Lajoye v. Primm

• Decision Date: 31 October 1834
• Citation: 3 Mo. 529
• Parties: BALLE DIT LAJOYE v. PRIMM
• Court: Missouri Supreme Court

3 Mo. 529

BALLE DIT LAJOYE

v.PRIMM

Supreme Court of Missouri.

October Term, 1834.

ERROR TO ST. LOUIS CIRCUIT COURT.

WASH, J.

This was an action of ejectment commenced in the Circuit Court by the plaintiff in error against the defendant in error, to recover the undivided moiety of a lot of ground in the City of St. Louis, containing 75 feet, French measure, by 120 feet, being the east half of a lot 120 by 150 feet, French measure, which last named lot is the northwest quarter of block 57, as designated on the plat of the city of St. Louis. The defendant had a verdict and judgment, to reverse which judgment the plaintiff now prosecutes his writ of error in this court. The evidence is all preserved by a bill of exceptions. from which it appears that Jean Salle dit Lajoye, the father of the plaintiff, about the year 1769, built a stone house on the northwest corner of the square or block No. 57; and had a garden, and enclosed the west half of the square, the northeast portion of which he purchased from one Bon Varlet who had settled upon it a few years before, and which includes the land in dispute; and continued in possession of the same until he left this country for France in 1792 or '93; at which time he removed and settled in Bordeaux, where he continued to live up to the 29th of December, 1817. Since which time he has not been heard from. About the year 1770, Jean Salle intermarried with one Marie Rose Panda, by whom he had a son (the present plaintiff), and a daughter (Helene Leroux). When he removed from St. Louis to Bordeaux, he took his son with him, and left his wife and daughter in possession of his house, who, together with Peter Primm the defendant, and his, Primm's wife (the daughter of Helene Leroux), have continued ever since to occupy the northwest quarter of said block or square, the east half of the northwest quarter of which the defendant had possessed exclusively since 1809. Eighteen months or two years after Jean Salle removed to Bordeaux, his son the plaintiff returned, and has ever since resided in the country, but not on the lot or square on which his mother and sister lived. Marie Rose, the mother of the plaintiff, died in 1830. From the time the plaintiff returned from France up to the 29th of December, 1817, Jean Salie, the father, had no intercourse with his family, The manner of his removal and the circumstances attending it as detailed in the evidence, as also a letter received from him of the date of the 29th December, 1817, shows clearly that when he removed to Bordeaux in 1792, he intended to abandon his family and the country, and no intention could have been more fully acted out or persevered in. It was proved that Marie Rose, the mother of the plaintiff, died in 1830, at the advanced age of 104 years, and the witnesses state Jean Salle, the father, was, or appeared to be, as old as his wife; and not having been heard from since 1817, and being then about ninety years old, the plaintiff relies upon the presumption of his death, and claims as heir to his father the undivided moiety of the lot sued for; insisting first, that the title of Jean Salle, his father, was a good and perfect one. according to the law of prescription, in force whilst the country belonged to Spain; or else, that the act of Congress of the 13th of June, 1812, operated a confirmation to his father by virtue of his prior possession of the lot; and again, the plaintiff insists, that it be held that Jean Salle had no title by prescription, and that he had abandoned his possession, and could take nothing by the act of Congress of 1812; then he claims, as heir of his mother, the moiety of whatever she was entitled to claim by virtue of said act. The defendant gave in evidence a deed of conveyance dated October 21st, 1816, from the plaintiff and Marie Rose, his mother, and Helene Leroux, his sister, conveying to the defendant the west or corner half of the lot of 120 by 150 feet, above referred to, in which deed is the following clause: The grantors “sell unto him, the said Peter Primm, his heirs and assigns forever, a certain town lot or parcel of ground, lying and being situate in the town of St. Louis aforesaid, containing one hundred and twenty feet fronting on Third Main street, by seventy-five feet on the rear, French measure, bounded westwardly by the aforesaid Third Main street, which separates the said lot from the lot of Rufus Easton, northwardly by a cross street which separates it from the lot of Paul Guitard, eastwardly by lot of Peter Primm, and on which he now lives, and southwardly by lot on which Elijah Beebe now lives;” and insists first that the plaintiff's father had no title by prescription, and that the act of Congress of 1812 operated a confirmation of the title to the mother, Marie Rose, and her son-in-law, Benjamin Leroux, who, with his wife, Helene, jointly possessed the lot within the meaning of the act; and, secondly, that the deed from Marie Rose to Peter Primm above referred to, admitted the title of the lot in dispute to be in Peter Primm, and that the plaintiff, as heir of his mother, is estopped from claiming any portion thereof. Upon this state of facts, various instructions were asked on the part of the plaintiff, which were refused, and on the part of the defendant, which were given. It is not now our purpose to notice them in detail, but to proceed to the examination of those of them only on which the parties only rely ( i. e.), first, did Jean Salle acquire title by prescription to the lot in question? The right of prescription has been heretofore but little discussed or investigated, and no decision, it is believed, has ever been made upon it in this court. The doctrine, as it is to be collected from the Partidas, the digest of the civil law prepared for the Territory of Orleans in 1808, and from Febrero, leaves it somewhat doubtful whether the right of prescription could ever arise as against the King. The principles upon which the right is founded according to Febrero Lib. III., cap. 11, S. 239, are, “first, for the public good, to the end that the dominion of property might not remain for a long time, or almost always, uncertain. Second, to avoid the innumerable and perpetual suits which might otherwise originate. Third, that the possessors of property might not be always in dread of losing what they had honestly obtained; and fourth, to punish the indolence of those who were tardy in recovering their property; so that they should impute the loss of it to themselves, since the law protects those who watch and those who sleep.”

In order to set up the right, as between private individuals, on a possession short of thirty years, the title must commence in a fair and formal manner. The principle laid down in the civil code, and which is recognized both by Partidas and Febrero, is, “that a man who becomes possessed of an immoveable estate fairly and honestly, and by virtue of a just title, may prescribe for the same after the expiration of ten years, if the true proprietor resides in the Territory, and after twenty years, in case said proprietor resides abroad,” see civil code, title prescription, sec 11, art. 67. This is the authority upon which the counsel for the plaintiff mainly rely, in order to make out their title by prescription. A slight examination will suffice to show that it has reference to individual claimants, and cannot with any reason be made to apply to the King or Government.^(a) The King is never presumed to be absent from his dominions. His Territories are under the command and in the possession of his officers, and he cannot be charged with indolence in not resuming what had never been parted with. In looking a little further to other provisions of the law, it will be still more evident that the one relied on in this case was not intended to authorize an individual to prescribe against the Crown.

Prescription requires a continued, uninterrupted, peaceable, public and unequivocal possession animo domini ( i. e.), by one who is master, or who has good reason to think himself so--Civil code, sec. 1, art. 38. And the circumstance of having been in possession by the permission or through the indulgence of another, gives no legal permission upon which to prescribe; but the person so obtaining permission, will be esteemed to hold for him who grants the indulgence or permission. Jean Salle was among the first who settled in this country. When his possession of the lot in question commenced, it was known to all that the King was the proprietor of the soil, and had granted but little of it away to the settlers.

Without a grant or permission to settle, obtained from the proper officer, no one could, therefore, feel authorized to consider himself master of a single foot of land. It was not in this new colony, as it was or might be presumed to be in Spain, that the evidences of title commencing in regular and formal grants, had been lost or destroyed through lapse of time. As between individuals, a title commencing by permission or force or fraud, could not be prescribed for in less than thirty years. Salle's possession, as against the Government, cannot be placed upon a more favorable footing; for, though he might have purchased a part of the lot in dispute of Bon Varlet by formal sele, yet in order to build up the title on this purchase, Bon Varlet must have sold in good faith, believing at the time that he was the lawful owner which is clear he could not have done, the law being “that he who alienates and he who receives the thing must both act in good faith, believing they had a right to do so.” (Partidas Law 18, p. 318). It is next insisted on by the counsel for Salle (and they cite Partidas L. 21, p. 384. Civil code, title Prescription, sec. III., art. 65, p. 486, Febrero Lib. III., cap. 11, S. 490, in support of the postion), that thirty years' possession however acquired, will give the title against all the world, and they contend that Salle's possession was...