Dessaunier v. Murphy

• Decision Date: 31 March 1858
• Citation: 27 Mo. 48
• Parties: DESSAUNIER et al., Appellants, v. MURPHY, Respondent.
• Court: Missouri Supreme Court

27 Mo. 48

DESSAUNIER et al., Appellants,

v.MURPHY, Respondent.

Supreme Court of Missouri.

March Term, 1858.

1. The doctrine of presuming conveyances rests mainly upon long and uninterrupted possession in the owners of the title in favor of which the presumption is indulged; if this possession be had, not under the title in favor of which such a presumption is invoked, but under another title not shown to be owned by the person so invoking it, a conveyance will not be presumed to supply the defect.

Appeal from St. Louis Land Court.

This case has heretofore been before the Supreme Court. For the report of the decision of the Supreme Court see Dessaunier v. Murphy, 22 Mo. 95. In addition to the facts in evidence on the former trial, Henry W. Williams was exam ined as a witness in behalf of defendant. He testified that since 1846 his business had been that of an investigator of titles to real estate in St. Louis; that during that time he had taken abstracts of all the archives and a large portion of the deeds in the office of the recorder; that he had met with references to judicial sales of which he could find no evidence except recitals in deeds. The plaintiff also introduced in evidence various deeds showing that A. L. Langham had acquired a portion of the Bizette title previous to 1818; also other evidence tending to show that Langham claimed title through Bizette.

The plaintiff requested the court to instruct the jury as follows: “The land in dispute was confirmed by act of Congress of the 29th of April, 1816, to be surveyed to the legal representatives of William Bizette; and if the jury find from the evidence that said land was purchased by Charles Bizette on the 18th of February, 1775, and that Charles Bizette died leaving three children his heirs, and that Louis Boissy married one of the daughters of said Charles Bizette, and that Boissy died leaving only five children his heirs; and that Emily Dessaunier and Louise Deroin, two of the plaintiffs, were children of said Boissy, and that Paschall Mallett, Louis Mallett, Francis Mallett, Charles Mallett, and Mallia Mallett, and Maria Louise Deroin, the other plaintiffs, are the children of Margaret Boissy, the daughter of said Louise Boissy and Paschall Mallett, her husband, and that said Margaret and her husband are dead, then the jury will find in favor of the plaintiff for three-thirtieths or one-tenth part of the land sued for.” This instruction the court gave, having added to it the following clause: “Unless the jury find for the defendant under the instruction given for defendant.”

The court, at the instance of the defendant, gave the following instruction: “If the jury believe from the evidence that after the death of Charles Bizette, and before October 12, 1782, the land in controversy in this suit was sold to Joseph Brazeau as a part of the estate of said Bizette, under the authority of the government then in power in the county of St. Louis, they should find for the defendant. Such an authorized sale may be shown by circumstantial and indirect evidence as well as by direct evidence.”

The jury found for defendant.

N. D. & G. P. Strong, and Morehead, for appellants.

I. The copy of the receipt should have been excluded. It does not purport to be an original, but a copy. It does not describe any particular piece of land. There were three pieces of land mentioned as belonging to the estate of Charles Bizette. It does not purport to have been given to Joseph Brazeau. It does not purport that the money was paid at all. It simply discharges Brazeau. It does not purport to be for land of Charles Bizette. It is signed simply “mark of X Provenchere,” without designating John B. Provenchere, and without the attestation of a witness or acknowledgment. Having this want of anthenticity, being signed by an illiterate man, if signed at all, it speaks of dollars, a currency then utterly unknown in Missouri. It was irrelevant; it proves nothing. It derives no assistance from the face of the deed. The deed does not state when the money was paid. The deed is professedly founded on the receipt. Thirty years have elapsed since the assumed date of the transaction. The heirs of Charles Bizette were more than thirty years of age. The deed does not purport to have been made by the authority of any court or government. In 1811 Provenchere was a mere stranger to the title.

II. Supposing the deed and receipt properly admitted in evidence, they furnish no evidence of any authorized sale of the land in dispute upon which the court was justified in submitting the fact to the jury.

III. The instruction given was erroneous.

Todd, for respondent.

I. There was evidence from which the jury might lawfully infer the existence of an authorized sale of the land in controversy to Joseph Brazeau after the death of Charles Bizette, and prior to October, 1782. Perfect direct proof of the sale did not, it is true, exist. There was long continued, adverse, actual and highly public possession in constant view of most of the parties interested against the claim; this possession was for thirty-five years before the commencement of this suit, and in favor of this possession time had been running under the statute of limitations, against these plaintiffs and those under whom they claim, for nearly twenty years next before the commencement of this suit. This evidence is relied on only as corroborative of the other evidences in the case of an actual and lawful sale. 1st. The petition of widow Bizette for an inventory and sale of the property of the estate of Charles Bizette, deceased, her husband, for the purpose of paying debts and maintaining the children. 2d. The grant of the prayer, as shown by the proceedings of Gov. Cruzat. The inventory included this land. 3d. The appointment of Provenchere as curator of the infant children of Charles Bizette. 4th. The receipt of Provenchere to Brazo, of October, 1782, with the deed of himself and wife, dated May 11, 1811. This deed shows that the land in controversy was sold to Brazeau at public sale at the church. The debts of C. Bizette required a sale of the property of his estate. Such a sale was legally authorized and begun as early as September, 1781. Provenchere, as curator of the children, was entrusted with all the property not sold on the day of sale. He was authorized as curator to sell. (See White Recop. 16.) If he sold this land to Brazeau, and Brazeau paid for it, said receipt, if genuine, would be a usual and proper evidence of the sale and voucher of payment, and its date would be a consistent fact; and if it was his duty to report the sale and to make a record of it, its non-production should not affect Brazeau's right as evidenced by the receipt, because Provenchere may have omitted to report. Provenchere may have reported and the record may now be lost, as Williams' evidence shows may...