settlement was made before 20 December, 1803.
The unwritten law of Louisiana before the cession of the
territory to the United States.
In favor of long possession and ancient appropriation,
everything which was done shall be presumed to have been rightfully
done, and though it does not appear to have been done, the law will
presume that whatever was necessary has been done.
A grant may be made by a law as well as a patent pursuant to a
law, and a confirmation
Page 37 U. S. 412
by a law, is as fully to all intents and purposes a grant as if
it contained in terms a grant
de novo.
The acts of the commissioners appointed to adjust and settle
land titles in Louisiana under the acts of Congress authorizing and
confirming the same are conclusive as to all titles to lands which
have been confirmed according to the provisions of the different
acts of Congress on the subject.
It is inconsistent with all the acts of Congress which have
organized boards of commissioners for adjusting land titles, the
proceedings of the board, and the laws which have confirmed them,
that the confirmations of the commissioners shall enure to any
other uses or to any other person than the person or persons
claiming the confirmation; it would defeat the whole object of
these laws and introduce infinite public mischief were the Court to
decide that the confirmations by the commissioners and Congress,
made expressly to those who claim by derivative titles, did not
operate to their own use.
The counsel for the plaintiff in error, exhibited the following
statement of the case:
"This was an action of ejectment brought by Daniel F. Strother,
of Kentucky, against Jno. B. C. Lucas, of Missouri, to recover a
tract of land particularly described in the declaration, as
follows:"
" Lying and being in the City and County of St. Louis, State of
Missouri, containing two arpents in breadth, by forty in depth, or
eighty superficial arpents, French measure, one of which arpents by
forty was granted to one Rene Kiersereau and his heirs, by the
proper authority, and the other, to-wit, the northern of said two
arpents, was originally granted to one Gamache and his heirs, and
which said two arpents by forty are bounded on the north by a
forty-arpent lot originally granted to one Louis Bissonet, and on
the south by a forty arpent lot, originally granted to one John
Baptiste Bequette, and which said two forty arpent lots so above
bounded have been confirmed by the authority of the Congress of the
United States to the legal representatives of the said Rene
Kiersereau and Gamache respectively."
"The defendant pleaded the general issue, and the cause was
tried at the September term, 1835, when there was a verdict for the
defendant, and judgment rendered thereon, to reverse which this
writ of error is prosecuted."
"By the evidence, it appears that in 1764, the post of St.
Louis, in Upper Louisiana, was first established by the French
under M.
Page 37 U. S. 413
Laclede. In May, 1770, the Spaniards, under the treaty of 1762,
took possession of St. Louis and Upper Louisiana. Between the year
1764, and 1772, divers grants of land in Upper Louisiana were made
by the French and Spanish authorities, respectively. Amongst those
grants were some forty or fifty, containing each from one arpent by
forty, to four arpents by forty, located in the prairie immediately
west of the then Village of St. Louis and extending some distance
north and south of it. These lots extend westward to the uniform
depth of forty arpents, being parallelograms whose opposite sides
are on the north and south, forty arpents in length, and on the
east and west from one arpent to four arpents."
"Sometime in the year 1772 a survey was made, as above
described, of these lots by Martin Duralde, the authorized surveyor
of the post of St. Louis."
"About that time, a fence was established on the eastern
boundary of the above range of lots, which separated them from the
village and what was called the commons; there was no division
fence, nor any fence on the western boundary; the lots were
contiguous to each other, but each lot was held separately and
cultivated separately by its proprietor or occupant, who was bound
by the regulations of the post to keep the fence in front of his
lot (or of whatever number of lots he occupied) in good
repair."
"The surveys so made by Duralde were entered in a book called
the Livre Terrein."
"Amongst the lots so surveyed and entered are the two lots in
question, described and bounded as in the declaration in this
cause. The surveys so entered, and the grants by virtue of which
said surveys were made, were solemnly recognized and affirmed by
the Spanish lieutenant governor, Don Pedro Piernas, and by his
predecessor, the French commandant, S'Ange de Bellerive."
"The entry in the Livre Terrein, No. 2, p. 68, which contains
this recognition of said grants and surveys, has been printed by
authority of Congress, and is to be found in Gales & Seaton's
American State Papers, vol. 3, 677. In the entry in the Livre
Terrein of the survey of Gamache's arpent, the grantee is called
'Joseph' Gamache. This was a mistake, as is shown fully by the
evidence in the cause. It is conclusively proved that the name of
Gamache, the grantee, was John Baptiste Gamache, and that no such
man as 'Joseph' Gamache existed at that time in Upper Louisiana.
"
Page 37 U. S. 414
"The defendant admits upon the record that the grantee, Gamache,
was known as well by the name of John Baptiste Gamache, and of
Baptiste Gamache, as Joseph Gamache, but the fact, as proved in
evidence, is that his name was John Baptiste Gamache and none
other."
"Immediately after the grants so made to Kiersereau and Gamache,
they took possession of their respective lots and commenced the
cultivation thereof as acknowledged owners and proprietors by
virtue of said grants and surveys. John Baptiste Gamache continued
to occupy and cultivate until about January, 1773, when Louis
Chancellier took possession, and Rene Kiersereau until about the
year 1780, when the said Louis Chancellier succeeded him in the
occupation and cultivation of his lot. Louis Chancellier continued
in possession and cultivation of both these lots, claiming the same
as proprietor thereof by purchase from the original grantees, until
his death in April, 1785. Previous to his death, on his marriage
with Marie Louise Dechamp, a marriage contract was executed between
him and said Marie Louise by which a communaute (partnership)
according to the Spanish law was enacted between them. On the death
of her husband, the said Louis Chancellier, the widow, by virtue of
her rights under the communaute, was in lawful possession of the
common property of herself and husband, and consequently of the two
arpents by forty in question. On the 8th June, 1785, an appraised
inventory 'of all the property, moveable and immovable, which is
ascertained to belong to the said deceased (Louis Chancellier) and
to his wife, Dona Louise Dechamp' was made in due form of law by
the Lieutenant Governor, Don Francisco Cruzat."
"In this inventory, the two arpents in question are described by
their metes and bounds -- that is to say, 'two arpents and a half
of land in the prairies, bounded on the one side by land of
Bequette, on the other by land of Mr. Bijou.' The names of Bijou or
Louis Bissonet are admitted and proved to mean the same
individual."
"On 11 June, 1785, a petition was presented to the lieutenant
governor by said widow and Charles Tayon, the guardian of the
property of the infant son of said Louis Chancellier and Marie
Louise, praying that said property 'in their possession' should be
sold at public sale, and on the same day, in pursuance of said
petition, an order of sale was made, and on the day following,
to-wit, 12
Page 37 U. S. 415
June, 1785, the Lieutenant Governor, Cruzat, proceeded to sell
the property described in the inventory, and did actually sell a
considerable quantity thereof, and amongst other property, the two
arpents described as above were sold and adjudicated to the said
Marie Louise Chancellier for the sum of one hundred and fifty-five
livres."
"At the same sale, on the same day, was also sold the slave
Fidel, belonging to said estate and described in the inventory, to
one Hyacinthe St. Cyr, whose security for the payment of the
purchase money (two thousand one hundred livres) was August
Choteau, the former signing by his mark in the margin of the sale,
the latter signing his name in full thereon. The first article sold
was said Fidel, and the sixth was the two arpents in question. The
sale is declared to have been made at the dwelling of said widow,
'in whose possession are all said goods' ('bienes' in Spanish,
which means 'property' generally). Afterwards, by order of 14 June,
1785, the sale was suspended for want of competent purchasers, and
the balance unsold ordered to be delivered to the widow at the
valuation on condition that she be charged with the same on final
partition between her and her son."
"On 8 June, 1786, on petition by the said widow and guardian, a
partition was ordered to be made between the widow and said infant,
and accordingly an account and partition was made whereby it
appears that said widow was charged with the sum of one hundred and
fifty-five livres, being the price of said two arpents by forty by
her purchased at the sale of her husband's property. It appears
that the balance coming to the minor, amounting to six thousand
three hundred and thirty-four livres, seven sous, six deniers, was
duly paid over to his guardian; said Charles Tayon, and the sum of
three thousand dollars (including said lots, valued at one hundred
and fifty-five livres) duly paid to said widow."
"This final settlement and partition was made on 13 September,
1787, in pursuance of the decree of the Governor General, Don
Estaban Miro, bearing 25 February, 1787, all which is set out at
large upon the record."
"Thus it appears that in pursuance of a final decree made by the
supreme authority in Louisiana, the widow of Louis Chancellier was
declared and adjudged to be the lawful owner and possessor of the
said two arpents, bounded as described in the declaration in this
cause, and that the judgment of partition and final settlement so
made in
Page 37 U. S. 416
favor of said Maria Louisa Chancellier, bears date 13 September,
1787."
"In addition to the above proof of the title of Marie Louise
Chancellier to said two lots, the plaintiff gave in evidence:"
"1st. An authentic deed of exchange between Jno. B. Gamache, and
said Louis Chancellier, bearing date 23 January, 1773, acknowledged
and executed in presence of Don Pedro Piernas, Lieutenant Governor
of Upper Louisiana, whereby said Jno. B. Gamache, as original
grantee of said one by forty arpents, conveys the northern half
thereof to said Louis Chancellier, in exchange."
"2d. An authentic deed, dated 6 April, 1781, acknowledged in
presence of Francisco Cruzat, Lieutenant Governor of Upper
Louisiana, whereby Marie Magdalene Robillard conveying to said
Louis Chancellier one arpent by forty, bounded by Jno. B. Bequette,
and by Jno. B. Gamache's arpent, being the same granted to Rene
Kiersereau. In this deed is signed the name of Rene Kersereau, as
'assisting witness,' and his name also as a party witness, is
mentioned in the body of the deed."
"It is in evidence that no other man than the grantee existed in
Upper Louisiana of the name of Rene Kiersereau, and that Marie
Magdalene Robillard, was the wife of said Rene. Besides this, the
signature of said Rene Kiersereau to this deed is duly proved, as
is also that of the lieutenant governor to this deed, and also to
that of Jno. B. Gamache. It is fully proved that said Rene
Kersereau ceased to occupy or cultivate his lot from the year 1780,
and that Louis Chancellier immediately succeeded him in the
possession and cultivation thereof, and, as above stated, remained
in possession till his death in April, 1785."
"In September, 1788, the widow of Louis Chancellier intermarried
with one Joseph Beauchamp and removed to St. Charles, about twenty
miles from St. Louis, on the left bank of the Missouri River."
"Some time after the removal of said Beauchamp and wife to St.
Charles, (about 1790), Hyacinth St. Cry, the same who purchased the
slave Fidel at the sale of Louis Chancellier's property, entered
upon the two arpents in question and commenced the cultivation of
the same by permission is said Marie Louise, which permission,
according to the testimony of said Marie Louise, was given by her
said second husband, Joseph Beauchamp, and according to the
testimony of Madame St. Cyr, the widow of said Hyacinth St. Cyr,
the
Page 37 U. S. 417
syndic authorized said St. Cyr to occupy and cultivate, and that
afterwards her husband had his deeds from Kiersereau and Gamache,
as her husband told her."
"In 1797 or 1798, the eastern and only fence of those forty
arpent lots fell down, and they again became a wilderness,
unoccupied and uncultivated by anybody until some time in the year
1808, when the defendant took possession of them and enclosed a
part of the eastern end thereof under a deed of conveyance from
Augustus Choteau, the same who signed as security for St. Cyr on
the margin of the record of sale of Chancellier's property, as
before stated."
"In 1815, under the Act of Congress of 1812, the above two lots
were confirmed to the legal representatives of the original
grantees, and in said confirmation the recorder makes special
reference to Livre Terrein No. 2, pages 11 and 12, in which the
surveys in favor of Kiersereau and Gamache are recorded."
"In 1816, by Act of Congress of 29 April, 1816, sec. 1, the
aforesaid confirmations are ratified."
"The plaintiff then gave in evidence a deed of conveyance from
Augustus Gamache, the survivor of the two sons and heirs of John B.
Gamache, of his estate, whatever it might be, in said one by forty
arpents granted to his father, John B. Gamache, to Basil Laroque
and Marie Louise Laroque his wife. Basil Laroque was the third
husband of said Marie Louise, the widow of Louis Chancellier. The
plaintiff then gave in evidence deeds of conveyance duly
acknowledged from said Basil Laroque and Marie Louise, of the said
two by forty arpents to George F. Strother, and a deed from said
Strother to plaintiff."
"Here the plaintiff closed his case, and the defendant then gave
in evidence: "
"1st. Two deeds, bearing date same day, 23 October, 1783, the
one purporting to be a conveyance by said Rene Kiersereau to said
Hyacinth St. Cyr, of the one by forty arpents granted to said Rene
Kiersereau; the other purporting to be a deed from 'Joseph'
Gamache, of the one by forty arpents granted to Gamache; and which
deed is signed 'Batis X Gamache.'"
"In both those deeds it is recited, that for several years
previous to their date, said St. Cyr had been in possession and was
then in possession of the lots in question."
"The defendant then gave in evidence certain proceedings,
dated
Page 37 U. S. 418
in 1801, in the matter of Hyacinth St. Cyr, a bankrupt, by which
it appears that amongst the property sold by the syndic on that
occasion,"
"two arpents of land in the first prairie of St. Louis, near the
tower, by forty arpents in depth, bounded on the one side by the
widow Bissonet and on the other by Mr. Hortiz,"
"were adjudicated to Mr. Auguste Choteau for twelve
dollars."
"The defendant then gave in evidence extracts from the
proceedings of the board of commissioners, of which board said
defendant was a member, purporting to be a confirmation of said two
arpents by forty to Auguste Choteau as assignee of Hyacinth St.
Cyr, assignee of said original grantees."
"He also gave in evidence a deed dated 11 January, 1808, from
said Auguste Choteau and wife to said defendant purporting to
convey in fee to said defendant said two arpents by forty,"
"of which forty arpents have originally been ceded to Rene
Kiersereau, and the other forty arpents have been originally ceded
to Joseph Gamache, the whole bounded by a tract of land originally
conceded to John B. Beguette, and by another tract originally
conceded to Louis Bissonet, the whole belonging to us (the said
Choteau and wife) as having become the purchasers of it at the
public sale of the property of Mr. Hyacinth St. Cyr."
"The defendant then read to the jury certain extracts from the
proceedings of the board of commissioners, of which he was a
member, by which it appeared that the said board met at St. Charles
on 3 August, 1807, and held their session there until the 8th of
the same month and year."
"The defendant lastly read in evidence an extract from the
record of a judgment in an action of ejectment for said lots in the
district court of the United States in which the said Daniel F.
Strother was plaintiff and said John B. Lucas was defendant, and
there closed his case in defense."
"The plaintiff in reply proved by extracts from the records of
the board of commissioners that the defendant was a member of the
board before which Auguste Choteau filed his claim as assignee of
St. Cyr, assignee of the original grantees, and that while said
claim was pending and before any action of the board was had upon
it, Lucas being still a member of the board, took the deed of
conveyance aforesaid, of 11 January, 1808, from said Auguste
Choteau."
"It is admitted on the record that the plaintiff is a citizen of
Kentucky
Page 37 U. S. 419
and that the premises in dispute are worth more than two
thousand dollars."
"The case being closed on each side, the plaintiff then moved
the court to instruct the jury as follows: "
"1. That there is evidence before the jury of the possession and
title of Rene Kiersereau and John B. Gamache, as absolute owners
and proprietors of the two forty arpents lots described in the
declaration."
"2. That there is evidence before the jury of the possession and
title of Louis Chancellier, as owner and proprietor of the two
forty arpents lots in question, as assignee of said Rene Kiersereau
and said John B. Gamache, respectively."
"3. That there is evidence of the actual possession after the
death of said Louis Chancellier by his widow, said Marie Louise, of
said two forty arpents lots, claiming the same as absolute owner
thereof."
"4. That the plaintiff has established his title as assignee of
Marie Louise Chancellier, to the estate and interest vested in her
and her heirs, in and to the two forty arpents in question."
"5. That the deed given in evidence by plaintiff from Auguste
Gamache to Bazil Laroque and Marie Louise, his wife, enures to the
benefit of the plaintiff."
"6. That if the jury shall be of opinion from the evidence that
Hyacinth St. Cyr originally obtained possession of the lots in
question as tenant of Marie Louise, the widow of Louis Chancellier,
or by virtue of a permission to occupy and cultivate, given to said
St. Cyr by the syndic of the Village of St. Louis, the possession
of St. Cyr so obtained shall be taken by the jury as, in law, the
possession of said Marie Louise."
"7. That the confirmations of the board of commissioners, on 23
July, 1810, of which the defendant was a member, could at most only
operate as a quitclaim by the United States in favor of the
original grantees, and could not decide the question of derivative
title under said original grantees."
"8. That the mere fact of the land described in the confirmation
to Choteau, and the land described in the confirmation given in
evidence by the plaintiff, and the declaration being identical,
does not entitle the defendant to a verdict in his favor."
"9. That no forfeiture or disqualification has accrued against
Madame Marie Louise, the widow of Louis Chancellier or against her
assigns under any act of Congress whereby she or they are
barred
Page 37 U. S. 420
from asserting their legal and equitable rights to the lots in
question before this Court."
"Which instructions were given by the court."
"The plaintiff also moved that the following instructions be
given to the jury: "
"1. That the sale and partition and final decree, of which duly
certified copies have been given in evidence by the plaintiff,
establish the title of the widow of Louis Chancellier, Madame Marie
Louise Des Champs and her heirs to the land described in said sale
and partition, as sold and allotted to her, part of which said land
consists of the two arpents by forty in the declaration described,
bounded by Bijou on the one side and by John B. Bequette on the
other."
"2. That independently of the title of Rene Kiersereau and John
B. Gamache, there would be sufficient evidence before the jury to
establish a title by prescription in Louis Chancellier and his
heirs, and Marie Louise, his widow and her heirs, to the two forty
arpents described in the declaration."
"3. That Hyacinth St. Cyr took no title by prescription in and
to said lots."
"4. That if the jury shall be of opinion that Hyacinth St. Cyr
had notice of the sale of said lots to Marie Louise by the proper
Spanish authority, as given in evidence by the plaintiff, the
possession of said Hyacinth St. Cyr of said arpents was not such as
could be adverse to said Marie Louise, or could create an estate by
prescription in favor of said St. Cyr."
"5. That if the jury shall be of opinion from the evidence that
St. Cyr was a purchaser at the public sale of the property of Louis
Chancellier, or signed his name, or made his mark as purchaser on
the margin of said sale, these facts are
prima facie
evidence that said St. Cyr had notice of the title of said Marie
Louise as purchaser at said sale of the lots therein described as
sold to her."
"6th. That the deeds given in evidence by the defendant from
Rene Kiersereau, bearing date 23 of October, 1793, conveyed nothing
to St. Cyr, being made by a person out of possession, and whose
conveyance for the same land by another person to Chancellier was
upon record, and who therefore was guilty of the crime of
'Estelionato,' punishable by fine and banishment, by the Spanish
law then in force."
"7th. That the deed given in evidence by defendant from Joseph
Gamache to Hyacinth St. Cyr, dated 23 October, 1793, is void on
Page 37 U. S. 421
the ground of 'Estelionato' in Batis Gamache, supposing that he
made the deed; 2d, on the ground of uncertainty in the deed itself,
in this, that it purports to be a deed of Joseph Gamache, and is
signed 'Batis X Gamache.'"
"8th. That August Choteau took no estate by prescription in
either of said forty arpent lots in question."
"9th. That there is no evidence of possession whatever, adverse
or otherwise, by Auguste Choteau, of said two forty arpents lots or
of any part thereof."
"10th. That if the jury shall be of opinion from the evidence
before them that the said Auguste Choteau had notice of the public
sale of said lots to Madame Marie Louise Chancellier, his
possession or claim to said lots under Hyacinth St. Cyr is
fraudulent and void as against said Marie Louise and her heirs and
assigns."
"11th. That the certified copy of the proceedings and sale by
the syndic in the matter of Hyacinth St. Cyr, a bankrupt, is not
evidence either of St. Cyr's title to either of the lots in
question or that the same were sold by said syndic to said Auguste
Choteau as part of said St. Cyr's property."
"12th. That the defendant has shown no title by prescription
under the Spanish or civil law, or by the statutes of limitation
(in bar of plaintiff) under the Anglo-American laws to the lots in
question."
"13th. That the title of the defendant, as assignee of August
Choteau, is vitiated by the fraud which vitiates the title of
Choteau and of St. Cyr."
"14th. That the deed from Auguste Choteau and wife to Lucas, of
the lots in question, dated 11 January, 1808, is void for fraud if
in the opinion of the jury it was a sale and conveyance to Lucas of
a claim and interest pending before said Lucas himself for
adjudication."
"15th. That if, in the opinion of the jury, the claim was
pending before Lucas as commissioner when he bought it, the
adjudication or confirmation of it on 23 July, 1810, by the board
of commissioners, of which Lucas was a member, is fraudulent and
void at law and in equity."
"16th. That neither the statute of limitation nor the Spanish
law of prescription can avail the defendant Lucas independently of
the possession of St. Cyr and Choteau."
"17th. That the orders of survey given in evidence by the
defendant, and made by himself and his two colleagues in favor of
August Choteau, bearing date June 10, 1811, was fraudulent and
Page 37 U. S. 422
void if the jury shall be of opinion from the evidence that the
claims therein ordered to be surveyed, had been sold to said
defendant by said Choteau previous to the date of said order, and
while said claims were pending for adjudication before said
defendant as a member of the board of commissioners in said order
mentioned."
"18th. That if any penal effect resulted from any act of
Congress to Mad. Chancellier and her assigns, or to the legal
representatives of Rene Kiersereau and J. B. Gamache, the Act of
Congress of January, 1831, entitled 'an act further supplemental to
the act entitled an act making further provisions for settling the
claims to lands in the Territory of Missouri,' passed 13 June,
1812, remits the parties to their original legal and equitable
rights and titles as if no such penal acts had ever been in
force."
"19th. That upon the case made by plaintiff, he is entitled to a
verdict for all that part of the two forty arpents lots in
question, situated west of 7th Street in St. Louis, and all the
lots east of 7th Street, according to the admissions of defendant
as above."
"20th. That in this case there is no law or binding ordinance of
the Spanish government by which Madame Chancellier and those
claiming under her could be deprived, according to the state of the
evidence in this case, of whatever title she acquired to the land
in question under the purchase made of it by her as the property of
her husband."
"21st. That if the jury believe from the evidence that St. Cyr
ceased to cultivate and be in actual possession of the premises in
dispute from 1797 or 1798, prescription ceased to run in his favor,
and that of those who claim under him from that time."
"Which instructions the court refused to give, but instructed
the jury in relation to the matters referred to in the first
instruction above refused:"
"that the sale, and partition, and final decree, the record of
which certified copies have been given in evidence by the plaintiff
did pass the title of Louis Chancellier, mentioned in said
proceedings of sale, such as it was at the time of his death or
such as it was in his heirs at the time of said sale to Madame
Marie Louise, his widow, mentioned in said proceedings, and her
heirs to the lands described in said record of sale and partition,
as sold and allotted to her."
"And further instructed the jury, in relation to the matters
mentioned in the fifth instruction above refused:"
" That if the jury should
Page 37 U. S. 423
be of opinion that St. Cyr, under whom the defendant claims, was
a purchaser at said public sale of the property of said Louis
Chancellier, or did sign his name or make his mark on the margin of
the record of said sale, these facts or either of them is evidence
proper for them to consider in ascertaining whether said St. Cyr
had notice of the said title of said Marie Louise as purchaser at
the said sale of the lots described in the record thereof as sold
to her."
"And further instructed the jury in relation to the matters
referred to in the eleventh instruction above refused:"
" That the certified copy of the proceedings and sale by the
syndic of the property and estate of St. Cyr as a bankrupt was not
evidence of a title to said St. Cyr to the lots in question, or
either of them."
"And further instructed the jury in relation to the matters
referred to in the twelfth instruction above refused, and to the
statutes of limitation referred to in that refused instruction:
'that the defendant had shown no title to the lots in question, nor
any bar to the plaintiff's recovery under any statute or statutes
of limitation.'"
"And further instructed the jury in relation to the matters
referred to in the sixteenth instruction above refused 'that the
statute of limitations could not avail the defendant Lucas, either
with or independent of the possession of St. Cyr.'"
"And further instructed the jury in relation to the matters
referred to in the eighteenth instruction above refused:"
" That although the Act of Congress of the 31 January, 1831,
referred to in said refused instruction last mentioned, does not
remit the penalties as in that refused instruction is supposed by
the plaintiff, yet that in fact no penal effect results from any
act of Congress which bars or stands in the way of plaintiff's
recovery in the present action or which in any manner affects his
title or evidence of title under or to be derived from said acts or
any of them under the admissions of the parties in the present
case."
"The counsel for the plaintiff excepted to the opinion of the
court in refusing to give the several instructions; as well as to
the opinion of the court in giving the instructions which they did
give."
"The defendant then moved the court to instruct the jury as
follows: "
"1st: That if the jury find from the evidence that Hyacinth St.
Cyr, and those lawfully claiming under him, have possessed the two
arpents by forty, surveyed for Gamache and Kiersereau, without
interruption,
Page 37 U. S. 424
and with claim of title for thirty years, consecutively, prior
to 1818, the plaintiff is not entitled to recover in this
action."
"2d. If the jury find from the evidence that Hyacinth St. Cyr,
and those lawfully claiming under him, possessed the two lots in
the declaration mentioned for ten years consecutively, prior to and
until 23 July, 1810, and that the lands confirmed to Auguste
Choteau on that day are the same lands in the declaration
mentioned, the plaintiff cannot recover in this action."
"3d. If the jury find from the evidence that the defendant
possessed the lots of land in the declaration mentioned for ten
years, consecutively, prior to 1 October, 1818, the plaintiff
cannot recover in this action."
"Which instructions the court gave to the jury, with the further
instruction"
" That the possession mentioned must be an open and notorious
possession, and that if they should find such possession, it gave
title under, and according to the Spanish or civil law, which was
in force in Upper Louisiana at the date of the treaty by which
Louisiana was acquired by the United States, and remained in force
and unabrogated by any law of the District of Louisiana or of
Missouri down to a period as late as October, 1818. That the
possession of ten or thirty years would give a title, the one
period or the other, according to the circumstances under which the
possession was obtained. That the ten years possession which would
give a prescriptive title must be a possession under a purchase
made in good faith, and where the purchaser believed that the
person of whom he purchased had a good title, and where the owner
of the title prescribed against resided in the same country during
the said ten years. That if the jury believe from the evidence that
the possession of St. Cyr, under whom the defendant claims, was
obtained under a purchase made by him in good faith, and under the
belief that the person of whom he purchased had a good title, and
that the possession of Choteau, under whom the defendant claims,
was obtained in like manner, and under a purchase made with the
like belief, and that they had the possession mentioned in the
second instruction asked for on the part of the defendant, and that
the said Marie Louise was in the country during the said ten years,
the plaintiff cannot recover in this action."
"And further instructed the jury in relation to the possession
mentioned in the third instruction asked for on the part of the
defendant"
" That to make the possession there mentioned a bar to the
plaintiff's
Page 37 U. S. 425
recovery in the present action, the possession of the defendant
must have been obtained under a purchaser, where he believed that
the person of whom he purchased had a good title, and that the said
Marie Louise was in the country during the said ten years, which,
unless the jury believe, they cannot find for the defendant upon
such possession."
"To which opinion the plaintiff excepted."
"Afterwards the judge, of his own motion, further instructed the
jury as follows: "
"That the possession which the said Louis Chancellier had at the
time of his death passed to his heirs, and afterwards to his widow,
the said Marie Louise, under the purchase made by her at the said
public sale of the estate of the said Louis, and that the
possession of the said Marie Louise would be presumed to continue
in her and her heirs, until an adverse possession was shown, and
would continue in her, her heirs or assigns, until an adverse
possession was actually taken."
"And further instructed the jury that if they should find from
the evidence that said St. Cyr took possession, or was in
possession of the lands in controversy, or any of them, under the
said Marie Louise or as her tenant, his possession, so taken or
held, would be the possession of the said Marie Louise, and would
not be a possession in St. Cyr, available by him or those claiming
under him, under the law of prescription mentioned. But that if the
jury should be of opinion that said St. Cyr came to the possession
of the land in controversy not as the tenant of the said Marie
Louise or under her, but under a claim and title adverse to her,
such adverse claim and possession would constitute a possession
upon which a prescription, by the Spanish or civil law referred to
and then in force, would begin to run in favor of him and those
claiming under him, if such possession was actual, open, and
notorious, and that such possession, so commenced, would constitute
and preserve to said St. Cyr, his heirs or assigns, a possession,
available under the law of prescription referred to,
notwithstanding said St. Cyr, or those deriving title from him,
should leave the actual possession or cease to occupy and
cultivate, if that abandonment of the actual possession, occupancy,
or cultivation was with the intention to return, and without any
mental abandonment of the possession."
"And further instructed the jury that if it should be of opinion
from the evidence that Rene Kiersereau, under whom the parties
Page 37 U. S. 426
claim, did attest the sale of the lot in controversy, which both
parties in the present case claim under him, alleged to be made by
Marie Reno Robillia to said Louis Chancellier, by becoming a
subscribing witness to the instrument of sale in evidence on behalf
of the plaintiff, and purporting to be signed by said Marie Reno
Robillia, and that said Rene Kiersereau, at the time of becoming
such subscribing witness, was the husband of said Marie Reno, the
title of said Rene Kiersereau would, from his presumed assent to
said sale and presumed receipt of the consideration expressed in
said instrument, as the husband of said Marie Renno, in presumption
of law, pass by said sale to Louis Chancellier. That the
subscribing witnesses to a sale in writing, made before a notary or
other officer acting as such, are presumed to have been informed of
the contents of the written instrument of sale, because, by the
civil or Spanish law referred to, which was in force in Louisiana,
it was the duty of the notary or other officer to make known to the
witness, as well as to the parties, the contents of the writing
which they attested and subscribed. But that the jury would
consider, from the evidence and the circumstances in evidence in
this case, whether the said Rene, being the husband of the said
Marie Reno, did become the subscribing witness to said instrument.
And if they should be of opinion that he did not or that the same
is fraudulent as against him, his title was not passed by the
alleged sale. That if the jury find that the title of said Rene
Kiersereau did pass by said sale to said Louis Chancellier, and
that the land so acquired by him, and also the land derived by the
plaintiff under said Gamache, are the said lands mentioned in the
declaration, they will find a verdict for the plaintiff for those
lands or so much thereof as are described in the declaration,
unless they find that the title has been lost by him or those under
whom he claims by prescription according to the principles already
stated by the court."
"And further instructed the jury that if they should find from
the evidence that the residue of the land mentioned in the
declaration, or any part thereof, was in the possession of Louis
Chancellier at the time of his death, and that he and those
claiming under him had such possession for thirty years,
consecutively, they would find for the plaintiff, for such residue,
so possessed unless they should find that his right so acquired had
been lost by prescription under an adverse possession according to
the principles already stated. "
Page 37 U. S. 427
MR. JUSTICE BALDWIN delivered the opinion of the Court:
The plaintiff brought an ejectment in the district Court of
Missouri,
Page 37 U. S. 428
to recover possession of two pieces or tracts of land, formerly
common field lots adjacent to the Village, and now part of the City
of St. Louis; a verdict and judgment was rendered for the
defendant, on which the plaintiff brought his writ of error. The
whole merits of the case have been brought before us by the whole
evidence given at the trial, and forty-three instructions asked,
refused, or given, spread out in the record, which present a case
of great interest, as well in reference to the value of the
property in controversy, as the principles which are necessarily
involved in its decision.
Both parties claim under Rene Kiersereau, and John B. Gamache,
each of whom were in possession of one of these lots at a very
early period after the founding the Village of St. Louis in 1764,
while Louisiana was under the dominion of France, though she had
ceded it to Spain two years before by the secret treaty of
Fontainebleau. Spain took possession of the province in 1769-1770,
from which time she held it till she ceded it to France in 1800;
the laws of Spain were established in it, but the title of those
who had received grants from the local authorities, or made
settlements, either in the villages or on the public domain, before
the actual surrender of the province by France, were respected.
Accordingly it appears that in 1772, the following instrument was
executed between the French and Spanish governors, which is found
in the 3d Vol. Am. State Papers -- Public Lands, and is of the
tenor and purport following:
"Translation of a French document marked C., published in the
third volume of the American State Papers -- Public Lands 679,
truly and faithfully made and written by me, Robert Greenhow,
translator of foreign languages in the Department of State of the
United States. -- Washington, February, 26, 1838."
"
Cadastre [Footnote
1] formed by me, Martin Duralde, surveyor, appointed by
Mons. Don Pedro Piernas, captain of infantry, and lieutenant
governor of the establishments and other dependencies of the
Spanish government of the Illinois, and deposited in the archives
of the said government in form of proces-verbal, to serve to
designate the various tracts of land granted in the name of the
King to the inhabitants of this post of St. Louis, as well by title
[deed] as by verbal consent, by the chiefs who have governed them
from the foundation
Page 37 U. S. 429
[of the government] to this moment, which I have surveyed, and
which, after the exchanges, cessions, or sales which may have been
made of them for the convenience or advantage of each person, are
actually in the possession of the persons hereinafter named,
agreeably to their own attestations and reciprocal acknowledgments,
situated in the prairies contiguous to this same post, in the order
and according to the directions detailed as follows: "
"I thus attest it by my signature, and by the unanimous
acknowledgments of all the above-mentioned proprietors, assembled
at this moment, with the approbation of my said Sr. Don Pedro
Piernas, in the chamber of the government, to serve as mutual
witnesses, and to affirm the fact, some by their signatures, the
others, from not being able to sign, by their declarations in
presence of Messrs. Don Pedro Piernas, the above-mentioned
lieutenant governor, and Don Louis St. Ange de Bellerive, retired
captain and first predecessor in command of this said post, both
serving, to-wit, the latter, to certify by his signature, in his
said quality, and in virtue of the power confided to him, that he
had granted either by title [deed] or verbally he above-mentioned
lands, in the name of his Majesty [the King of France], and my said
Sr. Piernas, to approve, confirm and ratify likewise, by his
signature, in his actual character of lieutenant governor, whereby
he is provided with the same power of granting [conceder] the
possessions allowed to be good
[accordees] [
Footnote 2] by my said Sieur de St. Ange, and
specified in the body of this cadastre, which I deposit, containing
sixty-eight pages of writing, including the present, in the
archives of this government, to be there preserved forever and to
serve for the uses, the assurance, authenticity and testimony of
all therein set forth, at St. Louis, on the twenty-third of May, in
the year one thousand seven hundred and seventy-two."
"M Duralde"
"Laclede Liguest"
"Dodie"
"A Conde"
"Rene Kiersereau"
"Becquet"
"Amable Guyon"
"Sarpy"
"Cotte"
"St Ange"
"Pedro Piernas"
"St. Louis, January 7, 1812 M. P. Leduc, T.B.C.L.T."
"True extract from the Livre Terrein, Book N. 2.
Page 37 U. S. 430
"
Pursuant to this most solemn act, surveys were made of the lots
respectively claimed and possessed by Kiersereau and Gamache, by
the public surveyor, and entered of record on the land book of the
province, and they continued in the quiet enjoyment of the lots
from that time, as they had previously held them according to the
laws, usages, and customs of France, while under the government of
the province of the Illinois.
The plaintiff claims the premises in controversy under and in
right of Kiersereau and Gamache, by the following chain of
title.
1. By a deed made in 1781, from Marie Magdalena Robellar, the
wife of Rene Kiersereau, to Louis Chancellier, conveying one of the
lots in question (being the one owned by Kiersereau), containing
one arpent in front, by forty in depth, to which, as the plaintiff
alleged, Kiersereau was an assisting witness, whereby his right
passed to the grantee of his wife, according to the law of Spain,
in force in the province. The consideration was four hundred
livres, equal to eighty dollars.
2. By deed of exchange, made in 1773, between Chancellier and
Gamache, whereby the latter conveyed to the former one-half of his
lot, being one-half arpent in front by forty back, in exchange for
an ox, and a half front arpent, by the same depth, which
Chancellier had owned before.
Both deeds were executed in the hall of the government in the
presence of the local governor and signed by him. The witnesses of
assistance to the latter were M. Duralde, the Surveyor General, and
Alvarez, a sergeant in the garrison; to the former, the witnesses
of assistance were, as named in the concluding clause of the deed,
"Rene Gueircero," and in the attestation, "Rene Kirgeaux," and
Louis Rover.
3. By a deed from one of the heirs of Gamache, conveying to
Basil and Marie Louise Laroque (formerly Madame Chancellier), his
right in and to the remaining half of Gamache's lot for the
consideration of one dollar. This deed bears date 22 June,
1827.
4. By deeds from Laroque and wife made in March, 1827, and
September, 1828, conveying to George F. Strother, the two arpents
by forty, to which she claimed right under Gamache, Kiersereau, and
Chancellier, in consideration of three hundred dollars.
5. By deed from George F. Strother to Daniel F. Strother, the
plaintiff, dated July, 1827, conveying the premises in controversy
to him for the consideration of three hundred dollars.
Page 37 U. S. 431
The title of Laroque and wife is thus deduced:
Louis Chancellier took possession of the lots conveyed to him as
before, held and cultivated them till his death in 1785, when, by a
judicial proceeding before the lieutenant governor in his judicial
capacity, conducted in conformity with the laws of Spain, the whole
estate of Chancellier was inventoried and appraised by sworn
appraisers, the result of which was that a final adjudication was
made in 1787 by the governor, which was signed by him and the
parties concerned, who consented thereto. By this adjudication the
real and personal estate of Chancellier, after the payment of his
debts, was divided between his widow and their only child,
according to the laws of distribution in the province; the one and
a-half arpents were allotted to the widow at one hundred and
fifty-five livres, equal to thirty-one dollars, for the sixty
arpents, being fifty-one cents per arpent; the half arpent was also
allotted to her at eight livres, equal to one dollar sixty cents
for the twenty arpents, being eight cents per arpent, which is a
little more than four-fifths of the English acre, the proportion
between them being as one hundred of the former to eighty-five of
the latter.
Madame Chancellier married again in 1787 or 1788, about two and
a-half years after Chancellier's death, and immediately removed
with her husband, one Beauchamp, to St. Charles, a village about
twenty or twenty-five miles from St. Louis, where she continued to
reside without making any claim to the lots till about 1818, and no
suit was brought to recover possession thereof till the present
plaintiff prosecuted his claim, under her right, in the case
between the same parties reported in
31 U. S. 6 Pet.
763.
Waiving for the present the consideration of a question raised
at the trial whether Rene Gueircero or Rene Kirgeaux was the real
and true Rene Kiersereau, the rightful owner of part of the
property in controversy between the parties, or another person, we
are clearly of opinion that Madame Chancellier, in 1787, had a good
title to the forty arpents formerly owned by Kiersereau and the
twenty arpents conveyed in exchange by Gamache to Chancellier, in
such right and by such tenure as was given and prescribed by the
laws of Spain and the province, which will be hereafter considered,
and that we cannot now question the validity of those acts of the
local governor, whether acting in his political or judicial
capacity, for reasons hereafter to be given.
As to the twenty arpents held by Gamache, there is no
written
Page 37 U. S. 432
evidence that his right thereto was ever conveyed in whole or
part, before 1827, to the plaintiff, or any person under whom he
claims; nor is there to be found in the record any other evidence
of any right thereto in Chancellier, unless it may have been by
possession or mere claim. We find in the inventory and appraisement
of his estate in 1785 that the sixty arpents were then in wheat,
valued at six hundred livres, equal to one hundred and twenty
dollars, or two dollars per arpent, with the crop in the ground,
and the twenty arpents, valued at fifteen livres, equal to three
dollars, or fifteen cents per arpent; also that the whole eighty
arpents were allotted to the widow by the final adjudication in
1787. This is undoubtedly evidence of a claim by Chancellier, and
its recognition by the local authorities of its rightful existence,
so far as it extends, competent for the court below and jury to
consider. But for the present we shall take these proceedings, and
any possession by Chancellier, as not operating
per se to
divest the lawful title of Gamache to the twenty arpents, such as
it was under the laws of Spain, the acts of the local authorities,
and his possession and cultivation pursuant thereto. Whether there
is any evidence in the record which can have that effect will be a
matter for future consideration should it be deemed important.
Thus taking the plaintiff's title, we proceed to state that of
the defendant, who claims under and in right of Hyacinth St. Cyr,
who, about 1788, took possession of the two lots and continued to
cultivate the front thereof for ten consecutive years, till
1798-1799, when the fence having been destroyed, the lots remained
open till 1808. St. Cyr claimed in virtue of a parol sale by Madame
Chancellier to him, after the adjudication, by his possession
delivered to him by the local officer, charged with the supervision
of the common field lots of the village, agreeably to the local
laws, its usages and customs, conformably to the laws of Spain,
together with his uninterrupted cultivation as aforesaid.
2. By two deeds, one from Kiersereau, the other from Gamache,
both dated 23 October, 1793, both originals, found among a great
number of deeds in the ancient archives of the country, delivered
and handed over to the recorder of St. Louis County after the
cession in 1803, and both executed by the parties in the presence
of and signed by the governor, with the attestation of two
witnesses of assistance. Each deed conveys the lot owned by the
grantor, with a clause of warranty, reciting St. Cyr as having been
in possession
Page 37 U. S. 433
several years, that of Kiersereau being for the consideration of
five hundred and twenty-five, and that of Gamache for three hundred
livres, equal to one hundred and sixty-five dollars for both.
3. By the following entries on the Land Book, containing the
record of the official survey for Rene Kiersereau, "1793, St. Cyr,
1 Arpent," and the following on the survey of "Joseph Gamache,
1793; St. Cyr, 1 Arpent; name of said Gamache is Baptiste, instead
of Joseph," which entries must be taken to denote that St. Cyr then
claimed the lots under the parties for whom the original surveys
were made and recorded.
4. By a judicial proceeding against St. Cyr as a bankrupt, had
before the lieutenant governor in his judicial capacity in 1801, by
which the two lots were seized, appraised by sworn appraisers at
ten dollars, and sold to Auguste Choteau as the property of St.
Cyr, at the church door, at the conclusion of high mass, for twelve
dollars, payable in peltries at the current price, in April, 1802,
for which one Sanguinet was security. The whole proceeding in the
sale was executed in the presence of the witnesses of assistance,
one of whom was the Surveyor General, the appraisers, St. Cyr, the
syndic, and the lieutenant governor, who all signed the
proceedings.
5. By the proceedings of the board of commissioners of the
United States for adjusting land titles in Missouri, in 1809 and
1810, by which it appears that Choteau filed his claim to these
lots in 1806, according to the acts of Congress, as the assignee of
St. Cyr, assignee of Rene Kiersereau, and Joseph Gamache. He
produced to the board the concessions for the same, registered in
the Livre Terrein, plots of the surveys, copies of the deeds from
Kiersereau and Gamache, to St. Cyr, with a certified copy of the
proceeding of bankruptcy against him, by which Choteau became the
purchaser of the two lots; and that the board, consisting of Mr.
Penrose and Bates, confirmed the lots to Choteau according to the
recorded surveys in the Land Book, No. 2, folio 11.
6. By a deed from Auguste Choteau to the defendant, dated in
January, 1808, conveying him the two lots in question for the
consideration of four hundred and fifty dollars.
7. By the confirmation of the rights, titles and claims to town
or village lots, outlots, common field lots, and commons, adjoining
or belonging to the town of St. Louis, and others, which have been
inhabited, cultivated, or possessed, prior to 20 December,
1803,
Page 37 U. S. 434
to the inhabitants thereof, according to their several right or
rights in common thereto.
8. By the actual continued possession of the two lots by the
defendant, from 1808 till the trial, as then admitted by the
plaintiff.
Waiving at present the question which arose below as to the
identity of the Gamache who conveyed to St. Cyr in 1793, with the
Gamache who was the owner of the lot, on account of the name of
"Joseph Gamache," being in the granting part of the deed, and the
mark of "Baptiste Gamache" at the foot, with the mark of Hyacinth
St. Cyr, as has been done in relation to the similar objection to
the deed from M. M. Robillar to Chancellier, in 1781, we are
clearly of the opinion that the title of the defendant must be held
valid unless the plaintiff has sustained some of his objections
thereto by the law or the facts of the case as they appeared from
the evidence, on which the instructions of the court must be taken
to be founded, as the subject matter, to which a reference is
necessarily made by the counsel in the court below.
When this cause was before us in 1832, it was decided on the
case, as made out by the plaintiff on the trial; the defendant
offered no evidence, and neither court did or could decide on the
rights of the parties, as they may depend on the record, written
and parol evidence, presented for consideration in the present
record. Had this case been identical with the former as to the
merits, we should have followed the deliberate opinion delivered
therein; but as one judgment in ejectment is not conclusive on the
right of either possession or property in the premises in
controversy, the plaintiff has a right to bring a new suit, and the
court must consider the case even if it is in all respects
identical with the former, though they may hold it to be decided by
the opinion therein given. It is otherwise when the second case
presents a plaintiff or defendant's right, on matters of law or
fact, material to its decision, not appearing in the record before;
it then becomes the duty of the court to decide all pertinent
questions arising on the record in the same manner as if the case
came before them for the first time, save such as arise on evidence
identical as to the merits. In this case we deem it a peculiar
duty, enjoined upon us by the nature of the case, the course of the
able and learned arguments as to the law of Spain and her colonies,
in its bearing on the interesting question before us, together with
a view of the consequences of our final decision thereon. Were we
to leave any questions undecided which fairly arise on the record,
or to
Page 37 U. S. 435
decide the cause on points of minor importance only, the value
of the premises would justify future litigation, which no court of
chancery might think proper to enjoin so long as new and material
facts could be developed, or pertinent points of law remained
unsettled.
There is another consideration of imperious consequence in
relation to the right of property claimed by virtue of public or
private grants, of sales by judicial process, by formal deeds, or
informal writings by parol agreements, or by possession alone, for
long time, in all parts of the country, especially those new and
flourishing, and most emphatically when the property was originally
held under the laws and usages of a foreign government, and above
all in such a case as this.
By the record evidence before us of judicial sales, which, by
the admitted laws of Spain, transfer to the vendee both title and
possession in virtue of adjudication, which, after the lapse of
fifty-one years after one such sale, and thirty-seven of the other,
we must on every principle of law take as importing absolute verity
in all things contained in such record, and not suffer it to be
questioned. It appears by a record thereof that the right of
Chancellier was sold in 1787 for thirty-two dollars and sixty
cents, and of St. Cyr in 1801 for twelve dollars, the aggregate of
both sales being only forty-four dollars sixty cents, a sum not
sufficient to pay the printing in this case. What the value of the
premises now is or may be in future cannot well be known, but as
the law of this case is the law of all similar ones now existing or
which may arise, it is our plain duty to decide it on such
principle. That while we do, as the law enjoins, respect ancient
titles, possession and appropriation, give due effect to legal
presumptions, lawful acts, and to the general and local laws,
usages, and customs of Spain and her colonies, we do not adjudge a
title to be in either party, which rests on acts incompetent to
vest, transfer, or hold property, in opposition to that party in
whom the right exists, by the laws of the land, and established
rules and principles, which vest property and regulate its
transmission and enjoyment.
The state in which the premises are situated was formerly a part
of the territory first of France, next of Spain, then of France,
who ceded it to the United States by the treaty of 1803, in full
propriety, sovereignty and dominion, as she had acquired and held
it,
27 U. S. 2 Pet.
301, by which this government put itself in place of the former
sovereigns, and because invested with all their rights, subject to
their
Page 37 U. S. 436
concomitant obligations to the inhabitants.
29 U. S. 4 Pet.
512;
34 U. S. 9 Pet.
734;
35 U. S. 10
Pet. 330,
35 U. S. 335,
35 U. S. 726,
35 U. S. 732,
35 U. S. 736.
Both were regulated by the law of nations, according to which the
rights of property are protected, even in the case of a conquered
country, and held sacred and inviolable when it is ceded by treaty,
with or without any stipulation to such effect, and the laws,
whether in writing or evidenced by the usage and customs of the
conquered or ceded country, continue in force till altered by the
new sovereign.
21 U. S. 8
Wheat. 589;
25 U. S. 12
Wheat. 528,
25 U. S. 535;
31 U. S. 6 Pet.
712;
32 U. S. 7 Pet.
86-87;
33 U. S. 8 Pet.
444,
33 U. S. 465;
34 U. S. 9 Pet.
133,
34 U. S. 734,
34 U. S.
747-749; Cowp. 205; 2 Ves.Jr. 349;
35 U. S. 10
Pet. 305,
35 U. S. 330,
35 U. S. 721,
35 U. S. 732.
This Court has defined property to be any right, legal or
equitable, inceptive, inchoate, or perfect, which before the treaty
with France in 1803 or with Spain in 1819 had so attached to any
piece or tract of land, great or small, as to affect the conscience
of the former sovereign, "with a trust," and make him a trustee for
an individual, according to the law of nations, of the sovereign
himself, the local usage or custom of the colony or district
according to the principles of justice and rules of equity.
31 U. S. 6 Pet.
709,
31 U. S. 714;
33 U. S. 8 Pet.
450;
34 U. S. 9 Pet.
133,
34 U. S. 100,
34 U. S. 737;
35 U. S. 10
Pet. 105,
35 U. S. 324,
35 U. S. 331,
35 U. S.
335-336. The same principle has been applied by this
Court to the right of a Spanish town as a municipal corporation.
35 U. S. 10
Pet. 718-736
passim; 35 U. S.
734-736;
35 U. S. 10
Pet. 105,
35 U. S. 324,
35 U. S. 331,
35 U. S.
335-336.
Vide also 1 Ves.Sr. 453; 2 Bligh
P.C.N.S. 50, &c.
This Court has also uniformly held that the term "grant" in a
treaty comprehends not only those which are made in form, but also
any concession, warrant, order or permission to survey, possess, or
settle, whether evidenced by writing or parol or presumed from
possession (
vide the cases last cited),
33 U. S. 8 Pet.
466-467;
34 U. S. 9 Pet.
152,
34 U. S. 170;
35 U. S. 10
Pet. 331-340;
S.P. 35 U. S. 10
Pet. 718, and that in the term "laws" is included custom and usage,
when once settled, though it may be
"comparatively of recent date, and is not one of those to the
contrary of which the memory of man runneth not, which contributed
so much to make up the common law code, which is so justly
venerated."
22 U. S. 9
Wheat. 585. Its evidence consists in the sense and understanding of
parties in their contracts, which are made with reference to such
usage or custom, for the custom then becomes a part of the
contract, and may not improperly be considered the law of the
contract, and it rests on the same principle as the
lex
loci.
"All contracts are to be governed by the law of the place where
they"
Page 37 U. S. 437
are to be performed, and this law may be and usually is proved
as matter of fact.
The rule is adopted for the purpose of carrying into effect the
intention and understanding of the parties.
22 U. S. 9
Wheat. 588;
S.P.,
25 U. S. 12 Wheat. 167-168,
25 U. S. 601;
18 U. S. 5
Wheat. 309;
31 U. S. 6 Pet.
715,
31 U. S. 771;
33 U. S. 8 Pet.
372;
34 U. S. 9 Pet.
734-735;
35 U. S. 10
Pet. 331,
35 U. S. 712,
35 U. S.
724-730, as universally understood and admitted,
34 U. S. 9 Pet.
145, by the people of the vicinage,
18 U. S. 5
Wheat. 384; as considered by the public for years,
35 U. S. 10
Pet. 722;
36 U. S. 11 Pet.
53, and a right so acquired is as inviolable as if it was founded
on a written law.
34 U. S. 9 Pet.
145. It exists by a common right, which means a right by common
law; which is called right, and sometimes common right, or the laws
and customs of England, the statutes and customs of the realm, and
what is properly the common law, is included within common right.
Co.Litt. 142, a. b. It is so called because it exists in all the
subjects by the common law, an universal custom, and is thus
distinguished from the same right claimed by a local custom in
favor of the inhabitants of a particular place,
31 U. S. 6 Pet.
715, and by an exclusive private right, in one or more individuals,
by a prescription in their own favor. Co.Litt. 113, b.; Wood Inst.
4, 6; 7 D.C.D. 93; 1 Bl.Com. 75, 263. The common right of the
subject existed before any prescription, Mo. 574-5; 2 Wils. 299; it
must be set up as such, and not by prescription, Willes 265: "for a
man shall not prescribe in that which the law of common right
gives," Noy. 20; "for the common law is the best and most common
birthright that the subject hath, for the safeguard and defense of
his rights of person and property," Co.Litt. 142, a.
Every country has a common law of usage and custom, both local
and general, to which the people, especially those of a conquered
or ceded one, cling with more tenacity than to their written laws,
and all sovereigns respect them. The people of Kent contended with
the conqueror of England till he confirmed their local customs and
tenure, which continue to this day, and history affords no instance
where the people have submitted to their abrogation without a
struggle, as was the case in Louisiana when they found that the
laws of France and the custom of Paris were about to be superseded
by those of Spain;
vide 1 Partid. preface; White 205.
No principle can be better established by the authority of this
Court than
"That the acts of an officer to whom a public duty is assigned
by his King within the sphere of that duty are
prima facie
taken to be within his power. . . . The principles on which it
rests are
Page 37 U. S. 438
believed to be too deeply founded in law and reason ever to be
successfully assailed. He who would controvert a grant executed by
the lawful authority, with all the solemnities required by law,
takes on himself the burden of showing, that the officer has
transcended the powers conferred upon him or that the transaction
is tainted with fraud."
33 U. S. 8 Pet.
452-455,
33 U. S. 464;
34 U. S. 9 Pet.
134,
34 U. S.
734-735;
S.P. 31 U. S. 6 Pet.
727; and cases cited;
35 U. S. 10
Pet. 331;
S.P. 1 Paine 469-470. The same rule applies to
the judicial proceedings of local officers, to pass the title of
land according to the course and practice of the Spanish law in
that province (West Florida).
33 U. S. 8 Pet.
310. Where the act done is contrary to the written order of the
King produced at the trial without any explanation, it shall be
presumed that the power has not been exceeded, that the act was
done on the motives set out therein and according to some order
known to the King and his officers, though not to his subjects.
32 U. S. 7 Pet.
96;
33 U. S. 8 Pet.
447,
33 U. S.
451-456; "and courts ought to require very full proof
that he had transcended his powers, before they so determine it."
33 U. S. 464;
34 U. S. 9 Pet.
734. In following the course of the law of nations, this Court has
declared that even in cases of conquest, the conqueror does no more
than displace the sovereign and assume dominion over the country.
32 U. S. 7 Pet.
86;
35 U. S. 10
Pet. 720,
35 U. S.
729-830
passim.
"A cession of territory is never understood to be a cession of
the property of the inhabitants. The King cedes only that which
belongs to him; lands he had previously granted were not his to
cede. Neither party could so understand the treaty. Neither party
could consider itself as attempting a wrong to individuals
condemned by the whole civilized world. 'The cession of a
territory' would necessarily be understood to pass the sovereignty
only, and not to interfere with private property."
Id., 32 U. S. 87. No
construction of a treaty which would impair that security to
private property which the laws and usages of nations would without
express stipulation have conferred would seem to be admissible
further than its positive words require.
"Without it the title of individuals would remain as valid under
the new government as they were under the old, and those titles, at
least so far as they were consummate, might be asserted in the
courts of the United States independently of this article."
Id., 32 U. S. 88;
31 U. S. 6 Pet.
741-742;
S.P. 34 U. S. 9 Pet.
133.
The terms of a treaty are to be applied to the state of things
then existing in the ceded territory,
33 U. S. 8 Pet.
462; in that which had been held by Spain, the whole power of
granting and confirming titles had, by the royal order of 1754,
been transferred to officers in the colonies,
Page 37 U. S. 439
the commandants of posts, and local authorities, who acted in
their discretion as the sole judges of the manner, condition, or
consideration in, on, or for which they conferred the right of
property, as officers and competent authorities, to exercise the
granting power. Such officers were in all the colonies; they made
grants of all grades of title, as well in rewards for services as
favors, or for the benefit of the country, as they pleased, being
persons authorized by the King to grant lands,
"he was not willing to expose the acts of his public and
confidential officers, and the title of his subjects acquired under
those acts, to that strict and jealous scrutiny, which a foreign
government interested against their validity would apply to them if
his private instructions or particular authority were to be
required in every case, and that he might therefore stipulate for
that full [evidence] to the instrument itself which is usually
allowed to instruments issued by the proper officer."
33 U. S. 8 Pet.
449-458,
33 U. S. 475,
33 U. S. 488-489;
32 U. S. 7 Pet.
96;
34 U. S. 9 Pet.
134,
34 U. S. 169,
34 U. S. 734;
35 U. S. 10
Pet. 331;
S.P. 31 U. S. 6 Pet.
727; White's Comp.Sp.Laws 218, 249. Such a grant under a general
power would be considered as valid even if the power to disavow it
existed until actually disavowed.
33 U. S. 8 Pet.
451. No such disavowal has ever been known to the Court in any of
the numerous cases which have been before us arising under the
treaties of 1803 and 1819, and the assiduous researches of Mr.
White have brought none to his knowledge.
33 U. S. 8 Pet.
458;
35 U. S. 10
Pet. 332; White's Comp. 9, from which it may be reasonably presumed
that none exists.
Treaties are the law of the land and a rule of decision in all
courts.
27 U. S. 2 Pet.
314;
34 U. S. 9 Pet.
133. Their stipulations are binding on the United States; in that
of 1819 there is a present confirmation of all grants made before
January, 1818, with the exception of only three, which had been
previously made, and were expressly omitted, on which this Court
make these remarks.
"While Florida remained a province of Spain, the right of His
Catholic Majesty, acting in person or by his officers, to
distribute lands according to his pleasure was unquestioned. That
he was in the constant exercise of this right was well known. If
the United States was not content to receive the territory charged
with titles thus created, it ought to have made, and it would have
made such exceptions as it deemed necessary. It has made these
exceptions. It has stipulated that all grants made since 24
January, 1818, shall be null and void. The American government was
content with the
Page 37 U. S. 440
security which this stipulation afforded, and cannot now demand
farther and additional grounds. All other concessions made by His
Catholic Majesty or his lawful authorities in the ceded territories
are as valid as if the cession had not been made."
33 U. S. 8 Pet.
463-464;
S.P., 34 U. S. 9 Pet.
734;
31 U. S. 6 Pet.
741-742;
32 U. S. 7 Pet.
88. By the treaty of 1803, there was a stipulation
inter
alia, that the inhabitants of the ceded territory shall be
maintained and protected in the free enjoyment of their liberty,
property, and the religion they profess, as to which this is the
language of this Court.
"That the perfect inviolability and security of property is
among these rights all will assert and maintain."
34 U. S. 9 Pet.
133;
S.P., 35 U. S. 10
Pet. 718,
35 U. S. 722,
35 U. S. 736.
What was to be considered as property under this stipulation was,
as held in
United States v. Smith, to depend on this
question,
"whether in the given case a court of equity could, according to
its rules and the laws of Spain, consider the conscience of the
King to be so affected by his own or the acts of the lawful
authorities of the province that he had become a trustee for the
claimant, and held the land claimed by an equity upon it, amounting
to a severance of so much from his domain, before 10 March, 1804,
in Missouri, and 24 January, 1818, in Florida, the periods fixed by
the law [of Congress] in one case and the treaty in the other."
35 U. S. 10
Pet. 330-331,
35 U. S. 722,
35 U. S. 736,
S.P.
It is next in order to consider, what were the laws of Spain as
to the disposition of the royal domain in Louisiana while she held
it. By the royal ordinance of 1754 it is ordained, for the reasons
set forth in the preamble,
1. That from the date thereof, the power of appointing
sub-delegates for selling lands, and the uncultivated parts in the
King's dominions, shall belong exclusively to the local
authorities, being his officers in the colonies.
33 U. S. 8 Pet.
451.
2. The officers to whom jurisdiction for the sale of lands shall
be sub-delegated shall proceed with mildness, gentleness, and
moderation, with verbal, and not judicial proceeding, in the case
of lands possessed by the Indians, or which they may require for
labor, tillage, &c.
3. In regard to the lands of communities and those granted to
the towns for pasturage and common, no change shall be made; the
towns shall be maintained in possession of them; those seized shall
be restored, and their extent enlarged according to the wants of
the population, nor shall severe strictness be used towards those
persons who are in possession according to the requirements of the
laws.
4. Those who have been in possession of lands, by acts not
Page 37 U. S. 441
confirmed before 1700 may retain free possession thereof without
molestation. If persons have not warrants, their proof of long
possession shall be held as a title by prescription. If they have
not cultivated the lands, three months shall be given or whatever
time may be thought sufficient, and notice shall be given that if
they fail to cultivate the lands, they shall be given to those who
shall lodge information thereof, under the same condition of
cultivating them. White's Comp. 50-51.
Towns may be founded on prescribed conditions, for which
definite rewards are given. White's Comp. 34, 59. The founder shall
contract to grant to each person who joins the settlement building
lots and pastures and lands for cultivation proportionate to what
he will agree to improve. White, No. 62. A town containing ten
married men, with an extent of territory proportioned to what is
stipulated, may elect from among themselves ordinary alcaldes and
officers of the council. White, No. 63. The territory granted to
the founder of a settlement shall be thus distributed. They shall
lay out for the site of the town whatever may be necessary
sufficient exidor and abundant pasture for the cattle of the
inhabitants, and as much besides for that which shall belong to the
town proprias. Of the balance of the tract, the founder to have
one-fourth, and three-fourths to be equally divided among the
settlers. White, No. 66. The lots to be distributed by lot among
the settlers, beginning with those adjoining the main square, the
remainder to be reserved to the King, to give as rewards to new
settlers or otherwise, at his will, and a plot of the settlement to
be made out. White, No. 67. Commons shall be reserved, and the
remainder laid out for cultivation, in tracts equal in number to
the town lots, to be drawn by lot. White, No. 70. If accident
should prevent the completion of the settlement in the term
prescribed, the settlers shall incur no forfeiture or penalty, and
the governor of the district may extend the term according to the
circumstances of the case. White, No. 73. There shall be
distributed among the settlers of the villages lots and lands
varying in size and extent according to their rank and merit, and
after living and laboring therein four years, they may sell them as
their own property. White, No. 74. No persons shall have lands in
one settlement if they possess lands in another, unless they have
left their former and removed to their new residence or resided in
the first for the four years necessary to entitle them to the fee
simple right, or have relinquished it for not having fulfilled
their obligations. White, No. 75.
Page 37 U. S. 442
The lots shall be built upon, the houses occupied, the arable
lands divided, cleared, worked and planted, and those destined for
pasture stocked within a limited time or the grants shall be
forfeited, with a penalty. White, No. 76. The distribution shall be
made by the governors, under the advice of the council of the
villages. White, No. 78 (
vide Document of 1772). All to
whom lands shall be distributed, shall within three months take
possession under penalty of forfeiting the land, that it may be
vacated and forfeited to some other settler, so as to the
settlements and improvements they may hold within the villages.
White, No. 81 (
vide also 1 Partidas 123; 2 Partidas
338-339, 373, 440). [
Footnote
3]
Page 37 U. S. 443
For the purpose of ascertaining what lands belonged to the King,
it was ordered that the owners of land should exhibit to the
officers
Page 37 U. S. 444
appointed for the purpose their titles to lands, estates, huts,
and cabellerias, who, after confirming the possession of such as
hold the same by virtue of good and legal titles or by a just
prescription, shall restore the remainder. No. 84. Officers were
ordered not to alter the acts of their predecessors with regard to
lands admitted to composition, and to leave the holders thereof in
quiet possession, and those who have encroached and held more than
they are entitled to shall be allowed to pay a moderate
composition, and new titles shall be issued to them. Where titles
to land have been issued by officers who were not authorized, and
have been confirmed in council, the holders of letters of
confirmation are ordered to retain them, that they may be confirmed
in their possession within the limits prescribed, and as regards
their encroachments beyond the limits, they are entitled to the
benefits of this law. No. 85.
Those things which the King gives to anyone, cannot be taken
from him by the King or anyone else without some fault of his; he
shall dispose of them at his will, as of any other things belonging
to him. White, 82, No. 11. When the justices and regidores of a
Page 37 U. S. 445
city, town, or village, have made, and continue to make
ordinances for their officers and functionaries, and
superintendents of the limits and commons in the country, as for
other matters which are of the resort of the judiciary and
regidores (or capitulores), the auditors and alcaldes are not to
interfere therein except by appeal and in case of damages. White,
83. No grants shall be made of the rights, revenues, or municipal
domains of villages, and all grants thereof made by the King shall
be void.
Id. Vide
35 U. S. 10 Pet. 720,
35 U. S. 724.
There shall be commissioners in each village to superintend the
affairs thereof connected with the municipal taxes and domains and
the management thereof, to be composed of alcaldes and regidores,
and if thought proper, of the general attorney and recorder
(Procurado Sindico General). Where there are no municipal taxes,
these commissioners shall attend to the best management of the
municipal domains, and where there are such taxes, of both. White
88. The superintendent of the settlement shall select the tracts
and locate the houses of the settler; if any part of the tract
belonging to the settlement is proper for irrigation, it shall be
proportionally distributed; each settler shall open the channels
for irrigation and contribute equally to their repairs. White 105.
Landmarks shall be erected between each lot, trees planted along
the dividing line, a record of distribution among the settlers
shall be made containing the number of tracts, the names of the
settlers to whom allotted, giving each a sheet or plot of his
tract, which shall be his title in future, to remain in his
possession, to be consulted without the necessity of resorting to
the record itself. White 106, 40. No. 81.
These are some of the many royal orders which relate to the
general domain of the King and to settlements or villages, in each
of which there were municipal councils and officers who made and
executed their regulations of police.
35 U. S. 10
Pet. 723-724. One branch of which was confided to a syndic
regidore, or other supervising officer, to enforce the village
ordinances. White 108-116. These, with the regulations of the local
officers of the King, composed the written law of the colony or
village accordingly as the subject matter thereof was general or
local, besides which there was an unwritten law of three kinds.
"Use, custom, and the common law." Use is defined to be "that which
has arisen from those things which a man says and does, and is of
long continuance, and without interruption," the requisites to the
validity of which are prescribed.
"Custom is the law or rule which is not written,
Page 37 U. S. 446
and which men have used for a long time, supporting themselves
by it in the things and reasons with respect to which they have
exercised it, on which definition are founded three axioms."
"1. That custom is introduced by the people, under which name we
understand the union or assemblage of persons of all description,
of that country where they are collected."
"2. That it derives its authority from the express or tacit
consent of the King."
"3. That once introduced, it has the force of law. To establish
a custom, the whole, or greater part of the people ought to concur
in it. Ten years must have elapsed among persons present and twenty
at least among persons absent. In default of this continuance, it
shall be proved by two sentences of judges, or judgments given upon
or according to it; one sentence suffices when given on a question
whether that custom exists, and the judge determined that it
did."
Customs are general, or particular; the latter respects a
specific thing, a particular person, or place, or with respect to
the whole, of certain persons or places; general, with respect to
specific acts of all the inhabitants of the Kingdom, and may
destroy the law, but a particular custom in any province or
seignory has only this effect in that district or part where it
hath been exercised. "A fuero (forum) is an use and custom
combined, and has the force of law." White 60-61.
Such are the laws, usages, and customs of Spain by which to
ascertain what was property in the ceded territory when it came
into the hands of the United States charged with titles originating
thereby, creating rights of property of all grades and description.
In the treaty of cession, no exceptions were made, and this Court
has declared that none can thereafter be made.
33 U. S. 8 Pet.
463. The United States must remain content with that which
contented them at the transfer, when they assumed the precise
position of the King of Spain. The United States has so remained,
as appears by its laws. By the acts of 1804, 2 Story 939; of 1805;
id., 966, of 1807;
id., 1060, 1062, of 1816;
id., 1604; it recognized the laws, usages, and customs of
Spain to be legitimate sources of titles, and, by the act of 1812,
2 Story 1257, confirmed to the inhabitants of St. Louis and other
villages according to their several right or rights of common
thereto, the rights, titles, and claims to town or village lots,
outlots, common field lots, and commons, in belonging or adjoining
to the same, which titles depended on parol grants and local
customs.
The same recognition extended to grants to actual settlers,
pursuant to such laws, usages and customs; to acts done by such
settlers
Page 37 U. S. 447
to obtain a grant of lands actually settled, or persons claiming
title thereto, if the settlement was made before 20 December, 1803.
Such claims when made in virtue of a warrant or order of survey or
permission of the proper Spanish officer were confirmed if actually
inhabited and cultivated on that day, 2 Story 966, and the
permission shall be presumed on proof of a continued habitation and
cultivation for three years prior to 1 October, 1800, though the
party may not have it in his power to produce sufficient evidence
of such permission.
Id., 1018. Thus connecting the law of
nations, the stipulations of the treaty, the laws, usages and
customs of Spain, the acts of Congress, with the decisions of this
Court, we are furnished with sure rules of law to guide us through
this and all kindred cases in ascertaining what was property in the
inhabitants of the territory when it was ceded. As all the supreme
laws of the land, the Constitution, laws and treaties, forbid the
United States to violate rights of property thus acquired, so they
have never attempted it, but the state of the province required
that some appropriate laws should be passed in order to ascertain
what was private and what public property, to give repose to
possession, security to titles depending on the evidence of facts
remote in time, difficult of proof, and in the absence of records
or other writings.
These facts, too, on which the law of usage and custom, the
transmission of property by parol, the performance of acts
in
pais, on which the right depended, were to be developed from
the few survivors of the settlers of an ancient village, of whom,
as appears from the record, but few could read or write, whose
occupations were in the trade with Orleans, Machinau, and the
Indian tribes, who attended little to village concerns, and still
less to village property, when, on a public sale, its price was
eight cents an arpent, and what would now be a splendid fortune
would not, fifty years ago, be worth the clerk's fee for writing
the deed which conveyed it, and was therefore passed from hand to
hand by parol with less formality than the sale of a beaver skin,
which a bunch of wampum would buy. The simple settlers of St. Louis
then little thought that the time would ever come when, under a
stranger government, the sales of their poor possessions, made in
the hall of the government, at the church door after high mass,
entered on the public archives, as enduring records of their most
solemn transactions, would ever be questioned by strict rules of
law or evidence. Still less did such a race of men as the boatmen
and hunters of the west, who by mutual agreement gave one thing and
took another, whether
Page 37 U. S. 448
land or peltry, on a fair exchange by a shake of the hand, ever
imagine that a common field lot would ever be worth, when lying
waste, a pack of furs, or that no evidence of its sale would be
admissible on a question of whose it was, unless by deed. When
there was but one Kiersereau and one Gamache in the village, it was
little dreamed of that a principality in value would depend for its
ownership on the question whether the one wrote his name Kirceraux
or Kirgeaux, or to the mark of the other was affixed the name
Joseph Batis, or J. B. Gamache. Well was it said by one of the
witnesses at the trial, "there were few people; it was not as it is
now." Record, page 88.
Congress, well aware of the state of the country and villages,
wisely and justly went to the extent, perhaps, of their powers in
providing for the security of private rights by directing all
claimants to file their claims before a board specially appointed
to adjust and settle all conflicting claims to lands. It had in
view another important object -- to ascertain what belonged to the
United States, so that sales could be safely made, the country
settled in peace, and dormant titles not be permitted either to
disturb ancient possession; to give to their holders the valuable
improvements made by purchasers, or the sites of cities, which had
been built up by their enterprise;
vide 35 U. S. 10
Pet. 473. Accordingly we find that by various acts the time of
filing such claim is limited, after which they are declared void so
far as they depend on any act of Congress, and shall not be
received in evidence in any court against any person claiming by a
grant from the United States. 2 Story 968, 1061, 1216, 1260,
1301.
These are laws analogous to acts of limitations for recording
deeds or giving effect to the awards of commissioners for settling
claims to land under the laws of the states; the time and manner of
their operation and the exceptions to them depend on the sound
discretion of the legislature, according to the nature of the
titles, the situation of the country, and the emergency which calls
for their enactment. Reasons of sound policy have led to the
general adoption of laws of both descriptions, and their validity
cannot be questioned. Cases may occur where the provisions of a law
may be such as to call for the interposition of the courts, but
these under consideration do not.
Vide 28 U. S. 3 Pet.
289-290. They have been uniformly approved by this Court in
25 U. S. 12
Wheat. 528-529,
25 U. S.
537-543,
25 U. S.
601-602;
31 U. S. 6 Pet.
771-772;
32 U. S. 7 Pet.
90-93
passim, and ought to be
Page 37 U. S. 449
considered as settled rules of decision in all cases to which
they apply.
Having reviewed the written law of the case, we must next
examine what was the unwritten law of the place, which can appear
only from the evidence in the record as to the usage, custom or
fuero, and is most manifest.
1. In the most solemn act of 1772, by the two governors, in the
presence of all the officers of government, the people of the
village, and recorded together with all proceedings under it at
large in the land book of the district, with the surveys entered on
sixty-eight pages. What those proceedings were will appear in the
document before referred to in general, and the copies from the
entries in the land book, in relation to each lot, contained in the
record.
2. In the deeds executed in the presence of the governor and
witnesses of assistance specially selected to attest the sale, as
by the common law they were called to attest the livery of seizin
on a feoffment,
12 U. S. 8
Cranch 244, and the entries of the names of the purchasers in the
margin of the survey of the property sold, recorded in the land
book of the village.
3. In the adjudications made by the governor in a judicial
capacity, making a sale of the property of Chancellier and St. Cyr
by judicial process, set out at length in the record and most
solemnly attested.
4. By the evidence in the record, showing beyond doubt that
there has been an universal acquiescence by the political
authorities of the district; the municipal council and officers of
the village, as well as the inhabitants, in all these acts,
testified by the quiet possession held under them from 1772. The
document of that year is not only to be considered as the ancient
muniment of the titles of the name of the King (of Spain) to and
conclusive recognition of the local custom, in relation to some
important facts, illustrating the local law of the place, when
taken in connection with the testimony of the witnesses.
In that solemn act there is this clause,
"to serve to designate the various tracts of land, granted in
(of the government) to the inhabitants of this post of St. Louis,
as well by title (deed) as by verbal consent, by the chiefs who
have governed them from the foundation (of the government) to this
moment."
In alluding to acts done under the governor of the territory
under France is this clause:
"the latter to certify by his signature, in his said quality,
and in virtue of the power confided to him, that he had granted,
either by title,
Page 37 U. S. 450
[deed] or verbally, the above-mentioned lands in the name of his
Majesty [the King of France]."
This attests the meaning of the word "grant" under both
governments to be inclusive of verbal ones, which were equally
valid as those by deed, and as the title passed from the King to
the people in this way, so we find by the uncontradicted testimony
of several witnesses that it passed from one to another in the same
way, without writing, when the land was of small value. It appears
also from the evidence that there was an officer in the village,
called by the inhabitants a syndic and in the Spanish laws a
regidore, whose duty and authority were to see that the common
fences of the forty arpent lots were kept in repair. He would
direct them to be inspected, and if they were found out of repair,
would direct the owner of the lot in front of which it was
defective to make the repairs; if the owner was on a journey, the
syndic would have the repairs made and make the owner pay his share
on his return; otherwise he would give the land to another person,
who would make the share of the fence.
This was a regulation in villages by the authority of the
commandant and municipal authorities in conformity with the laws of
Spain,
vide 35 U. S. 10
Pet. 725-731; it applied as well to village property as to the
large grants of the royal domain, and it appears by the regulations
of O'Reilley, Gayoso, and Morales, that from 1770 till the cession
in 1803, it was of universal application throughout Louisiana.
White 205-216
passim.
Such were the laws, usages and customs of Spain in relation of
the grants, transfers and tenure of village property. There remains
one other rule which must be applied to this case, unless the
evidence in the present record, which was not in the former, may
lead to a different result; we mean the opinion of this Court, in
the case between the same parties, claiming the same property.
Vide 31 U. S. 6 Pet.
763,
31 U. S.
767.
Before we consider the instructions on which the plaintiff has
assigned his errors, the points decided in that case will be taken
in the order of the learned judge who delivered the opinion of the
Court.
1. On the handwriting and identity of Rene Kiersereau, who, as
alleged, was one of the witnesses of assistance to the deed of 1781
from M. M. Robillar, his wife, to Louis Chancellier, as to which
the court below had rejected certain depositions, which was
assigned for error, and the objection overruled for this
reason:
"The record
Page 37 U. S. 451
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 his
(Kiersereau's) 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."
31 U. S. 6 Pet.
768. Had the same question been presented now as it was then, we
should not have hesitated to have expressed an entire concurrence
with that view, but as it now comes up on a new state of facts, it
deserves further consideration, especially as a similar question
occurs as to the identity of Gamache, who conveyed to St. Cyr in
1793. Both questions are so similar that they may be taken together
in two aspects. 1. As questions of fact. 2. Of law.
1. It is admitted that Rene Kiersereau was the owner of one of
the lots in controversy, as is apparent on the document of 1772, to
which his name is affixed as one of eleven inhabitants, including
the governor, the political and municipal officers of the village,
who could write their names, which, according to evidence,
contained two hundred and fifty persons. Whether he was the same
person who was the witness to the deed from his wife, and (as we
shall assume) the grantor of the lot was a pure question of fact
for the jury on the whole evidence on that subject; so it was as to
the identity of Gamache, as to whom there is the following
admission on the record.
"It was also admitted that Joseph Gamache, for whom the survey
of one of the tracts of land, of one by forty arpents, was made was
known as well by the name of Jean Baptiste Gamache, and of Baptiste
Gamache, as Joseph Gamache,"
which also appears by his deed to Chancellier. Mark X of John
Baptiste Gamache, Joseph Gamache, in the survey in the land book.
Batis X Gamache in his deed to St. Cyr, and Baptiste Gamache in the
margin of the survey.
Before the court could give any instruction to the jury as to
the identity of either Kiersereau or Gamache, "they must have been
satisfied on that subject that there was nothing in [the parol]
evidence, or any fact which the jury could lawfully infer
therefore," that they were or were not the owners of the respective
lots. If there was any evidence which conduced to prove the fact,
"the court must assume it to have been proved, for it is the
exclusive province of the jury to decide what facts are proved by
competent evidence," to judge of the credibility of the witnesses,
and the weight of their testimony as tending more or less to prove
the fact relied on. As
Page 37 U. S. 452
these were matters with which the court could not interfere, the
right to the instruction asked must depend on the opinion of the
court, on a finding by the jury in favor of the defendant, on any
matter which the evidence conduced to prove, giving full credence
to the witnesses produced by him and discrediting those of the
plaintiff.
Ewing v.
Burnet, 11 Pet. 50-52;
S.P. 37 U.
S. Laub, 1838, 12 Pet. 1.
2. In this case, we think that neither question was one of fact
entirely; the manner in which the deeds were executed, the
possession taken and held under them by Chancellier of one and St.
Cyr of the other; its notoriety to the authorities, and the people
of the village, with the nature of the possession, the situation
and state of the common field lots, and their cultivation within
one common enclosure, regulated by a special police, with the other
circumstances of the case;
vide 11 Pet. 523 [argument of
counsel -- omitted], incline us strongly to this conclusion. That
after this lapse of time, the legal presumption of the validity of
both deeds would attach by the maxim that in favor of long
possession and ancient appropriation, everything which was done
shall be presumed to have been rightfully done, and though it does
not appear to have been done, the law will presume that whatever
was necessary has been done.
The next point decided in the former case was on an objection
made by the defendant's counsel that the plaintiff had not such a
legal title as to sustain an ejectment, which was overruled.
31 U. S. 6 Pet.
768-769. And we think very properly, in accordance with the leading
case of
Simmes' Lessee v.
Irvine, 3 Dall. 425, 454 [argument of counsel --
omitted]; the authority of which remains unquestioned. It was
objected that the confirmation by the board of commissioners to
Choteau was void because the defendant was at the time one of the
board and claimed the property by a deed from Choteau, before the
confirmation; it was overruled because it did not appear that he
sat at the board at the time.
Id. 31 U. S. 768.
The same objection has been much pressed now, with the additional
reason that the defendant was also a judge of the superior court of
the territory, but as the confirmations in the record show that he
was not present and we think the objection not good in law, we
fully concur with the decision of this point in the former
case.
After recapitulating the evidence as it appeared in the then
record, the court observed:
"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
Page 37 U. S. 453
defendant. But it appears that these persons, Kiersereau and
Gamache, sold their claim twice, [Gamache one-half] in the first
place to Louis Chancellier, 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."
The Court then, referring to the acts of 1805 and 1807 and to
the evidence, held that as there was no evidence that Madame
Chancellier had ever filed her claim or the evidence thereof
pursuant to the law, and the instruction of the court complained of
was on the effect of the confirmation under the law, the plaintiff
could derive no benefit from it;
31 U. S. 6 Pet.
772, which we think was the correct result of the then case. A
different case is now presented on this subject.
The plaintiff gave in evidence two opinions of the recorder of
land titles of St. Louis County confirming to the representatives
of Gamache and Kiersereau the forty arpent lot of each and directed
each to be surveyed, but did not offer the confirmations to Choteau
by the board of commissioners, which were given in evidence by the
defendant. The plaintiff claimed under the former, the defendant
under the latter. That of the plaintiff will be first
considered.
By the 8th section of the act of 1812, 2 Story 1260, the
recorder of land titles was invested with the same powers and
enjoined to perform the same duties as the board of commissioners
(which was then dissolved) in relation to claims which might be
filed before 1 December, 1812, and the claims which have been
heretofore filed but not acted on by the commissioners, except that
all his decisions shall be subject to the revision of Congress. He
was directed to report to the commissioner of the land office a
list of all such claims, with the substance of the evidence in
support thereof, his opinion and such remarks as he may think
proper, to be laid before Congress at their next session. By the
act of 1813, the time for filing claims was extended to 1 January,
1814. 2 Story 1306, 1384-1385, under which acts the recorder made
the confirmations relied on by the plaintiff on 1 November, 1815,
which was confirmed by the 2d section of the act of 1816. 3 Story
1604. But these confirmations cannot avail the plaintiff as a
claimant under these or any other acts
Page 37 U. S. 454
of Congress for the following reasons:
1. That the authority of the recorder of land titles was, by the
express terms of the acts of 1812 and 1813, confined to those
claims on which the board of commissioners had not previously
acted, from which it follows that after the commissioners have made
a confirmation of a specific claim, the action of the recorder is
either merely cumulative, and so inoperative, or if adverse, merely
void as an assumption and usurpation of power in a case on which he
had not jurisdiction, and his action must be a mere nullity. Here
the commissioners had decided on the identical claim in 1809-1810;
Congress had made a general confirmation of all the claims of the
then inhabitants of St. Louis, of their title to the common field
lots in 1812, when the defendant was an inhabitant thereof, and in
actual possession of those in controversy, and by the act it was
provided that it should not affect any confirmed claims to the same
lands. Surveys were directed to be made, plots thereof made out,
and transmitted to the General Land Office and recorder of land
titles. 2 Story 1257-1258. As the act directed no further steps to
be taken, the title became complete, and the recorder thenceforth
ceased to have any power over the confirmed lots save to perform
the ministerial acts directed by law as the ordinary duties of his
office. If Congress could, it never did give him any authority to
supervise either the acts of the commissioners or the confirmations
of the law.
2. We must, then, take the defendant as one holding the premises
in controversy by a grant from the United States and as their
grantee, entitled to all the protection of the laws appropriate to
the case. The unanswerable reasoning of this Court in
Green v.
Liter, the principles of law on which it is founded, with the
admitted authority with which it has been received, save the
necessity of any reference to any other source for its support.
12 U. S. 8
Cranch 244-249. That a grant may be made by a law, as well as a
patent pursuant to a law, is undoubted,
10 U. S. 6
Cranch 128, and a confirmation by a law is as fully to all intents
and purposes a grant as if it contained in terms a grant
de
novo. The plaintiff therefore is brought within the two
provisions of the laws; that by Madame Chancellier not having filed
her claim within the time limited by law, she could not set up any
claim under any act of Congress or be permitted to give any
evidence thereof in any court against a person having a grant from
the United States under the confirmation of the commissioners and
the act of 1812. The plaintiff has contended that the act of 1831
has released him
Page 37 U. S. 455
from these provisions and all penalties imposed by any act of
Congress. This act was a supplement to the act of confirmation of
June, 1812, 2 Story 1257-1258, by the first section of which the
titles of the inhabitants were confirmed according to their private
right or rights in common thereto, as has been stated before.
By the 2d section, all town, out, and common field lots,
included in the surveys, therein directed, not rightfully owned or
claimed by any individual or held in common, belonging to the towns
or villages or reserved by the president for military purposes were
reserved to the towns and villages for the support of schools. In
order to ascertain what lots were owned or claimed by individuals,
the recorder was by the 8th section empowered to act on claims
filed before 1 December, 1813, as has been seen, and those before
filed and undecided. The time for presenting such claims was
further enlarged by the Acts of April 1, 1814; 2 Story 1410,
1429-1430, and certain confirmations were made by Congress in those
acts. Under this authority, the recorder made his report, which
appears in the 3d vol. State Papers -- Public Lands 314. His
proceedings were confirmed by the 2d section of the Act of April,
1816; 3 Story 1604-1605. Then comes the act of 1831, the first
section of which enacted
"That the United States does relinquish to the inhabitants of
St. Louis, &c., all their right, title and interest, to the
town or village lots, outlots, common field lots, and commons in,
adjoining, or belonging to the towns and villages, confirmed to
them respectively by the act of 1812, to be held by the inhabitants
in full property according to their several rights therein, to be
regulated or disposed of for the use of the inhabitants according
to the laws of Missouri."
By the second section, the United States relinquished its right,
title, and interest in and to the town, out, and common field lots
in the State of Missouri reserved for schools by the act of 1812,
and provided that the same shall be sold or disposed of or
regulated for the same purposes in such manner as may be directed
by the legislature of the state. 4 Story 2220. It is most obvious
that this act, so far from opening the confirmation of the
commissioners in 1809-1810 and of the act of 1812 or relieving the
plaintiffs from the effect thereof, is a new confirmation of the
private and common rights of the inhabitants, and cannot aid the
plaintiff; the purposes of this case do not require us to give it
any further consideration. For these reasons we feel constrained to
come to the same conclusion on this record which the court did on
the former -- the plaintiff can neither have any benefit from any
act of Congress, or
Page 37 U. S. 456
give evidence of his claim against the defendant, claiming by
grant from the United States.
The next position of the court in the former case was that,
Madame Chancellier having slept upon her claim till 1818, must be
considered as having abandoned it, to which we not only entirely
assent, as this point appeared then, but as still clearer now by
the new evidence. It was testified at the trial that Madame
Chancellier had made a verbal sale of the two lots to St. Cyr; the
credibility of the witness and the weight of his testimony were
matters exclusively for the jury, and we cannot say that they did
not find for the defendant on that ground; it was competent
evidence conducing to prove that fact, and if the jury found the
fact accordingly, we have only to consider its consequences.
Assuming, as we must, that the fact of such sale is established, it
is immaterial whether such sale passed the title or not; it was,
when taken in connection with the other circumstances of the case,
powerful if not conclusive evidence that she had abandoned as well
the possession as the right to the lots in controversy without the
intention to reclaim either; that St. Cyr took and held possession
in good faith, and with good faith purchased from Kiersereau and
Gamache, which he might lawfully do to complete his title. If it
was a fact, then the continued possession of St. Cyr and the
defendant, entitled the latter to all the benefit of the Spanish
law of prescription, whether of thirty, twenty, or ten years,
according to the rules laid down, as taken from the Recopilacion
and Partidas in White, 68-69. The destruction of the common fence
of the common field lots in 1798-1799 was a sufficient excuse for
St. Cyr or Choteau, not continuing the actual possession and
cultivation of their lots, until the other owners would join in
rebuilding the fence. The change of government in 1804, with the
consequent uncertainty of titles, was a reason for leaving the lots
open, which ought not to be overlooked; that there was no actual or
intended abandonment of St. Cyr might well have been found by the
jury from the judicial sale to Choteau in 1801, or by him, from the
sale to the defendant in 1808. On these facts the laws of Spain
would consider the possession as continued from 1798 to 1808, and
if the opinions of this Court have any bearing on the question of
possession, abandonment, or legal presumption of a rightful title,
those to be found in
Green v.
Liter, 8 Cranch 244;
Barr v.
Gratz, 4 Wheat. 213,
17 U. S. 233;
Pr. Soc. v.
Pawlett, 4 Pet. 480,
29 U. S.
504-506;
Clark v.
Courtney, 5 Pet. 354-355;
Barclay v.
Howell, 6 Pet. 513;
Page 37 U. S. 457
United States v.
Arredondo, 6 Pet. 743;
Ellicott v.
Pearl, 10 Pet. 442;
Ewing v.
Bernet, 11 Pet. 51-53;
United
States v. Mitchell, 9 Pet. 734-735,
34 U. S. 760;
New Orleans v. United
States, 10 Pet. 718-719, are most full and
conclusive.
The plaintiffs have relied much on the allegation that St. Cyr
took possession as the tenant of Madame Chancellier or her husband,
Beauchamp, in 1788, or under an agreement that he should keep up
the fence while he occupied the lots. The only evidence of this
fact was by her in her testimony, in which she stated it in general
terms: on her cross-examination, she stated that Beauchamp had told
her so, whereupon the court directed the jury to reject her
evidence. Whether the jury did so or not is not material; they were
not bound to credit her; they might not believe her, and we cannot
presume that they did, or hold that they ought.
36 U. S. 11 Pet.
50-51.
There is another fact in evidence which leads to the same
results. It was testified at the trial that St. Cyr was put into
possession by the syndic, pursuant to the village regulations,
because the fence had not been kept up after the death of
Chancellier. The jury were the judges of this fact, and from their
finding we must presume that it was proved, and hold the law to be
accordingly that no taint of bad faith can attach to the conduct of
St. Cyr by any notice he may have had of the title or claim of
Madame Chancellier; it was consistent with her title that she
should hold it by the established village tenure, subject to the
municipal regulations, which were authorized by the laws, usages,
and customs of the country and place. It is evident that the law
which gave a title in fee to a village lot by a continued residence
of four years in a house neither did or could apply to a common
field lot used only for cultivation or pasturage, the owner of
which could derive no advantage from his mere right of property if
the adjoining owners did not keep the common fence in repair or pay
the syndic for doing it. That such regulations were authorized by
the written law of Spain, in royal orders, and by the unwritten law
of use, custom and fuero has been seen, and that such usages and
customs were valid; that local usage and custom, in relation to
municipal regulations, was not the law of the villages only, but of
the metropolis of the province, and equally binding as the local
law is clearly established by the able and unanimous opinion of
this Court in
New Orleans v. United
States, 10 Pet. 712,
35 U. S. 716,
35 U. S. 724,
35 U. S.
730-731.
Another principle laid down by the Court in the former case
Page 37 U. S. 458
meets our entire approbation:
"That 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 evidence on the record, that
we feel disposed to give the most favorable interpretations to the
instructions of the court."
31 U. S. 6 Pet.
772.
There remains but one other point on which the Court gave its
opinion in the former case which was then made by the plaintiff's
counsel in their argument and has been strongly urged in this case,
that the confirmation of the commissioners enured to plaintiff's
use.
The reasons assigned for this position are that the only object
of the acts of Congress being to ascertain what property had been
acquired by individuals before the cession, the commissioners were
to act only on original claims, and by confirming the right of the
original owner, to leave the derivative right under him entirely
open between adverse claimants. The Court was before of opinion
that this view of the case could not be sustained, and we are now
of opinion that it is inconsistent with all the acts of Congress
which have organized boards of commissioners for adjusting land
titles, the proceedings of the board, and the laws which have
confirmed them.
By these laws it is provided that the original grant shall be
recorded, but all other conveyances and deeds shall be deposited
with the register or recorder of deeds, to be by them laid before
the commissioners.
Vide 2 Story 967, 968. The same
provision is contained in the numerous laws on this subject which
are noticed and reviewed in the opinions of this Court,
25 U. S. 12
Wheat. 525-543;
31 U. S. 6 Pet.
718;
32 U. S. 7 Pet.
89-90, showing that this distinction between the evidence of
original and derivative rights to land has been uniformly observed
by Congress and the Court. The confirmations of the commissioners
in the present case are to the person who made and proved his claim
before them, and from the reports of all the boards, as published
in the State Papers -- Public Lands, 3 vol.
passim; it has
been uniformly done, and the acts of Congress confirming them have
been in general terms of reference to such reports.
Vide 2
Story 1410, 1430; 3 Story 1604. It would defeat the whole object of
these laws and introduce infinite public mischief were we to decide
that the confirmations by he commissioners and Congress, made
expressly to those who claim by derivative titles, did not operate
to their own use.
It has been seen that the confirmation of titles to village lots
in Missouri, 2 Story 1257, 1258, is, in express terms, "to the
inhabitants
Page 37 U. S. 459
of the village" according to their "several right or rights in
common thereto." So in the act of 1831, the lots confirmed by the
act of 1812 are "to be held by the inhabitants of the said towns
and villages in full property, according to their several rights
therein." These laws necessarily admit of but one construction, and
if we regard their terms, the object manifest on their face, and
the effects evidently intended by Congress, the position of the
plaintiff's counsel is utterly untenable.
We now proceed to consider the instructions asked by the
plaintiff and refused by the court, as well as those given as
modifications of those asked by plaintiff, and those given by the
court on the prayer of the defendant.
Plaintiff's instructions.
1. That the sale, partition, and final decree relative to the
estate of Chancellier established the title of his wife to the
premises in controversy, which the court refused, but instructed
the jury that they passed the title thereto, such as it was, vested
in Chancellier, to her, to which we think there can be no well
founded objection, as no law was produced by which such a decree
could operate as a new grant of a right of property to the vendee.
If none existed in the person as whose estate it was so sold, it
was a transfer of an existing title, and not in its nature or
effect an original grant.
2. That independent of the title of Kiersereau and Gamache,
there was sufficient evidence before the jury to establish a title
by prescription in Chancellier and his heirs, which instruction
could not be given without usurping the province of the jury to
decide on the sufficiency of the evidence.
34 U. S. 9 Pet.
445. No instruction was asked as to its competency, and the one
asked was therefore properly refused.
3. That St. Cyr took no title by prescription. This was a mixed
question of law and fact; to have given such instruction would have
been an assumption by the court that there was no such fact legally
inferrable from the evidence, which would have brought St. Cyr
within the law of prescription. There was not only evidence of such
facts given to the jury, but from their finding we must take the
parol sale by Madame Chancellier to him, the usage and custom of
the village, to authorize the syndic to put him in possession, and
that he was, pursuant thereto, so put into possession, to be facts
which would give to his possession the protection of
prescription.
Page 37 U. S. 460
4. If the jury is of opinion that St. Cyr had notice of the sale
to Madame Chancellier, his possession could not be adverse or an
estate in him by prescription. If St. Cyr purchased from her or was
put into possession of the lots on account of her default in not
repairing the fence, a notice of her claim was a matter of course,
and could not impair his right by possession or the subsequent
purchase from Kiersereau and Gamache.
5. That if St. Cyr was a purchaser at the sale of Chancellier's
estate or put his name or mark as such on the margin thereof, these
facts are
prima facie evidence, that he had notice of her
title, to which the court answered that this was proper evidence
for the jury to consider in deciding whether he had notice, and
refused the instruction as asked, which we think was correct. But
on the facts referred to under the third instruction, notice was
wholly immaterial, as it could not taint his purchase with
fraud.
6. That the deed from Kiersereau to St. Cyr in 1793, who had
before conveyed to Chancellier by deed on record, conveyed nothing
to him, and that the penalties of the crime of estellionato, by the
Spanish law, were thereby incurred.
7. The same objection is made to the deed to St. Cyr from
Gamache; and
8. That the deed purported to be a deed of Joseph, and was
signed Batis Gamache X his mark.
The foregoing facts fully justify the court, in its refusing
such instruction as to the effect of both deeds, and as to the deed
from Gamache, the only question was one of identity and fact for
the jury, which reasons equally apply to the 8th, 9th and 10th
instructions.
11. That the sale by the syndic of St. Cyr's property was no
evidence of his title to the lots, or that such sale was made. The
first part of this instruction was given, and properly, for the
reasons given in the first instruction; the latter part was
properly refused, because the proceeding was a judicial one of
record, which is,
per se, evidence of the facts set forth,
and cannot now be called in question.
33 U. S. 8 Pet.
308,
33 U. S.
310.
12, 13 and 16. These instructions depend on the facts of the
case, and could not have been given without interfering with the
province of the jury; the court charged favorably to the plaintiff
in part of the 12th and 16th that defendant had shown no title or
bar to the plaintiff under the act of limitation.
14, 15 and 17. These instructions were founded on the
official
Page 37 U. S. 461
situation of the defendant before alluded to, and were properly
refused under the decision of the court in the former case.
The 18th instruction is founded on the act of 1831, before
noticed, which for the reasons heretofore given could not avail the
plaintiff, and he cannot complain of the refusal of the court to
give it as asked, as they did instruct the jury that no penal
effect resulted from any act of Congress which bars or stands in
the way of plaintiff's recovery, though it would have been good
ground of an exception by the defendant had a verdict been found
against him.
The 19th, 20th, and 21st instructions depended on the court's
assuming that the facts relied on by the plaintiff were established
by the evidence, and taking from the jury the right of deciding
what facts were proved; the court was therefore right in refusing
to instruct as requested. The instructions asked by the defendant
and given by the court were founded on the evidence in the cause
relating to the possession of St. Cyr and those claiming under him,
and the consequent right of the defendant by prescription as a bar
to the plaintiff's right of recovery. We think they were fully
justified by the evidence, especially with the qualifications laid
down by the court as to the nature of such possession and of the
title under which it was held, as appears in its further
instruction to the jury.
"That the possession mentioned must be an open and notorious
possession, and that if they should find such possession, it gave
title under and according to the Spanish or civil law, which was in
force in Upper Louisiana at the date of the treaty by which
Louisiana was acquired by the United States, and remained in force
and unabrogated by any law of the district of Louisiana or of
Missouri down to a period as late as October, 1818. That the
possession of ten or thirty years would give a title, the one
period or the other, according to the circumstances under which the
possession was obtained. That the ten years' possession which would
give a prescriptive title must be a possession under a purchase
made in good faith and where the purchaser believed that the person
of whom he purchased had a good title, and where the owner of the
title prescribed against resided in the same country during the
said ten years. That if the jury believe from the evidence that the
possession of St. Cyr, under whom the defendant claims, was
obtained under a purchase made by him in good faith, and under the
belief that the persons of whom he purchased had a good title, and
that the possession of Choteau, under whom the defendant claims,
was obtained in like manner and
Page 37 U. S. 462
under a purchase made with the like belief, and that they had
the possession mentioned in the second instruction asked for on the
part of the defendant, and that the said Marie Louise was in the
country during the said ten years, the plaintiff cannot recover in
this action."
And further instructed the jury, in relation to the possession
mentioned in the third instruction asked for on the part of the
defendant:
"That to make the possession there mentioned a bar to the
plaintiff's recovery in the present action, the possession of the
defendant must have been obtained under a purchase, where he
believed that the person of whom he purchased had a good title, and
that the said Marie Louise was in the country during the said ten
years, which, unless the jury believe, they cannot find for the
defendant upon such possession."
These rules appear to be in conformity with the laws of Spain,
as extracted from the books of established authority in Mr. White's
Compilation, 68 to 71, and this Court has never laid down stricter
or perhaps as strict ones on questions of prescription, which they
have decided according to the rules of the common law.
To the remaining instructions no exception appears to have been
taken, and cannot, therefore, be considered; they were made the
subject of a motion for a new trial, and are not cognizable in
error.
The judgment of the court below is consequently
Affirmed with costs.
[
Footnote 1]
Note by the translator. -- A
cadastre is an official
statement of the quantity and value of real property in any
district, made for the purpose of justly apportioning the taxes
payable on such property. -- R.G.
[
Footnote 2]
Note by the translator. -- The French word
conceder
means
to grant; accorder, among many significations, of
which to grant is one, has that of acknowledging or declaring any
proposition to be good or true, and from the context such appears
to be its sense in the paper here translated. -- R.G.
[
Footnote 3]
Definition of regimiento, regidor, alcaldes, &c., in the
laws of the Spanish empire of the Indies.
In the administration of the laws, in civil and criminal
matters, and the regulation of the police, the settled territories
of the Spanish empire of the Indies were divided into a number of
sections, differing in extent, over each of which was placed a
royal officer, appointed for a limited period by the Supreme
Council of the Indies. The larger sections were termed provinces,
or more properly gobernaciones or governments, and were
superintended by governors, who were also in many parts commandants
and captains general -- that is to say, exercising military and
political sway. The sections of lesser extent, but often of great
importance, from comprising some capital or other large city, were
termed corregimientos, and their chiefs were called corregidors.
The smallest or least important of these separate jurisdictions
were placed under the direction of an alcalde mayor. In places in
which resided an audiencia, or high court of justice, the president
was sometimes the administrator in chief of the law and police.
The seats of administration or capitals of these divisions were
generally the largest towns in them, from which the section in
almost every instance took its name. In every capital of a
jurisdiction was a council called the ayuntamiento or cabildo; the
ayuntamiento is, strictly speaking, the council, and the cabildo,
the place of its meeting; the two words are, however, indifferently
used to convey both significations. This municipal council was
composed, in the first place, of a number of regidores, never
exceeding twelve, who composed the regimiento; the office of
regidor was held for life -- that is to say, during the pleasure of
the supreme authority; in most places it was purchased; in some
cities, however, the regidores were chosen by persons of the
district, who were allowed to vote, and were styled capitulares. In
places in which no governor resided, the regidores chose for two
years, one or two persons who were not in the employ of the
government, as alcaldes ordinarios, or magistrates who held their
courts and administered justice in all the cases in which a
governor could decide; they had seats and votes in the
ayuntamiento, except when a governor or corregidor happened to be
present. The chief of the district had a seat, but no voice in the
ayuntamiento; the standard bearer, or alfarez, had of right a
preeminent place and a vote.
Thus the ayuntamiento or cabildo consisted of the governor,
corregidor or alcalde mayor of the place, the alfarez, the alcaldes
ordinarious, and the regimiento, or body of regidores.
The word syndic does not appear in the recopilacion or official
compilation of the laws of the Indies. The Spanish dictionary of
the academy and the French authors on jurisprudence agree in
defining it to mean the person charged with the care, defense, and
advancement of the interests of a community. In France at present,
the trustee who holds the property of a bankrupt is styled le
syndic.
With regard to the words propios or proprios, exidos or egidos
and depesas.
When a town was founded in Spanish America, certain portions of
ground, termed propios, were laid off and reserved as the
unalienable property of the town for the purpose of erecting public
buildings, markets, &c., or to be used in any other way, under
the direction of the municipality for the advancement of the
revenues or the prosperity of the place. There were also reserved
in the vicinity certain spaces of ground for commons or public
pasturage, which were called depesas, and vacant spaces for
exercise, and for thrashing corn or other general uses, called
exidos. The difference between the propios on the one hand, and the
depesas and exidos on the other, was that the latter were intended
for specific purposes, and could not be appropriated to any others,
while the municipality might convert the propios to the uses which
it should judge most convenient.
With respect to the measures of ground called fanegas and
huebras.
The dictionary of the Spanish academy, the highest authority on
the mere signification of words in that language, defines a fanega
to mean as much ground as fanega (a measure equivalent to a little
more than a bushel and a half) of wheat will serve to sow, adding
that it is generally considered equal to four hundred estadales (or
spaces of eleven Spanish feet) square. Kelly, in his Cambist, makes
a fanega or fanegada equal to five thousand five hundred square
yards, or about an acre and a third.
The huebra is designated by the same dictionary as being as much
ground as two oxen can plough up in a day.
On the subject of caballerias and peonias, I can only give my
translation of the law defining them.
"
Translation of Law 1st, Title 12th, Book 4th, of the
Recopilacion"
"
de Leyes de Indias, Madrid, 1781"
"That lands and lots are to be given to new settlers and Indians
to be assigned to them, and what are meant by peonia and
caballeria; D. Fernando V. in Valladolid, June 18, and August 9,
1513, Chap. I. The emperor, D. Carlos, on 28 June, 1523, and in
Toledo on 19 May, 1525. D. Philip the Second, in his chapter of
Instructions at Toledo, May 25, 1596."
"In order to encourage our vassals in the discovery and
settlement of the Indies, and that they may live with that comfort
and convenience which we desire [for them], t is our will that
houses, building lots, lands, caballerias and peonias and peonias
may be and shall be assigned to all whom may go as settlers of new
lands in the villages and towns to which they may be directed by
the governor of the new settlement, making a distinction between
gentlemen of family and laborers and those of lesser degree and
worth, and that these [houses, &c.] may be increased in extent
and in quality according to the services of such settlers in order
that they may attend to the cultivation of the soil, and to raising
of cattle, and after they shall have dwelt and labored on these
[houses, &c.] and resided in the said settlements four years,
we grant them power thenceforward to sell and otherwise use them
agreeably to their own will as their own property, and likewise
agreeably to their quality, the governor or whoever may hold our
faculty, may [or shall] assign Indians to them, in the distribution
which he may make, in order that they avail themselves of the term
of service, and the proficiencies of such Indians, according to the
rates and rules established."
"
The same Ordinance 104, 105 and 106, on the subject of
Settlements"
"And as it may possibly happen that in the assignment of the
lands there may be doubts with regard to measures, we declare that
a peonia comprises a lot fifty feet wide and a hundred long; a
hundred fanegas of land for cultivation of wheat or barley; ten of
Indian corn; two huebras of land for a garden, and eight for
planting other trees growing in drier land; pasture ground for ten
breeding sows, twenty cows, five horses, a hundred sheep, and
twenty goats. A caballeria is to consist of a lot one hundred feet
wide by two hundred long, and in all other respects equal to five
peonias -- that is to say, five hundred fanegas of ground for
cultivation of wheat or barley, fifty of Indian corn; ten huebras
of land for garden; forty for other trees growing in more barren
land; pasture ground for fifty breeding sows, a hundred cows,
twenty horses, five hundred sheep, and a hundred goats. And we
order that the assignment be made in form so that all may
participate in the good and the middling, and in that which is
neither, as regards the portion to be allotted to each."
According to the dictionary of the Spanish academy, a peonia
means the portion granted to a foot soldier of spoils taken or
lands conquered in a war, and a caballeria is a portion granted on
such occasions to a horse soldier. By the above law, it would seem
that gentlemen or persons entitled to bear arms (escuderos) were to
be allowed the share of a horseman, and persons of lower degree
were to share as foot soldiers. The fanega appears to be strictly a
measure, without any reference to the quantity of seed to be sown
on the ground, and so does huebra.
MR. JUSTICE CATRON.
The plaintiff moved the court to instruct the jury as
follows:
"1. That there is evidence before the jury of the possession and
title of Rene Kiersereau, and Jno. B. Gamache, as absolute owners
and proprietors of the two forty arpent lots described in the
declaration."
"That there is evidence before the jury of the possession and
title of Louis Chancellier, as owner and proprietor of the two
forty arpent lots in question, as assignee of said Rene Kiersereau
and said J. B. Gamache, respectively."
"That there is evidence of the actual possession, after the
death of said Louis Chancellier, by his widow, said Mare Louise, of
said two forty arpent lots, claiming the same as absolute owner
thereof."
"That the plaintiff has established his title as assignee of
Marie
Page 37 U. S. 463
Louise Chancellier, to the estate and interest vested in her and
her heirs, in and to the two forty arpents in question."
"That the deed given in evidence by plaintiff, from Auguste
Gamache to Bazil Laroque and Marie Louise, his wife, enures to the
benefit of the plaintiff."
"That if the jury shall be of opinion from the evidence that
Hyacinth St. Cyr originally obtained possession of the lots in
question as tenant of Marie Louise, the widow of Louis Chancellier,
or by virtue of a permission to occupy and cultivate given to said
St. Cyr by the syndic of the Village of St. Louis, the possession
of St. Cyr so obtained shall be taken by the jury as in law the
possession of said Marie Louise."
"That the confirmations of the board of commissioners on 23
July, 1810, of which the defendant was a member, could at most only
operate as a quitclaim by the United States in favor of the
original grantees, and could not decide the question of derivative
title under said original grantees."
"That the mere fact of the land described in the confirmation to
Choteau, and the land described in the confirmation given in
evidence by the plaintiff, and the declaration, being identical,
does not entitle the defendant to a verdict in his favor."
"That no forfeiture or disqualification has accrued against
Madame Marie Louise, the widow of Louis Chancellier or against her
assigns, under any act of Congress whereby she or they are barred
from asserting their legal and equitable rights to the lots in
question before this Court."
Which instructions were given by the court.
Instructions asked by the plaintiff, and partly refused by the
court.
"1st. That the sale and partition, and final decree, of which
duly certified copies have been given in evidence by the plaintiff,
establish the title of the widow of Louis Chancellier, Madame Marie
Louise Deschamps, and her heirs, to the land described in said sale
and partition, as sold and allotted to her, part of which said land
consists of the two arpents by forty in the declaration described,
bounded by Bisou, on the one side, and by J. B. Bequette, on the
other."
"2d. That independently of the title of Rene Kiersereau and J.
B. Gamache, there would be sufficient evidence before the jury to
establish a title by prescription in Louis Chancellier and his
heirs, and Marie Louise, his widow, and her heirs, to the two forty
arpents described in the declaration. "
Page 37 U. S. 464
"3d. That Hyacinth St. Cyr took no title by prescription in and
to said lots."
"4th. That if the jury shall be of opinion that Hyacinth St. Cyr
had notice of the sale of said lots to Marie Louise, by the proper
Spanish authority, as given in evidence by the plaintiff, the
possession of said Hyacinth St. Cyr of said arpents was not such as
could be adverse to Marie Louise, or could create an estate by
prescription in favor of said St. Cyr."
"5th. That if the jury shall be of opinion from the evidence
that St. Cyr was a purchaser at the public sale of the property of
Louis Chancellier, or signed his name, or made his mark as
purchaser on the margin of said sale, these facts are
prima
facie evidence that said St. Cyr had notice of the title of
said Marie Louise as purchaser at said sale of the lots therein
described as sold to her."
"6th. That the deeds given in evidence by defendant to Rene
Kiersereau, bearing date 23 October, 1793, conveyed nothing to St.
Cyr, being made by a person out of possession and whose conveyance
for the same land to another person to Chancellier was upon record,
and who therefore was guilty of the crime of 'estellionato,'
punishable by fine and banishment, by the Spanish law then in
force."
"7th. That the deed given in evidence by defendant from Joseph
Gamache to Hyacinth St. Cyr, dated 23 October, 1793, is void on the
ground of 'estellionato' in Batis Gamache, supposing that he made
the deed; 2d, on the ground of uncertainty in the deed itself, in
this that it purports to be a deed of Joseph Gamache, and is signed
Batis Gamache X his mark."
"8th. That Auguste Choteau took no estate by prescription in
either of said forty arpent lots in question."
"9th. That there is no evidence of possession whatever, adverse
or otherwise, by Auguste Choteau, of said two forty arpent lots or
any part thereof."
"10th. That if the jury shall be of opinion from the evidence
before it that the said Auguste Choteau had notice of the public
sale of said lots to Madame Marie Louise Chancellier, his
possession or claim to said lots under Hyacinth St. Cyr is
fraudulent and void as against said Marie Louise and her heirs and
assigns."
"11th. That the certified copy of the proceedings and sale by
the syndic in the matter of Hyacinth St. Cyr, a bankrupt, is not
evidence either of St. Cyr's title to either of the lots in
question, or that
Page 37 U. S. 465
same were sold by said syndic to said Auguste Choteau, as part
of said St. Cyr's property."
"12th. That the defendant has shown no title by prescription,
under the Spanish or civil law, or by the statutes of limitation
(in bar of plaintiff) under the Anglo American laws to the lots in
question."
"13th. That the title of the defendant, as assignee of Auguste
Choteau, is vitiated by the fraud which vitiates the title of
Choteau and of St. Cyr."
"14th. That the deed from Auguste Choteau and wife, to Lucas, of
the lots in question, dated 11 January, 1808, is void for fraud;
if, in opinion of jury, it was a sale and conveyance to Lucas of a
claim and interest pending before said Lucas himself for
adjudication."
"15th. That if, in the opinion of the jury, the claim was
pending before Lucas, as commissioner, when he bought it, the
adjudication or confirmation of it on the 23 July, 1810, by the
board of commissioners, of which Lucas was a member, is fraudulent
and void at law and in equity."
"16th. That neither the statute of limitations, nor the Spanish
law of prescription, can avail the defendant, Lucas, independently
of the possession of St. Cyr and Choteau."
"17th. That the orders of survey given in evidence by the
defendant, and made by himself and his two colleagues in favor of
Auguste Choteau, bearing date June 10, 1811, was fraudulent and
void if the jury shall be of opinion, from the evidence, that the
claims therein ordered to be surveyed had been sold to said
defendant by said Choteau previous to the date of said order and
while said claims were pending for adjudication before said
defendant as member of the board of commissioners in said order
mentioned."
"18th. That if any penal effect resulted from any act of
Congress to Madame Chancellier and her assigns, or to the legal
representatives of Rene Kiersereau and J. B. Gamache, the Act of
Congress of January, 1831, entitled,"
"An act further supplemental to the act entitled 'an act making
further provisions for settling the claims to lands in the
Territory of Missouri, passed the thirteenth day of June, one
thousand eight hundred and twelve,' remits the parties to their
original and equitable rights and titles as if no such penal act
had ever been in force."
"19th. That upon the case made by the plaintiff, he is entitled
to a verdict for all that part of the two forty arpent lots in
question situated
Page 37 U. S. 466
west of Seventh Street in St. Louis, and all the lots east of
Seventh Street, according to the admissions of defendant as
above."
"20th. That in this case there is no law or binding ordinance of
the Spanish government by which Madame Chancellier and those
claiming under her could be deprived, according to the state of the
evidence in this case, of whatever title she acquired to the land
in question under the purchase made of it by her as the property of
her husband."
"21st. That if the jury believes from the evidence that St. Cyr
ceased to cultivate and be in actual possession of the premises in
dispute from 1797, or 1798, prescription ceased to run in his favor
and that of those who claim under him from that time."
Which instructions the court refused to give, but instructed the
jury in relation to the matter referred to in the first instruction
above refused:
"That the sale, and partition, and final decree, the record of
which certified copies have been given in evidence by the
plaintiff, did pass the title of Louis Chancellier, mentioned in
said proceedings of sale, such as it was at the time of his death
or such as it was in his heirs at the time of said sale to Madame
Marie Louise, his widow, mentioned in said proceedings, and her
heirs to the lands described in said record of sale and partition
as sold and allotted to her."
And further instructed the jury, in relation to the matters
mentioned in the fifth instruction above refused:
"That if the jury should be of opinion that St. Cyr, under whom
the defendant claims, was a purchaser at said public sale of the
property of said Louis Chancellier, or did sign his name or make
his mark on the margin of the record of said sale, these facts or
either of them is evidence proper for them to consider in
ascertaining whether said St. Cyr had notice of the said title of
said Marie Louise as purchaser at the said sale of the lots
described in the record thereof as sold to her."
And further instructed the jury in relation to the matters
referred to in the eleventh instruction above refused:
"That the certified copy of the proceedings and sale by the
syndic of the property and estate of St. Cyr as a bankrupt was not
evidence of a title to said St. Cyr to the lots in question, or
either of them."
And further instructed the jury, in relation to the matters
referred to in the twelfth instruction above refused and to the
statutes of limitation referred to in that refused instruction:
"That the defendant
Page 37 U. S. 467
had shown no title to the lots in question, nor any bar to the
plaintiff's recovery under any statute or statutes of
limitation."
And further instructed the jury in relation to the matters
referred to in the sixteenth instruction above refused:
"That the statute of limitations could not avail the defendant
Lucas either with or independent of the possession of St. Cyr."
And further instructed the jury, in relation to the matters
referred to in the eighteenth instruction above refused:
"That although the Act of Congress of 31 of January, 1831,
referred to in said refused instruction last mentioned, does not
remit the penalties as in that refused instruction is supposed by
the plaintiff, yet that in fact no penal effect results from any
act of Congress which bars or stands in the way of plaintiff's
recovery in the present action or which in any manner affects his
title or evidence of title, under, or to be derived from said acts,
or any of them, under the admissions of the parties in the present
case."
The first instruction refused could not be given in the form it
was asked, because it would have concluded the cause as to fact and
law. The explanations given by the court were proper.
The second and third asked the court to pronounce on the
facts.
The fourth asked the court to declare that if St. Cyr had notice
of Madame Chancellier's purchase, his title could not be confirmed
by prescription. St. Cyr and those claiming under him could have
prescribed notwithstanding such knowledge, had the possession been
continued a sufficient length of time. On this point, the charge of
the district judge, in response to the instructions asked by the
defendant, is substantially accurate.
The explanation of the fifth instruction asked is highly
favorable to the plaintiff.
The sixth asked the court to instruct the jury that Kiersereau
was not in possession when he made the deed, and therefore it was
void. If St. Cyr was in lawful possession for himself, no
forfeiture could follow by the conveyance to him, and this depended
on the fact whether St. Cyr was lawfully in possession. How the
civil law was in 1973 in cases of conveyances where the lands were
claimed and holden in actual possession adversely to the grantor
and grantee at the time the deed was made is immaterial and is not
decided.
The seventh, eighth and ninth instructions asked propose to
refer to the court for decision questions of fact pertaining to the
jury.
Page 37 U. S. 468
The tenth assumes that Choteau's possession was void if he had
notice of the sale to Madame Chancellier. This by no means follows.
He might have possessed in good faith notwithstanding, of which the
jury were to judge. But if the possession was in bad faith, still
its continuance for thirty years by Choteau and those from whom he
derived it, and the subsequent continuance thereof by Lucas would
have authorized the prescription.
The eleventh and twelfth instructions asked were given, and the
thirteenth asked the court to charge on the fact and to declare to
the jury there was fraud -- a principal matter they were called on
to try.
The fourteenth, fifteenth and seventeenth instructions are the
same that were in the cause previously before this Court, when it
was decided that Lucas could purchase under the circumstances
indicated. The point is not deemed open to investigation; such is
the opinion of my brethren who decided that cause, and with which I
concur.
The sixteenth asks a charge on the fact how Lucas held
possession, and the length of its continuance, and was properly
refused.
The eighteenth was correctly explained by the district
court.
The nineteenth proposes in effect that the cause be decided by
the court. Had the instruction been given, it would have withdrawn
from the jury the determination of the facts.
To the twentieth it may be answered that by the laws of Spain,
Madame Chancellier's title might have been prescribed against.
The twenty-first is correctly answered by the district court.
The judge said to the jury:
"That if they should find from the evidence that said St. Cyr
took possession, or was in possession of the lands in controversy,
or any of them, under said Marie Louise, or as her tenant, his
possession so taken or held would be the possession of the said
Marie Louise, and would not be a possession in St. Cyr available by
him or those claiming under him under the law of prescription
mentioned. But that if the jury should be of opinion that said St.
Cyr came to the possession of the land in controversy not as the
tenant of the said Marie Louise or under her, but under a claim and
title adverse to her, such adverse claim and possession would
constitute a possession upon which a prescription, by the Spanish
or civil law referred to and then in force, would begin to run in
favor of him and those claiming under him if such possession was
actual, open, and notorious, and that such possession so
commenced,
Page 37 U. S. 469
would constitute and preserve to said St. Cyr, his heirs or
assigns, a possession available under the law of prescription
referred to, notwithstanding said St. Cyr or those deriving title
from him should leave the actual possession or cease to occupy and
cultivate, if that abandonment of the actual possession, occupancy,
or cultivation was with the intention to return, and without any
mental abandonment of the possession."
Instructions asked by defendant, and given by the court:
"1st. That if the jury find from the evidence that Hyacinth St.
Cyr, and those lawfully claiming under him, have possessed the two
arpents by forty, surveyed for Gamache and Kiersereau, without
interruption, and with claim of title for thirty years
consecutively prior to October, 1818, the plaintiff is not entitled
to recover in this action."
"2d. If the jury find from the evidence that Hyacinth St. Cyr
and those lawfully claiming under him possessed the two lots in the
declaration mentioned, for ten years consecutively prior to and
until 23 day July, 1810, and the lands confirmed to Auguste Choteau
on that day are the same lands in the declaration mentioned, the
plaintiff cannot recover in this action."
"3d. If the jury finds from the evidence that the defendant
possessed the lots of land in the declaration mentioned for ten
years consecutively prior to the first of October, 1818, the
plaintiff cannot recover in this action."
Which instructions the court gave to the jury, with the further
instruction:
"That the possession mentioned must be an open and notorious
possession, and that if they should find such possession, it gave
title under, and according to the Spanish or civil law, which was
in force in Upper Louisiana at the date of the treaty by which
Louisiana was acquired by the United States, and remained in force
and unabrogated by any law of the District of Louisiana or of
Missouri down to a period as late as October, 1818. That the
possession of ten or thirty years would give a title, the one
period or the other according to the circumstances under which the
possession was obtained. That the ten years' possession which would
give a prescriptive title must be a possession under a purchase
made in good faith and where the purchaser believed that the person
of whom he purchased had a good title, and where the owner of the
title prescribed against resided in the same country during the
said ten years. That if the jury believe from the evidence that the
possession of St. Cyr,
Page 37 U. S. 470
under whom the defendant claims, was obtained under a purchase
made by him in good faith and under the belief that the persons of
whom he purchased had a good title, and that the possession of
Choteau, under whom the defendant claims, was obtained in like
manner and under a purchase made with the like belief, and that
they had the possession mentioned in the second instruction asked
for on the part of the defendant, and that the said Marie Louise
was in the country during the said ten years, the plaintiff cannot
recover in this action."
And further instructed the jury, in relation to the possession
mentioned in the third instruction asked for on the part of the
defendant:
"That to make the possession there mentioned a bar to the
plaintiff's recovery in the present action, the possession of the
defendant must have been obtained under a purchase where he
believed that the persons of whom he purchased had a good title,
and that the said Marie Louise was in the country during the said
ten years, which, unless the jury believe, they cannot find for the
defendant upon such possession."
The foregoing instructions given for the defendant, with the
explanations, are substantially correct.
This is the whole case, in the affirmance of the judgment in
which I concur for the reasons here stated. But there are various
principles introduced into the preceding opinion the accuracy of
which I very much doubt. Furthermore, it is apprehended they are
foreign to the case presented by the record, and it is feared their
introduction into it may lend them a sanction they do not deserve
and embarrass the inferior courts and this Court in future in the
numerous controversies now depending and likely to arise on the
titles of Florida, Louisiana, Missouri, Arkansas, and Wisconsin
involving the application and construction of the laws of France
and Spain, and hence this separate opinion has been filed.
MR. JUSTICE WAYNE stated that he dissented from the opinion of
the Court delivered by MR. JUSTICE BALDWIN. He was authorized to
say that MR. JUSTICE McKINLEY concurred with him in opinion.
The title to the lots was in Chancellier at the time of his
death. St. Cyr obtained a title by fraud, and by fraud he continued
in possession.
Choteau's claim is not such as divested the title of
Chancellier, according to the Spanish law.
Page 37 U. S. 471
MR. JUSTICE McLEAN dissented.
MR. CHIEF JUSTICE TANEY did not sit in this cause, having been
of counsel for one of the parties.
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
now here adjudged and ordered by this Court that the judgment of
the said district court in this cause be and the same is hereby
affirmed with costs.
