Picot v. Page

• Decision Date: 31 March 1858
• Citation: 26 Mo. 398
• Parties: PICOT, Plaintiff in Error, v. PAGE et al., Defendants in Error.^a1
• Court: Missouri Supreme Court

26 Mo. 398

PICOT, Plaintiff in Error,

v.PAGE et al., Defendants in Error.^a1

Supreme Court of Missouri.

March Term, 1858.

1. A., in 1826, conveyed to B. all the land embraced in a certain Spanish concession “except that heretofore sold by the said A.,” and warranted the same free from the claims of himself, and all persons claiming under him except those who then had deeds of record. Previous to the execution of this deed, A. had, in 1818, conveyed to his son C. a portion of said concession. This deed was duly recorded the day of its execution. At the date of the deed to B. in 1826 both A. and B. acted as if the deed to C. had not been in existence; and by many acts and declarations A. indicated that he intended by the deed of 1826 to convey to B. the land embraced in the deed of 1818. The deed of 1818 having been discovered to be in existence, A. procured in 1838 a reconveyance from his son C. of the parcel conveyed to him in 1818; this deed of reconveyance was recorded in 1845. In 1845, A. conveyed the land thus reconveyed to him to D. B.'s assignees entered into the possession of the tract in 1831, and continued in possession thereof, dealing with the property as their own, until ejected by D. Held, that the deed of 1838 did not enure to the benefit of B.'s assignees; that no estoppel could be worked as against A., B. and his assignees having been guilty of gross negligence in not examining the records to discover what conveyances had been made by A. and placed of record previous to the execution of the deed of 1826.

2. The deed of Pierre Chouteau to his son Auguste P. Chouteau, dated September 22, 1818, operated to convey to said Auguste only that portion of Chouteau's Spanish concession as lay within the concession as surveyed by the United States; the tract thereby conveyed did not extend to Labeaume's ditch.

3. A warranty is implied in every partition.

4. A joint tenant or tenant in common can not purchase in an outstanding adverse title and hold the same for his own benefit.

Error to St. Louis Court of Common Pleas.

This was a petition in the nature of a bill in equity filed by Louis G. Picot as trustee under the will of Mrs. Ann Biddle, deceased. The defendants are Daniel D. Page, Louis V. Bogy, and Louis A. Benoist. The petition sets forth in substance that on the 28th day of December, 1822, Pierre Chouteau, being seized of a certain tract of land, entered into a contract with George F. Strother for the purchase and sale of the same to the said Strother; that the premises agreed to be conveyed to said Strother, for a consideration in said contract recited and stipulated for, are described therein as follows: “A tract ____ ____ of four arpens in front and forty arpens deep, lying upon the Vide _______ road, opposite Duchouquet's farm, and embracing the Big Spring, containing one hundred and sixty arpens; and a tract or parcel of land lying upon the Mississippi, extending upon the bank of the river from the tract of land sold by the said Pierre Chouteau to William C. Carr to a tract of land formerly sold by LaBome to William Christy, according to conveyance from Brazeau to LaBome, and running with each of these lines back as to embrace the Big Mound; the said tract of land to contain at least thirty arpens; with covenants to be therein contained, that the said two tracts of land at the time of conveyance is free from all encumbrances and demands whatsoever, and all other usual and reasonable covenants;” that “in June, 1826, by deed dated on the first day of June, 1826, the said Pierre Chouteau, in execution of said contract so far as the same was finally agreed to be executed between the parties, conveyed to the said George F. Strother the tract of land” above described of thirty arpens ^a; that in executing said deed it was the intention of the parties to carry into effect the said contract for the sale of said thirty arpens, now in the city of St. Louis, including said Big Mound;” that Strother, in 1830, sold to the Marine Railway Company the said tract of thirty arpen so acquired by him from Chouteau, excepting about seven arpens on the north sold by him to Thomas and Coon ^b; that a survey was made by Réné Paul on October 5, 1829, to ascertain the exact boundaries of the land sold by Chouteau to Strother and then about being sold by Strother; that Pierre Chouteau and M. P. Leduc, his confidential agent, went on the ground and pointed out the particular premises intended to be included in the deed to Strother, which was surveyed accordingly; that the owners of stock in the St. Louis Marine Railway Company were authorized by two several statutes repealing the charter of the company, to provide for the sale, partition, gift or conveyance of their real estate; that in pursuance of the authority conferred by the act passed February 15, 1841, certain described lots were by deed dated November 5, 1841, conveyed to the legal representatives of John Mullanphy, deceased, one of the stockholders in said company; that Mrs. Ann Biddle, since deceased, was one of the legal representatives of the said Mullanphy, being entitled to an undivided interest of one-seventh in the lots so conveyed in partition to the legal representatives of said Mullanphy; that Mrs. Biddle devised to the plaintiff, Louis G. Picot, an undivided one-third of her interest in said lots in trust for certain purposes; that, after the making of the contract in 1822, Strother entered into the possession of the said thirty arpens, therein described, and paid taxes, and continued to exercise exclusive acts of ownership until he conveyed the same as above mentioned; that after said conveyance the said company entered into the possession of said premises, made improvements thereon, paid all the taxes, and exercised the exclusive right of ownership until the same was divided among the stockholders as above stated; that in about the year 1836, on an examination of the title to said premises, or some portion thereof, it was discovered by the parties then interested that there was a deed on record from Pierre Chouteau to his son, Auguste P. Chouteau, which bore date and was recorded in the year 1818, and conveyed the same premises sold and conveyed to Strother ^c; but the same, never having been set up or claimed as a conveyance, was probably never delivered, or, if it had been, was cancelled; that after this deed became known to the parties in interest they applied to the said Pierre Chouteau to have the matter corrected, so that the records would exhibit a fair and regular title to the said thirty arpens of land; that said P. Chouteau being a man of large estate and of reputed probity, no examination had been made prior to said discovery to see if he had conveyed the same land intended to be conveyed to said Strother; but it was understood, as well at the time of the contract with Strother as the deed to him, that the residue except said thirty arpens had been conveyed to the several persons whose deeds were at the time well known to the parties to the deed to Strother, and the remainder was the part intended to be sold and conveyed to Strother, and was the part the parties had in view at the time of contracting; that said Pierre Chouteau being old and somewhat infirm, his son, Pierre Chouteau, jr., was also applied to in relation to said deed to A. P. Chouteau, and it was concluded to procure a release or quit-claim from said A. P. Chouteau to his father, which it was understood was to vest the title to said thirty arpens in the grantees of said Strother and the persons claiming; that on application to said Auguste P. Chouteau, he, for the purpose of confirming said title to said Strother and the persons holding under him, and for no other or different purpose, and without any other than a nominal consideration, released and quitclaimed to his father the premises so appearing of record to have been conveyed to him in 1818, which deed of conveyance bears date March 15, 1838; that the object of said conveyance was to perfect said title and remove what appeared to be a defect therein; that no claim was ever made by Auguste P. Chouteau under the deed of 1816, no possession claimed by him, and no acts of ownership exercised; that from 1818 to his death in 1839 said Auguste P. Chouteau was married and his family resided in St. Louis, though his business required him to be absent from St. Louis a large portion of the time; that he was frequently in St. Louis, and must have known and observed the possession and improvements of those claiming under Strother, and no claim was ever made by him in his lifetime to said land, nor was any claim set up or pretended by his father until some years after the death of said Auguste; that said Pierre Choteau, during his lifetime, resided in and near St. Louis and pointed out the land conveyed to Strother as belonging to him, Strother, and knew of the possession and improvement by the vendees of Strother and those claiming under them, and make no claim nor asserted any until, on or about November 21, 1845, he conveyed the same to Louis V. Bogy, etc. The petition proceeds to allege notice on the part of defendants of the equity of plaintiff. The plaintiff prayed the court by a decree to compel the defendants to release to him.

Evidence was adduced to show among other things that the location of the northern line of the tract conveyed by Pierre Chouteau to William C. Carr was in dispute; that about the time of the execution of the deed of P. Chouteau to Strother in 1826, at the request of Strother, a survey was made by Réné Paul of the various tracts previously conveyed by Chouteau to Lewis, Bates, Lisa and Carr, and of the residue of the Spanish concession of Chouteau; that Chouteau was present at this survey and pointed out and located the northern line of Carr; that at the request of Martin Thomas, one of the vendees of Strother, another survey was made and the northern line of Carr again located by said Chouteau; that...