Peterson v. Laik

• Decision Date: 31 March 1857
• Citation: 24 Mo. 541
• Parties: PETERSON AND WIFE, Appellants, v. LAIK, Respondent.
• Court: Missouri Supreme Court

24 Mo. 541

PETERSON AND WIFE, Appellants,

v.LAIK, Respondent.

Supreme Court of Missouri.

March Term, 1857.

1. Where, in an action in the nature of an action of ejectment, the defendant in his answer denies the co-tenancy alleged by plaintiff, no stronger evidence of an ouster will be required of plaintiff than in a case where no co-tenancy exists.

2. Where a minor executes a deed of conveyance of land, and after attaining majority conveys the same land to a third person, the second deed is a disaffirmance of the first. This is a question of law, and should not be submitted to a jury.

Appeal from St. Louis Land Court.

Touissant Tourville died in the year 1833, owning the land in controversy. He left eight children him surviving. Paschall and Catherine, two of said children, by deeds dated respectively April 1st, 1834, and April 10th, 1834, conveyed their shares (two eighths) to Pierre and Charles Tourville. Defendant claims title through mesne conveyances from said Pierre and Charles Tourville. By deed, dated April 26th, 1834, the said Catherine, having then attained her majority, and her husband, conveyed to Mrs. Peterson, one of plaintiffs, the share (one-eighth) that had been previously conveyed by her by deed, dated April 10th, 1834. This deed contained no reference or allusion to the said deed of April 10th, 1834. In the year 1850, Paschall, being then of age, conveyed to Charles Tourville the interest previously conveyed by him by deed dated April 1st, 1834. This deed contained no allusion or reference to the said deed of April 1st, 1834. Charles Tourville, by deed dated June 26th, 1854, conveyed said one-eighth to Mrs. Peterson, one of plaintiffs.

The plaintiffs moved the court to instruct the jury “that the deed of a minor under the age of twenty-one years is voidable, and that a subsequent deed duly executed for same land is such an avoidance.” The court refused to give said instruction, and in lieu thereof gave the following: “1. The law is, that if Paschall and Catherine Tourville, respectively, when minors, made deeds of conveyance of their interest in their father's real estate (the land in question), such deeds were voidable only, not void; and after coming of age, respectively, they had power to avoid them, respectively, by making other deeds for that purpose and intended to have that effect; and it is for the jury to determine in this case whether or no the deeds offered in evidence from said Paschall and Catherine, respectively, were for that purpose and intended to have that effect.” The court also, on motion of defendant, gave the following instructions: “2. If the jury believe that no division has ever been made between the heirs of Touissant Tourville, Sr., of the land in question, or a partition had, and that the plaintiffs claim only an undivided share in the same, and are tenants in common with defendant, they will find for the defendant, unless the jury believe that defendant has either actually put the plaintiffs out of possession or hindered and prevented them from entering into possession of that part of the land which they, the plaintiffs, claim to hold in common with the defendant. 3. If the jury find that Catherine and Paschall were minors at the time of the execution of their first deeds, respectively, to Pierre and Charles Tourville, but never disaffirmed those acts and deeds when they became of age, then the original deeds hold good, notwithstanding the infancy of the grantors; and deeds executed subsequently to their becoming adults, conveying away the same estate conveyed in such original deeds executed during infancy, not expressly disaffirming those deeds, are not conclusive as to disaffirmance; and it is for the jury to determine from the terms of such deeds and other evidence whether the same were intended as a disaffirmance or not.”

Morehead, for appellants.

I. The court erred in refusing the instruction asked by plaintiffs.

II. It was error to submit the question of disaffirmance to the jury. It was a question of law. (1 Mo. 68; 7 Mo. 607; 1 Bibb, 283; 6 Mo. 267, 279; 16 Mo. 62; 12 Mo. 549; 19 Mo. 65; 21 Mo. 25; 10 Pet. 59; 11 Johns. 539; 14 Johns. 124.)

III. The second instruction was erroneous. (Adams' Ejectment, 55, 56, 88; 3 Conn. 191.)

Kribben, for respondent.

SCOTT, Judge, delivered the opinion of the court.

Under the circumstances of the case, the instruction given by the court as a substitute for that offered by the plaintiff was erroneous. As the defendant in her answer under oath denies the right of the plaintiffs to the...