Dougal v. Fryer

• Decision Date: 31 January 1831
• Citation: 3 Mo. 40
• Parties: DOUGAL v. FRYER.
• Court: Missouri Supreme Court

3 Mo. 40

DOUGAL

v.FRYER.

Supreme Court of Missouri.

January Term, 1831.

ERROR FROM ST. LOUIS CIRCUIT COURT.

EDWARD BATES, for plaintiff.

H. R. GAMBLE and B. ALLEN, for defendant.

WASH, J.

This was an action of ejectment brought by Fryer v. Dougal, to recover a lot of ground in the city of St. Louis. The case was submitted to the court below, and the facts found after the manner of a special verdict, and upon the finding, judgment was rendered for Fryer, to reverse which, Dougal now prosecutes his writ of error in this court.

The facts as found by the special verdict are in substance, that on the 8th day of November, 1803, Santeago Clamorgan, and Joseph Braseau, at St. Louis, in the province of Upper Louisiana, before Carlos Dehault Delasous, then Lieutenant Governor of Upper Louisiana, in the office of a public scrivener, and in the presence of two attesting witnesses, executed an instrument of writing, by which the said Clamorgan sold, ceded, transferred and abandoned to said Joseph Braseau, forever, among other things, a lot of ground of one hundred and twenty feet front, by two hundred feet in depth; situated in the upper part of the city of St. Louis, on Church street, &c., to have and dispose of it according to his will, as of a thing to him appertaining and rightfully acquired, and acknowledged to have received the consideration of said sale at the time of the execution thereof; and the court sitting as a jury further found, that the said Joseph Braseau, by the same instrument in writing (in consideration of the friendship which he professed for his God-son, called St. Eutrope, the natural son of said Clamorgan, as also for two other natural children of said Clamorgan, one a little girl called Apoline, who is described in said instrument as being of the age of eight months, the other a little boy called Cyprian Martial, who is also described in said instrument as being of the age of about five months); made a pure irrevocable donation of the said lot, to the said St. Eutrope, Apoline, and Cyprian Martial, to be disposed of as a thing to them appertaining in full propriety and rightfully acquired, upon the burthen and condition of not being able to use the said lot for selling it, incumbering it, or pledging it, before the youngest shall have twenty-five years complete, when they all unanimously and with one consent, may dispose of the same according to their free will; and in case the said boys or girl shall die before the age of twenty-five years, or after, those remaining alive shall be heirs of the said deceased, that is, if said deceased shall have no children to inherit, but in that case, those children shall be heirs on the part of the deceased father or mother. And the Court sitting as a jury did further find, that said instrument in writing was recorded in the office of the recorder of the county of St. Louis, on the 18th day of July, 1825: that the said St. Eutrope was born free on the 13th of April 1802; that the said Apoline was born free on the 7th of February, 1803, and that the said Cyprian was born free on the 10th of June, 1803: that before the 15th of November, 1826, said Eutrope died intestate without issue: that on the said last mentioned day, the said Apoline and Cyprian executed in due form of law, a deed of partition, which was duly acknowledged and recorded in the proper office on the 3d of July, 1827: that previous to the 20th of September, 1827, the said Cyprian died intestate and without issue, and that on the said 21st of September, 1827. the said Apoline executed, for a valuable consideration, a deed to Charles Collins, which was duly acknowledged and recorded the 29th of January, 1828: that on the 9th of July, 1828, the said Apoline, for a valuable consideration, executed also a deed to the plaintiff below (Fryer), which was duly acknowledged and recorded on the 11th of July, 1828: that the consideration of $600...