Volume 29 — Missouri Reports

This was a suit for partition of real estate. Tlio court decreed a- partition in kind. Such partition was accordingly made, by the final decree confirming the report of the commissioners. The court also decreed that all costs in the case be taxed against the plaintiffs and defendants according to their respective interests in■ the real estate divided.

This was an action for a forcible entry and detainer. The complaint is substantially as follows: “ The plaintiffs complain and say that heretofore, to-wit, on, &e., at, &c., they were lawfully possessed and entitled to the possession of” certain premises [describing them]; “ that being so lawfully possessed as aforesaid, the defendants, on, &c., at, &c., unlawfully entered upon said lands and tenements, and detained and held possession, and still detain and hold unlawfully…

Charles Circuit Cowrt. I. The court should have found the facts as required by the practice act of 1849. (15 Mo. 400; 17 Mo. 550; 19 Mo. 122; 20 Mo. 132; 24 Mo. 51; 26 Mo. 166, 494; 27 Mo. 418.) I. The finding conforms to the petition. The only allegation in the petition in issue was “ found” by the court in the very language in which it is stated in the petition. If the 'fact is correctly stated in the petition, the same fact is correctly found by the court.

This was an action to recover damages for a trespass in throwing down plaintiff’s fences and exposing his fields so that his crop was destroyed and his stock went astray. The defendant justified on the ground that he was a road overseer and that the fences thrown down were in the public highway. The commissioners who made the location of the road did not call to their aid a survey, and no survey was made.

Demurrer to a petition. From tlie petition it appeared that Nathan H. Mardus died in the year 1853, seized and possessed of certain real estate, leaving a widow, Parmelia Mardus, and children. In 1855 said widow intermarried with Solomon Stickell.

This is an action by Thomas Liney and Juliana his wife, and Sarilda J. Newcome, a minor, against William Martin.

Sullivan Phillips, Presley Phillips and John L. Eoss were indicted for the murder of Eobert G-. Watson. The indictment contained only one count charging murder in the first degree, Sullivan Phillips being indicted as principal in the first degree, the others as aiders and abettors. Sullivan Phillips was put upon his trial first and acquitted. Presley Phillips and Eoss were then put upon their trial and found guilty of murder in the second degree.

Genevieve Circuit Court. This was a suit commenced by attachment by Mason Eris-sell as executor of Nathaniel Cook, who was the surviving administrator of the estate of Thomas Maddin, deceased. The suit was on a promissory note for eight hundred and ten dollars, executed by defendants in favor of Nathaniel Cook and Richard Maddin, administrators of Thomas Maddin. The note was dated July 10, 1839, and was payable twelve months after date.

The facts sufficiently appear in the opinion of the court. I. The parol evidence was inadmissible to vary, limit, qualify or release the obligation of Mays. (1 Greenl. Ev. § 275 ; 1 Pet. 591; 9 Wheat. 587; 8 Mo. 391.) Waltman was not agent for the company. Even if the agreement had been authorized by the company, it would not have been binding. (See 4 Kern. 355.) The agreement was secret between Waltman and Mays, and therefore contrary to public policy and void.

This was a suit by the “ Trustees of the Christian University” to recover certain instalments alleged to be due said University under a contract entered into by defendant, August, 1854.

The facts sufficiently appear in the opinion of the court. I. George Beeler could not legally assign the lease so as to give to defendants the possession or the right of possession. A lease does 'not give possession, but only the right to the possession. An actual entry is necessary. (Meehan v. Wilcox’s Adm’r, 6 Mo. 436.) A tenant has no power to assign his interest in the leased premises without the written consent of the landlord.

Louis Circuit Court. The facts sufficiently appear in the opinion of the court. I. The defendant being alleged and proved to be a corporation could not be a nonresident within the meaning of the attachment law, for the reason that the statute has made separate and express provision for the case of corporations, foreign and domestic. There was no proof tendered that the chief office or place of business of the defendant was not within this state.

This was an action commenced August 18, 1852, by Abraham McPike, as assignee of James McPike, against William Kerr. Kerr dying, his executor was made defendant.

This case was formerly in the supreme court. The decision of the court is reported in 20 Mo. 108. It was an action in the nature of an action of ejectment to recover possession of a tract of forty acres, the south-west quarter of the north-east quarter of section twenty-nine, in township sixty-six, of range seven west.

<p> Error to St. Louis Court of. Common Pleas. </p>

This was a garnishment proceeding upon an execution issued against William M. Perry upon a transcript of a judgment rendered by a justice of the peace. Sarah A. Perry, his mother, was summoned as garnishee. The plaintiff filed allegations and interrogatories.

The plaintiff iii his petition set forth that on the 12th of February, 1857, he entered into a written agreement with the defendant to furnish the materials for and to construct and finish the walls of certain buildings. The stipulations of the contract are set forth, and it is stated that the fronts of the houses were to be built of pressed brick. Eor the work done plaintiff was to be paid at various rates of $8, |8.50,19.50 and $10 per thousand bricks.

<p> Appeal from St. Charles Circuit Court. </p> <p>This was a suit in the nature of a bill iii equity. All parties' claim title to the land in controversy under Jamison Samuel, who entered, and obtained patents for, sections twenty-seven and twenty-eight, in township forty-eight, of range five east. Samuel, by an instrument dated January II, 1886, and recorded June 6,188T, “bargained and sold unto George Shannon, of, <fec., one undivided fourth part of” said sections twenty-seven and twenty-eight. Said instrument, after more particularly describing said sections, proceeds as follows : “And the two sections constitute one body of land, one-fourth part of which I hereby promise and bind myself to convey by deed in fee simple to the' said George Shannon, to be selected on any of the outer lines, the whole fourth to be in one body and in due proportion to the figure of the whole plat of the whole body of land hereby entered. And I promise to make said conveyance whenever I receive patents for the same, or sooner, if said Shannon requires it. In witness whereof,” &c. Shannon mortgaged the interest thus acquired to one Ayres, January 29, 1836. This mortgage was foreclosed, and at the sheriff’s sale under the decree of the court Ayres became the purchaser. The sheriff’s deed to him was acknowledged May 17, 1839, and recorded August 29,1840. Ayres conveyed said interest to Elias T. Langham by deed dated April 29, 1842. This deed was recorded December 20, 1847. Langham, by deed dated August 4, 1848, and recorded'the same day, conveyed the same to his daughter Wenona Langham. This was a voluntary conveyance. In March, 1856, the said Wenona and her husband conveyed said one-fourth interest to the plaintiff Robert H. Parks. The title thus acquired is that asserted in this suit.</p> <p>Said Jamison Samuel, by deed dated June 28, 1839, and recorded June 21, 1841, conveyed to Angus W. McDonald and Kennedy Owens, among other tracts, the following: “ Sections numbers twenty-seven and twenty-eight, in township forty-eight, of range five east, containing each six hundred and forty acres ; these two sections to. be subject nevertheless to the rights in law derived or derivable to the legal representatives of the late Judge Shannon under a certain instrument of writing executed by the said Jamison Samuel unto the said Judge George Shannon, deceased, in his lifetime.” By instrument in writing, dated July 8, 1841, but not recorded, and executed by A. W. McDonald and Elias T. Langham, it was acknowledged and declared that said Langham was interested in said purchase equally with McDonald, and that his name ought-to have been inserted as grantee in the deed from Samuel. On the 25th of April, 1843, McDonald recovered a judgment against Langham in the St. Louis court of common pleas. An execution was issued on this judgment to the sheriff of St. Charles county. Under this execution the sheriff levied upon “ all the right, title, interest, and estate of the said Elias T. Langham in and to” certain tracts of land, a portion of which are described in the sheriff’s advertisement as follows: “ 1st, one section of land (No. 27) twenty-seven, in township number forty-eight (48), range five east, containing sis hundred and forty acres; 2d, one section of land, number twenty-eight (No. 28), in township number forty-eight (48), range five ' east, containing six hundred and forty acres; {The advertisement proceeds to enumerate three other tracts;] being the same property conveyed by Jamison Samuel and wife to Angus W. McDonald and Kennedy Owens by deed dated 28th of June, A. D. 1839, and recorded in the recorder’s office of St. Charles county, in book 0, page 351 and 352.” The sheriff’s deed, which was acknowledged May 14, 1844, and recorded September 14, 1848, conveyed “ all the right, title, interest and claim which the said Elias T. Langham had in and to said several tracts of land” to Angus W. McDonald, adopting the description contained in the advertisement. The defendant Watson claimed title by virtue of various conveyances from McDonald and Owens.</p> <p>The plaintiff prayed that the court would “ decree a fee simple title in the petitioner in and to the one-fourth part of said two sections of land, and have the same set off to him on one of the outer lines of the said two sections of land in one body, according to the aforesaid agreement of the said Jamison Samuel and George Shannon; and that the west half of section twenty-eight above described be set off and allotted to him, the said half section being one-fourth of the said two sections of land, and being in one body, and on one of the outer lines of said two sections of land, and in due proportion to the figure of the whole body of said two sections of land, and for such other and further relief,” &c.</p> <p>The plaintiff asked the court to “ decide that no title to the land in controversy passed to Angus W. McDonald by virtue of the sheriff’s deed of May 13, 1844, except such title as was conveyed to McDonald and Owens by the deed of Jamison Samuel of June 28, 1839.” The court refused so to “ decide, but decided that said sheriff’s deed conveyed to McDonald all the title to said land that said Langham had at the date of the levy of execution on said land, and at the time that the execution came to the hands of the sheriff of St. Charles, derived from any sotirce whatever.”</p> <p>I. The words, in the sheriff’s deed to McDonald, “ being the same property conveyed by,” &c., are restrictive of the general description before given. (5 Mete. 25; 6 Mete. 532 ; 5 N. H. 536 ; 7 N. H. 244; 5 N. JBT. 59; Greenl. Ev. § 286 ; 2 Phill. Ev. 718, 734; Glamorgan- v. Lane, 9 Mo. 475 ; Broom’s Legal Max. 273; 6 Conn. 722; Elagg v. Bean, 5 Foster, 49 ; 1 Dev. 242 ; 14 Penn. State, 29; 11 Barb. 174; 4 Mass. 205 ; 4 Foster, 54; 13 Maine, 430 ; 37 Maine, 63.)</p> <p>I. The court rightly refused the instructions asked. The legal effect of the sheriff’s deed was to pass all Langham’s interest in sections twenty-seven and twenty-eight. (5 Mete. 28; 4 Mass. 196 ; 2 Mete. 41; 6 Mete. 529 ; 36 Maine, 316 ; 31 Penn. State, 475; 2 Parsons on Contr. 59.)</p>

It is deemed unnecessary to set forth the facts more fully than they appear in the opinion of the court.

This was an action under the provisions of the act of December 12, 1855, (R- C. 1855, p. 47,) against the county of Iron to recover damages alleged to have been sustained by the plaintiff by reason of the death of her husband through the gross negligence of the county court of Iron county in not appointing a guardian for and in not confining one Richard Callaway, who had been found, under an inquisition had by said county court, to be of unsound mind and dangerous to be…

This was an application to the supreme court for a mandamus directed to the Board of Commissioners of St. Louis county, commanding said board to allow and order to be paid certain items contained in a fee-bill allowed by the St. Louis criminal court in favor of the clerk of said court. These items consisted of fees charged and allowed in favor of said clerk under the third section of the act of February 12, 1857. (Sess.

The facts sufficiently appear in the opinion of the court. I. The circuit court could not look behind the action of the county court to determine whether that court had acted properly in granting letters of administration. The validity of the grant of letters can not be attacked in a collateral proceeding.

I. The court erred in refusing the instruction asked. (6 How. 550; 1 Smith, 8; 1 Morr. 321; 15 Ohio, 130; 30 Maine, 118.) I. The receipt is no evidence of indebtedness. It is merely a receipt for money; there is no promise to pay, or admission of indebtedness. This is not an action or a written instrument for the payment of money.

<p> Appeal from Warren Circuit Cowrt. </p>

Franpois Circuit Court. The instructions given by the court and referred to below in the opinion are as follows : “ 1.

Charles Circuit Court. Francis Howell instituted suit by attachment against Andrew J. Cosbow and William Coshow, and levied the attachment upon certain slaves. James Bell, Abraham S. Matson and George Murdock interpleaded, ■ claiming said slaves by virtue of a certain deed of conveyance executed by William Cosliow and wife before the date of the attachment.

<p>1. An appeal will not lie under tlie general law of this state hy a county from a judgment of a county court allowing an account against the same.</p> <p>2. This rule applies to the district county court organized under the act of March 1, 1855, (Sess. Acts, 1855, p. 474,) for the counties of Stoddard, Dunklin and Butler.</p>

This was an action to recover possession of certain lands and damages for entering the same and. cutting down and destroying timber, and for digging up and carrying away rock, stone, mineral and gravel, &o. The defendants based their defence upon a condemnation of the land in controversy in certain proceedings instituted in the Washington circuit court in -the name and in behalf of the St. Louis and Iron Mountain Railroad Company against the plaintiff and his wife.

This was an action in the nature of ejectment. The plaintiffs, who are sis of the seven heirs of C. C. Vallé, deceased, claim six-sevenths of one-third less three fifty-sixths of the Mine La Motte tract, containing about 24,000 acres. The case has heretofore been in the supreme court, whose decision is reported in 19 Mo. 454. The cause being remanded, the defendants, the heirs of Thomas Fleming, filed an amended answer.

The petition in this case sets forth substantially that John Hammond, plaintiff’s intestate, became one of the securities of Eli Cadwallader on his bond as guardian of certain minor children; that said Eli died indebted as guardian to said minors in about the sum of $283.72, and did not leave personal property enough to pay his debts; that all the real estate he owned was a certain, tract of one hundred and sixty acres ; that this land was encumbered with a mortgage in favor…

This was a suit commenced in the year 1855 by Miriam Price against the defendants as the heirs of Mrs. Mahala Collins. The facts of the case are briefly as follows: Mr. and Mrs. Collins, in 1853, sold certain lands belonging to Mrs. Collins to the- plaintiff Miriam Price. They executed a deed of conveyance dated February 24,1858, in favor of plaintiff; who was admitted immediately into possession. She gave her notes for the purchase money. Mr. Collins soon after died.

This was an action by Robert A. King and Edmond A. Nickerson against the administratrix and heirs of R. S. Blen-nerhassett, deceased. The plaintiffs in their petition seek to have a certain deed of conveyance made by Nelson Cross to said R. S. Blennerhassett set aside and the title to the land embraced in said deed vested in plaintiffs. The facts substantially are as follows : One Nelson Cross was indicted for murder by the grand jury of Jefferson county.

The facts sufficiently appear in the opinion of the court. I. By the law of Kentucky at the death of Salmons, slaves descended to the heirs, as real estate. The title, therefore, vested in the heirs, and the administrators could acquire no title.' The county court of Lincoln county had no authority to grant letters on the estate of Salmons, he never having resided or owned any property in this state.

Francois Circuit Court. This was an application to the county court for the allowance of a demand against the estate of Luke Davis. The foundation of the demand on a promissory note for one hundred dollars given by said Davis to one Milton Sebastian. This note was given in part consideration of the sale of a female slave named Katy, and was assigned to plaintiff.

This was a suit in the nature of a bill for the redemption of mortgaged property. The plaintiff, John Jamison, prays an account and a decree for a reconveyance of the property alleged to have been acquired and 'held in trust. The facts as they appeared in evidence are substantially as follows: John Jamison, plaintiff in this suit, was collector of the county of Ralls. French Glascock, the defendant, was one of the securities on the official bond of said Jamison.

The facts sufficiently appear in the opinion of the court. I. It was error to permit the witness to detail the statements of plaintiff made in reference to the marks and descriptions of the filly. The court should have given the instruction asked, excluding the evidence so far as it tends to prove title or identity. The court erred in refusing the second instruction asked.

<p>1. No endorsement or written assignment of a promissory note is necessary to enable the holder thereof to maintain an action thereon in his own name.</p>

This was an action against the defendant as endorser of a bill of exchange for five hundred dollars, dated October 24, 1854, at Cincinnati, Ohio, and drawn by Ellis & Sturges in favor of defendant, Thomas Welch, upon the banking-house of Lolcer, Renick & Co., at St. Louis. The bill was endorsed by Welch to plaintiffs. From the notary’s entry on the face of the bill and the protest it appeared that the bill or draft was protested for nonpayment on the 13th of December, 1854.

This was an action against the defendant, Jonathan Tip-ton, a constable- of Monroe township, Lincoln county, to recover damages for an alleged wrongful levy upon certain hogs. The facts briefly are as follows : One Thomas Money, in January, 1849, executed a bill of sale, which was duly recorded, conveying certain hogs to his sister Catherine Money, afterwards married to David Barley and plaintiff in this suit.

Charles Circuit Court. This was an action in the nature of an action of ejectment to recover possession of a piece of land containing one 62-100 acres. Both plaintiffs and defendants claim title under Nicholas Janis, deceased — the plaintiffs by virtue of deeds from the heirs of said Janis, and the defendants under a deed from the administrator of said Janis.

Franpois Circuit Court. The following is a portion of the charge of the court to the jury: “ Murder in the second decree differs from murder in the first degree more in the nature and quality of the evidence necessary in each degree than in the character of the constituent facts pertaining to each; for, in murder in the first degree the law requires that the deliberate purpose to take life or do some great bodily harm should be shown and established by the evidence, and by…

<p>1. The yerdict of the jury should be responsive to the issues made by the pleadings.</p> <p>2. Where an instrument in writing signed by a party is offered in evidence against him to prove facts recited therein, it will not, if otherwise relevant and competent, he rendered inadmissible by reason of an erasure upon it, whether material or not; that circumstance will be open to comment and for the consideration of the jury.</p>

<p>1. The discontinuance of an action as to one or more of several defendants in an action on a contract is not a matter entirely at the discretion of the plaintiff, and the courts should not allow it to he done where it will work injustice by depriving a party of a just defence to the action.</p> <p>2. A. and B. were sued jointly on a promissory note. A. was served person-, ally with process; B. by copy; but the sheriff returned both personally served. They not appearing at the return term, a judgment by default was rendered against both. Afterwards and during the term, the sheriflj upon leave given, amended his return, and it then appeared that B. was served by copy. B. moved the court to set aside the judgment by default, and set forth in his affidavit that he had a meritorious defence and its character. The court sustained the motion, and on motion of plaintiff dismissed the suit as to B. and rendered judgment by default against A. Held, that the court improperly exercised its discretion in permitting plaintiff to dismiss his action as to B.</p>

Frangois Circuit Cou/rt. This was a suit by Jesse R. Evans and James S. Evans against James Gibson.

This was an action on a note given for the hire of a slave for a year. After eleven months of the year had expired, the plaintiff had taken the slave from the possession of the defendant, and had sold her. The defence is based upon this fact.

This was an action for partition of a tract of five hundred and forty arpens of land. The facts are briefly as follows: The plaintiffs Pipkin and Beal claim to be tenants in common with the defendants of said tract. Plaintiffs claim two hundred acres each, leaving forty acres for defendants. David Boyle claimed a settlement and improvement right containing one thousand two hundred and twenty arpens.

The facts in evidence sufficiently appear in the opinion of the court.

Louis Circuit Cowrt. . This was an application in behalf of D. A: January & Co., E. C. Sloan, and Osborne & Tolle, to the St. Louis circuit court, for an order directing JosialvG. McClellan, assignee of the firm of Powell & Co., to appoint a new day for the hearing and allowance of demands not previously allowed, and to give due notice thereof.

The plaintiff by agreement not under seal leased to the defendants a storehouse in the city of Boonville for a term of four years from the 14th of February, 1856.

I. The petition does not allege that the contract between plaintiff and defendant was in writing. (22 Mo. 334 ; Statute of Frauds.) It does not allege that plaintiff took possession of the land with the consent of defendant, nor that he made lasting and valuable improvements. There was nothing to take the case out of the statute. (2 Mo. 126 ; 20 Mo. 86.) The finding of the facts does not warrant the judgment.

This was an action to recover the sum of $1,487.13 alleged to have been awarded to plaintiff as the value of certain improvements made by plaintiff upon the grounds of the defendant. It was proved that the arbitrators who made the estimate of the value of the improvements were selected by the plaintiff and by Alexander Douglass and C. S. Stone, who were members, it appeared, of the board of trustees of defendant.

The facts sufficiently appear in the opinion of the court. I. Fresh fish are not wild game within the meaning of the ordinance. II. This is not such a case as will warrant the issuing of a writ of prohibition. We have no statute regulating the remedy by prohibition. .(Seel Chitt. PI. .444.) The suit will not lie to prevent a court from deciding erroneously, nor from enforcing an erroneous judgment.

This was an action by Leonard Klein and Margaret Klein his wife, against Jacob Laudman and Christina Laudman his wife, for slanderous words spoken of and concerning the plaintiff Margaret Klein.

The facts sufficiently appear in the opinion of the court. I. The plaintiff must recover, if at all, upon the case made in his petition. This petition contains no allegation that defendants were partners when the note was executed. There was no such issue raised by the pleadings. The facts in evidence did not establish a partnership. The instructions given were erroneous. I. The only issue was as to the partnership. Frampton was a partner of Stephens.

The defendant was indicted by the name of William Shucker. He appeared and pleaded that his name was William Schricker, and prayed to be discharged. The court, at the instance of the circuit attorney, entered the name of William Schricker on the minutes of the court and the trial proceeded against him according to the provisions of the twenty-fifth section of article four of the act regulating practice in criminal cases. He was convicted.

jError to Moniteau Circuit Covert. The facts sufficiently appear in the opinion of the court. I. The court erred in overruling the demurrer. Howard, having paid the tax of the state, was substituted in place of the state, and had a year from that time to collect the money in. He was collecting for himself, not for the state ; he was not accountable to the state for what he collected. His legal representatives were entitled to the same as assets of his estate.

<p>1. In proceedings under the act relating to insane persons to subject the person and estate of an alleged lunatic to control of a guardian and the county court, the alleged insane person should have notice of the proceedings, or the county court should cause him to he brought before the court, or it should appear upon the record of such proceedings why such notice was not given or such attendance required.</p> <p>2. Where a guardian of an insane person has been appointed by a county court, and the guardian has under the sanction of the court sold the land of such insane person, the validity of this sale can not be called in question in a collateral proceeding on the ground that notice of the inquisition was not given to the alleged lunatic.</p> <p>8. Where a guardian of an insane person has been appointed by the county court, and the lunatic afterwards applies to the court to be relieved from, the custody of the guardian on the ground that he has been restored to reason, this will be taken as an admission that the proceedings against him were valid, and he can not afterwards object in a collateral proceeding that the inquisition was irregular and void for want qf notice to him.</p>

The following is the entire bond sued upon: “ Know all men by these presents, that we, John H. Hill, as principal, and William B. Short and George Stucker, as securities, are held and firmly bound unto James R. Ham in the just and full sum of fifteen hundred dollars, for the just and full payment' whereof we bind ourselves5 our heirs, administrators and assigns firmly by these presents.

Mahan, the plaintiff in this suit, obtained a judgment against one Williams. Upon this about sixty dollars were due. The constable garnished a debt due Williams for eighty dollars. He also levied upon a horse valued at sixty dollars, and some other personal property, all of which, including the horse when appraised, did not amount in value to one hundred and fifty dollars.

This was an. action originally commenced before a justice of the peace to recover damages for a wrongful levy upon and sale of a horse. The defendant justified the alleged trespass, setting up that he made the levy and sale under and by virtue of a warrant and rate-bill issued by a board of school trustees. The plaintiff offered to show that by agreement the property of certain persons was not taxed; that they voted for the levy of the tax. This was excluded.

<p>1. The words “ die without issue” in a bequest of chattels, made in this state prior to 1845, when used alone as designating the contingency upon which a limitation over by way of executing- a bequest is to take effect, mean an indefinite failure of issue, and the contingency consequently being too remote the limitation over by way of executory bequest is void.</p> <p>2. In order that other additional expressions in the ■will may override this well settled meaning of the words “ die without issue,” and make them mean a definite instead of an indefinite failure of issue, they must point incontestably and unequivocally to the death of the first taker as the period contemplated by the testator when the limitation over should take effect.</p> <p>3. A testator dying in 1832 bequeathed to his daughter Charity a horse, saddle and bridle, feather bed, a cow and calf, and a female slave; the will contained this further provision: “ But here be it fully understood, that if my daughter Charity should die without issue, then and in that case what I have willed and bequeathed to her, it is my will and pleasure that it be given by [my] executors to my daughter Mahala, to be enjoyed by her and her heirs forever.” Held, that the limitation over by way of executory bequest was void as being upon a contingency too remote, an indefinite failure of issue.</p>

The pardon pleaded in bar by the defendant was granted pending the indictment. I. The governor has power to grant pardons before conviction. (Const, of Mo., art. 4, § 6 ; State v. Sloss, 25 Mo. 291; 4 Black. Com. .395, 401; 1 Bish. Crim. Law, § 705 ; 1 Kent Comm. 284; 18 How. 310; 1 Hawk. P. C. 553; Story on Const. § 1509; 7 Pet. 150; Baldw. O. C. 91; 1 Opinions of Att’ys General, p. 341; 2 id. 230.) The plea in bar is good. (1 Archb. C. L. 114; 1 Chitt. C. L. 469.)

It is deemd unnecessary to set forth the facts more fully than they appear in the opinion of the court. I. The charge of adultery made by a husband against a wife is such an indignity as will authorize a divorce. (19 Mo. 355 ; R. C. 1855, tit. Divorce ; 5 Blackf. 81.) Although .plaintiff remained with defendant after the charges of infidelity, it does not amount to a condonation.

The facts sufficiently appear in the opinion of the court. I. McClelland admitted the agreement as charged., It was therefore not void. Blew had no right to insist upon the statute of frauds. He has stated what, the contract was. (McGowen v. West, 7 Mo. 569; Farrar v. Patten, 20 Mo. 88.) McClelland has admitted the important facts as stated. McClelland’s having received the insurance money does not affect his rights. (2 Amer.

This was a suit upon the following due bill or promissory-note : “ February 8,1855.

<p>1. Smith’s Administrators, ante, p. 307, affirmed.</p>

The facts sufficiently appear in the opinion of the court. I. The court should have granted the instruction asked. The action being founded on tort and not on contract the defendant was bound to use only ordinary care and prudence. (Ready v. Steamboat Highland Mary, 17 Mo. 461.) The action against a boat as such must be founded on contract. (R. C. 1855, p. 304.) The rigid rules applied against common carriers do not apply to actions against boats.

The facts of this case, so far as it is necessary to set them ■ forth, are briefly as follows: In 1841 one Jonas Heath sold the land in controversy to one Peter Ashley. Ashley did not pay the whole of the purchase money. Both Heath and Ashley died. Heath’s administrator brought suit against Ashley’s administrator to recover the balance of the purchase money. He recovered judgment.

<p> Error to Macon Circuit Court. </p> <p>The facts sufficiently appear in the opinion of the court.</p> <p>I. When the company had run the line of the road on the route indicated and permanently located it, it “ passed” through the county on the route indicated within the meaning of the agreement. (Central Plank Road v. Clemens, 16 Mo. 359; Pacific Railroad v. Renshaw, 18 Mo. 210; Hannibal Plank Road Co. v. Menafee, 25 Mo. 547; Redfield on Railways, 74 ; McMillan v. Lexington and Marysville R. R. Co. 15 B. Monr. 218 ; State v. Collins, 6 Ohio, 61; 18 Mo. 562 ; 9 Watts, 458 ; 27 Penn. State, 261 ;• Henderson and Nashville R. R. Co. v. Lavelle, 16 B. Monr. 358; 7 Ind. 407.)</p> <p>I. The passing through of a permanent location is not the passing through of the road. Of what interest could it be to secure the location of the road at a particular place without reference to whether it would be built or not ? The defendant intended to secure to himself the benefit of a railroad built and in operation.</p>

This was an action originally commenced before a justice of the peace upon the following accountSamuel 0. Rice, to Richard J. Brown, Dr. To amount which the said Rice, in January, 1859, promised to pay upon the said Brown’s leaving the Barton farm, $23.” At the trial in the circuit court the defendant asked the court to instruct as follows: “3.

It is deemed unnecessary to set forth the facts more fully than they are stated in the opinion of the court. I. The court should have sustained the motion asking the court to instruct the jury to retire and make up their verdict respecting the liability of two of the defendants, James and Simon Helm. (26 Mo. 586; Sess. Acts, 1857, p. 181.) The declarations made by Jacob Helm were not evidence as against the others. They were made after the dissolution of the partnership.

This was an action by two of the children of David Prof-fitt, deceased, against John H. Henderson.

This was an indictment founded upon the fifty-fourth section of the eighth article of the act concerning crimes and punishments. The sixth and seventh sections of the act incorporating the town of Bolivar are as follows: “ Sec. 6.

The facts are sufficiently set forth in the opinion of the court. I. The courts will take cognizance of cases like this brought up by certiorari. (27 Mo. 322.) These proceedings are before the judge ex officio, not before the court, either in or out of term. The judge had no right to order four views of the land, nor to appoint the same viewers twice, or to order them to make a second report. The first report of Morrow, Gipson & Morrow should have been permitted to stand.

<p> Appeal from, Kansas City Court of Common Pleas. </p> <p>The facts sufficiently appear in the opinion of the court.</p>

The facts sufficiently appear in the opinion of the court. The petition should have been granted. The defendant never appeared to the action. The petition sets forth all the facts required by the statute. The motion to set aside the interlocutory judgment was not an appearance. There was no negligence on the part of defendant.

The facts sufficiently appear in the opinion of the court. I. The deposition of Mockbee was improperly read in evidence. I. The testimony of the defendant Mockbee shows conclusively that when the deposition was taken he was beyond the jurisdiction of the court. The presumption is that he continued beyond the court’s jurisdiction. It devolved upon the defendant to show a different place of residence.

On the 27th of April, 1858, one Murray gave James H. Moss a power of attorney to confess a judgment against him in favor of Roger E. Harding, George 0. Kimbrough and Richard F. Toomer. At tlie April term, 1858, of tlie Clay circuit court, a judgment was confessed under this power. The affidavit on the part of the plaintiffs in tlie judgment, Harding, Kimbrough and Toomer, was made by their agent Thomas McCarty.

The facts sufficiently appear in the opinion of the court. I. The demurrer should have been overruled. The petition is not multifarious. (Sto. Eq. PI. § 285, 286, 531, 540; Adams Eq. 309, 310 ;■ Brinkerhoff v. Brown, 6 Johns. Oh. 368; Bigbee v. Sargent, 23 Maine, 269; Dimmoch v. Bixley, 20 Pick. 368 ; Curtis v. Tyler, 9 Paige, 432; Gaines v. Chew, 2 How. 619 ; Oliver v. Pratt, 3 How. 411; 4 Mo. 116 ; Bray v. Thatcher, 28 Mo. 129; Martin v. Martin, 13 Mo. 36.) II.

This was a suit commenced in the year 1853 by Jacob Ragan, F. P. McGee, William Gillis, Robert Campbell, and William B. Evans, against John 0. McCoy and the unknown heirs of Henry Jobe, deceased. William B. Evans dying, his heirs were made parties plaintiff. The suit was originally commenced before the Jackson circuit court. It was transferred by change of venue to Clay county.

This was an action to recover damages for the sale of plaintiff’s land by the defendant, as sheriff of Buchanan county, by virtue of an execution.

This was an action in the nature of an action of ejectment against Tarlton Barnes, Philip Barnes and Samuel Ash-lock, to recover possession of the south-west quarter of section fifteen, township forty-seven, range eleven. The defendants denied joint possession, and asserted several and adverse occupancy. The plaintiff, in support of his title, introduced transcripts of entries at the land office.

I. The court erred in refusing the instructions asked by plaintiff. The liability of the defendant is placed in these instructions upon two grounds : 1st, ratification or adoption of the act of Norris in signing his name to the note; 2d, fraud committed by Spenny in inducing the plaintiff to believe that his signature was genuine, whereby she was misled to her prejudice. There was evidence showing a ratification or adoption. (See 1 Am. Lea.

It is sufficient to state, in addition to the facts stated in the opinion of the court, that the court, at the instance of the State, gave the following instructions bearing upon the second count of the indictment: “ 2.

This was an indictment founded upon the 39th section of the second article of the act concerning crimes and punishments. I. The indictment is sufficient. (Jennings y. State, 9 Mo. 852; State v. McGrath, 19 Mo. 679; 11 Mo. 582.)

<p>1. Parol evidence is inadmissible to show that a note absolute on its face is-payable at a time different from that stated therein.</p>

The thirteenth and fourteenth sections of the act of Indiana of February 4, 1831, are as follows : “ Sec. 13.

Appeal from Phelps Circuit Court. It is deemed unnecessary to set forth the facts more fully than they appear in the opinion of the court.

In 1858 Edmund Pemberton, tbé husband of Jane Pem-berton, the plaintiff, died, haying made a will, which substantially is as follows: “Know all men, &c., that I, Edmund Pemberton, of, &c., do this 29th day of April, 1853, make my last will and testament as follows: First, my funeral expenses and all my just debts to be paid; second, I will and bequeath to my wife Jane Pemberton a certain portion of my land, commencing, &c., [describing a tract of about eighty-six acres,…

I. The indictment is defective. . It does not state to whom the liquor was sold; nor does it say to some person to the jurors unknown. I. The name of the person to whom the liquor was sold need not be stated in the indictment. (Page v. State, 6 ' Mo. 205; State v. Ladd, 15 Mo. 430; State v. Miller, 24 Mo. 532.) ' . ~'

The facts are set forth sufficiently in the opinion of the court. I. The indictment is sufficient. The evidence offered by the defendant was clearly irrelevant. The instructions as a whole present the law of the case fairly before the jury.

This was an indictment for a felonious assault with intent to kill. The defendant moved the court to quash the indictment because it was not alleged that the offence was committed on purpose and of malice aforethought. The motion was overruled.

<p> Error to Webster Circuit Court. </p>

This was an. application to the probate court of Wright county for the allowance of a demand against the estate of John M. Gorman, deceased. From the record -of the proceedings of the probate court it appears that the plaintiff and the administrators appeared and submitted the cause to the court, and that judgment was rendered for the defendants. An appeal was taken to the circuit court.

This was an action to recover tbe value of carpentry work alleged to have been done by plaintiff for defendant.

This was an action to recover the sum of one thousand dollars alleged to have been loaned to the defendant at divers times in the month, of August, 1858. The defendant in his answer proceeded as follows: “ Defendant denies, except as hereinafter stated, that he is justly indebted in the sum of one thousand dollars for money lent by plaintiff to defendant at various times.

This was an action. for the speaking of slanderous words. The petition contains two counts.

Appeal from Neioton Circuit Court. The facts sufficiently appear in the opinion of the court. I. The court erred in refusing the instructions asked.

This was an action to adjust and settle the accounts of a partnership that had formerly existed between plaintiff and defendant. This suit was commenced April 4,1853. It alleged a partnership between plaintiff commencing in 1837 and ending by a dissolution by mutual consent on tbe 5th of March, 1841.

This was an action for the possession of land. The defendant claims to be the owner of the land, and justly entitled to the possession thereof by virtue of a purchase from plaintiff through one Cleek, his agent. It is alleged that plaintiff gave Cleek a power of attorney, which it was erroneously supposed gave him authority to convey land, it being the verbal understanding of the parties that he was authorized to sell and convey plaintiff’s lands.

The following is the finding of the facts by the court: “ Now at this day this cause came on to be heard by the court on the pleadings, exhibits and proofs, and the court, being sufficiently advised, doth find that the debt due by the McDonalds and Adams to Robert Campbell, one of the defendants, to secure which the deed of trust of Thomas D. S. McDonald and wife to Elijah Cody, Alfred H. Foster and John T. Baker prayed to be set aside was executed, was satisfied by Adams…

The 'facts sufficiently appear in the opinion of the court. I. The act of 1855 does not confine the time for filing pleadings to the hours the court is in session. (R. C. 1855, p. 1235, § 24, 26.) It is clearly in the power of the court to grant leave to file pleadings at a different time from that specified by the practice act. The court abused its discretionary power in refusing to permit defendant to file his answer. I. There was no motion to set aside the judgment.

This was an application for the allowance of a demand against the estate of John Sexton, deceased. The demand was founded on a judgment rendered against said John Sexton in his lifetime, in the state .of Indiana. The probate court of Barry county allowed tbe demand and placed it in the fourth class of allowed claims. An appeal was taken to the circuit court by the administrator.

The facts sufficiently appear in the opinion of the court. ■ I. There was no legal authority to file the amended answer with the clerk in vacation. The court ought to have sustained the motion to strike it out. The court ought not to have rendered a decree upon the amended petition, nor upon the original petition until the demurrer thereto had been disposed of. I. The court by its action sustained the filing of the answer in vacation without previous leave.

This was a suit, as originally instituted, by Thomas Riddles against John H. Aikin to recover the sum of two hundred and fifty dollars, alleged to be due and owing to plaintiff.

<p>1. The supreme court will not grant new trials on the ground that verdicts are against the weight of the evidence.</p>

I. Martin’s indebtedness was a good set-off against the note sued on to his use. The admissibility of the set-off depends not upon who are the nominal parties to the suit, but upon who are the real parties in interest. (2 Parsons on Contr. 244, 251; 4 Wash. C. 0. 93; 7 Gush. 217.) The set-off being due to one of the defendants does not affect the case.

This was an action to recover damages for the loss of a watch alleged to have been left with, the defendant, a watchmaker and jeweller, for repairs. Plaintiff alleged that the watch, through the carelessness and negligence of the defendant, was lost, destroyed or stolen.

It is sufficient to state, in addition to the facts stated in the opinion below, that Canefox stated on cross-examination that he agreed with Gott that he would pay back the purchase money of the horse, and that Gott was to commence this action and prosecute it for the benefit of Canefox; that he (Canefox) was to pay all costs that might accrue, and have whatever might be recovere'd; that he afterwards did pay back the said purchase money.

This was an action on a promissory n'ote for $663.33. The deféndant in his answer admitted the “execution” of the note set out in the petition, but set tip-by way of defence that the same was proved by falsehood’and fraud.

Circuit Court. This was an action commenced before a justice of the peace. An appeal was taken to the circuit court. The facts as they appeared in evidence are as follows : Plaintiff in 1858 kept a hotel in Iowa city, Iowa. One Mrs. Acor boarded with him. When Mrs. Acor was on the pointof leaving, the plaintiff presented her bill, and told her she could not remove her trunk from the room she occupied until the bill was paid.

<p>Appeal from Wright Circuit Court.</p> <p>It is deemed unnecessary to set forth the facts more fully than they appear in the opinion of the court.</p>

<p>1. If the bond filed by a plaintiff in an attachment suit be insufficient, he has a right to file another. (B. C. 1855, p. 242, § 9.)</p>

The facts sufficiently appear in the opinion of the court. I. The only point raised in the court below and for decision here is as to the assessment of dámages upon the breach “ to prosecute the action with effect.” (See Berghoff v. Heckwolf, 26 Mo. 512; Morris on Replevin, 590 ; Brown v. Parker, 5 Blackf. 291; Rol van v. Stratton, 2 Bibb ; Gibbs v. Bartlett,'2 Watts & Serg. 29 ; Waterman y. Yea, 2 Wilson, 42; Perrean v. Beran, 5 Barn. & Cress. 284.) Any judgment wliicli is…

Appeal from Dade Circuit Court. I. It is not necessary to set forth in the indictment the particular kind of liquor sold. (6 Blackf. 105, 554; 28 Pick. 275.)

- Appeal from Andrew Circuit Cowrt. This, as originally instituted, was a suit against Robert C. Mosely by William N. Thompson and eleven others, including Sinclair K. Miller and Benjamin E. McCart.

This was an action to recover the sum of 13,195.89 alleged to be due plaintiff as a balance for work and labor done and materials furnished in constructing and completing certain work upon the Hannibal and‘St. Joseph Railroad under a contract entered into between plaintiff and defendant in April, 1856. The defendant was a contractor under John Duff & Co. The plaintiff was a subcontractor under defendant.

<p> Error to St. Louis Circuit Court. </p> <p>The facts in evidence are sufficiently set forth in the opinion of the court. The following instructions asked by the plaintiff were refused :</p> <p>1. If the jury believe from the evidence that there was no grant, concession or survey of any land south of the river Des Peres as commons for the village of Carondelet, nor any use of land there for that purpose, under and by the authority of the Spanish government, then the act of Congress of June 13,1812, and of 1831, did not confirm any land there as commons.</p> <p>2. The reply of Zenon Trudeau to the petition of Ga-maehe dated December 7, 1796, given in evidence by plaintiff, is no grant or concession of any land to the inhabitants or village of Carondelet for commons.</p> <p>3. The jury are instructed that there is no evidence of any use of any land south of the river Des Peres as commons, under and by authority of the Spanish government, by the inhabitants of Carondelet prior to December 20,1803.</p> <p>4. No grant, concession or order of survey of any land south of the river Des Peres as commons for the village of Carondelet having been shown, nor any use of land there as commons, and the survey of the United States of said commons not having been finally approved by the United States until the 23d day of February, 1855, the jury are instructed that the confirmation of the claim of Gabriel Cerré by act of 4th of July, 1836, and surveyed by the United States as United States survey No. 3067, is a better title to the land within the limits of that survey than any derived from Carondelet.</p> <p>5. If the jury find from tbe evidence that Gabriel Cerré, or those claiming under him, inhabited, cultivated or possessed a tract of land of ten by forty arpens conceded to said Cerré on the 15th of March, 1789, or some portion thereof claiming the whole, in the year 1796 and prior to the 20th of December, 1803, and that the same land was confirmed by act of Congress of the 4th day of July, 1886, and surveyed by the United States as survey 3067, then the said confirmation and survey are a better title to the land within the limits of said survey than any derived from Carondelet shown in this case.</p> <p>6. The jury are instructed that as no grant, concession or survey under the Spanish government for any lands as commons for the village of Carondelet south of the river Des Peres has been shown, and as the survey of the commons of Carondelet was not finally approved by the United States until the 23d day of February, 1855, the claim of Gabriel Cerré, confirmed by the act of Congress of 4th July, 1836, and surveyed by the United States as survey No.’ 3067, is a better title to land within the said Cerré survey than any derived from Carondelet, unless the jury should find that the land within the limits of said Cerré survey was used as commons by the inhabitants of Carondelet prior to the change of government.</p> <p>7. The jury are instructed that the confirmation to Gabriel Cerré by act of July 4, 1836, and the survey thereof by the United States as survey No. 3067, conveys a better title to the land within the limits of that survey than any derived from Carondelet, unless the jury should be satisfied from the evidence that the inhabitants of said town used the land within the limits of said survey prior to the change of government as commons of said town and subsequent to the date of said concession to Cerré.</p> <p>8. The survey given in this caáe, the certificate of which bears date the 8th of October, 1855, is the only valid and subsisting survey of the commons of Carondelet, and by the terms of the approval of said survey it can have no force or effect against the rights of those deriving title nnder the confirmation to Gabriel Cerré by the act of Congress of 4th July, 1836, and survey of the United States No. 3067 of said Cerré’s confirmation; and, as the claim of the inhabitants of the town of Carondelet as filed before the recorder of land titles and exhibited before the board of commissioners was for six thousand arpens in quantity and not by extent or boundary, if the jury find from the evidence that said concession in evidence was granted on the 15th day of March, 1789, by Lieut. Governor Perez, and that the land embraced therein was inhabited, cultivated and possessed in the year 1796, and afterwards prior to the 20th day of December, 1803, (or some part thereof claiming the whole,) by Gabriel Cerré or those claiming under him, and that said land was confirmed to said Cerré or his legal representatives by act of 4th July, 1836, and surveyed by the United States as survey No. 3067, then the jury are not authorized to find that said land is any portion of the land confirmed to the inhabitants of Caronde-let as commons.</p> <p>9. The surveys of the Carondelet commons as made by Rector and Brown were disapproved by the commissioner of the General Land Office and by the proper authorities of the government of the United States ; and if the jury find from the evidence that the final approval of the said surveys of Brown and Rector, by the Secretary of the Interior in 1855, excluded from said surveys 1702.04 acres of land reserved for the use of the military post at Jefferson Barracks — and further provided that the parties claiming adversely to Ca-rondelet should not be hindered, by reason of said survey, or the approval thereof, from establishing and settling their right before the judicial tribunal of the country — and that the survey made under the said final approval of said surveys expressly declared that, as regards the rights of all other claimants within the limits of said survey of the commons aforesaid, who hold adversely to Carondelet, should not be construed to interfere with the rights of such adverse claimants to seek a judicial settlement of their several interests — ■ and if the jury further find that plaintiff was an adverse claimant to Carondelet of the premises in question under the grant to Gabriel Cerré — and that said grant was confirmed to the said Gabriel Cerré and his legal representatives by the act of July 4, 1886 — and that a survey thereof was made by the United States embracing the premises in question in the year 1838 and duly approved — and that said Cerré possessed, inhabited or cultivated the said tract of land, or any part thereof claiming the whole, prior to the 20th day of December, 1803 — then the surveys of Rector and of Brown of the land claimed as commons for Carondelet south of the river Des Peres are not, nor are either of them, conclusive against the plaintiff; and unless the jury find from the evidence that the inhabitants of Carondelet used or possessed the premises in question prior to the 20th of December, 1808, as commons belonging or appertaining to said village of Carondelet, the plaintiff is entitled to recover in this action.</p> <p>10. The survey of the Carondelet commons made under the final decision of the Secretary of the Interior of 1855 is not conclusive against the claim of the plaintiff under the confirmation of 1836 and the survey of 1838 ; and if the jury find from the evidence that plaintiff was an adverse claimant against Carondelet of the premises in question, under the grant to Gabriel Cerré, and that said Cerré inhabited, cultivated or possessed the said tract of land, or any part thereof claiming the whole, prior to the 20th day of December, 1803, then the plaintiff is entitled to recover, unless the jury further find from the evidence that the inhabitants of Carondelet used or possessed the premises in question prior to the 20th day of December, 1803, as commons belonging to or appertaining to said village of Carondelet.</p> <p>11. If the land in the possession of defendant at the commencement of this suit was part of a tract of land conceded to Gabriel Cerré on the 15th day of March, 1789, by Lieut. Governor Perez, and that claim to said tract was confirmed to Gabriel Cerré or his legal representatives by act of Congress of July 4,1836, then the title under said confirmation is a superior title to the land thus confirmed to any derived under the inhabitants of Carondelet, unless the jury should find that said tract became vacant land prior to December 7, 1796.</p> <p>12. If the jury find from the evidence that the premises in question, or any part thereof under claim for the whole tract, was inhabited, cultivated or possessed prior to the 20th day of December, 1803, by Gabriel Cerré, under the grant to him of 1789, or otherwise, then the inhabitants of Carondelet did not become vested with any title to the same land as commons belonging to said village, unless prior or subsequent to said inhabitation, cultivation or possession of Cerré, they used or possessed the same premises as commons belonging to or appertaining to said village prior to the 20th day of December, 1803.</p> <p>13. The certificate of Soulard dated in 1806, read by defendant from transcript of the claim of Carondelet as presented before the board of commissioners, is no evidence of the facts as therein stated.</p> <p>14. The testimony of witnesses for defendant as to declarations of deceased persons relative to the extent of the claim of commons and use of the land for the same is no evidence of title in this case, nor that the land was passed by the confirmation of the act of 13th June, 1812, nor any evidence of an inchoate title such as was confirmed by the act of 1812.</p> <p>15. The confirmation of the claim of the inhabitants of Carondelet to commons, as presented to the board of commissioners, is not more extensive than the claim; and if the claim to the six hundred arpens as asserted before the board of commissioners can be satisfied without interfering with the laud claimed before the board by Gabriel Cerré, and after-wards confirmed by act of Congress of July 4, 1836, then the plaintiff is entitled to recover for such land as he may have proved the defendants to have been in possession of at the date of this suit within the limits of the United States survey of said confirmation given in evidence by plaintiff.</p> <p>16. Actual, open, notorious, adverse possession of a tract of land, or parcel of the same, for twenty consecutive years, claiming to own the same, vests an absolute title in such possessor to the land so possessed. If the jury find from the evidence that the plaintiff has had such possession of the premises sued for, for twenty consecutive years ending at any time within twenty years before the commencement of this suit, they will find for the plaintiff.</p> <p>17. If the jury find from the evidence that the plaintiff entered into a part of the tract of land of four hundred arpens known as the Cerré tract under a claim of title thereto by a recorded deed from Gallatin to him, his entry and possession are referred to such title, and he is deemed to have a seizin of the land coextensive with the boundaries stated in the said deed, unless there is an open, adverse possession of some part of said land so described in some other person. Therefore, if the jury find from the evidence that the plaintiff entered into said premises after the execution of said deed, and actually occupied a part thereof, in person or by his tenants, claiming to own the same, for twenty consecutive years, claiming the whole of said tract, and that such possession was open, notorious and adverse to all persons, then the jury will find for the plaintiff.</p> <p>The defendant asked the court to give the jury the following instructions: “ 1. The inhabitants of Carondelet were confirmed in their claim to commons by the act of Congress of 1812 and 1831. 2. The notice of claim of said inhabitants, as filed with the recorder of land titles and exhibited before the board of commissioners, is'evidence of the extent of the said claim to commons. 3. If the claim of the plaintiff is included within the boundary of the lands confirmed to the town of Carondelet by the acts of 1812 and 1831, then the jury must find for the defendants, because those acts passed the title to the land in controversy to the inhabitants of said town. 4. The said acts of 1812 and 1831, and the survey of the commons of Carondelet exhibited here to the jury, are equivalent to a patent for the lands included within such survey. 5. The survey of the commons of Ca-rondelet made in 1817 by Rector is a legal and valid survey of the said commons. 6. The resurvey of the said commons as made by Joseph C. Brown retracing Rector’s lines, and approved by Elias T. Langham, surveyor general for Missouri, was a legal and valid survey, and located the land confirmed by the acts of 1812 and 1831 to the inhabitants of Carondelet. 7. The survey of the commons of Carondelet having stood legally approved at the passage of the act of July 4, 1836, the plaintiff took no title to any land by virtue of his confirmation, but had merely a right to locate the same quantity of land upon the public domain. 8. The documents read in evidence by the defendant are evidence to show the extent and location of the claim of Carondelet to commons at the dates of said documents respectively. 9. If under the Spanish government and down to June 13,1812, the inhabitants of Carondelet had used and claimed the land since surveyed as commons, such user and claim is evidence of the extent of the claim as confirmed.” The court refused to give these instructions.</p> <p>The court, on its own motion, then gave the following instruction: “ If the land in controversy is within the survey of the commons of Carondelet made by Rector in 1817 and that made by Brown in 1834, the plaintiff is not entitled to recover in this action.” This was the only instruction given — all instructions offered on either side being refused.</p> <p>The jury found for defendant.</p> <p>Mr. Shepley, in a written brief, presented the following points :</p> <p>I. As to those portions of the common of Carondelet not included within the Barracks reservation and the confirmations and surveys under the act of July 4,1836, 1 admit the title of Carondelet is perfect, and the United States and Carondelet are both estopped to deny that, excluding those portions, the survey is conclusive of the boundary and extent of the commons. The question is, what is the condition of those portions confirmed by the act of 1836, and surveyed shortly afterwards, and incidently of the Barracks tract? Carondelet released only a portion of the 1702 acres reserved, and which is expressly excluded by the Secretary of the Interior in 1855. Up to the approval of Brown’s survey, October 8,1855, there was no valid approved survey of the commons of Carondelet; as far as the land in controversy is concerned, Carondelet is in no better situation now. The land was already confirmed and surveyed to us. The question whether a survey is approved and when and how, and whether at any time it is a valid and subsisting survey, is a question of law to be determined by the court.</p> <p>II. The evidence conclusively showed that the field notes made by Rector in 1817 were not a survey of any confirmation of commons. There was no authority at that time to make any such survey ; no instructions ever issued. It was a loose scrap of paper not signed by any one. It was never paid for. It was imperfect; it never could have been examined and approved. There was no plat accompanying the field notes, and no plat ever made in the surveyor general’s office. It was made to subserve a private purpose. It has never been set up as a valid survey until the question arose as to whether the action of the government in disapproving Brown’s survey was done in a reasonable time. It differs in many particulars from Brown’s survey, and Brown’s is the only survey that is or ever was recognized as a subsisting survey. It never was sent to the commissioner of the General Land Office, and never referred to in the correspondence between the surveyor general and that office. Part of it was sectionized.</p> <p>III. The surveys made and returned to the office of the surveyor general are subject to the .supervision and amendment of his superior at the seat of government. (1 Land Laws, p. 11, 50, 70, 96, 104,132,189, 211, 278 ; Act of July 4, 1836; Menard v. Massey, 8 How. 294; Guitard v. Stod-dard, 16 How. 512.)</p> <p>IY. That control was exercised. Brown’s survey was disapproved of by tbe department at Washington in. 1853 ; and as Brown’s survey never has been approved, it was exercised in a reasonable time, within a few months after the plat was returned to the Land Office. From 1839 there has been a steady resistance on the part of the department against allowing that survey to stand in its integrity. In 1853 it stood as a rejected survey by the tribunal of last resort.</p> <p>Y. The present approved survey of Carondelet is not an approved survey so far as the Jefferson Barracks tract and the interferences with confirmations are concerned. It includes within its lines the Barracks tract and the confirmed claims. A controversy is still going on and unsettled as to a portion of the reservation of the Barracks tract. The conveyance made by Carondelet omitted p, considerable part of the tract. The effect of the present survey, as it stands approved, is precisely as if the Secretary of the Interior had directed the surveyor general to run the lines so as to leave out the Jefferson Barracks tract and the confirmations. That evidently was the intention in effect; but as, in practice, it could not be effected, owing to some of the confirmations being in the midst of the tract which the United States were willing to give to Carondelet, the only thing that could be done, and give to Carondelet the title to that about which there was no interference, was to make it general and except out certain tracts from its effect.</p> <p>YI. Even if the legal effect of the approval be to set up Brown’s survey as the survey of the Carondelet common without exception or exclusion of any tract within its limits, yet it is an approved survey only from the 8th of October, 1855 ; and as the United States had previously confirmed and surveyed the Cerré claim, that is the superior title.</p> <p>YII. The evidence of the old witnesses as to what they had heard as to the extent of commons of Carondelet was not competent testimony. So the instruction in relation to the effect of cultivation and possession by Cerré prior to December 20,1803, ought to have been given. There is no proof, and scarcely any pretence of proof, of any grant or survey or even recognition of commons south of the river Des Peres under the former government.</p> <p>I. The title of Carondelet is claimed under the act of 1812, and there being no evidence of any user or grant south of the river Des Peres, the only claim of Carondelet to this land arises under a survey of 1834 by Brown, deputy surveyor of the United States.</p> <p>II. This survey was not approved by the surveyor general until 1839, and it was disapproved the same year by the commissioner of the General Land Office ; and upon appeal, it it was again disapproved in 1853 by the Secretary of the Interior.</p> <p>III. The survey had no further force or effect after this disapproval, and the land confirmed to Cerré in 1836 and surveyed for him in 1841 was appropriated by force of the act of Congress of 4th July, 1836, for the benefit of Cerré’s legal representatives.</p> <p>IY. The subsequent approval of the survey of the commons by McClelland in' 1855 is not an approval of Brown’s survey of 1834, but excepts several thousand acres of land from it. It does not relate back to the survey of 1834, Tor it is not the same survey, and the Secretary of the Interior had no power to reverse the decision of his predecessor made in 1853. The reversal of Stuart’s decision of 1853 and the attempted restoration of Brown’s survey by McClelland in 1855 was fraudulent and void.</p> <p>Y. The effect of a survey works by’ estoppel. The United States was not bound by this survey in 1841, when Cerré’s confirmation was surveyed, and the claims of the parties must be determined according to the relative merits of their Spanish titles. If the United States' had not located this land under the laws of the United States, then it was subject to location under Cerré’s confirmation; and having been located, the defendants have no title, and plaintiffs should recover. ,</p> <p>Y. The Spanish title of Cerré is clearly superior to the commons’ title, and can only be defeated by a prior location for the commons by the United States. There has been no such prior location.</p> <p>I. The survey of the commons of Carondelet made by Rector was a legal and valid survey binding upon the United States and those claiming under' them by subsequent grant. It was made by authority of law. (1 Land Laws, 50, 70, 90, 104, 112,115, 119,121, 122, 128, 132, 138,153, 166, 176, 180,189, 211, 216, 230, 242, 255, 278, 280, 385, 397, 552; 8 How. 301, 317 ; 17 How. 415 ; 4 How. 456 ; 18 Howard, 473, 43; 19 How. 79 ; 9 How. 333.)</p> <p>II. Waiving the effect of Rector’s survey of 1817, the survey of Joseph C. Brown (retracing Rector’s lines) was officially approved July 29,1834, by surveyor general Langham, and was therefore a valid and binding survey. This stood undisputed until 1839, when the War Department began to oppose it on account of the reservation for Jefferson Barracks being included in the survey. (4 How. 169 ; 9 How. 333; 18 Mo. 43 ; 19 Mo. 334, 342, 79; 8 How. 317, 301, 313.) Prior to July 4, 1836, the department at Washington had no authority to supervise the action of the surveyor general in the survey of private claims. (1 Land Laws, 552, 278; 9 How. 333; 18 How. 43; 9 Mo. 323, 804.)</p> <p>III. The act of Congress of Jan. 27, 1831, supplemental to act of June 13, 1812, relinquishing to the inhabitants of the villages named, was of itself, as against the plaintiff’s claim under the act of 1836, a confirmation by metes and bounds, as the commons were then surveyed. (6 Rob. La. 139 ; 4 How. 456.)</p> <p>IY. The documents offered in evidence by defendant were evidence that a grant of commons had been made to Caron-delet. The reputation among old witnesses, deceased, as to the extent of commons under the Spanish government, and especially as to its use in the olden time, was good evidence. (1 G-reenl. Ev. 166, 168, 189, 175, 145 ; 1 M. & S. 97 ; 1 Stark. Eq. 29 ; 5 Cow. 315 ; 2 Ad. & El. 171.) The plaintiff can not claim title by virtue of the statute of limitations as prayed in the sixteenth and seventeenth instructions. (Reilly v. Chouquette, 18 Mo. 221.) He can not claim title under the first section of the act of June 13, 1812. The land sued for was not an out-lot, common field lot or village lot. Cerré was not an inhabitant of Carondelet.</p> <p>■ V. The approval of Brown’s survey by the Secretary of the Interior in 1855 had the effect not to make said survey valid as from the date of his approval, but to declare that it was a valid survey when approved by Langham July 29, 1834, and that full force and credit should be given to it as such; and also to declare that the survey of Rector was a valid and subsisting survey as approved in 1817. Admitting that the approval of the Secretary of 1855 gave effect to the survey as of a new survey of that date, the case will not be altered ; for the defendants have the elder title, and the survey is not the grant of title, but simply the evidence of location or description of the land granted, and of course relates back to. the date of the confirming act. (4 How. 456 ; 10 How. 348; 14 How. 513; 19 How. 79; 10 How. 348.) The defendants have title by act of June 13, 1812.</p>

Louis Land Court. This was an action in the nature of an action of ejectment to recover possession of lots 175 and 177 in Carondelet commons, south of the river Des Peres. The plaintiff claims title under the city of Carondelet;. the defendant under and by virtue of a preemption certificate, dated November 18, 1847, issued in favor of John GL Merlin, for the soutb-west quarter of fractional section seven, township forty-three, and which included the land in controversy.

Louis Lamd Court. This was a suit for partition of the real estate belonging to the estate of Bryan Mullanphy, deceased. Charles Chambers and Jane Chambers his wife were plaintiffs, and Richard Graham and Catherine Graham his wife and others, the heirs of said Bryan Mullanphy, together with the City of St. Louis, were defendants.

<p> Error to St. Louis Land Court. </p> <p>This was an action in the nature of an action of ejectment to recover possession of a tract of about sixty acres of land lying within the survey of the common of the city of St. Louis. The land sued for embraces that portion (except a small parcel sued for in the case of St. Louis v. Keitley) of a tract of two by forty arpens lying within the commons of St. Louis. The plaintiff relied upon her commons title, and adduced in evidence various acts of the legislature of Missouri authorizing her to deal with, dispose of, and control her common ; also various ordinances of the city from 1835 to 1856, showing the action of the city with respect to her commons.</p> <p>The defendant introduced in evidence, against the objection of plaintiff, De Ward’s map of St. Louis common, upon which the Durand claim as laid down by De Ward was marked out. The defendant also introduced in evidence, against the objection of plaintiff, various tax receipts, tax deeds, certificates of purchase and certificates of redemption, and redemption deeds. From these it appeared, among other things, that in the year 1845, and afterwards, the eastern portion of the tract in dispute — that within the city limits— was assessed for taxation against “ Nicholas Durand,” “ Du-rand claim,” “Durand’s heirs,” “James Gorman.” In 1845 John Corcoran, as shown by tax receipt, paid taxes. The land was returned delinquent for taxes of 1846 and sold to John Corcoran, who received comptroller’s deed. Corcoran died in 1848 leaving several children. The land was returned delinquent for the taxes of the year 1848, was purchased by the city, and redeemed by and conveyed to James Gorman. There were various "tax receipts showing payment of taxes by James Gorman since 1851 and 1852. There was no attempt to show title in or under Durand. Evidence was introduced with á view ta show that James Gorman and his father-in-law, Corcoran, had had adverse possession of the land sued for for more than twenty years before suit was brought.</p> <p>The court, at the instance of the defendant, gave the following instructions: “1. If the jury find from the evidence that before the year 1833 one Durand claimed the tract of two by forty arpens of which the premises in controversy are a part; that the boundaries thereof were defined, and the tract mapped out by the plaintiff upon a plat of the survey of the common of the city of St. Louis as a piece of ground claimed under Durand adversely to the city; and that this plat of survey was made as early as 1835 or 1836 ; that until the year-1843 the said tract was wholly without the chartered limits of the city of St. Louis ; that in Í843 the charter of said city was altered so as to include within the city limits so much of said tract as lay to the east of Second Oaronde-let avenue; that thereupon the City of St. Louis caused to be assessed to the defendant or those under whom he claims so much of said tract as lay within the city, describing the same as the property of the defendant or those under whom he claims, and caused the taxes due on said land to be collected and paid into the city treasury; and if the jury shall further find that the possession and claim of the defendant as to the land within the city limits was of the same nature and character with his possession and claim to the remainder of the tract outside of those limits, then this is evidence, not merely of the possession and claim of defendant to the whole of the tract outside as well as inside of the city limits, but of the knowledge and acquiescence of said plaintiff in such possession and claim by the defendant. 2. Neither occupation, cultivation nor residence will be necessary to constitute actual possession of a tract of land when the property is so situated as not to admit of any permanent, useful improvement, and the continued claim of tlie party seeking the protection has been evidenced and accompanied by public, unequivocal and continued acts of ownership and control such as he would naturally exercise over property which belonged to him, and would not exercise over property which did not so belong; and if the jury find in this case that the defendant and those under whom he claims have continuously and uninterruptedly exercised over the land in controversy such public, uneqxiivocal and notorious acts of ownership and control for the space of twenty years before the commencement by the plaintiff of any legal steps to dispossess him or them, and that, during the whole of that period, the defendant and those under whom he claims have denied the title of the plaintiff and claimed the land as their own, then the plaintiff can not recover in this action. 3. The jury is instructed that to constitute an adverse possession of a tract of land there need not be an enclosure, building, or other improvements. It is enough if there be exercised over the property visible and notorious acts of ownership after an entry under claim and color of title. An entry is by color of title when it is made under a real and not a pretended claim to a title held by another. The term itself implies that the party so entering has not the true title, but the law regards him as having color of title if he claims and believes that the land in good faith belongs to him and enters into possession accordingly. If after so entering he and those claiming under him continue for twenty years in the exclusive enjoyment of the tract and in the exercise of open and notorious acts of ownership thereon, he and they are protected by adverse possession and the statute of limitation against all the world. 4. The plaintiff can- not recover against the defendant any part of the land in controversy which lies east of the city’s western line as it stood in 1845 and following, as the same is described in the tax receipt and deed of the city read in evidence. 5. If the jury find from the evidence that for more than twenty years before the commencement of this suit the tract of two "by forty arpens of land, of which the premises in controversy are a part, was recognized and mapped out by the plaintiff as a distinct and definite tract of land within the city commons claimed adversely ; that in 1833 or 1834 one John Corcoran, claiming to be the owner of said tract of two by forty arpens, entered upon the same and built a dwelling-house, and enclosed and cultivated a garden of several acres adjoining thereto, upon the eastern part of said tract, and occupied said house as his dwelling ; that the remainder of said tract was then mostly covered by stone quarries and not susceptible of any permament useful improvement; that said Corcoran, at the time of said entry, took possession of said quarries, and exercised over the remainder of the tract open, visible and notorious acts of ownership and control, excluding from every part of the tract all the persons who did not hold the same under him; that said claim, occupation and acts of ownership and exclusive control were by said John Corcoran and those claiming under him continued for twenty years before the commencement of any legal steps by the plaintiff to dispossess the said Corcoran and those claiming under him, then they must find for the defendant.”</p> <p>The plaintiff suffered a nonsuit, with leave, &c.</p> <p>I. All the evidence introduced concerning the tax deeds and tax receipts was improperly admitted, and all the defendant’s instructions grounded on these papers were erroneous. Neither of said supposed deeds was an estoppel on the plaintiff; neither was the act a deed of the corporation. No law or ordinance authorized them. The land was confirmed to and belonged to the city. No city officer could lawfully assess city property for taxes. The assessment was void; all the subsequent steps also were void. (8 Ohio, 187; 13 Louis. 205; 34 Maine, 89; 3 Mass. 419; 1 Bibb, 295; 36 Maine, 433.) Durand never bad any title. No title could consequently pass to the purchaser at the tax sale. It is not attempted to be shown that the forms of law were complied with. Officers of municipal corporations are special agents, acting under special instructions contained in ordinances. Those who deal with them must take notice of these ordinances. The comptroller had no power which did not appear on the face of the ordinances. A corporation speaks or acts only in the mode prescribed by law. (2 Cranch, 167.) No corporation is bound by any unlawful act of its officers though done colore officii. (19 Pick. 511; 13 B. Monr. 563 ; 16 Shepl. 29 ; 8 Day, 495 ; 18 Mo. 227; 1 Hill, 551; 14 Verm. 311; 25 Mo. 503.) The deed to Gorman is void.</p> <p>II. Corcoran entered without title or color of title. He ■is limited to his actual occupancy. His possession was adverse only to the extent of his actual enclosures. (Angel on Lim. 420; Adams on Eject. 582.) There is no constructive possession in favor of a trespasser. (Miller v. Shaw, 7 S. & R. 136.) The possession must be marked by definite boundaries. (Adams’ Eject. 572 ; 10 'Johns. 477 ; 19 Penn. 262; 10 S. & R. 303.) It must continue the same in point of locality; must not be a roving possession. Defendant can not connect a part that he has occupied for twenty years with a part that he has occupied for a less time. (27 Mo. 410, 415.) The Durand claim extended east of the commons ; and conceding that his fence encroached upon the common, the city was constructively in possession of the residue of the tract. The city had actual' possession of parts of the commons. (27 Mo. 410, 415 ; Angel on Lim. 432; 10 Mo. 769; Beesly, 461; 1 Hill., S. C. 135.) The defendant showed no privity with Corcoran. The succession must be transmitted by contract or operation of law. (27 Mo. 203; 23 Mo. 336 ; 5 Maryl. 257.) The court erred in giving the third instruction. The definition of color of title is incorrect. What is color of title is a matter of law. (18 How. 59.) There was no evidence authorizing the court to say there was any color of title exhibited by the defendant. There is no evidence that the entry was made under a real claim. It does not appear that defendant or Corcoran claimed in any matter whatever under Durand, or any other person. There must be some appearance of title. (1 Cow. 285 ; 18 How. 56 ; 29 Barb. 323; 10 Barb. 256; 15 Ill. 73 ; 2 Smith L. 0. 484.) De Ward’s map was not color of title. The defendant might with as much propriety claim that the extent of his claim was bounded by the exterior lines of the •survey of commons. (3 Barr, 214; Adams’ Eject. 582.) That map was not made twenty years before the bringing of suit. There was nothing but a wandering, vagrant possession of a few sink-holes in different parts of the tracts for the purpose of quarrying rock. The plaintiff’s instructions should have been given.</p> <p>I. The instructions refused were properly refused. The instructions given for Ihe defendant were correct. The city can not assert title in herself to land which for a long time it has caused to be assessed as the property of a private individual, for which it has collected taxes; which it has caused to be returned delinquent for the nonpayment of taxes, and for which, after purchasing it at tax sale, it has executed a deed according to ordinance to the claimant or person to whom it was so assessed. These acts constitute an estop-pel in pais.</p> <p>II. The instructions given by the court on the subject of the statute of limitations and adverse possession furnish a correct declaration of the law on 'that head.</p>