Milburn v. Hardy
Milburn el al., in Error v. Hardy, in Error
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Napton, Judge,
delivered tlie opinion of the court.
One of the questions presented by this record is, whether the act of 13th June, 1812, confirmed any lot outside of the outboundary directed by that act to be run by the surveyor general; and upon this question it is deemed unnecessary to add any thing to what has already been said in the cases involving this point. (Milburn v. Hortiz, 23 Mo. 536 ; Tayon v. Hardeman, 23 Mo. 539 ; Schultz v. Lindell, 24 Mo. 567 .)
The only question discussed in this case was the admissibility of the proceedings before the recorder of land titles (Hunt) under the act of 26th May, 1824, and the certificate of his successor (Eenard) of a confirmation to Laroche of the lot in controversy under the act of' 13th June, 1812, and the survey made by the surveyor general of the United States or under his directions in 1855. This testimony was objected to because it was all made under a law passed subsequent to the consummation of the plaintiffs’ title and without any notice to the state of Missouri or the plaintiffs claiming under the state, and because it was repugnant to the constitution of 'the United States and of this state, and in derogation of the sovereignty of this state.
By the act of 13th June, 1812, the United States was divested of all title to the property described in the first section of that act as confirmed to private claimants. The act was a grant, proprio vigore, and the title of each claimant under it was complete at its date, and he could maintain his ejectment upon mere proof of inhabitation, cultivation or possession, without any further or other evidences of title. In 1824, however, Congress, with a view to prevent the embarrassment which claimants under the act of 1812 would necessarily experience from a dependence on the fleeting mem *520 ory and uncertain lives of witnesses, and to furnish to the government also the means of distinguishing the public from the private lots, authorized the recorder of land titles to receive proof from the claimants of their cultivation, inhabitation or possession, and the extent and boundaries of the same, and to issue certificates of confirmation to such persons as made satisfactory proof thereof. It was to promote the convenience of claimants that this act directed them to appear before the recorder within a limited period and make their proofs, so that the recorder could give them certificates of confirmation. Upon these certificates, by an act of the legislature of Missouri, an action of ejectment could be maintained; and, by the decisions of the courts here, they have been held prima facie evidence of title in the claimants under the act of 1812 against all the world, and conclusive on the United States and the claimants who accept them. But. the act of 1824 also had in view the convenience of the government in procuring a distinct designation of the public property within the towns and villages subject to be reserved for military purposes or to be subsequently appropriated to the use of schools. For this purpose the recorder was directed to furnish his list of confirmations, with their extent and boundaries, to the surveyor, to serve him as a guide in discriminating the private from the public lots, the latter of which he was expressly ordered to survey.
The act of 13th June, 1812, did not contemplate any survey of the private lots, probably on the supposition that they had been already surveyed or designated under the former government, or could be easily distinguished by their occupation or cultivation. But the act of April 29,1816, expressly required a survey of all confirmations made previous to its passage, as well as all which might thereafter be made. The act of 1824 does not in express terms order a survey of the private lots, perhaps for the reason that the act of 1816 had already directed it; but as the surveyor was, even under the act of 1824, required to distinguish the private from the public lots, and expressly required to survey the latter, it might *521 be inferred that the performance of the duty expressly enjoined necessarily implied a survey of each class of lots. However this may be, as the act of 1816 undoubtedly gave the authority to.survey the private claims, it is not material that such authority should be construed to be a second time conferred upon him by the act of 1824. The practice, it is believed, has been, after the date of the act of 1824, for the surveyor to have the common field lots as well as the commons surveyed, either by virtue of this last named act or the preceding one of 1816 ; and such surveys have been regarded as legitimate evidence in the courts of this state and the federal courts. A survey of the commons, it is true, was expressly directed by the act of 1824, but it was only in cases where they had not been previously surveyed. If the certificates of confirmation be admissible to prove a title under the act of 1812, we can see no reason for excluding the surveys. Both are made after all interest in the property had passed from the government. It may be conceded that the admission of either is somewhat anomalous in principle, but it has received the sanction of the courts for so great a length of time that to call it in question now would be dangerous to the stability of important interests resting on the faith of their decisions.
There is no distinction between the title to commons and that to field lots or town lots, so far as this question is concerned. A survey of the St. Louis commons, made in 1832, twenty years after the United States had parted with all interest in the land within the survey, has uniformly been received in evidence as prima facie proof of the extent and boundaries, not only against the United States but all opposing claimants deriving title therefrom. This practice has 'received the sanction of the supreme court of the United States in several cases.
In the case of Jones, adm’r, v. Gurno, 6 Mo. 330 — a case decided nearly twenty years ago — the same positions now assumed in opposition to the admissibility of this kind of testimony under the act of 1824 were taken by Mr. Geyer and *522 fully discussed, and, I need hardly add, with great ability. It was urged then, as now, that this evidence was ex parie in its character, and was not designed to, and could not, in its nature, affect private claimants, however conclusive it might be on the government, and that the United States could not invest one of their subordinate executive officers in Missouri with quasi judicial functions to pass upon the validity and fix the locality of titles which had years before entirely passed from that government, and on which it had ceased to have any control. But the court considered the matter then as res adjudicaba — Judge Tompkins, indeed, further maintaining that these certificates were not merely prima facie but conclusive evidence upon all parties concerned. This, too, it will be observed, was in case where the certificate of confirmation given by recorder Hunt was used against a title emanating from the same act of 1812. So, in Soulard v. Allen, 18 Mo. 595 , the certificate was used against a title originating under the act of 1816. The adverse titles in both cases, against which the certificates were used, had their inception and consummation prior to the act of 1824, under which the evidence was taken.
It is plain that the certificates of confirmation and surveys under the act of 1824 can avail nothing unless they are allowed to show title in 1812. They do not purport to do any thing else. They do not profess to grant land at their date or to certify that land was granted at their date, but that the confirmations were made in 1812 and by virtue of the act of 18th June of that year. They must therefore either be admitted to prove that, or go for nothing.
As the plaintiff in this case offered no evidence in rebuttal of the prima facie case made out by the defendant, the instructions given by the court were proper. The evidence being prima facie, was of course conclusive in the absence of any proof to the contrary.
The judgment is affirmed;
the other judges concur.
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