Dessaunier v. Murphy

• Decision Date: 31 October 1855
• Parties: DESSAUNIER AND OTHERS, Appellants, v. MURPHY, Respondent.
• Court: Missouri Supreme Court

22 Mo. 95

DESSAUNIER AND OTHERS, Appellants,

v.MURPHY, Respondent.

Supreme Court of Missouri.

October Term, 1855.

1. Where parties have been under disabilities so that their title to land, held adversely, has not been barred by the operation of the statute of limitations; held, that their failure to object to the adverse occupation, and to the making of improvements, &c., will not estop them for setting up title.

2. The presumption of a deed of conveyance from facts and circumstances, without the production of the instrument or any direct proof of its existence, and which juries are sometimes permitted, and, if the facts warrant, directed to draw, is a disputable presumption and not a conclusive presumption, or presumptio juris et de jure.

Appeal from St. Louis Land Court.

This was an action in the nature of an action of ejectment to recover possession of an undivided one-fifth part of a tract of about forty arpents, situate in the Grand prairie common field, near St. Louis. The land claimed was part of United States survey No. 1589, under a confirmation by act of congress of 29th April, 1816, to “William Bizette or his legal representatives.” Plaintiffs claim title as the legal representatives of William Bizette. Defendant, in his answer, traverses all the allegations of the petition, except that he admits being in possession of a part of the land sued for, to which he asserts title and ownership in himself; also sets up the statute of limitations as a bar to a recovery. Upon the trial, it appeared in evidence that the land sued for was confirmed to William Bizette's representatives by act of congress of April 29, 1816; and surveyed for said representatives, September, 1838, by United States survey No. 1589; that at a public judicial sale of the estate of Wm. Bizette, then deceased, his brother, Chas. Bizette, became the purchaser of the property in controversy, and a deed dated February 18, 1775, was made to him, conveying the same; that before this sale, said Charles Bizette had married one Mary Papin, under a previous marriage contract, in which, among other things, it was stipulated that the parties thereto should “be one and common in all property moveable, and in acquisitions immoveable, conformably to the custom established in this colony,” &c., and that “the said future consorts take each other with the property to them actually belonging, and that which may come to them in the future, and with all acquisitions and gains, either of moveable or immoveable, which property, from whatever side it might come, and in whatever place it may be located, shall enter entirely into the community, without exception or reserve;” that Charles Bizette died in the year 1780, leaving, him surviving his wife Mary and three children, born at St. Louis, to-wit: Mary Louise, Paul and Antoine; that the said Mary, widow of Chas. Bizette, married John B. Provenchere in the year 1781, and died January 22d, 1819; that said John B. Provenchere died about 1819 or 1820, the said Provenchere and wife living in the vicinity of St. Louis; that said Mary Louise Bizette married Louis Boisse in the year 1795, and died in the year 1813, the said Louis dying October 12, 1819; that the said Mary Louise and Louis Boisse had five children, Emily, (the plaintiff, Emily Dessaunier,) Louise, (the plaintiff, Louise Deroine,) Margaret, (mother of the other plaintiffs,) Baptiste and Louis; that the said Emily was born in May, 1799, and was married to J. B. Gaignon, June 22d, 1818, who died about nineteen or twenty years before the trial; she afterwards married one Dessaunier, since deceased; that the said Louis Boisse (plaintiff) married Francis Deroine, October 27, 1819, about twenty-two or twenty-three years before the trial, who died three or four years before the trial; that she was fifty years old at time of trial; that the said Margaret Boisse married Paschall Mallette, October 17, 1812, and died about twenty years before the trial, leaving the following children, to-wit: 1. Paschall Mallette, (one of the plaintiffs,) aged 34 or 35 years at time of trial; 2. William, (also one of plaintiffs,) aged about 34 or 35 years at time of trial; 3. Frederick, (one of plaintiffs,) dead about nine months before trial; 4. Louis (plaintiff), aged at same time about 20 years; 5. Charles (plaintiff), aged at same time, 35 or 36 years; 6. Francis (plaintiff), aged at same time about 21 or 22 years; 7. Lize, who died about 22 years before the same time, leaving a child, who, soon after the death of its mother, was taken to France by its father, and had not been heard from for seven or eight years.

The defendant introduced in evidence archives No. 2371 and 2590. Archive No. 2371 purported to be an inventory taken in August 18, 1781, of the effects of the estate of Charles Bizette, deceased, taken under the authority of the lieutenant governor, upon a petition of the widow of said Bizette, praying that an inventory might be taken and the effects sold for the payment of debts and for the benefit of the children of the said Bizette, the widow being about to marry again. The tract of land in controversy was included in this inventory. Archive No. 2590 purported to be sale of the effects of Charles Bizette, deceased, under an order of and in the presence of lieutenant governor Cruzat. This sale took place September 17th, 1781, and was on a credit of one year. In the list of effects sold, there is no mention of the land in controversy in the present suit, or of any real estate. This archive also tended to show that John B. Provenchere, (who afterwards married the widow Bizette,) was appointed guardian and curator of the minor children of Charles Bizette, and authorized as such guardian and curator to take charge of all the effects of Charles Bizette. Defendant then offered in evidence a deed of J. B. Provenchere and Marie Christine, his wife, dated May 4th, 1811, to Joseph Brazeau, purporting to convey the land in controversy. In this deed, it is recited that Joseph Brazeau had purchased the said tract at the public sale which had been made after the decease of Charles Bizette; that the said conveyance was made in consideration of the sum of forty dollars, which had been paid by the said Brazeau, “as is evidenced by the receipt annexed to these presents,” which annexed receipt is as follows: “I, the undersigned, give a full discharge of Mr. Brazo of the sum which he owes to the estate of the late Vizet, for a piece of land which was sold to him at public sale. St. Louis of Illinois, October 12, 1782. 200 livres, or $40.

mark of X PROVENCHERE.”

Said deed was recorded June 18th, 1811. There was also offered in evidence a deed of the said Joseph Brazeau, dated June 18, 1811, to Auguste and Louis Brazeau, of the land in controversy, acknowledged and recorded same day; also a deed dated August 13, 1818, recorded August 15th, 1818, of Auguste and Louis Brazeau, to Angus L. Langham, purporting to convey the land next south of that in controversy in the present suit. In this deed, the land conveyed is bounded north by Angus L. Langham. There was also evidence tending to show that Langham went upon the land in the fall of 1818, in October or November, and built a house and made enclosures upon it, and that the land had been claimed through him since then to the present time, and that it had been in possession of some one since Langham left it, claiming through him, except for a year or two, say from 1828 to 1829, when it was not known whether any one was upon the place or not. The following instruction asked by defendant, was given by the court: “If the jury believe from the evidence that Charles Bizette purchased the land in controversy at a public sale of the estate of William Bizette, on or about February 18th, 1775; that before its purchase he was married to Mary Papin, in pursuance of the contract therefor read in evidence; that after this sale, and about May 26th, 1780, said Charles died, leaving the said Mary his widow, and a daughter, Mary; that afterwards said widow was married to John Bte. Provenchere, and the said Mary to Louis Boisse; that said Provenchere was made guardian of the children of Charles Bizette; that they all afterwards continued to live in this vicinity, until their deaths, as given in evidence; that as early as 1811, the said Provenchere and the said Mary, as his wife, made a deed, conveying said tract to Joseph Brazeau, under a claim by him (Brazeau) and admitted by said Provenchere and said Mary, his wife, of having purchased it at a public sale of the estate of Charles Bizette, and that said claim and admission were inserted in said deed; and that said deed was recorded in the records of deeds for the county of St. Louis, in the same year; that said Brazeau, in the same year, conveyed said tract by a deed of warranty unto Auguste and Louis Brazeau, and that this deed was also put upon said records in the same year; that afterwards and as early as 1818, said Auguste and Louis admitted in writing that Angus L. Langham was the owner of said tract, and that said admission was put upon said records in the same year, 1818; that said Langham, in the same year, entered into the possession thereof, and made substantial and costly improvements thereon, and that this tract has ever since been possessed and improved adversely to all others by said Langham and those claiming by, through or under him, and that defendant claims through him, said Langham, the possession of the portion thereof that he has in possession, then the jury should presume a good title in the defendant of the part of said tract he is possessed of, and find for the defendant.” To the giving of this instruction plaintiffs excepted. The following instruction was asked for by the plaintiffs and refused...