Charleville et al., Appellants, vs. Chouteau et al., Respondents, 18 Mo. 492

Gamble, Judge, delivered the opinion of the court. As the only evidence given in this case was given by the plaintiffs, and the court, on motion, decided that they had not made a case upon which they could recover, we are confined to the consideration of that case.

It sufficiently appears from the statements of the petition and the plaintiff’s evidence, that the land now in controversy was embraced in a larger tract claimed by Auguste Chouteau before the first board of commissioners, for his own benefit and as his own property, and that his claim was confirmed by the board on the 7th June, 1810, and that a patent-issued on that confirmation, dated the 16th of June, 1818.

The plaintiffs claim that Chouteau, being executor of the will of Madame Richelet Yerdon, their ancestor, authorized by the will to make sale of her property, became the purchaser of the property now claimed, at a public sale of her effects, and that such purchase was in violation of law and void; that the titlq-thus acquired was exhibited before the commissioners by Chouteau and became the foundation of the confirmation which was made to him.

This allegation states the foundation of the present suit, for if Madame Yerdon did not own the property, or if Chou-teau did not illegally acquire her title, or if that title was not the foundation of the confirmation made by the board, the plaintiffs have no pretence of right to the property. In support of the allegations in the petition, the plaintiffs gave in evi-deuce the account of the public sale of Madame Yerdon’s property, signed by the lieutenant governor and his assisting witnesses, and which caine from the Spanish archives.

The last entry is in these words, as translated: “Also another half arpent of land by forty arpens, situated back of the fort and between Don Auguste Chouteau and one Marly, and having been offered for sale on the two preceding Sundays, and on this, without any bidder presenting himself, and the said land being subject to the charges of fencing, which are now indispensable and would be costly to the said estate, and prejudicial to the creditors and heirs, Don Auguste Chouteau, offering to bear said charges, as the value of the land, the which was adjudged to him, in order that he should pay, for or cause to be made the said fences ; and there being no more to sell, the present auction is closed.” The land embraced in this suit is described in the petition as a tract of one by forty arpens, confirmed to the representatives of Laroche, the survey of which is numbered 1464, situated in the common fields of St.

Louis. There is shown in the evidence no conveyance from Laroche to any person, but there are conveyances in evidence for the lots originally surveyed as adjoining that of Laroche. As surveyed under the Spanish government, Laroche had one arpent by forty. On one side •was a tract of one by forty arpens, surveyed for Dion, and on the other a tract of similar dimensions surveyed for Condé; both of these surveys called for Laroche as adjoining.

Several conveyances were given in evidence with the design of tracing the titles of these adjoining tracts to Chouteau, and showing that in at least one of them Madame Yerdon was named as the proprietor of adjoining land.

It is impossible, from the descriptions and recitals in these deeds, to say how much land Madame Yerdon owned there, if she really owned any, for the Condé title is represented as covering three arpens by forty, when he sells it, and when his grantee conveys to Chouteau, it is described as two arpens by forty; and Dion’s tract, which appears to have been sold by his heirs for a cow and calf, is called one arpent by forty, but in the public sale made of it afterwards, it is described as having one arpent and a half in front.

It is apparent, upon an examination of. these conveyances, that the parties to them were either ignorant of the real quantity of land they owned, or that they had acquired title to a larger quantity than was originally surveyed for Dion and for Condé, by purchasing adjoining lands. There is nothing to indicate that such increase of their quantities was not by the acquisition of that originally surveyed for Laroche. The only direct conveyance made to Madame Verdón was made by Vu-cho, for a tract of one half arpent in front by forty in depth.

It is true, that when Chouteau filed his claim before the commissioners for the large tract which was surveyed for him under the Spanish government, and which included the land now in controversy, according to a plat filed with his claim, he also stated the titles to difierent parts of the larger tract, and while he claimed a large tract which had been originally conceded to Laclede Leguest, he also stated his right to one half arpent under the order made by the lieutenant governor in relation to the fence which the representatives of Madame Verdón were bound to make.

If'the acts of Chouteau shall be held to amount to the admission that any title to any of this land was ever in Madame Ver-dón, the admission cannot be extended beyond the half arpent in front, for which she had a conveyance from Vucho, and it is difficult, if not impossible, to ascertain that the title of Laroche had ever become vested in her for any of the tract originally surveyed for him.

But for the present the further consideration of the question, whether any title was shown in Madame Verdón to any of the Laroche tract, may be waived, as it will hereafter appear that Chouteau already owned the tract of La-clede Leguest, which interfered with the Laroche tract, and the title to which was confirmed by the board. 1. The question, whether Chouteau illegally acquired the title to the land which Madame Verdón claimed, rests upon the ground that, being executor of her will, he could not purchase any part of tbe property which it was his duty to administer. In 1838, in the case of McNair v. Hunt, 5 Mo.

Rep. 301, it was decided that, under the Spanish law, a person who was an executor and the guardian of minor heirs, might purchase the land of the deceased at a judicial sale, when the purchase was made with the consent of the judge, and that unless the minors impeached the sale within four years after they came of age, they were barred by the prescription of four years. In Michoud et al., v. Girod et at., 4 Howard 559, the Supreme Court of the United States expresses a different opinion in relation to the right of an executor to purchase any of the property of the estate which he is to administer.

The opinion delivered by Mr. Justice Wayne, after stating the rule as recognized in the English and American courts of equity, that one occupying a fiduciary relation shall not be permitted to purchase the subject of the trust, shows that the same rule prevails under the civil law, and very briefly states the Spanish law on the question. It is not thought necessary to consider the question in this case, for it is apparent that we have not before us an ordinary case of the sale of property belonging to a succession, to the executor of the deceased.

We are to take the act of the lieutenant governor transferring the property to Chouteau as truly stating the facts of the case. It is there stated that the land had been offered for sale on two Sundays in succession without any bidder, and that on the day of sale there was no bidder, and that, as there existed a necessity for the repair of the fence of the common field, and Chouteau was willing to take that burden upon himself for the land, it was accordingly adjudged to him. It is obvious that this transaction has connection with some municipal regulation existing in the village of St.

Louis, in relation to the common field of the villagers, and although the regulations adopted by the syndics, with the approbation and sanction of the lieutenant governor, are not spread out upon the record, yet we find them in Mackay v. Dillon, 4 Howard, 431. The common field cultivated by the inhabitants was protected from the cattle and borsos by a fence, which, running in front of the common field, inclosed the village and such part of the adjacent land as was used in common for pasturage, each owner of a common field lot being obliged to maintain the fence in front of his own lot.

Instead of inclosing the field with a fence, the animals were confined within a fence which inclosed the village and common. This fence was made, in part, along the front line of the common field lots. The mode of maintaining this fence is seen, so far as there were written regulations, in those which are published in Mackay v. Dillon. In Strother v.

Lucas, 12 Peters, 450, it is said : “ It appears from the evidence, that there was an officer in the village called by the inhabitants a syndic, and in the Spanish laws a regidore, whose duty and authority were to see that the common fences of the forty arpen lots were kept in repair.

He would direct them to be inspected, and if found out of repair, would direct the owner of the lot in front of which it was defective to make the repairs ; if the owner were on a journey, the syndic would have the repairs made, and make the owner pay his share on his return; otherwise he would give the land to another person who would make the share of the fence.

This was a regulation in villages by the authority of the commandant and municipal authorities, in conformity with the laws of Spain.” We have thus an idea of the existence of regulations in the enforcement of which village communities were interested, and which were made the grounds for transferring the title of such property from one person to another, and we can understand the public considerations which induced the lieutenant governor to transfer this land to Chouteau.

When it had been offered for sale and no person was willing to purchase it, and when there was a public necessity that there should be an owner who would bear the burden of making the fence,' the lieutenant governor transferred it to one who was willing to bear the charge. When we are considering the effect of such

an act, we are liable to fall into great errors, if we allow ourselves to be influenced by the ideas we now have of the regular and formal mode of disposing of valuable property, in a regulated and matured condition of society, under fixed and known laws, administered by officers belonging to different departments, each with prescribed powers. Tbe officer wbo made tbis disposition of tbe property united in bimself tbe powers wbicb, under our system, would belong to distinct offices. He was tbe chief executive officer, and, at tbe same time, be was tbe highest judicial officer in this part of Louisiana.

He made concessions of tbe royal domain; be ordered and conducted judicial sales ; be acted as a notary, and seems to have taken tbe control of all public affairs in the province. Tbe inhabitants looked to him as the representative of their sovereign.

Such an officer, at a post where there were collected a small number of inhabitants, where property was to be bad for tbe asking, disposes of a piece of land of some twenty arpens, belonging to tbe estate of a deceased individual, for wbicb no person will bid, and being subject to a public burden, he gives it to tbe executor if be will bear its share of tbe public charge.

To tbis case it is attempted to apply tbe rule that an executor cannot purchase tbe property of tbe estate be is required to administer, and after tbe title has been confirmed by tbe United States, and forty years after it has been patented, after the principal part of it has been for many years in a flourishing city and covered with costly structures, it is said tbe lieutenant governor, wbo disposed of tbe property more than fifty years.ago, simply made an ordinary sale of it to tbe executor, and- tbe whole title was and is but a mere nullity.

Tbe most natural, and, as we think, tbe most correct view to take of tbe act of the lieutenant governor is, that it was a governmental act, transferring the property upon considerations affecting tbe public, as well as from regard for tbe interests of those concerned in the estate, and therefore we hold that tbe rule in relation to an executor’s purchase at bis own sale, occupying tbe position both of seller and purchaser, does not apply to the present case.

It is also believed to be but a regular and natural consequence of this view, that no court in tbe succeeding government, after tbe act of tbe lieutenant governor has been recognized, and the title under it confirmed by the United States, can review and annul the act and the title thus recognized and confirmed. So that, if the land was held by Chou-teau, under the confirmation of his claim originating in the act of the lieutenant governor, his title could not be disturbed by the plaintiffs. 2. But the case presents another aspect as decidedly unfavorable to the claim of the plaintiffs.

When Chouteau presented his claim for confirmation, he filed, as was required, the documentary evidence of his title, and the first document in date, and that which seems to be chiefly regarded in the subsequent action of the commissioners, was a concession signed by St. Ange and Labuxi§re, dated 11th August, 1766, in which there was conceded to Laclede Leguest a tract of eight arpens in front by eighty arpens deep, extending from the land of Dion to the little river, and having eighty arpens in depth. The title to this tract was acquired by Chouteau at a judicial sale of the property of the grantee.

He filed the plat of a survey made under the Spanish government in 1803, of the tract thus granted, and that plat comprehends the land involved in this controversy. In the minutes of the proceedings of the board, of September 12, 1808, the claim of Chouteau is thus noticed on the record: “Auguste Chouteau, assignee of La-clede Leguest, claiming a tract of eight arpens more or less in front, by eighty arpens in depth, situated in the prairie of St. Louis, produces a concession from St.

Ange, lieutenant governor, dated August 11, 1766, and a certificate of survey of said land, dated 23d August, 1803, for 1336 arpens.” At the same time, as appears from the entries in the minutes, he was claiming two small tracts which had been granted to him, adjoining the larger tract, one of which was of two by ten ar-pens, and the other four by thirteen. On the 24th of January, 1809, the board order a survey to be made of the three tracts, the larger according to the concession to Leguest, the other two according to the concession to Chouteau. The survey was accordingly made and returned to the board.

The final action of tbe board upon tbe claim was bad on tbe 7th June, 1810, and there it is represented as the claim of Auguste Chouteau, assignee of Laclede Leguest, claiming eight by eighty arpens, and the decision of the board is in these words : “The board grant to Auguste Chouteau one thousand and thirty-one acres of land, under second

section of the act of congress, &c., as described in the plat of survey ordered by the board and returned by Silas Bent, principal deputy surveyor, dated 29th November, 1809.” This survey made by Bent, as appears not only by its calls, but by the subsequent United States surveys and plats given in evidence, includes the land in controversy in this action. The confirmation is according to the survey of Bent, and that survey is according to the concession to Laclede Leguest. Under this survey, the land was patented to Chouteau.

Now it is clear that neither the original title of Laroche, nor any title derived from the estate of Madame Yerdon, formed any part of the basis of this confirmation, nor is either noticed in the proceedings before the board. It appears by the documents filed with Chouteau’s claim, that he had purchased the tract of Laclede Leguest, on which was a mill, as early as 4th July, 1779, and therefore any subsequent purchase of any other part of the same tract was but the ex-tinguishment of an opposing title.

The case is thus presented of a concession and a confirmation of the claim under it, located in the act of confirmation by reference to a particular survey, the confirmation made by the first board of commissioners in 1810, and a patent issued thereon in 1813, and an attempt to disturb the title under this confirmation and patent, on the ground that Chouteau had illegally pui chased the claim of Madame Yerdon to a part of the land, although such purchase was not in any measure the ground of the confirmation. 3.

If the plaintiffs had shown, satisfactorily, that Madame Yerdon owned the tract originally surveyed for Laroche, and had then relied upon the confirmation to Laroche’s representatives, under the act of 29th April, 1816, their case would not have been strengthened, for, as between such confirmation and the previous confirmation of an opposing title by tbe commissioners, tbe law is well settled by numerous decisions of tbe Supreme Court of tbe United States, that tbe elder confirmation is tbe better title both at law and in equity. Tbe doctrine of tbe different causes is summed up in Landes v.

Brant, 10 Howard, 370, in this language : “ According to tbe former decisions of this court, all controversy was concluded by tbe confirmation, as regarded two questions : First, it settled that Glamorgan (tbe claimant before tbe board) was tbe true and proper assignee of Dodier (tbe original grantee) through the various mesne conveyances by which Glamorgan claimed; secondly, that Glamorgan had the oldest and best claim to tbe land, as against every other claimant under tbe Spanish government.

In explanation of our former decisions, it is proper to remark, it is held that, as between two claimants under that government, setting up independent imperfect claims, tbe courts of justice bad no jurisdiction : that, in such cases, it appertained to tbe political power to decide to whom tbe perfect title should issue; and when then this was done, no controversy could be raised before tbe courts of justice impeaching tbe confirmation.” As between tbe Laroche claim, as confirmed by tbe act of 1816, and tbe confirmation of tbe claim of Chou-teau under Laclede Leguest by tbe first board of commissioners, tbe confirmation of Chouteau is not to be disputed.

Nor can any person come into the courts of justice setting up title under tbe Laroche grant, and claim that be shall have tbe benefit of a confirmation which was made upon tbe title of Laclede Leguest, even if be could show that tbe person who owned tbe Leguest title made an illegal or even a fraudulent purchase of tbe Laroche title. Tbe proper department of the government, in discharge of its political duties and obligations, has passed tbe fee in this land to tbe person owning tbe title originally given to Laclede Leguest.

We are not at liberty to say that it shall pass from him to the person owning the Laroche claim. Tbe other ground of defence, the lapse of time, would deserve consideration, and would be passed upon, if enough bad not already been said upon the two points which have been considered.

We hold that there was no such vice in the act of the lieutenant governor, by which Chouteau acquired the land, which was mentioned in the report of sale as the property of Madame Verdón, as to render it void, and, secondly, that Chouteau’s title, confirmed under Laclede Leguest, cannot be disturbed by the plaintiffs claiming under Laroche or Madame Verdón. The judgment of the Circuit Court is, with the concurrence of the other judges, affirmed.