Chauvin v. Lownes

• Decision Date: 31 March 1856
• Citation: 23 Mo. 223
• Parties: CHAUVIN AND OTHERS, Plaintiffs in Error, v. LOWNES AND ANOTHER, Defendants in Error.
• Court: Missouri Supreme Court

23 Mo. 223

CHAUVIN AND OTHERS, Plaintiffs in Error,

v.LOWNES AND ANOTHER, Defendants in Error.

Supreme Court of Missouri.

March Term, 1856.

1. Amendments should be liberally allowed where the errors are unintentional, and no injury will result to the adverse party.

2. Chauvin v. Wagner, (18 Mo. 531,) affirmed.

Error to St. Louis Court of Common Pleas.

This was an action in the nature of an action of ejectment, brought by the heirs of Emily Chauvin. It is one of several suits (the case of Chauvin v. Wagner being one) brought by said heirs, and came on for trial after the decision of the Supreme Court in that case, to the report of which (see 18 Mo. 531) reference may be had. On the trial it appeared in evidence that, among other children, Emily Chauvin had a daughter, Louise, who married Charles A. Genestelle, and died surviving her mother, leaving two children of said marriage. These children, Emilie and Sophia Genestelle, were parties to this suit, suing by their next friend, their father, Charles A. Genestelle. One of these children, Sophia, and her father, C. A. Genestelle, died since the commencement of this suit. Their death being suggested upon the record, Louis C. Hirschberg, entered his appearance as guardian for the said Emily Genestelle.

The deed of Chauvin and wife to Desiré (see Chauvin v. Wagner, 18 Mo. 531) was introduced in evidence, and testimony tending to prove a re-delivery of said deed by Mrs. Chauvin after the death of her husband; also to prove the execution thereof by Mrs. Chauvin.

The court gave the following instructions: “1. If the jury find that Louise Genestelle, wife of Charles A. Genestelle, survived her mother Emily Chauvin, and that the plaintiff, Emilie Genestelle, is the child of the said Charles A. and Louise Genestelle, and that said Charles A. was living at the commencement of this suit, the jury ought to find for the defendants. 2. It being admitted in this cause that prior to the deed to Desiré, the title to the premises in dispute was in Emily Chauvin, wife of Francis D. Chauvin, and that said François had only a life interest therein, and that said François died in 1835, and said Emily in 1849; the court instructs the jury that the said deed, even if executed and acknowledged by said François and said Emily, as the same purports to have been, and delivered to said Desiré in the lifetime of said François, passed only the life interest of said François in the lot therein described, and was wholly inoperative to pass the title of said Emily; and therefore, if the jury find that Robert Chauvin and V. H. Chauvin and Lucille Chauvin are the children of said Emily Chauvin, and that Louise Genestelle, wife of Charles A. Genestelle, was the daughter of said Emily Chauvin, and died before her said mother, leaving two children, Emily and Odelia, and that Sophie Hirschberg was a daughter of said Emily Chauvin, and died after her said mother, leaving a child, the jury should find for the plaintiffs, unless they further find that said deed to Desiré was executed by said Emily, and that after the death of her said husband she re-delivered the said deed to Desiré or his representatives. 3. If the jury find from the evidence that said Francis D. Chauvin and Emily his wife executed said deed as the same purports to have been executed by them, and that the same, in the lifetime of said François, was by him delivered to said Desiré, and that said Desiré paid a full consideration for the fee simple of the lot therein described to said François; and that said Desiré took possession of said lot, claiming to be the owner thereof by virtue of said deed; and that after the death of said François, the said Desiré and his representatives continued in open, notorious, active and exclusive possession of said lot, and put large and valuable improvements and buildings thereon, claiming to be the owners thereof; and that, after the death of her said husband, with full knowledge of all these facts, she received or consented to the appropriation of a part of the personal estate of said François, or of the proceeds of his said estate, to her own use and support, and acknowledged that she executed said deed, or sold and conveyed said lot as said deed purports, and that she assented that said Desiré and his representatives should remain in possession of said lot and put valuable improvements thereon, claiming to be the owners thereof, and to retain possession of said property, under said deed, as her act and deed, for the purpose of passing all the title and interest in said lot,--then the jury may presume a re-delivery of said deed by her after her husband's death.”

To the giving of these instructions, plaintiffs duly excepted. Prior to the reading of these instructions to the jury, and after they were passed upon the court, the counsel for the plaintiffs, Mr. Lord, having learned, during the progress of the trial, that Louise, mother of Emilie Genestelle, plaintiff, had survived her mother, Mrs. Chauvin, requested the court to strike out the name of the said Emilie from the record, or to dismiss the suit as to her. The court refused to permit this to be done. Plaintiffs thereupon suffered a nonsuit, with leave to move to set the same aside. A motion to that effect having been made and overruled, the case was brought to this court by writ of error.

C. B. Lord, for plaintiff in error.

I. The will of Madame Chauvin in effect deprived Charles A. Genestelle of any interest in her estate. Ejectment does not lie by him who has not an...