Gibson v. Chouteau

Holmes, Judge,

delivered the opinion of the court.

It appears that James Y. O’Carroll was the original con-firmee of a tract of six hundred and forty arpents of land situated in the county of New Madrid as a settlement right confirmed under the acts of Congress. In 1805 he conveyed the land confirmed to George Ruddell, who continued to be the owner until after the passage of the act of Congress for the relief of the sufferers by earthquakes in New Madrid. In 1816, Ruddell and wife conveyed to James Tanner and Andrew P. Gillespie a tract of 550 arpents of land situate in the town of Little Prairie, county of New Madrid, lying-on the waters of the Mississippi, and further described as a part of the land originally confirmed to James Y. O’Carroll (reference being had to the records of the record office of land claims in the Missouri Territory), which had been materially injured by earthquakes, reciting the act of Congress for the relief of the sufferers and the privilege given of locating other lands in lieu of the injured land, and purporting to convey all the privileges and benefits given to the said George Ruddell by the said act of Congress ; and by deed of the 17th of October, 1816, Andrew P. Gillespie conveyed to James Tanner “ all bis right, title and claim of James Y. O’Carroll.” There were some other deeds from the same parties to Tanner, which it is not deemed necessary particularly to notice. .

These deeds were given in evidence by the defendants. The objections of the plaintiff were immaterial so far as the reasons of them are stated in the record. The defendants of course cannot raise any objection to their admissibility as evidence. That a deed was not recorded within one year made it void only as against subsequent purchasers and mortgagers from the same grant or for a valuable consideration. It was still good and valid against the grantor and his heirs, and was effectual to pass the title as between the parties — 1 Ter. Laws of Mo. 46, § 8; McCamant v. Patterson et al,, 39 Mo. 100. These deeds were sufficient in law to pass the title to the injured land to James Tanner, with the right to locate other lands in lieu thereof; they were not void on their face for uncertainty of description. The description given was capable of being made certain by extrinsic evidence ; no objection appears to have been made to them on this ground. Under the Spanish law prevailing here before the introduction of the common law, in 1816, land might have been transferred by parol and mere delivery of possession; and in Mitchell v. Parker, 10 Mo. 260, it was held that an instrument made after the passage of the act of Congress of the 17th of February, 1815, which merely gave a power coupled with an interest, was at that time effectual as an actual conveyance to enable the grantee to convey the land in his own name. These deeds not only gave a power coupled with an interest, but expressly conveyed the land. We think they were sufficient to make J ames Tanner the legal representative of O’Carroll and Ruddell in respect of the injured land.

It further appears that a certificate of location (No. 150) was issued by the Recorder in the name of James Y. O’Carroll or his legal representatives, dated November 30, 1815, for 640 acres of land, and delivered to James Tanner to be located in lieu of the injured land, which was then relinquished by him to the United States. This certificate was located by Christian Wilt, to whom Tanner had conveyed the injured land with full power and authority to locate the same for James Y. O’Carroll or his legal representatives; and notice of the location was given to the Surveyor General, and a survey and plat were made in 1818, and returned to the Recorder as survey No. 2498 for 640 acres of land, in the same name, and a patent certificate (No. 447) was issued thereon by the Recorder on the 16th of August, 1841. Thus a complete location had been made. No certified copy of this location from the office of the Recorder appears in this record; but it does appear from the evidence that a transcript plat of this survey and location had been returned to the Recorder and that a patent certificate had been issued on that day. And it further appears that on the 26th of March, 1862, the Surveyor General then in office ordered said transcript plat of survey to be set aside and annulled, for the reason that it was “ erroneous in omitting to show the interferences of other surveys with the same,” and as being in contravention of the instruction of the Commissioner of the General Land Office,” and as “ superseded by the correct plat of said survey returned to said Recorder by him on the 26th of May, 1862,” on which a new patent certificate and a patent to Mary McRee, assignee of James Y. O’Carroll, had been issued; ^nd it appeared, also, that in December, 1862, the Recorder ordered the patent certificate No. 447, issued on the 16th of August, 1841, to be set aside and annulled, as being in. contravention of the directions of the Commissioner and as having been erroneously issued. These orders appear to have been made under instructions from the Commissioner, which were approved by the Secretary of the Interior in 1862, on the application of this plaintiff. Upon this new transcript plat being returned to the Recorder, a new patent certificate was issued by him in the name of Jas. Y. O’Carroll or his legal representatives, and upon this certificate a patent dated the 10th of June, 1862, was issued under the seal of the General Land Office for the located land to Mary McRee, reciting the certificate of location (No. 150) and the survey and location made for James Y. O’Carroll or his legal representatives, and that the right of said Q’Carroll through intermediate assignments had been transferred to her, and the land described was therefore granted to her as his assignee, in virtue of deraignment of title, and to her heirs ; and Mary McRee conveys the land in dispute to the plaintiff.

The act' of Congress of the 26th of April, 1822, required that thereafter the holders and locators of these certificates of location or warrants should be bound in locating them to conform to the sectional lines of the public surveys, and declared that all warrants should be located within one year after the passage of the act, in default whereof they were to be null and void. This certificate or warrant had been located before the passage of this act, so far as the holder had anything to do with the location. The warrant had been located and the land surveyed according to sectional lines. All the requirements of this act had been complied with. According to repeated decisions of the Supreme Court of the United States, the location was not complete, so as to operate a change of title, until the survey and plat of location had been returned to the Recorder and recorded and approved by him, and that then only the injured lands reverted to the United States, and the inchoate equitable title to the located land became vested in the locating owner of the injured lands — Bagnell v. Broderick, 18 Pet. 436; Barry v. Gamble, 8 How. (U. S.) 51; Lessieur v. Price, 12 How. (U. S.) 60. All these things had been done in this case, so that the location had become complete.

The act of 1822 applied only to the holders of warrants or certificates and to acts to be done by them. The officers of the Government are not mentioned in this section of the act, and there would appear to be no rational ground on which it can be maintained that this provision as to the limit of time was intended to apply to acts and things which were to be done by the Surveyor and Recorder after the location was made and surveyed. This point was expressly decided in the case of Cabanné v. Lindell, 12 Mo. 184. The case of Barry v. Gamble, 3 How. (U. S.) 52, impliedly recognizes the same doctrine, and it was said that after that act “no location of a New Madrid claim should be permitted that did not conform to the sectional and quarter-sectional lines”; and the second section declares that “if not so located within one year the warrant shall be void, and no location shall ever afterwards be made under it.” The decision in Easton v. Salisbury, 21 How. (U. S.) 426, was placed on the ground that the lands had been reserved from sale, and were not subject to location at all; and it was also said that all warrants not located within one year from the date of that act “are null and void.”

The location and survey had been made in 1818, and a patent had been issued in 1827, and the certificate and patent were held to be void because the land was reserved and not subject to location; but it is at least not clear that the court meant to hold that a location actually surveyed on lands not reserved from sale, and in conformity with law, within the time limited by the act, would be null and void merely because the transcript plat had not been returned to the Recorder and recorded by him within that time. And in Hale v. Gaines, 22 How. (U. S.) 144, the application of the holder of a certificate, issued in 1818, for a location and survey, was disregarded by the Surveyor General because the lands asked for were as yet unsurveyed, and it was not located until 1838 ; but it was said that this might have been done after the public land had been surveyed into sections, and within the time limited by the act. We are of opinion that this survey and location were not void merely because the survey and plat had not been returned to the Recorder within one year after the passage of that act.

With regard to these ministerial and executive duties where no absolute limit of time, place or manner is put upon the power to perform them, it may be proper to say in general that the sooner they are done the better, and the longer they are delayed the greater is the reason why they should be done as soon as practicable. But it seems the Surveyor General and Recorder, under the instructions from the Commissioner, undertook in 1862 to set aside and annul the survey, location and patent certificate, when the location had been completely made in 1841. The only reason which appears on this record for this action of these officers is that the plat of the first survey did not show the “interferences of other surveys with the same,” and that it was therefore, as we are left to infer, “ in contravention of the instructions of the Commissioner.” But whether or not these instructions existed when the survey was made and returned, we are left to conjecture. This would seem to be a very insufficient reason for such an act, even if these officers had the power to do it. The interferences were no part of the survey of this land. It is the province of the courts to determine judicially between conflicting titles to the same land. Surveys are merely evidence of location and boundary; they decide nothing as to the validity or superiority of the title. The area embraced within the interferences of surveys will go with the better title. The marking of the interferences on the plats of survey may be a matter of convenience for all parties concerned, and it is doubtless a proper regulation of the Land Office, but it is no essential part of a survey.

It is a great error to suppose that two surveys may not be correctly made to cover the same land — McGill v. Somers, 15 Mo. 80. No survey could be lawfully declared null and void merely because it did not show the interferences of the surveys. Such a power would enable the Surveyor and Com- . missioner to declare all the surveys and locations void that have ever been made, on ground as futile as that the point of compass was marked on the plat with a straight line, and not with an ornamental arrow-head.

We are of opinion that these orders setting aside and annulling this survey, location and patent certificate were without authority of law, and utterly null and void. Where an individual in the prosecution of a right does everything which the law requires him to do, the law will protect him against the misconduct or neglect or unauthorized acts of a public officer — Lyttle v. Arkansas, 9 How. (U. S.) 333. At the same time all the difference there appears to be between the first plat and patent certificate, and the second, consists in the fact that the interferences of other surveys are duly marked and indicated in the second set of documents. As a survey, location and patent certificate for this land, the new documents are all the same thing as the former, and the new patent certificate ran in the name of James Y. O’Carroll, or his legal representatives, like the.first one. It does not appear to be material, therefore, which set of documents is to be considered as the valid one, so far as the authority of law for the issuing of a patent thereon was concerned. There was a valid location made; a good and valid patent certificate had been issued thereon, and the patent was therefore issued by authority of law.'

The patent was issued directly to Mary McRee, as the assignee, by virtue of doraignment of title, and not to James Y. O’Carroll or his legal representatives. It assumes to have ascertained the person who was the assignee and legal representative. The power and authority of the President to issue the patent to this person, if truly ascertained, can scarcely be doubted. If it had been issued in the name of the original confirmee, or his legal representatives, it would have been left to the courts to ascertain upon judicial investigation who was the person to whom the patent had*passed the title. That may still be the subject of judicial inquiry; and a court of equity, if it were ascertained to have been granted to the wrpng person, could afford the proper relief to the right person. The act of Congress evidently contemplated that the owner of the injured land would make the location and receive the patent. It was necessarily to be issued and delivered to some person. The original grantee of the injured land was long since dead. To whom should it be given but to the legal representative ? If Mary McRee were, in fact, that person, then the patent conveys the land to the right owner of the equitable title. How, then, can it be declared void on its face ? In such case it would be issued without fraud and by authority of law. The recitals are certainly binding and conclusive upon the grantor. These recitals make it appear on the face of the patent that it was issued upon a New Madrid location and patent certificate, and, therefore, that it was issued by authority of the act of Congress. A patent may be void because the land had been previously reserved from sale — Jackson v. Clark, 1 Pet. 628; Linsey v. Miller, 6 Pet. 674; Easton v. Salisbury, 21 How. (U. S.) 426: or because the land had been granted to another — Lessieur v. Price, 12 How. (U. S.) 60: or because the land had already been appropriated by law to satisfy another claim and patent — Brown v. Clements, 3 How. (U. S.) 667: or because it was obtained by fraud, or was issued without authority of law — Stoddard v. Chambers, 2 How. (U. S.) 318. None of these things appeared on the face of the patent here.

No other fraud is suggested than what might consist in the issuing of the patent to Mary McRee by name, and not in the name of O’Carroll or his legal representatives, or to some other person as the legal representative; and if the recitals were true, there was certainly no fraud in that. And it may be considered as settled that when a patent of this kind is produced in evidence, we are bound to presume for all the purposes of this action that all previous steps have been taken by the grantee to entitle her to the patent, and that she had the superior right to obtain it; and having obtained it, she has the best title known to a court of law, until the contrary is made to appear — Bagnell v. Broderick, 13 Pet. 450; Hooper v. Scheimer, 23 How. (U. S.) 235.

The plaintiff rested oh the patent, and there can be little doubt that it made for him a prima facie case. It was entirely competent for the defendants to show, if they could, that the patent was obtained by fraud, or was issued without authority of law ; or that, being valid, it enured to their benefit as the true legal representatives and owners of the equitable title. But they must show some title in themselves that would give them a standing in court, and enable them to call in question the validity or correctness of the documentary evidences of title emanating from the Government; and they undertook to do this by showing that they were the true owners of the inchoate equitable right, and that the patent enured to vest the legal title in them.

The evidence showed that the equitable title to the located land had become vested in the heir of Christian Wilt in 1841, when the location was complete. The title which the defendants claim from the heir of Wilt through a decree in chancery, and the deed of the general guardian, made in pursuance thereof, to Joseph Hertzog, and through a deed of trust given by Hertzog, must be held to have been wholly ineffectual and void, for the reasons that the heir was not made a party to the proceedings, and could not appear and answer by his general guardian only* (Sto. Eq. Pl. § 44, § 58, n. 3, § 70; 1 Dan. Ch. Pr. 229, 563) ; that the trustee’s deed did not show that the sale liad been made in pursuance of the power given to sell; and that these documents described the located land, when the equitable title thereto did not exist at the time nor until after the location was completed in 1841. The deed of Hertzog by the sheriff to Henry Clay, executor of James Morrison, was ineffectual to convey any title for like reasons. But afterwards, in 1844, and after the complete location had been made and the equitable right had become vested beyond any question in the heir of Wilt, a bill in chancery was filed by Samuel McRee against the heirs and representatives of Christian Wilt and Joseph Hertzog, praying that all their right and title to the located land might be vested by decree in the plaintiff, and such decree was accordingly made in 1848. Samuel McRee thereby became the owner of the inchoate equitable title to the located land as the legal representative of O’Carroll, and by his will the same was passed to Mary McRee, his widow, in 1849.

The defendants rely upon the deed of Samuel McRee and wife, dated the 30th August, 1838, and insist that the after acquired equitable title to this location enured to the grantee in that deed, and those holding under him by way of estop-pel, or as being a deed which purported to convey the land “in fee simple absolute,” under the statutes of this State then in force (Act of 1835, § 3,); and still further, that the patent itself enured to their benefit and vested the legal benefit in them.

If this deed purports to convey the real estate in fee simple absolute, the after acquired title passes under the statute, otherwise not. There is no covenant of warranty, and no estoppel by virtue of any kind of expressed warranty. The words “ bargain, sell, release, quit-claim, and convey,” are words of release and quit-claim merely. They carry the grantor’s interest and estate in the land described, whatever it may be; they do not of themselves purport to do anything more; they do not even raise the statute covenants implied in the words “ grant, bargain and sell," nor would these covenants operate as the ancient common-law warranty to transmit a subsequently acquired title — Chauvin v. Wagner, 18 Mo. 488. There is no English authority that any other conveyance than a feoffment, fine or lease operated by way of estoppel to pass an after acquired title — Rawle on Cov., 3d ed., 408. The land is described as being a part of the tract located under a New Madrid certificate, issued to James Y. O’Carroll, or his legal representatives, and as being the same parcel of land conveyed to Pierre Chouteau, Jr., by Robert Wash as trustee of Joseph Hertzog by deed recorded. The habendum is to Pierre Chouteau, Jr., and his heirs forever. This description would seem to show very clearly that neither party contemplated any other than the inchoate title created by a location under a New Madrid certificate, whatever that might be, and not a fee simple; and that the grantee already bad, or claimed to have, that inchoate right by virtue of a deed from Hertzog’s trustee, and the grantor releases, quit-claims and conveys all his interest in the same land and title for the small consideration expressed. It is essentially a quit-claim deed and nothing more. It makes no positive averment that the grantor is seized or possessed of any particular estate in the premises which the deed undertakes to convey and confirm. Such averments, to create an estoppel, must be positive and certain. Where the truth appears by the same instrument that the grantor had nothing to grant, or only a possibility, there is no estoppel — Raw. on Cov., 3d ed., 404, n. 2. No seizin or possession of any particular estate- is affirmed in the deed, either in express terms, or by necessary implication, whereby an estoppel might be created. In Van Rensalaer v. Kearney, 11 How. (U. S.) 297, the deed expressly affirmed that the grantor had seizin and possession of the estate conveyed, and undertook to convey and confirm the same to the grantee. This is not a deed of that character. It falls within the general principle, which is fully recognized in that case, that a deed of this character, which purports to convey, and is understood to convey, nothing more than the interest or estate of which the grantor is seized or possessed at the time, does not operate to pass or bind an interest not then in existence. In French v. Spencer, 21 How. (U. S.) 228, also, the deed expressly affirmed the existence of the particular interest and estate conveyed, and empowered the grantee to make the location and receive the patent for the land when that interest should be ripened into a complete title. This is clearly not such a deed; nor does it purport to convey a fee simple absolute. To have this effect under the statute, the deed must undertake to convey an indefeasible title. It must not be a quit-claim deed merely, transferring the grantor’s interest, whatever it may be, but a deed which expressly undertakes to convoy the land itself, and to convey it in such manner that the grantee is not to be disturbed in his possession by any one — Bogy v. Shoab, 13 Mo. 365. If; must contain such positive and certain averments of an absolute title in fee simple as would amount to an express warranty, if contained in a covenant of warranty, that the grantor was seized and possessed of such title and estate, which he undertook to convey, assure and confirm to the grantee against all the world, and would therefore create an estoppel by virtue of which the subsequently acquired title might enure to the grantee.

The statute provision would seem to be the same in principle as the doctrine laid down in these decisions of the Supreme Court of the United States proceeding upon the idea of an estoppel. It is said in Bogy v. Shoab that the statute extends to every deed which was obviously intended to convey, and. purported to convey, a fee simple absolute even without a covenant of warranty; but'that it did not reach, and ought not to apply to, a deed where the grantor expressly guards against such an inference by inserting a special warranty against himself only and those claiming under him. The statute requires that the deed should undertake to convey a fee simple absolute. The decisions go further and extend the same principle to a deed which expressly purports to convey some particular estate of which the grantor is seized or possessed, and which is affirmed in the deed with such certainty of averment as would be sufficient to bring the case within the operation of an estoppel — 11 How. (U.S.) 325; Rawle. on Cov., 3d ed., 408-87.

A similar statute in Illinois has received the same construction which is given to it in this State — Frink v. Darst, 14 Ills. 304. In Cooke v. Brogan, 5 Ark. 693, under alike statute, the after acquired title was held to pass by deeds which conveyed the lots in fee simple. This deed can have no greater force than a mere quit-claim which expressly conveys only “the right, title and interest” of the grantor, as the case was in Vallé v. Fleming, 18 Mo. 486. We conclude, therefore, that the after acquired inchoate equitable title to this location did not pass and enure to the grantee under this deed, and that neither the grantee nqr these defendants thereby became the legal representatives of O’Carroll, Ruddell and Wilt in respect of this land.

It is insisted further that the patent enured to the grantee under this deed, and to those claiming under him, by virtue of the doctrine of relation and ex post facto operation, whereby the patent is made to relate back to the inception of the title and to enure to the owner of the inchoate equitable right — French v. Spencer, 21 How. (U. S.) 228; Ross v. Borland, 1 Pet. 664 ; Landes v. Brant, 10 How. (U. S.) 348. The equitable title under the act of Congress to .the located land had its inception when the location was made, if not before. The evidence shows that this inchoate equitable title had been transferred through intermediate conveyances’to Mary McRee, and' under the operation of this doctrine of relation the patent enured to her as the assignee and legal representative of James Y. O’Carroll, and would have enured to her in like manner even if the patent had been issued in the name of O’Carroll, or his legal representatives. The inceptive title and the absolute legal title were thus united in her. It follows that the defendants, on the evidence, had not even the equitable title which would support the action of ejectment under the statutes of this State. They were reduced to the naked possession, without the shadow of a title, and must therefore be considered, both in reference to the documentary evidences of title issued by authority of the United States and in reference to the statute of limitations, as mere intruders. Until the patent issued the legal title remained in the United States, and the statute of limitations did not begin to run against the plaintiff before the date of the patent. If the defendants had shown themselves to be the owners of the equitable title, as against the plaintiff standing on his legal title by patent, the right to the possession thus shown by virtue of the equitable title only would have been inferior to the right of possession by virtue of the absolute legal title, and the plaintiff would still have been entitled to recover in this action but for the operation of the doctrine of relation and direct enurement of the patent to their benefit as the owners of the inceptive right, and but for the effect of the statutes of this State — Fenn v. Holme, 21 How. (U. S.) 481; Hooper v. Scheimer, 23 How. (U. S.) 235; French v. Spencer, 21 How. (U. S.) 228; R. C. 1855, p. 692, §§ 11 & 12.

It has uniformly been held in this State, that a mere intruder without title was not in a position that would enable him to call in question or dispute the correctness or validity of documentary evidence of title issued by authority of the United States in pursuance of the acts of Congress. They are binding on the Government while they subsist in force, and no mere stranger or intruder can be allowed to complain — McGill v. Somers, 15 Mo. 80; Robbins v. Echler, 36 Mo. 494.

It was argued that this location and patent were void, for the reason that the land is situated within the Spanish commune or town of St. Louis, which was completely disposed of under the act of Congress of the 13th of June, 1812, and within the outboundary line required by that act to be run so as to include the whole granted and reserved premises, and that this land was therefore reserved from sale. There is no evidence in this record on which we can undertake to decide that this land was so reserved from sale. It is very possible that such outboundary line might, or might not, be so run as to include this land ; but until an official survey of such outboundary, including this land, is produced, the contrary will be presumed. The case of Glasgow v. Hortiz, 1 Black. ( U. S.) 595, has no bearing upon this question.

We have come to the conclusion that there was no error in the instruction which was given for the plaintiff; that being so, it necessarily follows that any error committed in the refusal of the defendants’ instructions must be immaterial; they will not, therefore, be particularly examined.

The judgment will be affirmed.

The other judges concur.

* See R. 0. 1835, p. 294, $ 5.