Barada v. Blumenthal

1. It is settled that no claim was confirmed by the act of J une 13, 1812, which had been previously abandoned. 2. By abandonment of a lot is meant quitting possession, with the intention that it should no longer he the property of the possessor. 3. Where there is evidence of abandonment, an instruction which leaves that question out of view, is properly refused. ’ 4. The fact that the claimant of a lot applied for and obtained in 1808, the benefit of an an act for the relief of insolvent debtors, and did not include the lot in his inventory, which was required to be sworn to as a full and perfect discovery of all his real and personal estate, together with the fact that he had previously removed the machinery of a mill which he had erected upon it, and the occupation of which had been his only possession or evidence of title, is evidence to go to a jury of an abandonment.

Appeal from, St. Louis Court of Common Pleas. This was an action for tbe possession of a lot in Carondelet, claimed to have been inhabited, cultivated and possessed by Gregoire Sarpy, prior to December 20, 1803, and confirmed by tbe act of congress of June 13, 1812. The plaintiff claimed under a deed from the heirs of Gregoire Sarpy. Tbe defendant claimed under a confirmation by the act of congress of April 29, 1816, to the legal representatives of Joseph Boisvert, to whom the land was conceded on the 4th of July, 1774, by Pedro Piernas, the lieutenant governor of Upper Louisiana. The derivative title of the defendant, under this latter confirmation, was admitted. At the trial, there was oral evidence tending to show that, many years prior to 1803, Gregoire Sarpy erected a mill upon the lot in controversy, which was used for grinding corn and wheat; that Sarpy did not live in Carondelet, but the mill was run by bis agent; and that shortly after the change of government, the machinery of the mill was by him removed to St. Louis. The defendant read in evidence the proceedings on the application of Gregoire Sarpy for the benefit of the act of October 16th, 1807, concerning “insolvent debtors.” The application was dated January 11,1808, and accompanied with an inventory, to which was annexed an affidavit that it contained, to the best of the applicant’s knowledge, remembrance and belief, a full, just, true and perfect account and discovery of all his real and personal estate and effects. The lot in controversy was not mentioned in said inventory. The plaintiff objected to this evidence, but his objection was overruled. The plaintiff asked the following instruction, which was refused : “If the lot in controversy is a town or village lot, within the town or village of Carondelet, as the same existed prior to the 20th of December, 1808, and was inhabited, possessed or cultivated by Gregoire Sarpy, or his agent or tenant, prior to said 20th of December, 1803, such inhabitation, cultivation or possession vested in said Sarpy the lawful title to said lot in fee simple, by operation of the act of congress passed on the 13th day of June, 1812, entitled “An act making further provision for settling the claims to land in the territory of Missouri.” The court gave the following instruction, among others : “ If the jury believe from the evidence that, prior to December 20, 1803, Gregoire Sarpy inhabited, possessed or cultivated the lot in question, either by himself, his agent or tenant, and that the same was a town or village lot, and was within the town or village of Carondelet, as the same existed prior to December 20, 1803, then the title to the same was vested in said Sarpy by the act of June 13, 1812, unless prior to said June 13, the said Sarpy had abandoned the same, or disclaimed all right, title or claim thereto. By abandonment, is meant the quitting of the possession of the lot, with the intention that it should be no longer the property of the possessor.” Other instructions asked by the defendant were refused. There was a verdict and judgment for the defendant, from which the plaintiff appealed. The case was orally argued by Mr. E. Casselberry, for appellant, and by Mr. E. A. Dick, for respondent.