Gar v. Murphy

Citation33 Mo. 184
PartiesGARÇON DESSAUNIER et al., Appellants, v. THORNTON D. MURPHY, Respondent.
Decision Date31 October 1862
CourtUnited States State Supreme Court of Missouri

Appeal from St. Louis Land Court.

This suit was filed on the 14th day of September, 1853, and is for the recovery of two-fifteenths of 120 arpens in the Grand Prairie common field. The land was granted to William Bizette in 1769, by his estate sold to Charles Bizette in 1775, and was confirmed by the act of 29th April, 1816, to William Bizette or his legal representatives, and duly surveyed as No. 1589. The case has been in the Supreme Court twice before this appeal, reported in 22 Mo. 95, and 27 Mo. 48. Charles Bizette died on the land in 1780, leaving his widow, Marie Christine, and three children, Antoine, Paul, and Mary. The widow married John B. Provenchere in 1781; she died in 1819. Mary, the daughter, married Louis Boissy in 1795; she died in 1813, leaving five children, Emily, Margaret, Louise, Louis, and John B. Emily married John B. Gagnon 22d June, 1818; he died in 1834; she afterwards married Dessaunier. Margaret married Paschal Mallet in 1812; she died in 1834; he died between 1844 and 1849; the plaintiffs (Mallets) are the only children living. Paul and Antoine conveyed their interests, each one-third, to John L. Provenchere in 1817; Provenchere conveyed the same to Langham the same year; Langham, by sheriff, conveyed the tract to the United States in 1827; Brown Cozzens acquired it of the United States October 15, 1831.

Louis B. Boissy, Jr., conveyed his interest, one-fifteenth, to Brown Cozzens January 1st, 1833; John B. Boissy conveyed his interest, one-fifteenth, to John L. Provenchere August 20, 1833, which enured to Cozzens.

Cozzens and wife conveyed to Edward Bates, trustee for Mrs. Cozzens, in 1834, (having all the title but three-fifteenths); Edward Bates, trustee, conveyed to Abbott in 1836; Abbott and wife and Joseph Tabor conveyed to the defendant in 1838. The interest of Louise Boissy was barred by the statute of limitations, one-fifteenth, and suit dismissed as to her.

The foregoing facts are shown by evidence on both sides. The defendant's answer admits possession, traverses all other allegations, asserts ownership in himself, and sets up the statute of limitations.

Defendant introduced in evidence, against the objections of plaintiffs, archive No. 2371, dated August 18, 1781, and archive No. 2590, dated September 17, 1781; the first an inventory, the second a sale of Charles Bizette's estate: the inventory included this land--the sale did not.

Then a deed from John B. Provenchere and Marie, his wife, of date May 4th, 1811, reciting “the same Brazeau purchased at public sale of Charles Bizette, as evidenced by the receipt annexed:”

“I, the undersigned, give a full discharge of Joseph Brazeau 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.”

No original receipt was shown, but simply what was recited in the deed; the consideration of the deed was $40; plaintiffs objected to its being read; then a deed from Joseph Brazeau to A. & L. Brazeau, of same date, for same land; and a deed from A. & L. Brazeau to Langham for a tract adjoining, reciting Langham on the north, of the date August 13, 1818.

Brown Cozzens was in possession in 1829, claiming to be owner, and the possession was continued down to the present time.

Defendant then read a portion of the testimony of Cecil Lecompte, contained in former bills of exceptions in this case.

The defendant then read portions from a deposition of Cecil Lecompte, taken by the plaintiffs and filed in said case, to which plaintiffs objected unless the whole was read; its admission was excepted to.

Plaintiffs then offered to read the whole deposition--objections to which were sustained and exceptions taken.

Plaintiffs then offered the following instructions, which were given:

1. The possession of the defendant and those under whom he claims, in order to defeat the rights of the plaintiffs, must have been a continuous possession adverse to the rights and title of the plaintiffs for a period of twenty years anterior to the commencement of this suit; and if, at the time of such adverse possession taken by the defendant and those under whom he claims, the plaintiffs or those under whom they claim were married, the said term of twenty years does not begin to run until the termination of said marriage.

2. The land in dispute was confirmed by the act of Congress of April 19, 1816, to be surveyed to the legal representatives of William Bizette, and if the jury believe from the evidence that said land was purchased by Charles Bizette in 1775, and that Charles Bizette died in 1780, leaving three children his heirs, and that Louis Boissy married one of the said children, a daughter of said Charles Bizette, named Marie, and that the said Boissy and wife died, leaving only five children heirs of the said Marie Boissy, and that Emily Dessaunier, one of the plaintiffs, was a child of the said Louis and Marie Boissy by said marriage, and that Paschal Mallet, Louis Mallet, Francis Mallet, Charles Mallet, and Millia Mallet, the other plaintiffs, are the children and heirs of Margaret Boissy, one of the said children and heirs of the said Louis and Marie Boissy, and Paschal Mallet was her husband, and that said Margaret and her husband died before the commencement of this suit, then the jury will find for the plaintiffs for eleven one hundred and eightieths of the land sued for, unless the plaintiffs are barred by the statute of limitations.

Plaintiffs then offered the following instructions, which were refused:

1. If the jury believe that Langham went into possession of the land in dispute in 1818, under title derived simply from Paul and Antoine Bizette, two of the heirs of Charles Bizette and of Louis Boissy, Sen., who had only a life estate, then the said Langham was tenant in common with the remaining heirs, and his possession was rightful and not adverse to his said co-tenants, the plaintiffs. Until some act or declaration of him, the said Langham, amounting to an ouster, or demand of title, no act of limitation, as to the plaintiffs, would begin to run.

2. Unless the jury believe that possession was taken and long held under the pretended sale of the land in controversy to Joseph Brazeau, the jury are not at liberty to find any authorized sale of said land to the said Joseph Brazeau; and the jury are further instructed that there is no evidence of any such possession under said Brazeau. In the absence of any such authorized sale the plaintiffs are entitled to recover, unless the defendant is protected by the statute of limitations.

Defendant offered the following instructions, which were given and excepted to:

(For instructions A, B, C, see the opinion.)

D. If the jury believe from the evidence that John Provenchere and Marie Christine Provenchere made to Joseph Brazeau a deed of conveyance of the terms of the writing read in evidence by the defendant, as a copy of such deed, and that the said Marie was the widow of Charles Bizette, and that such deed embraced this land; then, if the jury find in favor of Emily Dessaunier, they should find for her only one-thirtieth of the land sued for, and if they find in favor of the other plaintiffs they should find for them altogether only one-thirtieth of the land sued for.

Morehead and Strong, for appellants.

I. The deed from Provenchere and wife to Brazeau in 1811, and the inventory and sale of Charles Bizette's estate, were all improperly admitted in evidence. Presumption of title was no longer a question in the case.

The case was narrowed down to the question of the statute of limitations. (27 Mo. 48.)

II. The court improperly allowed the defendant to read selected portions from the deposition of Cecil Lecompte.

III. It was improper not to have allowed the plaintiffs to read the whole deposition, not only after what had been done, but at any time. (6 Pa. State Rep. 179; 21 Mo. 300; 1 Greenl. Ev. § 201 and 202; 28 Mo. 323, on page 329.)

IV. The plaintiffs' last three instructions were improperly refused.

The first was the law, and the facts authorized it, although disability was clearly shown without it. The plaintiffs were protected without disability under the law in that instruction.

The evidence showed that Langham or the defendant had no title but that derived from plaintiffs' co-heirs, although the possession of the defendant did not commence, as the evidence in this case shows, till 1829.

Cozzens purchased from Louis Boissy, Jr., one of the heirs, in 1833; not upon the principle, we conceive, of buying his peace, but of increasing his interest. He must have regarded Louis Boissy as a co-tenant before his purchase. (30 Mo. 272.)

V. Defendant's first instruction is wholly wrong; it cuts off all the plaintiffs' rights in the case, unless under age or married. This brings up an important question the jury were prevented from seeing by the instruction. Mrs. Mallet died in 1834. We suppose this fact is undoubtedly established by the evidence. Mr. Barada saw her in Carondelet in 1831; she was certainly alive then. Her husband died between 1844 and 1849; he had a life estate. The plaintiffs, Mallets, could not sue till his death; they were their children; they were unquestionably under disability, and entitled to recover in this case. They were prevented from doing so by this instruction. (17 Mo. 231; 23 Mo. 112; 25 Mo. 350; 22 Mo. 52 and 54.)

Again, the answer asserts title in fee in the defendant. The burden of proof, we apprehend, on this point is on the defendant.

The first deed he begins with is 1834; twenty years does not elapse till 1854; suit was brought in 1853.

A. Todd, for respondent.

I. The plaintiffs claimed to recover only a portion, either by their evidence or by their instructions. The court so instructed the jury as to give them...

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