Le Bourgeoise v. Blank

• Decision Date: 09 March 1880
• Citation: 8 Mo.App. 434
• Parties: LOUIS S. LE BOURGEOISE ET AL., Appellants, v. AUGUSTUS H. BLANK, Respondent.
• Court: Missouri Court of Appeals

8 Mo.App. 434

LOUIS S. LE BOURGEOISE ET AL., Appellants,

v.AUGUSTUS H. BLANK, Respondent.

St. Louis Court of Appeals, Missouri.

Mar. 9, 1880.

1. An executed parol partition, where the title is undisputed, will avail to sever the possession of tenants in common.

2. Where the question is as to the severance of possession and the ascertainment of boundaries between tenants in common, these facts may be shown by the acts of the parties, which acts may have the effect of passing title though no writing is given.

3. Where tenants in common make partition among themselves, have the land surveyed and divided into equal parts, act on the basis of this division, recognize each other's rights under it, and convey according to it, this is evidence of an executed agreement of partition which they cannot at a long subsequent period repudiate.

4. The original division-survey; the field-notes, in the handwriting of the deceased surveyor, attached to the survey; testimony of a subsequent survey in accordance with the original, when the corners were pointed out by some of the heirs; the deeds of the heirs, though married women, recognizing the boundaries, are competent as tending to show an executed partition.

5. Ancient surveys may be used in evidence to fix boundaries and landmarks.

APPEAL from the St. Louis Circuit Court.

Affirmed.

D. T. JEWETT, for the appellants: Since the Statute of Frauds, parol partition is not valid.--1 Ter. Laws, 394; 2 Bla. Comm. 324; 1 Pars. on Real Estate, 430, sect. 12; 1 Washb. on Real Prop. 416, sect. 7; Moss v. Anderson, 7 Mo. 436; McCabe v. Hunter, 7 Mo. 355; Rector v. Waugh, 17 Mo. 13; Long v. Stapp, 49 Mo. 509; Hazen v. Bennett, 50 Mo. 507; Jones v. Reeves, 6 Rich. L. 137.

KEHR & TITTMANN, for the respondent: Parol partitions, if the title is admitted or shown to have been in common, followed by a several possession of separate parcels, are valid, notwithstanding the Statute of Frauds, and the length of time that possession has been taken is immaterial. The only privity by which tenants in common are united is that of possession, and this proceeds from the impossibility of each tenant ascertaining which is his own part. When the respective severalties can be ascertained, the tenancy is dissolved. The partition does not transfer the title of the parties so much as it assigns or apportions to each his share in severalty in the land.-- Wood v. Fleet, 36 N. Y. 499; Otis v. Cusack, 43 Barb. 546; Jackson v. Vosburgh, 9 Johns. 276; Jackson v. Hardee, 4 Johns. 202; Corbin v. Jackson, 14 Wend. 619; Moore v. Kerr, 46 Ind. 468; Wilder v. Bonney, 31 Miss. 652; Natchez v. Vandervelde, 31 Miss. 706; Pomeroy v. Taylor, Brayt. 174; Corbett v. Northcross, 35 N. H. 99; Stuart v. Baker, 17 Texas, 417; Coles v. Wooding, 2 Patt. jr. & H. 189; Slicer v. Derrick, 2 Rich. L. 629; Haughabaugh v. Honald, 3 Brev. 97; Piatt v. Hubble, 5 Ohio, 245; Grimes v. Butts, 65 Ill. 347; Vasey v. Trustees, etc., 59 Ill. 188; Mining Co. v. Bullion Man. Co., 3 Sawyer, 634, 659; Calhoun v. Hayes, 8 Watts & S. 127; Williard v. Williard, 56 Pa. St. 119; Ebert v. Wood, 1 Binn. 218; Maul v. Rider, 51 Pa. St. 377; Long v. Dollarhide, 24 Cal. 218. The following analogous cases will illustrate what facts are sufficient to prove a parol partition: Slade v. Green, 2 Hayw. (N. C.) 75; McCall v. Reybold, 1 Harr. 146; Mount v. Morton, 20 Barb. 130, 131; Walker v. Bernard, Conf. (N. C.) 82; Tomlin v. Hilyard, 43 Ill. 300; Russell v. Marks, 3 Metc. (Ky.) 45; Jackson v. Livingston, 7 Wend. 136; Rider v. Maul, 46 Pa. St. 376; Shepard v. Rinks, 78 Ill. 189; Eaton v. Tallmadge, 24 Wis. 217. The Missouri cases on the subject of parol partitions are: Harvey v. Rusch, 3 Mo. App. 561; Bompart v. Roderman, 24 Mo. 400; Long v. Stapp, 49 Mo. 506; Hazen v. Barnett, 50 Mo. 506; Barnhart v. Campbell, 50 Mo. 597.

HAYDEN, J., delivered the opinion of the court.

This is an action of ejectment to recover a part of United States survey No. 422, in what is now the city of St. Louis. The plaintiffs produced a patent from the United States, of date August, 1873, to August Dodier or his legal representatives, reciting the confirmation to said Dodier, in 1810, by the board of land commissioners, of five hundred arpens of land, which was duly surveyed, and a plat of which accompanies the patent. August Dodier died in 1817, leaving a widow, Pelagie, and five children--Emily, Joseph, Cecile, Charles, and Pelagie. Emily married Francis Paquette, on July 13, 1818; Cecile married Louis B. Vasseur, on July 23, 1818; Pelagie, who was born on December 3, 1809, married Bazile Vasseur, and died, leaving surviving her husband and four children, two of which children died unmarried and without issue before December 25, 1848. The plaintiffs claimed through various conveyances, which it is unnecessary to recite, by which they contended there were vested in them all the titles of all the five heirs of August Dodier, except a one-fifth interest in the land sued for, which interest was conveyed by the daughter Pelagie and her husband, while she was a minor, to the defendant's grantors. The defence was, that before the execution and delivery of the quitclaim deeds under which the plaintiffs claimed title, there was a parol partition among the five heirs of Dodier of the land, which they held as tenants in common; that in pursuance of this agreement, which was entered into before the year 1823, a survey of the tract was made by Joseph C. Brown, surveyor, and separate and specific shares of the tract, equal in size, were set apart in severalty, the five tenants in common recognizing the division thus made. Among the shares so divided was a tract of about fifty arpens, allotted to Pelagie, wife of Bazile Vasseur. It is admitted by the plaintiffs that the land in controversy is in that part of the survey claimed by the defendant to have been set off to Pelagie. As evidence tending to show the parol partition, and that the heirs had acted upon the same and made conveyances upon the basis of such division of the land, which they had previously owned in common, the defendant introduced deeds as follows:--

A warranty deed dated December 10, 1828, by which Louis Vasseur and Cecile Dodier conveyed to John O'Fallon fifty-four arpens, or forty-six acres, described by metes and bounds, being “the part allotted to the said Cecile, the wife of said Louis Vasseur, as her share in the said tract.”

Deed from Charles Dodier and wife to Jarvais Nolan, dated April 21, 1829, conveying fifty acres, more or less, described by metes and bounds.

Deed from Bazile Vasseur and Pelagie Dodier to Jesse

Elder, dated Decemer 22, 1828, conveying fifty arpens, French measure, be the same more or less, described by metes and bounds.

Deed from all the heirs, describing themselves as “the heirs and legal representatives of Pelagie, widow of Auguste Dodier,” to Jesse Elder, dated September 26, 1827, conveying another parcel of “fifty arpens, French measure, be the same more or less, being the remaining part of a larger tract conceded to the above named Auguste Dodier by the Spanish government.”

The deed from Joseph Dodier to William and Wharton Rector, dated September 19, 1823, conveys, among other property, a specific tract of twenty-three acres. There is sufficient in the description to show that in 1823 Joseph claimed to be the owner of a specific portion of survey 422.

With a view of showing the location of the tracts as alleged to have been thus divided, and to mark the boundaries, the defendant introduced a survey found in the survey book of Joseph C. Brown, an old surveyor, which was proved to be in the writing of Brown, deceased; and then proved by Cozzens, surveyor, that the latter had, in 1839, borrowed from Brown, who had been a United States surveyor, a plat of the Dodier tract (survey No. 422) made by Brown, which Cozzens had had copied, and which copy, corresponding to the survey in Brown's book, was produced. This copy is entitled “Survey and division among the heirs of Auguste Dodier of the Dodier tract,” and shows division into lots of fifty-four arpens each. Cozzens testified that he surveyed certain parcels of the land according to this plat, and found, in making a survey around the Dodier tract, the lines as run, and saw the corners on the ground as indicated on Brown's plat. One of the Dodiers (Charles), and also Bazile Vasseur, were with the witness when he made the survey, and they pointed out to him the lines of the divisions and the corners of the tracts as laid out. This was in 1839. The defendant also offered a deed, of date August 4, 1835, from Charles, ancestor of three of the plaintiffs, to Collet's trustee, conveying the tract acquired by him from Louis Vasseur and wife, by metes and bounds, with calls for Paquette on one side and Bazile Vasseur on another. The instructions asked by the plaintiff were, with one exception, refused, and the court, as a jury, found for the defendant.

The question here involved is not, as the plaintiffs put it, the abstract question whether a partition by parol is valid. It may be admitted that the proper expression of the doctrine is, as stated, for instance, in McCall v. Reybold, 1 Harr. 150, that, “since the Statute of Frauds, a partition, to be valid, must be in writing.” It is entirely consistent with this, and not inconsistent with the settled interpretation which in parallel cases has been put upon the Statute of Frauds, to hold that tenants in common may by their own acts sever their possession, and when such severance has been executed, that they may be debarred from denying it. If, for instance, there is here evidence to show that before the year 1823 the heirs made a partition among themselves; that they had the land surveyed, and divided into equal parts; that in dealings in reference to this land they acted on the basis of this division and conveyed according to it, recognizing the rights of each other as established by the partition, here was...