Strother v. Lucas (31 U.S. 763)

ERROR to the district court of the United States for the district of Missouri.

This was an action of ejectment in the district court of Missouri, brought by Daniel F. Strother of Kentucky, against John B. C. Lucas of Missouri, to recover a tract of land, particularly described in the declaration, containing eighty arpens, adjoining the city of St Louis. The defendant pleaded the general issue, and the cause was tried at the September term 1830, when there was a verdict for the defendant, and judgment rendered thereon; to reverse which, this writ of error is prosecuted. The record contains a bill of exceptions, which sets out at large all the testimony given at the trial, and the decisions of the court, which were excepted to.

The premises in dispute consist of two common field lots, of one by forty arpens each. The common field of St Louis (of which the premises in question are a part) is a large tract of land lying immediately west of the former boundary of the town of St. Louis, and extending for some distance north and south of it. The lots are parallelograms, of one or more arpens in front, and extending westward to the uniform depth of forty arpens. The common field was separated from the town and town lots, by a fence extending the whole length of the eastern front; there were no division fences, though the lots were held and cultivated separately, and each proprietor was bound to keep up the fence in front of his lot. The witnesses, when speaking of these lots, use the term one arpen, two arpens, &c., meaning always the front of the lot spoken of, and the depth must be understood to be forty arpens: thus a lot of one by forty arpens, is called one arpen, &c.

The facts of this cause are these: some time in the year 1772, Don Manuel Duralde surveyed, and laid off into lots, the common field of St Louis. It does not appear, however, that he was an official surveyor, nor does any authority for the survey appear. Among the lots laid off were the two mentioned in the plaintiff's declaration. One of these appear to have been surveyed for Joseph Gamache and the other for Rene Kiercereau. These surveys are shown by two documents set forth in the bill of exceptions, as extracts from the Livre terrien, purporting to be a registry of the returns made by Duralde. In the margin of the registry of the survey for Kiercereau, are these words: '1798, St Cir, I arpen' and on the margin of the registry of the return of Gamache's survey, these words are found: '1793, St Cir, I arpen; and a memorandum in French, which rendered into English is as follows: 'the name of said Gamache is Baptiste instead of Joseph.' There was also some other evidence given at the trial to establish the fact, that the person for whom the survey was made was not Joseph, but Baptiste or John Baptiste Gamache; the lots, thus surveyed, adjoined each other, that of Gamache being on the north and Kiercereau's on the south; the northern lot was bounded on the north by a lot of Bissonet, alias Bijou, and the southern on the south by a lot of Bequette.

On the 9th January 1773, John Baptiste Gamache, by deed of exchange, conveyed to Louis Chancillier, the northern half of the northern lot; and on the 6th of April 1781, a deed was executed by one Marie Reneux Robillar, purporting to convey to Louis Chancillier, the southern, or Kiercereau's lot. In the body of this deed, Rene Kiercereau is stated to be a subscribing witness, and there is a signature to the deed as such, alleged to be his. There is also some evidence to show that the whole name of the grantor was not written by herself; both these deeds were, however, admitted as evidence. Chancillier cultivated a part of the two lots until his death, which happened in 1785: that is to say, he cultivated the whole front of the southern lot, and the southern half of the northern lot, to the extent of a few arpens in depth. On the 8th of June 1785, after the death of Chancillier an inventory of his estate was taken, and among the items is found one arpen and a half of land in the common fields, which was admitted to have been regularly sold to, and all the title which Chancillier had vested in, Madam Chancillier the widow. It does not appear that any part of the land in question was ever occupied, possessed or cultivated after the death of Chancillier, by any body claiming under him. The widow remained about two years at St Louis, when she intermarried with one Beauchamp; and she and her husband removed immediately to St Charles in the same state, and at a distance of about twenty miles from St Louis, where Beauchamp died. The widow, some time after, was married to one Basil Laroque, who died in 1828. The widow of Chancillier, from the time of her marriage with Beauchamp, until the commencement of this suit, resided in St Charles, and it does not appear that she claimed the premises in dispute until about the year 1818, and, it was alleged, not until she was urged to it by others. On the 12th September 1828, she transferred her claim by deed, to George F. Strother, who conveyed to the plaintiff.

Soon after the death of Chancillier, and some time in the year 1785 or 1786, Hyacinth St Cyr was put into the possession of the two lots in question by the syndistrict, the fence in front not having been kept up, and the lots, therefore, considered as abandoned. St Cyr soon after purchased of Gamache and Kiercereau their claims; he continued to cultivate and possess both lots in his own right, from the time of his first entry in 1785 or 1786, and kept up his part of the fence until the whole common field inclosure was destroyed in 1798 or 1799. In 1801, Auguste Choteau became the purchaser of the two lots, at the public sale, of the effects of St Cyr, who was an insolvent debtor: and in 1810, the two lots were confirmed to Auguste Choteau by the board of commissioners appointed for the adjustment of land claims. Choteau had, previously to the confirmation, conveyed the lots to the defendant, Jean B. C. Lucas, who has been in the uninterrupted possession ever since the year 1808. These are the material facts of the case as they appear by the bill of exceptions.

At the trial, the plaintiff offered sundry depositions to prove the signature of Kiercereau as witness to the deed of Marie Reneux Robillar. These depositions were rejected. It appeared that not one of the witnesses ever saw him write or knew his hand writing; but it having been proved that Kiercereau had been a chantre in the Catholic church at St Louis, the witnesses had examined the register of the interments and marriages, and the name of Kiercereau appearing subscribed to some of the entries as witness, they were asked to deliver their opinion as to the signature on the deed by comparison with the signatures in the registry, not one of which was proved to have been made by Kiercereau, nor did it appear to have been a part of his official duty to sign the register; and it did appear that there were living witnesses who had seen Kiercereau write and knew his signature; one of whom (Pierre Choteau) was actually examined as a witness in the cause.

On the testimony before the jury, the court, on the prayer of the defendant, gave the following instruction to wit:

If the jury find from the evidence, that the two confirmations to Auguste Choteau, given in evidence by the plaintiff in this case, are for the same land, and include all the premises in the declaration mentioned, the plaintiff cannot recover in this action.

The jury found a verdict for the defendant, upon which judgment was entered by the district court. The plaintiff prosecuted this writ of error.

The case was argued by Mr Benton, with whom was also Mr Taney, for the plaintiff in error; and by Mr Wirt for the defendant.

Mr Justice THOMPSON delivered the opinion of the Court.