Connoyer v. Washington University , 36 Mo. 481 ( 1865 )

Holmes, Judge,

delivered the opinion of the court.

It appears from the evidence that Louis Labeaume, assignee of the widow Dodier, filed his, claim before the old board of commissioners in 1811, claiming three by forty arpens of land in the prairie adjoining the town of St. Louis, together with the concession 6f May 23,1772, to the widow Dodier, and a deed of transfer of title from said Dodier and others to Louis Labeaume, (the claimant,) dated August 18, 1806 ; and that his claim was rejected. It also appears that in 1833, “ widow Dodier, by Louis Labeaume’s representatives, claimed the same tract of land, before the new board of commissioners, and produced the concession and Duralde’s survey from the Livre Terrein, (No. 2, p. 38,) and also a deed from the “lawful heirs ” of said widow Dodier to Labeaume, which appears to have been executed by the widow Dodier herself, and others, dated August 18, 1806. The bill of exceptions also contained a deed to Louis Labeaume, (how it got there does not appear,) from Joseph Hortiz, of the land granted to said widow Dodier, and purchased by him at a public sale and adjudication of the goods and property of the widow Dodier, under an order of the Lieut.Governor, dated August 23, 1806 ; but it does not appear to have been filed with the board.

The board of commissioners, on the 15th of June, 1835-— beginning their entry in these words: “ Widow Dodier claiming 120 arpens of land” — confirmed the claim thus: “ The board are of opinion that the claim ought to be confirmed to the said widow Dodier, or to her legal representatives, according to the survey in Livre Terrein No. 2, p. 38. The plaintiff put in evidence the survey of this confirmation, (No. 3306,) and proved that as heirs and assignees of the heirs of widow Dodier, they were representatives of one-fourth of the title of the said widow Dodier. On this evidence, the court instructed the jury, that the plaintiffs could not recover.

The question presented is whether the confirmation enured to the representatives of Louis Labeaume, as the claimants before the board, or to the widow Dodier and her legal representatives. Had the board confirmed the claim as presented before them by Louis Labeaume, there could be little doubt, under the decision in Bissell v. Penrose, (8 How., U. S., 317,) that the confirmation would have enured directly to him as the claimant who had presented the claim, and filed the evidence of his derivative title as assignee of the original grantee. But the claim before the board of commissioners of 1833 is in the name of “ widow Dodier, by Louis Labeaume’s representatives,” and the board recognizing the “ widow Dodier claiming 120 arpens of land,” confirmed the same in terms to “ said widow Dodier, or to her legal representatives.” The claim is made in her name, by ,the representatives of Louis Labeaume. Who they were it nowhere appears. No claim is made by them in their own names, nor in their own right,^ otherwise than as “ representatives ” of Louis Labeaume, who might be her representative. No evidences are filed or produced by them to show a derivative title from any one to them, nor does it appear that any proof was made before the board that they were heirs-at-law of Louis Labeaume, taking by descent.

The cases of Bissell v. Penrose, (8 How., U. S., 317,) and Boon v. Moore, (14 Mo. 420,) would require that they should have made the claim for themselves; if not in their own names, at least in their own persons, and produced the evidence of their title as such legal representatives of the widow Dodier. This does not appear to have been done here.

As the case is presented on this record, we are of opinion that it falls within the principle of the decisions in Hogan v. Page, (22 Mo. 55; 32 Mo. 68; 2 Wal. 605.) For these reasons we think the instruction of the court below was erroneous.

Judgment reversed and cause remanded.

Judge Wagner concurs; Judge Lovelace absent.