Bryan v. Kennett

This action, in form ejectment, involves the title to an undivided half of a tract of land in the county of Washington, state of Missouri, containing 640 acres, part of a larger tract containing 7,153 arpents, or 6,085 acres, known as the Mine a Breton survey, or as United States survey numbered 430, made in the name of Moses Austin, and dated August 14 and 15, 1817. In conformity with the instructions of the court, the jury returned a verdict for the defendants.

The plaintiffs in error, who were plaintiffs below, introduced in evidence a certified copy of the foregoing survey; also a certified copy of a recorded deed of February 15, 1820, by Moses Austin and wife, whereby the grantors bargained, sold, and conveyed to James Bryan, Levi Pettibone, and Rufus Pettibone, as tenants in common,-one undivided half to Bryan, and an undivided fourth each to the other grantees,-'the whole of that certain tract of land heretofore granted to the said Moses Austin by the Spanish government, and confirmed to him by the government of the United States, containing 7,160 arpents, and being one league square, situated at and near the Mine a Breton, in the county of Washington, and territory aforesaid, [Missouri,] being the only concession from the Spanish government to the said Moses Austin,' etc.; excepting from such conveyance several parcels, aggregating about 2,500 arpents, and which the grantor had previously conveyed to other persons. The deed also provided that the grantor would not warrant and defend the premises against a judgment for about $14,000, which the Bank of St. Louis had obtained in the superior court of the territory against him, for which debt that bank held, in addition, a mortgage on part of the premises conveyed; nor against three judgments in favor of Gamble's estate for about $1,029; nor against a judgment in favor of Alexander McNair, for about $450.

They also read in evidence an act of congress, approved February 14, 1874, as follows:

'CHAP. 29. An act to confirm certain land titles in the state of Missouri.

'Whereas, the baron of Carondelet, governor general of the territory of Louisiana, did, on the fifteenth day of March, anno Domini seventeen hundred and ninety-seven, instruct Zenon Trudeau, lieutenant governor of said territory, to place Moses Austin in possession of a league square of land at Mine a Breton, in said territory; and

'Whereas, the said Moses Austin did, in the year anno Domini seventeen hundred and ninety-eight, take possession of the said land by moving upon it with his family, and did improve the same by building dwelling-house, blacksmith shop, furnace, and other improvements; and

'Whereas, the said lieutenant governor did, on the fourteenth day of January, seventeen hundred and ninety-nine, order Antone Lulard, surveyor in said territory, to survey the said land, and put the said Austin legally in possession of the same, which survey, numbered fifty-two, containing seven thousand one hundred and fifty-three arpents, and three and two-thirds feet, was executed by said Antone Lulard, and a certificate of the same filed by him in November, anno Domini eighteen hundred; and

'Whereas, Don John Ventura Morales, then governor at New Orleans, did, in the year of our Lord eighteen hundred and two, in the name of the king of Spain, grant to the said Moses Austin the land so surveyed and located: Therefore,

'Be it enacted by the Senate and House of Representatives of the United States of America, in congress assembled, that the United States hereby release whatever title they have to said lands now numbered four hundred and thirty on the plat in the surveyor general's office, and in townships thirty-seven and thirty-eight, range two east, in the county of Washington and state of Missouri, containing seven thousand one hundred and fifty-three and thirty-two one-hundredths arpents (six thousand eighty-five and twenty-nine one-hundredths acres,) to the heirs, legal representatives, or assigns of said Moses Austin, according to their respective interests therein: provided, however, that this act shall not affect nor impair the title which any settler or other person may have acquired adverse to the title of said Moses Austin to any portion of said land.' 18 St. 16.

They also proved that James Bryan, one of the grantees in the deed of February 15, 1820, intermarried in 1813 with Emily M. Austin, a daughter of Moses Austin. There were five children of that marriage, one of whom, Stephen, was born July 16, 1814, and died in the succeeding month. Three others, the present plaintiffs, were born, respectively, December 14, 1815, September 25, 1817, and January 12, 1821; while the remaining one, Elizabeth, was born in 1822, and died in 1833. Moses Austin died in 1821 and James Bryan in 1822. The widow of the latter intermarried in 1824 with James F. Perry, of which marriage there were five children, two of whom died in infancy during the life-time of their parents, two others died without having been married, while the remaining one died in 1875, leaving several children. The surviving children of these two marriages, and their descendants, are the only living descendants of Moses Austin.

Upon the foregoing evidence the plaintiffs rested their case.

The defendants offered in evidence a duly certified copy of the order of Baron de Carondelet, dated March 15, 1797, to Zenon Trudeau. This paper, not being found in the files of the court, could not be made a part of the bill of exceptions; but its import is shown by the preamble of the foregoing act of congress. They also read in evidence the following documents: (1) A copy, certified under the hand and seal of the register of lands for the state of Missouri, of 'the plat of survey No. 52, containing 7,153 arps. 32 2/3 p's, in the right of Moses Austin, as the same appears of record in first part of registre d'arpentage, page 85, Soulard's surveys, together with field-notes of the same;' and a copy of the record of the grant to Austin, under date of July 5, 1802, by 'Don John Bonaventure Morales, treasurer of armies, intendant interim of the royal finances of the provinces of Louisiana and western Florida, superintendent, subdelegate, judge of arrivals, of lands, and king's domain,' whereby was granted to Austin 'complete property, use, and domain of the aforesaid 7,153 arpents 32 2/3 feet of land in superflcie, according to the results of figures and measures contained in the plat of survey drawn by said Soulard,' etc. This was accompanied by a copy of the testimony taken in 1808 in support of Austin's claim, from which it appears that he took possession of the land embraced in that grant as early as 1798, and made improvements thereon. 3 Amer. State Papers, 682. (2) The claim of Austin, as set out by him upon the United States record of land titles.

The defendants introduced a large amount of other documentary evidence, which, in the view taken by the court of the case, it is unnecessary to give in detail. Its object was to show the execution of a mortgage, under date of March 11, 1818, by Austin to the Bank of St. Louis, on the land in controversy, for the sum of $15,000; a judgment in the superior court of the territory of Missouri, in favor of the bank, against Austin, for $14,001.85, rendered October 1, 1819, and a judgment in the same court, in favor of McNair, for $493.94; executions upon those judgments issuing in 1819, which were levied upon all the right, title, claim, interest, and property of Austin in the land embraced in the Mine a Breton survey, (except three lots of described boundaries), and under which sales were had March 21, 1820; a deed by the sheriff, making the sale, to Charles R. Ross, who purchased as agent of the Bank of St. Louis, and to which no seal or scroll was affixed; duly recorded deeds from the bank to Charles R. Ross in trust; from Ross to Simpson, Price, Hammond, and Easton; from Simpson, Hammond, and Easton to Price; from Ross, agent, to Price; from Price to Smith and others in trust; from the latter, under date of June 29, 1822, to Louis Devotion; the death of Devotion, and the appointment and qualification of Savage and Walsh as his administrators; the resignation of Walsh, and the sale by Savage, as administrator, because of the insufficiency of personalty to meet debts of his intestate, and in conformity with the orders of the county court of St. Louis county, having jurisdiction in the premises, of Austin's interest in the land embraced in the Mine a Breton survey; its purchase by John Deane; the confirmation of such sale; and the subsequent conveyance to Deane by the administrator of Devotion on May 28, 1835.

On the first day of April, 1836, Deane, having received possession under his purchase, exhibited his bill in equity in the circuit court of Washington county, Missouri, against James F. Perry and Emily, his wife; Stephen Perry and Eliza Perry; the present plaintiffs in error; and a child, whose name was alleged to be unknown, but who was averred to have been born of the intermarriage of James F. and Emily Perry. The bill alleged that the defendants were out of the jurisdiction of the court and residents of the state of Texas; and that all of them, except James F. Perry and wife, were under the age of 21 years. It gave a detailed history of the title asserted by Deane under the before-mentioned proceedings, alleging, among other things, that the sheriff who made the deed for the land sold in 1820 under the foregoing executions, inadvertently and by mistake, omitted to affix a seal of scroll thereto; that the deed from Austin to James Bryan was without consideration, and was made with the intent, upon the part of Austin and Bryan, to hinder and delay the creditors of the grantor; and that Bryan took the coveyance with knowledge of and subject to the judgments and mortgages held against Austin by the Bank of St. Louis and McNair. The prayer of the bill was that the defendants in that suit, in whose behalf an interest in the land was asserted, be compelled by a decree of court to answer to the complainant for all the right, title, and interest each of them might have in the undivided moiety of the said tract of land, or 'that the right, title, and interest of James Bryan at the time of his death, and of said James F. Perry and Emily, his wife, in her right, and of the said William Bryan, Moses Bryan, Guy Bryan Stephen Perry, Eliza Perry, and the child, whose name is unknown, of the veyed by said Moses Austin, by his deed, executed the fifteenth of February, veyed by said Moses Austin, by his deed, executed the fifteenth of February, 1820, to said James Bryan as aforesaid, be vested in your orator, and for such other and further relief as to the court shall seem just,' etc. The bill was verified by the oath of the complainant, and he also made affidavit that the defendants (naming them) and the child, whose name was unknown, of the said Emily Perry, defendants in the bill, were non-residents of the state of Missouri.

On the twenty-sixth of July, 1836, an order was made by the court reciting that the order of publication, previously made by the clerk in vacation, had been duly published; and a guardian ad litem, John Brickey, was appointed in behalf of the infant defendants. On the next day an order was made reciting that the infant defendants (naming them) come 'by their guardian, Johh Brickey, and file their answer; and the said James F. Perry, and Emily, his wife, having been notified to appear at this term according to law, and answer the bill of the said complainant, or the same would be taken as confessed, and having failed to file any exceptions, plea, demurrer, or answer to the bill, it is ordered that the same be taken as confessed against the said James F. Perry and his wife.' It was further ordered and adjudged that the right, title, and interest of Perry and wife in the undivided moiety of the land conveyed by Austin's deed of February 15, 1820, to James Bryan, 'be vested in the said John Deane, the complainant, unless the said James F. Perry and wife appear at the next term of this court and file their answer to said bill.' On the thirtieth day of November, 1836, the following decree was passed:

'And now at this day comes the said John Deane, the complainant, by his solicitor, and the said William Bryan, Moses Bryan, Guy Bryan, Stephen Perry, Eliza Perry, and a child, whose name is unknown, of the said Emily Bryan, defendants, by their guardian, John Brickey, and by agreement of the parties aforesaid, it is consented that the bill be taken in lieu of allegations, and thereupon, neither party requiring a jury, all and singular the premises are submitted to the court, who doth find that the matters aforesaid, in form aforesaid in the bill alleged, are true; and the said James F. Perry, and Emily, his wife, having failed to appear at this term of the court, and file their answer to the bill of complaint, it is ordered and adjudged and decreed that the decree heretofore entered in this cause against them be, and the same is hereby, made final.

'And it is further ordered, adjudged, and decreed that the right, title, and interest of the said William Bryan, Moses Bryan, Gun Bryan, Stephen Perry, Eliza Perry, and a child, whose name is unknown, of the said Emily Bryan, defendants, in and to the undivided moiety of that certain tract of land situate in the county of Washington, in this state, heretofore granted to Moses Austin by the Spanish government, and confirmed to him by the government of the United States, containing seven thousand one hundred and sixty arpens, and being one league square, situate at and near the Mine a Breton in the county of Washington, excepting such parcels thereof as the said Moses Austin had prior to the fifteenth day of February, in the year one thousand eight hundred and twenty, sold and conveyed, and which parcels so excepted are, fourteen hundred and thirty-two arpens to John Rice Jones, forty-five arpens to the county of Washington, two hundred and sixteen arpens to a Mr. Perry, two hundred and forty-three arpens to a Mr. Ruggles, fifty-eight arpens to a Mr. McGready, four arpens to John Brickey, senior, three hundred and twenty-four arpens to Mr. Ficklin, forty-five arpens to Mr. McCormick, one hundred and sixteen arpens to Mr. Brocky, and are described in the deeds and contracts to said purchasers for the same, being the moiety conveyed as charged in the bill of complaint by Moses Austin to James Bryan, by his deed dated the fifteenth day of February, in the year one thousand eight hundred and twenty, be vested in the said John Deane, the complainant.

'And it is further ordered, adjudged, and decreed that the said defendants recover of the said complainant, John Deane, the costs and charges in this behalf expended.

'And it is further ordered, adjudged, and decreed that the said William Bryan, Moses Bryan, Guy Bryan, Stephen Perry, Eliza Perry, and a child, whose name is unkown, of the said Emily Bryan, respectively, be allowed each the time of six months after he or she respectively comes of age to appear and show cause against this decree entered as aforesaid against them.'

The present action was defended upon the following grounds: (1) That the defendants and those under whom they claim, had been in the open, continuous adverse possession of the premises in controversy for more than 30 years prior to the commencement of the action. (2) That the equitable title to the premises emanated from the government of the United States on the tenth of April, 1803; that the premises have not been in possession of the plaintiffs, or of any one under whom they claim, for a period of time exceeding 30 years prior to February 27, 1874, nor have plaintiffs, during that period, paid taxes thereon, but they have been paid by defendants and those under whom they claim; that on the tenth day of of June, 1814, all title, both legal and equitable, to said premises passed from the United States, and that no action to recover the same has been instituted, as provided by law, prior to the institution of the present suit. (3) That the decree in the equity suit, instituted on the first day of April, 1836, by John Deane, who then had actual possession of the premises, and under whom the defendants claim, estops the plaintiffs from maintaining their action, and from claiming under the deed from Moses Austin to James Bryan, Levi Pettibone, and Rufus Pettibone any interest or estate in the premises adverse to said defendants.

Without any reference to the defense based upon adverse possession, the jury were instructed to find, and did find, a verdict for the defendants. A general exception was taken by the plaintiffs to the 'instructions' given by the court.

Henry H. Denison, for plaintiff in error.

[Argument of Counsel from pages 188-190 intentionally omitted]

''Geo. D. Reynolds and F. J. Donovan'', for defendant in error.

Mr. Justice HARLAN, after stating the facts in the foregoing language, delivered the opinion of the court: