Smith v. Catlin Land and Improvement Company
| Decision Date | 03 July 1893 |
| Citation | 22 S.W. 1083,117 Mo. 438 |
| Parties | Smith, Plaintiff in Error, v. Catlin Land and Improvement Company |
| Court | Missouri Supreme Court |
Error to St. Louis City Circuit Court. -- Hon. L. B. Valliant Judge.
Affirmed.
Henry H. Denison for plaintiff in error.
(1) The recitals and descriptions in the deeds of Marie Louise Chouteau Papin govern the boundaries and location. Gillespie v. Sawyer, 15 Neb. 536; McAfferty v Conover's Lessee, 7 Ohio St. 104; Piercy v Crandall, 34 Cal. 343; Jackson v. Wendell, 5 Wend. 146; Jackson v. Sprague, 1 Payne, 494; Powell v. Clark, 5 Mass. 355; Jackson v. Barringer, 15 Johns. 471; Mills v. Miller, 4 Neb. 444. (2) The possession of one tenant in common is the possession of all, and the statute of limitations does not run in favor of such possession. Neither can a grantor set up, against his own deed, a possession against his own grantee. 1 Washburn on Real Property, p. 689: 2 Herman on Estoppel, pp. 741-743; Wade v. Lindsay, 6 Met. 407; Lamb v. Clark, 5 Pick. 193; Somes v. Skinner, 3 Pick. 52; Schwallbach v. Railroad, 69 Wis. 292; Freeman on Cotenancy and Partition, sec. 221.
Lee, McKeighan, Ellis & Priest for defendant in error.
(1) The deed of Hypolite Prouhet and wife to Robert Forsyth, dated March 11, 1851, by the express clause in it, conveys everything Hypolite Prouhet owned between Robert Forsyth, the grantee, on the south and James W. Kingsbury on the north. Distance description must give way to boundary description by adjacent owners. The latter is the more certain and less liable to mistake. Whittelsey v. Kellogg, 28 Mo. 404. (2) The parties to the foregoing deed of March 11, 1851, so construed the deed as between themselves, and the court will put the same construction on it that the parties did. Evans v. Green, 21 Mo. 170. (3) The plea of the statute of limitations is a bar to this action. Robert Forsyth took and had open and notorious and exclusive possession of the strip of land in question, and it was so held by him for twenty-three years after the deed was made, and up to the death of Robert Forsyth, in 1873, and by his trustee and their grantees up to the commencement of the suit. Smith v. McCorkle, 105 Mo. 135.
OPINION
This is an action of ejectment for the undivided one-half of the following parcel of land: Beginning in the east line of survey 378 at a point eighty-two chains and twenty-nine links southerly from the northeast corner of said survey, thence westerly on a line parallel with the north line of said survey one hundred and thirteen chains to the Skinker road, thence north one hundred and thirty-seven feet, four and one-half inches, thence easterly parallel to north line of said survey one hundred and thirteen chains to the east line thereof, thence south one hundred and thirty-seven feet four and one-half inches to beginning.
Marie Louise Papin acquired the entire survey by a patent from the United States dated in 1823. The survey was supposed to be forty arpens north and south and eighty arpens east and west, but it proved to be two hundred and thirteen feet and eight inches in excess of forty arpens from north to south.
On June 6, 1807, Marie Louise Papin and her husband conveyed to Marie P. Leduc a part of the survey, that is to say, two and one-half arpens in width by eighty arpens in length, along the south line of the survey. Thereafter and on the twenty-fourth of August, 1808, Marie Louise Papin and her husband executed twelve deeds, all of the same date; one to Marie P. Leduc, their son-in-law. This deed describes the land thereby conveyed as "two arpents and a half in front by eighty arpents in depth, or two hundred arpents in superficies, adjoining on the north side the land of Pierre Chouteau, on the south his own land," and by other words it is located in the before mentioned survey. Another of these deeds is to Pierre Chouteau and conveys "ten arpents in front by eighty arpents in depth, or eight hundred arpents in superficies, bounded on the north by Emilie Papin, our daughter, south by Marie P. Leduc." The other ten deeds are to the children of the grantors, and each deed conveys a parcel of two and a half by eighty arpens. The north and south boundaries are designated by naming the owners of land on the north and south as in the deed last mentioned, except the deed to Joseph Papin, which for its north boundary calls for the north line of the survey. The land in suit is a part of the ten by eighty arpens conveyed to Chouteau.
On the twenty-ninth of August, 1808, Chouteau conveyed the ten by eighty arpens to Emilie Papin. This deed has a condition therein to the effect that, if Emilie should marry then the land thereby conveyed should be divided between herself and her brothers and sisters. The deed provides further, that the grantee is to have possession after the death of her father and mother. Emilie married Chauvin, so that the land conveyed to her by Chouteau became the property of herself and her brothers and sisters in equal parts.
Alexander Papin and Pierre M. Papin acquired the north half of the ten by eighty arpens from their brothers and sisters by a deed dated the seventh of August, 1820. On the twenty-second of June, 1831, they conveyed the north half of the five by eighty arpens, so purchased by them, to Stanislaus Prouhet, and Agnes, his wife. This deed describes the property conveyed as "a tract of land containing two arpens and a half running north and south by eighty arpens running east and west, or two hundred arpens * * * bounded as follows: north and east by lands of John P. Cabanne; south by lands of Pierre M. Papin, * * * being the just half moiety to be taken from the northern part of the tract of four hundred arpens of land which said Alexander and Pierre M. Papin purchased from" their brothers and sisters. And, on the fifth of June, 1833, said Alexander and Pierre M. Papin conveyed the south half of the five arpens in width to Robert Forsyth by the following description: "two hundred arpens, being two arpens and a half wide running north and south, by eighty arpens running east and west, * * * bounded * * * south by lands of Thomas Forsyth, * * * north by lands of Stanislaus Prouhet, being part of a tract of land of a larger quantity which the said" grantors purchased of their brothers and sisters.
In explanation of the calls in the two deeds last mentioned, it may be stated that, John P. Cabanne had acquired the two and one-half by eighty arpen tract next north of the Chouteau ten by eighty arpen tract; and Thomas Forsyth had acquired the south half of the ten by eighty arpen tract by deed from the Papin children. At a subsequent date Thomas conveyed this south half of the ten by eighty arpens to Robert Forsyth.
As has been said, Stanislaus Prouhet acquired the two and one-half by eighty arpens on the north side of the Chouteau ten by eighty arpens, by deed, dated the twenty-second of June 1831. On the thirtieth of December, 1837, he and his wife conveyed this two and one-half by eighty arpens to their children, Theodore, Joseph, Hypolite and Virginia. By this deed the grantors reserve to themselves a life estate. Hypolite and Virginia became the owners of all that part thereof which lies east of the Skinker road. Virginia conveyed her undivided half to Robert Forsyth on the...
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