Chouquette v. Barada

• Decision Date: 31 October 1862
• Citation: 33 Mo. 249
• Parties: JULIEN CHOUQUETTE et al., Respondents, v. ANTOINE BARADA et al., Appellants.
• Court: Missouri Supreme Court

33 Mo. 249

JULIEN CHOUQUETTE et al., Respondents,

v.ANTOINE BARADA et al., Appellants.

Supreme Court of Missouri.

October Term, 1862.

Appeal from St. Louis Land Court.

This was an action of ejectment, commenced on 28th January, 1854, to recover a lot of ground in Carondelet, having a front of 170 feet on Fourth street by 270 feet, more or less, in depth, bounded on the north by lot of M. S. Cerré and John B. Sarpy, east by Fourth street, south by a county road, and west by Fifth street.

The trial in the court below resulted in a verdict and judgment in favor of plaintiffs for the land and $336 damages. This judgment was rendered 3d November, 1859.

At the trial the plaintiffs gave in evidence the following agreement:

“It is agreed that the land in controversy is within the common of Carondelet. It is also admitted that the pamphlet purporting to contain the ordinances of the city of Carondelet from one (1) to sixty (60) inclusive may be read, as to ordinance No. 57, in the same manner and with like effect as a certified copy of said ordinance No. 57. Also, upon the offer of any sheriff's deed by the defendants, no objection to its admission shall be made for the absence of the record of the suits out of which it purports to arise, but the same may be admitted if in due form.”

The plaintiff then read ordinance 57, approved March 18, 1852, and also the following resolution of the city council of Carondelet:

“Resolved, that under the provisions of ordinance No. 57, approved March 18, 1852, the mayor is hereby authorized to execute a deed to Antoine Chouquette and others, petitioners, for a lot of ground described in their petition and situated west of Fourth street, containing 170 feet front by 270 feet in depth, more or less, bounded north by lots claimed by M. S. Cerré and John B. Sarpy, east by Fourth street, south by a county road, and west by Fifth street, provided,” &c.

An objection was made by the defendants to the reading of this resolution.

The plaintiffs then read in evidence the deed of the City of Carondelet conveying to Antoine Motier, Julien Chouquette and Victoire his wife, Charles Motier, and Ophelia, wife of Joseph H. Vien, the land in controversy. This deed was dated August 14, 1852.

The defendant objected to the reading of this deed, because no evidence of authority for making it was shown. The genuineness of the signatures of the officers and of the seal of the corporation affixed thereto were admitted. The court overruled the objection. It was admitted that Antoine Motier, Sen., died in the early part of March, 1834, and that his widow Felicité was buried 11th September, 1852.

The plaintiff then showed that Antoine Motier left him surviving the following children of himself and Felicité Motier, viz: Antoine, (1,) Charles, (2,) John Baptiste, (3,) Andrew, (4,) Victoire, married to Julien Chouquette, (5,) Isabella Elizabeth, since married to Michael Garci, (6,) Ophelia, since married to Joseph N. Vien, (7,) and Louis, (8.) Of these, Antoine, the oldest, was living at Stringtown, married; Charles was on the Rocky Mountains; Victoire was married and living with her husband in Carondelet; all the rest lived with their mother on the premises when the old man died; as they married they moved away; Louis, the youngest, was living with her when she died in 1852.

Plaintiffs gave in evidence:

1. Deed from Joseph N. Vien and wife to Moritz Taussig, conveying all their interest in the premises in controversy by quit-claim for $100, dated August 30, 1852.

2. Deed from Antoine Motier to Wm. Taussig, conveying all their interest in the same quit-claim for $--.

Deeds from Louis, Andrew, and John B. Motier, dated 29th February, 1848, and Michael Garci and wife, dated 8th April, 1851, conveying all their interest to Julien Chouquette.

To each of these deeds (the genuineness of which was admitted and also the validity of the certificates of the acknowledgments thereof, by the married women, to pass their real estate if any) the defendants objected on the ground that they were each irrelevant and incompetent testimony in the cause. The court overruled this exception.

Plaintiffs then showed that the premises were worth four dollars a month in 1852, and since 1854 five dollars per month. The possession of the premises by the defendants at the commencement of this action was admitted by the record. This was the case of the plaintiffs.

The defendants gave in evidence a will of Antoine Motier, Sen., admitted to probate 8th March, 1834, whereby he, without mentioning or referring to any of his children, devised all his property to his widow, Felicité Motier; and then read in evidence a deed made by the sheriff of St. Louis county on 26th June, 1845, conveying to Sullivan and Papin all the interest of Felicité Motier in the premises in controversy.

He then examined as a witness Peter D. Barada, who testified that he was born in Bridgeton, but had since early youth resided in Carondelet. That Antoine Motier went on the land in 1819, or thereabouts. He was then a married man. He built a small cabin on the land in 1820, the same that is now there, and made a garden and resided there until his death, in 1834. Julien Chouquette enclosed the lot after the death of old Motier, enlarging an enclosure made by Antoine in his life-time. Motier left no property but this lot and furniture. Motier claimed the property as his while alive. His wife kept possession of it after his death, and claimed the land both under her husband and under her father, Clement Delor. After her husband's death she lived on this land and gardened it. Witness knew her well; did not visit her often. She paid Cromwell and others for land in the common fields. Witness told her she would lose the suit. She thought otherwise. The land in controversy is outside of the common fields, but Madame Motier claimed that the common field ran to the river.

Hyacinth Pigeon testified that Mrs. Motier claimed the land in controversy as her own after her husband's death; heard her speak of it as her own. She said she had sold fifty feet of it to Chouquette. This was in the last year of her life. She said she would not yield her claim to the land until her death; none of her children were with her the last years of her life. Said on cross-examination that she claimed the property for herself during her life, and for her children after her death.

To the same effect were other witnesses.

Plaintiffs in rebuttal showed by Antoine Motier, Peter Gamache and Louis Motier, that after the death of Antoine Motier, Sen., his widow only claimed to live on the property during her own life; acknowledging the right of her children to it after her death. She said this in presence of her children before 1845.

The defendants excepted to the testimony of these witnesses to show any arrangement or agreement between Madame Motier and her children as to the terms on which she occupied the land. The court overruled the objection.

The court gave the following instructions to the jury at the instance of the plaintiffs:

1. The plaintiffs have shown themselves to be clothed with the documentary title to the land in controversy if the deeds read by them in evidence are genuine, and they are entitled to a verdict unless the defendants and those under whom they claim have had possession of the premises, claiming the same adversely to the plaintiffs, for twenty years before the commencement of this suit.

2. If the jury believe from the evidence that Antoine Motier settled upon and improved the premises in the year 1820, or thereabouts, living thereon with his family; that he died in March, 1834; that after his death his widow, together with her minor children, continued to occupy the same premises up to 1845, and that the widow only claimed a life estate in the premises during all that time, recognizing the title of the heirs of Motier to the fee after her death, then such occupation was not during said time adverse to the heirs of Antoine Motier or those claiming under them.

The defendants excepted to these instructions.

The court gave the following instructions at the instance of the defendants:

1. If the jury believe from the evidence that more than twenty years next before this suit was begun Antoine Motier, Sen., had possession of the land in suit, or any part thereof, claiming it as his own; that he continued such possession and claim until his death; that he died and left as his widow Felicité Motier, and she, upon his death, succeeded to his possession of said land, claiming it as her own under him, and continued such possession and claim until April 19, 1845; and that the sheriff of St. Louis county, under regular executions, levied upon all her right, interest and estate in said land, and sold the same to Sullivan and Papin, the defendants; and that ever since defendants have had possession of said land, claiming it as their own, then their title is better than that of the City of Carondelet, when she made the deed to plaintiffs.

2. If the jury believe from the evidence that the sheriff's deed given in evidence is genuine, and that the land therein described is the land sued for, and that the defendants, Sullivan and Papin, claim through said deed wholly or in part their right to said land, they should reject as evidence all words and acts of Felicité Motier said or done by her after April 19, 1845, concerning her interest in said land, or after said time concerning any alleged arrangement or agreement between her and her children with reference to how she had or did hold the possession of said land.

The court refused the following instruction asked by defendants:

“If the jury believe from the evidence that Antoine Motier, Sen., had possession of the land, or any part of it, at the time of his death, claiming it as his own, and that upon his death Felicité Motier continued the possession thereof, claiming it as her own by virtue of a will made by him or otherwise, then no agreement entered into...