John Catron

“ The legal title being clearly in the plaintiff, the first question arises under the tenth instruction, in which it is submitted there is error.
1st. An exception was reserved to the admissibility of this deed in evidence; because the record of the cause is either imperfect, or, if perfect, it shows the judgment is void.
It is not an erroneous judgment. There could be no jurisdiction without an appearance. The recital in the judgment, 'And now at this day come the parties aforesaid, by their attorney,' &c., is simply surplusage. That could not give life to a void act. ”

“ A defendant's being beyond the jurisdiction of a court is not conclusive evidence that the judgment was void; he may have left behind counsel to defend suits brought against him in his absence, by which means his property could be reached by attaching it; and the proof shows it to be probable enough that such was Clamorgan's condition when the judgment was rendered. ”

“ In Missouri, circumstances are considered sufficient to prove actual notice. Before a jury it would be competent to contend that circumstances made out a case of notice. Possession is one circumstance. A list made out in Clamorgan's handwriting (this lot being omitted) is another. And so on. The gist of the instruction was, that the jury might find from circumstances that the plaintiff had actual notice; not that the circumstances detailed were proof of notice.
A question was made in the court below in relation to the sufficiency of the description contained in the sheriff's deed to McNair. ”

“ The deed is as to Clamorgan in invitum. It is without covenant of any kind, and but a conveyance, against his will, of such title as he then had. He was not bound to perfect it.
5. A deed operates by relation, or enures to the benefit of another, only where he who receives the deed has led the other into an interest in the property, and to avoid injury to that interest from events happening between the creation of that interest and the execution of the deed, or the first and second delivery of the deed. ”

“ If the jury find from the evidence that the defendant, and those under whom he claims, have been in possession of the lot in controversy for twenty years consecutively, prior to the commencement of this suit, and since Apoline Clamorgan and Cyprien Martial Clamorgan, under whom the plaintiff claims, arrived at the age of twenty-one years, that such possession was under a claim of title adverse to the plaintiff and those under whom he claims, then the issue ought to be found for the defendant. ”

“ There was no mode provided by law for substituting for the claimant an heir, devisee, or assignee, who had acquired the right of the claimant after his claim was filed. Clamorgan claimed to be the legal representative of Gabriel Dodier, by purchase from Esther, who purchased from Brazeau, who purchased from Dodier, the original grantee. In July, 1808, the sheriff, under execution, sold the interest of Clamorgan in the land, and executed his deed to McNair, the purchaser. ”

“ Of course the assignee by a bona fide conveyance would come in before a volunteer, such as an heir or devisee. Here the assignee of the devisee is suing the alienee of the devisor. The patent issued in 1845 is the ultimate and conclusive evidence of title in this instance, as the board of commissioners had no power to grant and communicate the fee held by the United States. Their decision was final, to this extent; the officers of government were bound to award the patent to Clamorgan, without any further action on the part of Congress. ”

“ An acknowledgment of a deed relates back to the time of its execution. 8 Ohio, 87. So the confirmation relates back to the filing of the claim.
As to the objection that the lands ought not to have been sold before the goods and chattels. How can that be inquired into collaterally in the case of a sheriff's sale? What has the purchaser to do with the question whether the sheriff has made proper search for goods and chattels before he sells the land? There is no evidence here that there was any personalty at all. ”

“ It is supposed the legal title enured to the benefit of the intermediate assignee of Clamorgan, that is, to the forced assignee, after the claim filed. Upon what principle? Was Clamorgan bound by any legal or moral obligation to perfect the title? The sheriff had sold his possession; no more. Illustrations are drawn from the law of relation, which is supposed to be clearly expouded in the books, and cases are put forth to show its operation; a deed executed in performance of an agreement, a judgment, a sheriff's deed, the acknowledgment of a deed, are put ”

“ In these and like cases, where a man, by his own voluntary act, has passed an imperfect title to another for a full consideration, and afterwards seeks to transfer the property to another, or that interest is sought to be subjected by process to his debts, or he has, after a full consideration received, or under covenant, received a good title, in such case, the law, to prevent injustice, interposes, and by relation secures the title to the first vendee. ”

“ Louis, on Thursday, the 27th day of July instant, between the hours of nine and five, all the right, title, claim, interest, estate, and property, that was of said Clamorgan at the time of his death, in and to a piece or parcel of land, containing one arpent in front by forty arpents in depth, and bounded on the eastern end by a fence formerly made to defend the crops of the inhabitants of St. Louis against the animals or beasts ”

“ The deed from Sheriff Walker to O'Fallon and Lindell is within twenty years of the bringing of the suit. By claiming under that deed, the defendant is estopped to deny that the title was then in the heirs of Clamorgan. 14 Johns. (N. Y.) , 225, and note.
The court had previously ruled these deeds to be good. If they were void, no adverse possession could arise. Yet the whole question of adverse possession was left to the jury.
Adverse possession is a legal idea, admits of a legal definition, of legal distinctions, and is therefore correctly laid down to be a question of law. ”

“ Besides, the land had then been laid off, divided into blocks and squares, and lots, and streets and alleys, and the description was wholly delusive.
3d. The property sold for $33 to satisfy $27.88, leaving a surplus of $512. The property was worth $10,000, if free from encumbrance. It was capable of division, and was, in fact, divided. It was evidently taken in connection with the previous sale under another execution, intended to get up all the interests of all Clamorgan's heirs in all his property within the jurisdiction of the court. ”

“ The material objection to the charge is, that other circumstances taken in conection with the adverse holding were required to exist, in the opinion of the court, and that these circumstances are not enumerated. ”

“ The plaintiff also gave in evidence the last will and testament of Jacques Clamorgan, dated 31st October, 1814, and admitted to probate on the 7th of November, 1814, in which, after the payment of his debts and the distribution of 150 piastres to the poor, he devised all his estate to his natural children, St. Eutrope, Apoline, Cyprien Martial, and Maximin, to be divided into five equal parts, of which Maximin was to have two parts and each of the others one part. ”

“ It was entirely within the power of McNair or O'Connor to have brought this question before them. The transactions were then fresh, and no difficulty would have occurred in adjusting any controversy between them. On these grounds, effect is given to the confirmation to pass the legal title. A conclusive effect is necessarily given to such confirmation, unless it be in cases of fraud and wrong.
If there be an equity in those claiming under the said judgments, it cannot prevail in a court of law as against the legal title ”

“ It had been regularly surveyed, by order of the Spanish government, and the survey was filed with the recorder, according to the act of 1805; Clamorgan had held possession under the claim of Dodier, to the extent of his survey, for more than ten consecutive years, before the 20th of December, 1803 ”