Harrison v. Cachelin

• Citation: 35 Mo. 77
• Parties: JAMES HARRISON, Appellant, v. CONSTANT CACHELIN et als., Respondents.
• Decision Date: 31 March 1864
• Court: United States State Supreme Court of Missouri

35 Mo. 77

JAMES HARRISON, Appellant,

v.CONSTANT CACHELIN et als., Respondents.

Supreme Court of Missouri.

March Term, 1864.

Appeal from St. Louis Land Court.

Gantt and Casselberry, for appellant.

Whittelsey, for respondents.

BATES, Judge, delivered the opinion of the court.

This case has been in this court twice before, and both times, as in the present instance, it was brought up by the plaintiff. There have been three verdicts for the defendants, one of which was set aside by the lower court. It is with regret that we find ourselves constrained to reverse the last judgment.

The case is reported in 23 Mo. 117, and 27 Mo. 26. At the last trial, the plaintiff showed a perfect documentary title, and the defendants rely solely upon the statute of limitations.

It appeared by the evidence that Leon Levi, senior, occupied the premises, a lot in the town of Carondelet, in his lifetime; that he died in 1838, leaving a widow and two children, the defendants Leon and Nicholas Levi; that shortly after his death the widow, with her children, (then very young,) removed from the lot, and she subsequently married Henry Chouquette; that the lot was then enclosed with a fence, and had upon it a house built of logs, set upright, and with a stone chimney; that in 1844 the fence was swept away by the great flood of that year; that in 1845 Chouquette repaired the fence and used the lot; that Chouquette died in 1845 or 1846, and after that (except possibly for a short time in 1846) the premises were unoccupied until 1851, when the defendant Cachelin went into possession as the tenant of the other defendants, Leon and Nicholas Levi. Mrs. Chouquette, the widow of Levi, died in 1848, or January 1st, 1850. Between 1846 and 1851 the fence soon disappeared, with the exception of a few posts, or remnants of posts, and the wooden part of the house gradually disappeared, (one witness stating that the wood was taken away by passers for firewood,) so that in 1851, when Cachelin went into possession, there was nothing left of the old improvement but the chimney, or a portion of it. Evidence was given tending to prove, that, at some time from 1844 to 1851, Leon Levi, then a child, erected on the lot a building variously described by the witnesses as a house, a cabin, a shanty and a pen, the size of which was from five feet square to eight foet square, and which was never occupied by any person, nor used for any purpose whatever. Evidence was also given of the payment of taxes by Mrs....