Leitensdorfer v. Delphy

• Decision Date: 31 October 1851
• Citation: 15 Mo. 160
• Parties: LEITENSDORFER v. DELPHY.
• Court: Missouri Supreme Court

15 Mo. 160

LEITENSDORFER

v.DELPHY.

Supreme Court of Missouri.

October Term, 1851.

APPEAL FROM ST. LOUIS COURT OF COMMON PLEAS.

This is an appeal from the St. Louis Court of Common Pleas. The action was originally for the recovery of a piece of land in Carondelet. Both parties claimed under Francis Fournier. On the 16th of January, 1830, he, together with his wife, conveyed the land in question together with the real-estate to F. Denoyer, using in the deed the following granting words: “Do grant, bargain, sell and convey unto the said Francis Denoyer, his heirs and assigns, all their right, title, interest,” &c. It was declared that the consideration of the deed was, that Denoyer should “maintain Fournier and his wife, during their natural lives, with good and sufficient clothing and food, in sickness and in health; furnish them with a horse and cart and give them at all times free access to the property conveyed for their own use during their lives,” during which time Denoyer was not to convey or dispose of the land to any person whomsoever.

On the 31st day of January, 1831, Denoyer by a deed, reciting the above-mentioned deed, and that the parties found said deed and the covenants therein contained, to operate to their prejudice and against their interest, went on to declare that these and divers other good causes moved the parties to make the deed of January, 1831, by which he did “abandon, relinquish and quit-claim to all the property in the aforesaid deed described, unto the said Francis Fournier, and they, the said Francis Fournier and wife, “do hereby release and discharge the said Francis Denoyer from further performance of each and every one of the covenants by him entered into in the aforesaid deed.” These deeds were part of plaintiff's petition.

Both Fournier and his wife died between 1833 and 1840. On the 20th of August, 1850, Denoyer and wife conveyed to the plaintiff the lot in controversy. The petition alleged that defendant was in possession and that the yearly value was $60 00, and prayed judgment, &c.

The defendant answered, setting up the deeds recited in plaintiff's petition and arguing on them; and averred that if the words “his heirs,” were necessary in the deed from Denoyer to Fournier, to convey to the latter any greater estate than for his life, “they were omitted by the ignorance or oversight of the scrivener who wrote the deed, and it was the intention of the parties that Fournier should have his former estate complete to him and his heirs. On the 3rd day of February, 1831, Fournier conveyed to Denoyer, in fee simple, with covenants for title, part of the land relinquished to him on January 31, by reason whereof the said Denoyer, or those claiming under him, are estopped in equity from saying that the said Fournier had not title in fee simple to all the lands described in the first mentioned deed, and the said Denoyer, and those claiming under him, are in equity estopped from setting up any title under the deed in plaintiff's petition described.” Defendant further stated that since January 31, 1831, and up to the commencement of suit. Denoyer resided in Carondelet and neither he nor any one claiming under him had set up any claim to the land. Defendant then deduced the title to himself from Fournier, the first deed being dated in 1833, and avowed his possession of the lot by virtue of this title.

At the trial the case was submitted to the court sitting as a jury. Plaintiff read his petition and exhibits and rested. Whereupon the defendant read his answers and exhibits and produced the following witnesses, viz: Robert, Marechal, Chartrand, Ginon, Gamache, and Chattillon. Robert testified that he had known Fournier--couldn't say how long he had been dead. Denoyer was a son-in-law of Fournier. Fournier lived where defendant now lives; he lived there for a longer time than witness can remember. He was living there in 1830 and before. Witness did not know where Denoyer lived then. Before the change of government Claude Arman lived on part of the block in dispute, and on that part of it occupied by defendant.

Marechal testified that he was more than sixty years old and had known Fournier and Denoyer but did not know Tinon. Fournier lived on the lot in dispute from 1814 until he died, which was fifteen or sixteen years ago. Denoyer had some property and in 1830 lived on a lot near Chouquetts on the hill. After old Fournier's death Mad. Fournier lived with Denoyer, can't say whether he supported her or not. Denoyer worked for his own living. Some part of the time she lived with another son-in-law named Lemai.

Chartrand testified that he knew Claude Tinon as far back as he could remember anything. He lived five or six years on the southeast quarter of the block (which is the same which is now in dispute). He then moved to Mr. Menaid's and afterwards moved to Cahokia. This was under the Spanish government. Witness knew Fournier until his death. Witness cannot say whether Fournier or Denoyer could read or write. Believes that Stine, or else Bavida used to write deeds for the people in Carondelet.

Ginon testified that Denoyer had told him that he bought the land from Fournier and was to support him, but afterwards rued the bargain, and that Fournier gave him part of the lot, and a piece of land in the fields. On cross-examination he stated that he got this information from Denoyer and others.

Gamache knew Claude Tinon. He lived on the east quarter of the block; about the middle of the southeast quarter. This was fully thirty-five years ago. Witness went to school to Tinon. He was then twelve years old. He is now fifty-four years old. Afterwards Fournier lived there. If Denoyer ever said anything to witness respecting his bargain with Fournier witness has forgotten it. The present value of the improvement on the lot is about $2,000.

Chatillon testified that he was forty-three years old. That he knew Fournier and Denoyer. They lived on the lot now occupied by defendant. Witness lived in the neighborhood. The contract between Fournier and Denoyer was that Denoyer should support Fournier and have all his property at his death. Witness was present at the execution of the deed of 1830, i. e., the first deed from Fournier to Denoyer. Was not present at the execution of the second deed. Saw no paper when they broke the bargain. Fournier continued to live on the land. Denoyer lived near Chouquetts. Fournier died on the lot in dispute. The present yearly value of the lot in controversy is about two hundred dollars.

This was all the testimony in the cause. The plaintiff throughout objected to the testimony of the witnesses examined as incompetent and irrelevant under the issue joined; and incompetent to vary and contradict the deeds adduced. But the court overruled the objection and the plaintiff excepted. The court sitting as jury found the following facts: 1st. That it was the intention of the parties to the deed dated 31st January, 1831, that Fournier should, by said deed, have again his former estate in the premises, complete to him and his heirs. 2. That the words of limitation in said deed were omitted by accident, mistake, or unskillfulness of the scrivener. That Denoyer did not perform his covenants in the deed dated January 16, 1830; that after Fournier executed the deed to Le Blond he remained in possession of the premises under a parol agreement with Le Blond. That Fournier died in 1834, and his wife ten or twelve years ago. That after Fournier's death, Le Blond claiming a fee in said land made valuable improvements on said land, and that Madame Fournier made an abandonment of the lot to Le Blond in 1834. That Denoyer after the execution of the deed of January 31, 1831, disclaimed all title in the premises. That Denoyer resided in the neighborhood and knew that Fournier was in possession and had conveyed to Le Blond and that Le Blond was making improvements claiming an estate in fee simple. That Denoyer knew of the various transfers of possession to the different quarters named in the mesne conveyance from Le Blond to defendant's wife. That after January 31, 1831, and before his deed to the plaintiff, Denoyer never set up any claim to the premises, and never made any objection to the improvement. That Denoyer resided in the neighborhood of the premises from 1830 to 1850. That the defendant is in possession of the premises as husband to Mary Ann Delphy, formerly Mary Ann Bouvier, that Denoyer knew that the premises were in the adverse possession of Le Blond, and those claiming under him from the death of Fournier in 1834 to the date of the deed to the plaintiff in 1850. That Fournier and wife and also Denoyer and wife could neither read nor write. That the various deeds offered in evidence were duly executed by the parties whose names purport to be assigned to them. It was admitted that whatever title Le Blond acquired under the deed to him, dated December 9th, 1833, is now in defendant's wife.

The court upon the facts in this case declares the law to be as follows. That the omission of words of limitation in a deed through accident, mistake or unskillfulness of a scrivener may be supplied in equity, and the fact of such omission is a good defense in equity between parties and privies. That by the facts found in this cause, and by the recital in the deed of Denoyer and wife to plaintiff, under which plaintiff claims possession of the premises in question, and by the recitals in the deed to which plaintiff's deed refers, the plaintiff is charged with notice of defendant's title and estopped from denying said title. The parol testimony is competent to show a mistake or accident in drawing up a deed.

Hereupon the court gave judgment for the defendant, and the plaintiff immediately filled the following motions and reasons for a new trial: “The plaintiff prays the court to set aside the verdict and declaration of law given by it in this case, and grant a re-hearing thereof for the following reasons:...