Picot v. Page

Scott, Judge,

delivered the opinion of the court.

This cause has been argued as though it was the case of Bogy v. Shoab, 13 Mo. 365 , with the difference that the former case was presented in the shape of an action at law, whilst the present suit is one in the nature of a proceeding in equity. We do not regard the matter in this light. We conceive that the title to a small portion only of the land involved in this controversy is subject to the considerations, *411 legal or equitable, that are applicable to the determination of the suit between Bogy and Shoab & Collins. We consider that the title to only so much of the land in dispute as lies within the concession to Pierre Chouteau, as surveyed and patented to him by the United States, is to be determined by the considerations which have been presented by the pleadings and arguments in this cause. The land, the title to which was involved in the case of Bogy v. Shoab, was all within the concession and patent of Pierre Chouteau; and only the title of so much in this suit as is similarly situated can be regarded as subject to the considerations which operate in determining the dispute between Bogy and Shoab, whether it is presented in a legal or equitable form. The title to the land not within the concession of P. Chouteau, as patented, must, in our opinion, be adjusted on principles entirely foreign to those which affect the case of Bogy v. Shoab, in whatever forum it may be discussed. It will thus be seen that this suit branches itself into two parts influenced by entirely different considerations.

We will first examine that branch of the case which has been presented in the pleadings and arguments of counsel, premising that what will be said is intended as being only applicable to the title of so much of the land in dispute as is situated within the concession as patented and surveyed to P. Chouteau. The plaintiff has based his claim to a judgment on several grounds. It is maintained that this is a petition for the specific performance of the contract between George E. Strother and Pierre Chouteau, made on the 28th day of December, 1822 ; that although Chouteau was not the owner of the land at that date, yet, as he acquired a right to it subsequently, a court of equity will compel him, or those claiming under him with notice of the plaintiff’s equity, to convey that title in satisfaction of the agreement. Without going into the question whether the agreement is a subsisting instrument or not, we are of the opinion that the petition on its face negatives the idea that any one of its objects was a specific performance of the contract of 1822. It is averred *412 that by a deed dated 1st June, 1826, Pierre Chouteau, in execution of said contract (meaning the contract of 1822) so far as the same was finally agreed to be executed, conveyed to Strother the tract of land, the subject of this suit; that in executing said deed of 1826 it was the intention of the parties to carry into effect the said contract for the sale of the land, the subject of this suit. The petition further charges that the defendants refuse to release their title to the plaintiff, and as a justification thereof sometimes pretend that the deed of said Chouteau to said Strother is void, and, if not, does not and was not intended to convey the land in question; whereas the plaintiff charges the contrary thereof to be the truth, and that the said deed is not void, but does, and was intended to, convey the land described in the original contract between the said Chouteau and Strother. It is further stated, “ and they (meaning the defendants) sometimes pretend that the deed to the said Strother was not executed in p\irsuance to said contract made in 1822; whereas the plaintiff charges the contrary to be the truth, and that the said deed was intended between the parties to convey the land included in said contract and of which Pierre Chouteau represented himself to be the owner.” These extracts from theu petition are amply sufficient to show that the enforcement of the specific performance of the contract of 1822 never entered into the head of its framer. So far from it, they conclusively prove that for the purposes of this action the agreement of 1822 has been subsequently executed by the deed of 1826.

It is next maintained that the object of the bill is to obtain a reformation of the deed of 1826 ; but as the petition alleges that the deed of 1826 was intended to convey and did convey to Strother the land in controversy, it could hardly have been framed with such a view.

The ground mostly relied on to entitle the plaintiff to the relief he seeks rests for support in the conduct of Pierre Chouteau, which it is alleged by a kind of equitable estop-pel prevents him, and those claiming under him being affected with notice, from asserting a title hostile to that claimed by *413 the assigns of Strother; that although Chouteau may not have had the title to the land at the date of the deed in 1826, yet as he subsequently acquired title thereto in 1838, it enured to the benefit of the assigns of Strother; that those taking from Chouteau his legal title acquired in 1838, being volunteers or affected with notice of the equity of Strother’s vendees, stand in no better situation than P. Chouteau himself, and are compellable to convey their title to the plaintiff as he would have been ; that having purchased on the faith of Chouteau’s conduct and representations, he and those claiming under him are estopped from denying that the title subsequently acquired enured to the benefit of Strother’s assignees.

Piei’re Chouteau, by a deed dated September 22, 1818, conveyed to A. P. Chouteau the most northern part and the residue of the concession which was granted to him by Charles Dehault Dolassus, formerly lieutenant governor, on the 16th day of October, 1799. This deed was duly recorded on the day of its date. By the deed of June, 1826, to which reference has been made, Pierre Chouteau convoyed to C. E. Strother the same concession mentioned in the deed to A. P. Chouteau except that heretofore sold by the said Pierre Chouteau, and warranted the same free from the claim of himself and wife and their heirs and all persons claiming under them, except those who now have deeds recorded in the clerk’s office of St. Louis. We do not deem it necessary to go into a detail of the various facts and circumstances in evidence relied on to show that P. Chouteau was estopped by principles of equity from asserting a title hostile to that of Strother, or that would induce a court of chancery to compel him to convey the title subsequently acquired. It may be that the circumstances relied on would in some cases induce a court of equity to grant the relief sought by the plaintiff; but it seems to us that there is an ingredient in this casé which disarms a court of chancery of all authority to interfere in behalf of Strother or those claiming under him. That ingredient is gross negligence. When men are guilty of *414 gross neglect; when by shutting their eyes they fail to see that which will secure them, from all deception, it is not the province of courts to relieve them from the consequences of such conduct. The very instrument under which Strother and his assigns claim, referred them to the records in order that they might know what land they obtained from P. Chouteau. Without that reference it could not be known what Strother purchased. If that reference had been made, there would have been no occasion for this suit; for the records would have disclosed the fact that the land claimed by Strother had long previously been sold to another. Here is the language of the deed: “ All that tract or parcel of land granted to the said Pierre Chouteau in October, 1799, by Carlos Dehault Delassus, Spanish commandant, beginning at Roy’s line, running north to Labeaume’s south line, and extending from the river to the common fields west; it being intended hereby to convey to the said G-. P. Strother, his heirs and assigns, all the land contained within the said concession except that heretofore sold by the said Pierre Chou-teau according to his said several contracts, to be limited by the metes and bounds limited and fixed by the intention of the said parties at the period of contracting; and the said Pierre Chouteau and Bridget his wife do hereby warrant the same free from the claim of themselves and their heirs, and all persons claiming under them, except those who now have deeds recorded in the clerk’s office according to the modification of said claims as aforesaid described.” It would thus seem that the deeds of record in relation to this tract were incorporated into and made as it were a part of the deed to Strother. Metes and bounds were to be ascertained in order to know the quantity of land conveyed. The deeds of record would show what those metes and bounds were. There ¡is no charge of fraud against Pierre Chouteau. It is not pretended that any practices were put in use to induce Strother to forbear an examination of the records. The deed to A. P. Chouteau, having been made a long time before, might have been forgotten by Pierre Chouteau. Not *415 knowing what be bad formerly sold and unwilling to trust to his memory, be referred Strother to the record ; and in effect said: “ That only is sold to yon which the records do not show has been heretofore sold; that alone I warrant to yon.” One who would take a deed like this and afterwards complain of his ignorance of a prior recorded conveyance would furnish an instance of willful blindness — one in which the eyes were willfully closed in order to shut out the light — a forbearance to search the records for fear that they would impart notice.

The principle that courts of equity will not relieve.in cases where the party applying for assistance has been guilty of gross negligence is well established and sustained by a great weight of authority. Sugden says, in all cases where a purchaser can not make out a title but by a deed which leads him to another fact, whether by description of the parties, recital, or otherwise, he will be deemed cognizant thereof; for it was crassa negligentia that he sought not after it; and, for the same reason, if a purchaser has notice of a deed, he is bound by all its contents. (2 Sugden, V. & P. 445.) In the case of Neesom v. Clarkson, 2 Hare, 173, the court says that “ every purchaser is presumed to have investigated and known his vendor’s title ; and if nothing more were proved in this case than the mere fact that the purchaser took a conveyance in 1817, and upon inspecting the title which was assumed to be conveyed to him it appeared that it was one which in truth gave no title to the vendor, the court would consider' the onus thrown on the purchaser to show why he' had not in-' quired into that title with a view to his protection. It appears to me indispensably necessary that such should be the law of this court, for otherwise a purchaser might take a title, shutting his eyes to a defect in it, and then, on the ground of absence of actual knowledge, require this court to pronounce a judgment in his favor against the right of the party justly entitled to the estate, when nothing but willful blindness or culpable negligence could have prevented him from knowing the real state of the title.”

*416 The principle involved in this case before us is analogous to the doctrine above stated. We have not considered the effect of notice resulting from a deed duly registered. We do not deem it necessary. This is a much stronger case, as we regard the records incorporated as it were in the deed ; and it was culpable negligence to roly on any other source for information. Nor do we consider how far the defence, resting on the fact that the defendants were purchasers for a valuable consideration without notice, could avail in this case. The fact that defendants claimed under a deed which, conveyed to them the title of Strother, and afterwards purchased that derived from A. P. Chouteau for the sum of $18,000, is evidence of the bona fides of their conduct, except against those who held such a relation to them in regard to a common title as prevented them from purchasing for their own benefit an adverse title.

In the examination of the other branch of this case, which 'relates to the land which lies beyond the limits of the concession granted to Pierre Chouteau by lieutenant governor Delassus, as surveyed and patented by the United States, it .will be necessary to ascertain whether the deed from Pierre to A. P. Chouteau conveyed any other land than that which was embraced within the limits of the said concession as defined by the United States survey. The following are the words descriptive of the premises conveyed by the deed of Pierre to A. P. Chouteau: “A piece of land lying and situated at the place called ‘ La Grange de Terre,’ in the said county of St. Louis, and to the north and near to the said town of St. Louis; which piece of land contains twenty arpens in superficies, and is bounded on the south by the land which we have sold to William C. Carr, east by the river Mississippi, west by the lots of forty arpens, and north by the land which I, the aforesaid Pierre Chouteau, have acquired of Joseph Brazeau and the ditch of the land heretofore belonging to Louis Labeaume, and in which twenty arpens and more, if it is to be found, is comprised all the mound called the Grange de Terrewhich piece hereto *417 fore sold being the most northern part and the residue of the concession which has been granted to me by Mr. Charles De-hault Delassus, formerly lieutenant governor of the Upper Louisiana, now Missouri territory, the 16th October, 1799, and surveyed by Antoine Soulard, surveyor under the Spanish government, the 10th March, 1803 ; as will appear from the record of said concession, plan and certificate of survey, registered in the office of recorder of titles and lands for the said territory Missouri, book C, pages 378, 379.”

That we may the better understand this matter, it should be stated that the survey of A. Soulard, to which the above reference is made, was executed under the Spanish government ; and the concession as surveyed by him extended to the ditch of the land formerly owned by Louis Labeaume. Pierre Chouteau also was the owner of a small tract of land of sixteen arpens, which he purchased from Joseph Brazeau; and it has been a matter of dispute whether this tract was situate north or south of the ditch. If one conveys to another a tract of land by the description of a concession as it is understood among us, it is the received opinion that the description will only pass the title to whatever land the officers of the United States government may designate by a survey made upon the confirmation of the concession or grant, without regard to the survey of the grant as made by the officers of the Spanish government. If the entire concession is conveyed, the quantity surveyed in satisfaction of the concession will pass to the grantee, whether it be more or less than was in the contemplation of the parties at the time of the sale. This principle is recognized in the case of Bogy v. Shoab. For reasons, however, which will hereafter be stated, we do not consider this a matter of much importance in this case. We do not wish, however, to be understood as maintaining that if a party has other lands adjoining his concession he may not by apt words convey those lands along with it. In the construction of the informal parts of deeds we deny the authority of any rules which determine the force of words from their situation or position in a sentence. *418 When a thing is intended to be conveyed, we must regard the entire description in order to ascertain what it is. Words can neither be written or spoken at once, yet the mind comprehends them all, and, when expressed, the sense of the whole is to be gathered without regard to the order in which they stand. The precise truth of all the enumerated circumstances is not required in order to ascertain the identity of the thing granted ; but in such cases the rule is, ex mul-ticludine signorum colligitur identitas vera. It will not be maintained that the deed is void for the uncertainty of the description of the premises. The true interpretation of every instrument is that which will make it speak the intention of the party at the time it is made ; and when any doubt arises upon the true sense and meaning of the words themselves, or any difficulty as to their application under the surrounding circumstances, the sense and meaning of the language may be investigated and ascertained by evidence de hors the instrument itself.

If we consider the first part of the description of the land conveyed, it is evident that it was not intended to sell the Brazeau tract; inasmuch as the land sold is bounded on the north by land Chouteau had acquired of Brazeau. Chou-teau then owning no other land south of the Brazeau tract than the concession, that was all he could convey. It may be said that the other northern boundary in the description— “ the ditch of the land heretofore belonging to Louis La-beaume” — shows that he intended to sell all that he owned tip to the ditch, and that he was mistaken as to the true location of the Brazeau tract. But there is evidence showing that Chouteau may well have believed that his concession extended to the Labeaume ditch. We have seen that, by a survey of it executed under the Spanish government, it was made to extend to that ditch. Besides, as he expressly bounds the grant by the Brazeau tract on the north, it is clear that he did not intend to embrace that tract, and we can not override this plain indication of intent by supposing he was laboring under a mistake, especially as there is evidence *419 that be might have supposed that he could alien all the land mentioned in the deed without including the Brazeau tract.

We do not overlook the fact that at the date of this deed the United States survey of the concession had been executed. When we refer to the subsequent clause of the description, as that was added to make certain the purpose of the deed, this matter is manifest. It is a rule of interpretation that verba posteriora addita propter certitudinem ad priora quce indigent certitudine stmt referenda. After there had been a description of the land conveyed, and that description not deemed sufficiently definite and certain, another is added to make plain the subject matter of the grant. Reference must be made to a subsequent clause in order to explain a previous clause of which the meaning is doubtful. Applying to this last clause of the deed the rule that ventas nominis tollit errorem demonstrationist and the land granted is clearly described. This shows the thing intended to be conveyed, and when that is ascertained any error of demonstration will not affect it. It shows that the concession was only intended to be sold ; and, although the concession may not be as extensive as the .grantor supposed, we can not make it include land to which he had no title, or which it is clear he did not intend to convey. Although the United States survey of the concession had been made at the date of the deed, yet the language of the deed shows that the grantor had in his mind the concession as it existed under the Spanish government. As the concession as surveyed under that government extended to the ditch, nothing was more natural than that he should give it that boundary. If the intent of the maker of a deed is to govern in its construction, then it is plain upon the face of the instrument that the Brazeau tract did not pass by the deed to A. P. Chouteau. The maxims of interpretation have been referred to, not that they were ne.cessary to ascertain the intent of the deed, but to show that the intent declared is in harmony with all those rules. There is nothing in the circumstances of this case which should in the least induce a court, even if it were allowable to do so, to *420 give a more liberal construction to this deed than is required by the rules and principles of law.

The deed then to A. P. Chouteau not including the Bra-zeau tract, it remains to be determined what effect that fact has on the rights of the parties to this controversy. This is a branch of the subject which is not presented to the court by the record and pleadings; nor have any suggestions in reference to it been made by the counsel who argued the cause. Under the circumstances, therefore, it is with diffidence that we enter upon this part of the case, and will rather state some general principles, which may have some application in the future progress of this cause should the facts turn out as we suppose. It appears that the land, the subject of this controversy, was once owned by the St. Louis Marine Railway Company. Under the authority of the acts of the general assembly entitled, respectively, “An act to repeal the charter of the St. Louis Marine Railway Company,” approved January 25th, 1837, and February 15, 1841, the company, in March, 1841, took steps towards carrying these acts into effect. Being authorized to make partition among themselves of the land belonging to the company, among other resolutions in relation to the subject they passed the following : “ That in making this division the stockholders agree that the title of the property is equally good ; and if the title of any part thereof proves to be inferior to that of the residue, the owner of that part shall be indemnified by the other stockholders so as to preserve the fairness and justness of this partition ; and all the stockholders shall bear their rateable proportions, according to the number of their respective shares, in all costs and expenses of any litigation in defending or perfecting the title of any portion of said tract.” It appears that deeds were afterwards made to those holding an interest in the lands of the company.

Independently of the effect of this resolution, whatever it may be, it is a rule of law that a warranty is implied in every partition. It is also a rule of equity that one standing in the relation of a joint tenant, tenant in common, joint devisee, &c., *421 can not purchase an outstanding adverse title for his own benefit, but that such title will enure to the advantage of all the joint owners, they bearing the expense and cost in proportion to their respective shares. In the case of Vanhorne v. Fonda, 5 Johns. Ch. 406 , Chancellor Kent says: “ I will not say that one tenant in common may not in any case purchase an outstanding title for his exclusive benefit; but it is not consistent with good faith, nor with the duty which the connection of the parties as claimants of a common subject created, that one of them should be able, without the consent of the other, to buy in an outstanding title and appropriate the whole subject to himself, and thus undermine and oust his companion. It would be repugnant to a sense of refined and accurate justice. It would be immoral, because it would be against the reciprocal obligation to do nothing to the prejudice of each other’s equal claim which the relationship of the parties as joint devisees created. Community of interest produces a community of duty; and there is no real difference on the ground of policy and justice whether one cotenant brings up an outstanding encumbrance or an adverse title to disseize and expel his cotenant. It can not be tolerated when applied to a common subject on which the parties had equal concern and which created a mutual obligation to deal candidly and benevolently with each other, and to cause no harm to their joint interest.” In the case of Beauchamp v. Venable, 3 Dana, 326 , the court says : “ The reciprocal rights and duties of the parties might be further illustrated ; but we think it has been sufficiently shown that even if there had been no express warranty in the deed of partition, the parties, each of them, being under an implied warranty, would have been precluded from evicting the other by an adversary title; and the purchase by either party of such adverse title would, as well after partition as before, enure to the benefit of the other.” Without a reference to the case itself, the syllabus in Rector v. Waugh, 17 Mo. -, would seem inconsistent with what is said here with respect to an implied warranty in a partition between joint tenants and tenants in common. At *422 common law, joint tenants and tenants in common were not compellable to make partition. If a partition was made among them it would be voluntary, and the law would no more imply a warranty than in a conveyance between any other vendor and vendee. But where the partition was compelled, as between parceners, there the law implied a warranty.

It has been said that the money paid by one cotenant would be a common burden on the joint owners. But if a sum was paid for an adverse title which was supposed to aifect the whole of the common property, and it should turn out that the title to only part of the property was defective, the cost and expense of making good the title to that portion of the common estate which was defective would only be allowed. It would be hard to make a cotenant pay a part of the expense which was unjustly incurred in endeavoring to undermine him ; the case would be different if the money was paid with common consent.

It will be seen that this case has been determined without affecting that of Bogy v. Shoab. The land involved in that suit similarly situated to that in the present controversy, is adjudged to remain in Bogy and those claiming under him. The land not embraced in the deed to A. P. Chouteau and outside the concession to Pierre Chouteau, as patented, is adjudged to be in Strother’s assignees.

Under the circumstances, this case will be reversed and remanded, the appellant paying the costs in this court. In doing this, it is not intended to express the opinion that the plaintiff’s remedy is a petition in the nature of a bill in equity if he sees proper to go on with the suit. The cause is remanded that he may take his own course on the terms that may be imposed on him. * A motion for a rehearing was made on behalf of respondents and overruled.