Chouquette v. Barada

• Decision Date: 31 March 1859
• Citation: 28 Mo. 491
• Parties: CHOUQUETTE et al., Respondent, v. BARADA et al., Appellants.
• Court: Missouri Supreme Court

28 Mo. 491

CHOUQUETTE et al., Respondent,

v.BARADA et al., Appellants.

Supreme Court of Missouri.

March Term, 1859.

1. The courts should not, in instructions to a jury, take for granted facts in issue in the cause.

2. Where a deed, purporting to be the deed of a corporation, is admitted, and no objection is made to its introduction on the ground that the corporate seal has not been proved, this objection will not be entertained in the supreme court.

3. Where an instrument purporting to be the act of a corporation has the common seal of the corporation attached and has been signed by the proper officer, it will be presumed that it was executed by authority of the corporation.

4. A will not providing for children of the testator, though voidable under section twenty of the act concerning wills and testaments, (R. C. 1825, p. 795,) by such children, is good as against strangers; unless the children assert their right against the will, the title will remain in the devisee, who will have, however, a defeasible title.

5. Where land owned by A. is in the adverse possession of B., and B. dies before the time of limitation is complete, devising his estate to his widow, but not naming or providing for his children in his will, and the widow remains in possession, not claiming under the will, but under an understanding with the children that she should enjoy the estate for life and that at her death it should go to them, and while she so remains in possession the time of limitation becomes complete and the widow's interest is levied on under a judgment against her and sold and she dies; held, that the agreement of the widow with the children would be valid though by parol, it not being within the statute of frauds; that the purchaser would take subject to such agreement, whether he had notice of it or not.

6. Courts should not in instructions comment on the evidence; it is the province of the jury to draw inferences from the facts in evidence; the courts should not give undue importance to particular facts in evidence by telling the juries that they are authorized to draw certain specified inferences from them.

Appeal from St. Louis Land Court.

This was an action in the nature of an action of ejectment to recover possession of a parcel of ground in the city of Carondelet. The cause has heretofore been before the supreme court, whose decision is reported in 23 Mo. 331. The defendant Barada was in possession as tenant of Sullivan and Papin, who were permitted to become parties defendant. The defendants by their answer denied the title of the plaintiffs and alleged an adverse possession in themselves, or those through whom they claim, for more than twenty years before commencement of this suit. At the trial the plaintiff gave in evidence Brown's survey of Carondelet common; also a certified copy of an ordinance of the city of Carondelet, approved March 18, 1852, ordering the making of certain surveys and authorizing the making of deeds of quitclaim of lands embraced within said surveys; also a copy of a resolution dated August 5, 1852, of the city council authorizing the mayor to convey the lot in controversy to the children of Antoine Motier. The defendant objected to the admission of this resolution on the ground that it wanted the evidence required by the charter of its passage and authenticity. The plaintiffs then introduced in evidence the deed of the city of Carondelet, dated August 14, 1852, to certain of the plaintiffs and to others their grantors. This deed purported to be made in pursuance of said resolution of August 5, 1852. Deeds from certain of the grantees in this deed and heirs of Antoine Motier, Sr., to certain of the plaintiffs were then introduced in evidence.

The defendant introduced evidence showing that between 1821 and 1824 Antoine Motier, sr., went upon the land with his family, built a log house thereon, planted an orchard, made a garden, and with his family occupied the premises in controversy until his death in 1834; that he made a will whereby, without naming or providing for any of his children, he gave all his property to his widow. This will was dated January 6, 1834, and was proved March 8, 1834. The widow got the will probated, and resided on the land with her children until evicted by Sullivan and Papin in October, 1847. Her children continued to live with her until they married, but left her as they married, except Antoine Motier, jr., who had married before his father's death and resided elsewhere. Mr. Barada, a witness for defendants, testified that he was born and had always lived in Carondelet; that he knew the Motier family well, and when Motier, sr., went on this land and built his log house; that he drew his said will, and with the widow and at her request attended upon its probate; that after her husband's death she claimed and sued for several tracts of land in the common fields of Carondelet, which she claimed under her father Clement Delor; that her claim embraced this land, for it ran all the way to the Mississippi river; that she sued persons on different parts of it; that she claimed the land, as witness believed, under her husband and Delor; that she claimed land under her father in the common field; that the common field came only to Fifth street; that she claimed to the river and that would include this land. The defendants also introduced a deed of the sheriff of St. Louis county, dated June 26, 1841, conveying to Sullivan and Papin all Madame Motier's interest in the land in controversy. In October, 1847, Sullivan and Papin were put in possession by the sheriff under a writ of possession issued upon a judgment in ejectment in their favor against said Madame Motier. The defendants then offered to read in evidence a lease of this land from Sullivan and Papin to Baptiste Motier, one of the children of Madame Motier, dated October 6, 1847; also the record of a suit for an unlawful detainer, begun July 2, 1850, by Sullivan and Papin against Julien Chouquette, one of the plaintiffs, for the land in controversy. Plaintiffs objected to the admission of these as irrelevant except to prove Sullivan and Papin in possession, and upon plaintiffs admitting that they had been in possession ever since the execution of said writ of possession in 1847, the court excluded them.

The plaintiffs in rebuttal introduced as a witness Antoine Motier, who testified that after his father's death his mother held the property, claiming under her husband, and claimed to occupy this land for herself and children, for herself during her life-time, and for her children after her death; that she occupied the property without objection from her children; that she had several occasions for selling it; that he, witness, would try to persuade her to sell it and with the money buy a smaller piece of land and live upon the balance of the money, but she would always refuse, saying that she meant to save it for her children; that he, witness, would tell her that her children could take care of themselves, but she would refuse to sell, saying that she would save it for her children; that he thinks his mother died in 1854 or 1855 after the making of the deed by Carondelet. Mr. Gamache testified that he was born in Stringtown, near Carondelet, and had lived in Carondelet since 1825; that he had heard widow Motier say that she was occupying this land for herself for her life and for her children after her death; that he used to visit her on this land, and that at these visits she said this in conversations there; that she died in the house on this land in 1852; that he heard her say that she claimed a life estate and then it was her children's; that he heard her say this as long, as he thinks, as five years before her death; he would not say that it was as long as six years before; that he heard her say it two or three years before her death; that he could not say whether he heard her say this before or after the late Mexican war; that he may have heard it as early as 1842 or 1843.

At the request of plaintiffs the court instructed the jury as follows: “1. The plaintiffs have shown themselves to be clothed with the documentary title to the land in controversy, and unless the defendants and those under whom they claim have had adverse possession of the premises for twenty years before the commencement of this suit, the plaintiff must have a verdict. 2. If the jury believe from the evidence that Madame Motier, after the death of her husband, did not claim the premises in controversy for herself in fee, but only claimed it for herself for life, and thereafter for the children of herself and Antoine Motier, and that this was the understanding between herself and her children after the death of Antoine Motier, then there was no adverse possession of said land by Madame Motier prior to 1847; and in that event the defendant can not avail himself of the statute of limitations. 3. The possession of the land by Madame Motier with her children after the death of her husband was, unless shown to be otherwise, the possession of her children as...