McNair v. Lot

• Decision Date: 31 October 1863
• Citation: 34 Mo. 285
• Parties: A. R. MCNAIR et als., Appellants, v. MICHAEL LOT et als., Respondents.
• Court: Missouri Supreme Court

34 Mo. 285

A. R. MCNAIR et als., Appellants,

v.MICHAEL LOT et als., Respondents.

Supreme Court of Missouri.

October Term, 1863.

Appeal from St. Louis Circuit Court.

This case was before the court, 25 Mo. 182. After it went back to the St. Louis Land Court, the venue was changed to the Circuit Court. The petition set forth a cause of action in the nature of a bill to redeem the mortgages, and also added a count in ejectment against all the defendants. There were four suits against different persons, claiming to own different lots in the addition into which the twenty arpent tract had been divided; the different defendants, claiming their lots in severalty, answered, denying the rights of the plaintiffs, claiming that they had title to their respective lots; that they were purchasers bona fide, without notice of the plaintiffs' equity, and pleading adverse possession for more than twenty years.

The general nature of the suit was the same with that of McNair v. Picotte, 33 Mo. 57.

At the trial, the Circuit Court made the following finding:

The court finds the following facts: that on the 7th day of January, A. D. 1819, John Baptiste Duchouquette and Marie Therese Brazeau, each loaned unto Charles Delassus $2,000, for four years, to bear interest at the rate of ten per cent. per annum, and that said Delassus executed to each of said parties, Duchouquette and Brazeau, his notes for said principal sum of $2,000, and four interest notes of $200 each, said interest notes being made payable, respectively, on the 20th days of December, 1819, 1820, 1821, and 1822, and said notes for the principal sums being made payable on the 20th day of December, 1822. That to secure said loans said Delassus made and delivered to said parties two separate deeds of mortgage, conveying to each of said parties the tract of land in controversy, together with certain other lands. That the said mortgage from Delassus to Duchouquette was duly recorded in St. Louis county, on the 12th day of June, A. D. 1820, and said mortgage from Delassus to Brazeau was duly recorded in St. Louis county on the 3d of February, A. D. 1824. That the first interest note of $200 due Mrs. Brazeau was paid, and the first interest note due Duchouquette was paid in part, and a new note for the balance of $55, remaining due thereon, was made on the 7th of March, A. D. 1820, by said Delassus. That said $55 note and all the other interest notes, together with the notes for the principal sums, were unpaid at maturity. That said mortgagees instituted suits in the St. Louis Circuit Court on said notes and mortgages as follows: Mrs. Brazeau sued Delassus in debt for the amount due on the notes secured by the mortgage to her, and also filed her petition for the foreclosure of the mortgage. Duchouquette sued Delassus in debt for the amount due on the notes secured by mortgage to him, and for the $55 note of the 7th of March, A. D. 1820; and also filed his petition for the foreclosure of the mortgage. That on the 8th day of July, A. D. 1824, judgments were rendered in debt in favor of Mrs. Brazeau, for $2,750, and for the foreclosure of the mortgage to her for the same amount; and on the same day judgments were also rendered in favor of Duchouquette, for $2,827, in debt, and for the foreclosure of the mortgage to him for $2,750. That there were orders of sale in the judgments of foreclosure, but were never executed. That execution was issued on the judgment in debt in favor of Duchouquette, returnable to the December term of said St. Louis Circuit Court, 1827, and that upon execution the land in controversy was sold on the 13th day of December, A. D. 1827, to Theodore D. Papin, for $1,050. That execution was issued in favor of Brazeau, on the 25th of September, 1828, to Washington county, and levy made; and upon advertisement being duly made, the land situate in said county, being the remainder of the property by said mortgages conveyed, was sold to said Duchouquette for the sum of $380, on the 22d day of October, 1828. That on the 19th day of December, 1827, Mrs. Brazeau and Duchouquette made a deed to said Theodore D. Papin for all their right, title, and interest, in and to the land in controversy, for the consideration of $5, which deed was truly recorded in the office of the Recorder of St. Louis county, on the 23d of February, 1828. That said Theodore D. Papin was the son-in-law of said Duchouquette; but that said Papin was not the agent of said Duchouquette at the time of or after said sale of 1827. That said Papin took possession of the land in controversy under said sheriff's sale and deed of December 13, 1827, and under the said deed of Duchouquette and Brazeau, of December 19, 1827. That Duchouquette never took possession of the land in controversy either before or after said sheriff's sale of December 13, 1827. That Papin held adverse possession of the premises in controversy until the 13th day of July, 1831. That on said 13th day of July, 1831, Papin and wife, by warranty deed, sold said premises to William T. Phillips for $3,500, which was a full consideration for the same at that date. That said deed from Theodore D. Papin to William T. Phillips was duly recorded in St. Louis county, on the 8th day of October, A. D. 1832. That Phillips entered upon said land, and occupied and claimed it, making valuable improvements thereon. That Phillips' possession continued until April 12th, 1834, when he sold and conveyed said premises to William Carr Lane. That said deed from W. T. Phillips to W. Carr Lane was duly recorded in St. Louis county, on the 9th day of January, A. D. 1836. That there is no evidence that either said Phillips or Lane, at the time of their respective purchases, had any actual notice of the existence of said mortgages of 1819. That said Lane, and the defendants claiming under him, have had and held open, notorious, continuous, and exclusive possession of said premises, according to their several rights and titles, as stated in the pleadings and agreements in this cause, from the time of the said purchase by Lane from Phillips, until the commencement of this suit, claiming the same adversely to the said Charles Delassus and his heirs-at-law and grantees. That on the _____ day of _____, A. D. 1832, Marie T. Brazeau made a deed of assignment to J. B. Duchouquette, of all her right, title, and interest in and to the mortgage, debts, and judgments thereon in her favor. That said Marie T. Brazeau died in 1833, and that said Duchouquette also died in 1833. That said Delassus removed from the city of St. Louis in 1825, in embarrassed circumstances; that said Delassus returned to St. Louis in the year 1836, being still embarrassed. That on the 12th of December, 1836, the executors of Duchouquette, Theodore Papin and Baptiste Duchouquette, assigned to M. P. Leduc, the agent of C. D. Delassus, whatever might then be due to the estate of Duchouquette on the judgments or debts, secured thereby in favor of Duchouquette and Brazeau, against Delassus, rendered July 8, 1824, and authorized said Leduc to collect the balance then due, which assignment was ratified by the hei of Duchouquette. That on December 15, 1836, Leduc, the agent of Delassus, settled with his principal, Delassus, and charged him $8,000, (less four per cent. for advance payment,) as paid to Duchouquette's heirs for the balance remaining due on the mortgages, after deducting the net proceeds of the sheriff's sales in St. Louis and Washington counties. That at the time of said settlement said Delassus knew of the sale to said Papin of the premises in controversy, and made no claim to said premises at that time or afterwards.

That after said settlement by Leduc with the executors or Duchouquette, said Leduc ordered said executors to enter satisfaction of the judgments of July 8, 1824, against the said Delassus, and in favor of the said Duchouquette and Brazeau; and satisfaction was accordingly entered on the margin of said judgments, in debt and for foreclosure, on the 16th day of December, A. D. 1836. That said satisfaction was made by order of said Leduc, as agent of Delassus; no other payment than that of $7,680, was made by said Leduc, agent of Delassus. That the parties did no act whereby they recognized said mortgages as subsisting at the time of the payment of $7,680, or at the time of the entry of satisfaction upon the margin of said judgments, and that said Delassus and his agent, Leduc, then knew that the parties in possession of the said two tracts of land were claiming under said Papin and Duchouquette, and claiming and holding said land as their own property, adversely to all other persons.

That said Delassus, after his visit to St. Louis in 1836, returned to New Orleans, and there died in 1843, leaving as his only child and heir Augustus Delassus, under whom the plaintiffs claim title by conveyances, stated in the petition. That there is no evidence in this cause showing that the defendants, or those under whom they claim, from Wm. T. Phillips down, had any actual notice or knowledge of the deeds of mortgage of 1819 on the judgments of 1824, or of the deed of Brazeau to Duchouquette of 1832, or of the settlement of 1836, or of any of the proceedings or documents connected with said settlement. That the mortgage debts were extinguished by the sheriff's sales, and the payments made by Leduc, as agent of Delassus, on the 12th day of December, 1836; and that said mortgages ceased on said last-named day to exist as a lien or encumbrance on said lands. That there is no evidence of any fraud in the recovery of said judgments in debt and of foreclosure, or in the sheriff's sales of the real estate mortgaged in St. Louis or in Washington counties, or in the purchase by Papin or by Duchouquette of the tracts of land by them respectively purchased.

And upon the foregoing facts the court finds the following conclusions of law: That the sheriff's sale to Papin and the sheriff's sale to Duchouquette...