Picotte v. Cooley

• Citation: 10 Mo. 312
• Parties: PICOTTE ET AL. v. COOLEY ET AL.
• Decision Date: 31 January 1847
• Court: United States State Supreme Court of Missouri

10 Mo. 312

PICOTTE ET AL.

v.COOLEY ET AL.

Supreme Court of Missouri.

January Term, 1847.

ERROR TO PIKE CIRCUIT COURT.

BIRD, for Plaintiffs.

GAMBLE & BATES, for Defendants.

SCOTT, J.

This was an action of ejectment, commenced against the defendants in error by the plaintiffs in error, for a tract of land situate in the county of Pike. On the trial of the cause, the jury found the following special verdict: “As to the trespass and ejectment in said declaration mentioned on and in the parcel of the tract of land, in said declaration mentioned, and situate in the county of Pike, bounded as follows, to wit: commencing at the northwestern corner of United States survey number one thousand seven hundred and thirty-seven, in the southeast quarter of section thirty-five, township fifty-two north, range one east; thence north sixty degrees east, with the northwestern boundary line of said survey two hundred and forty-five chains, to the most northern corner thereof, in the northwest quarter of section twenty-nine, township fifty-two north, range two east; thence south thirty degrees east, with the northeastern boundary line of the said survey number one thousand seven hundred and thirty-seven, one hundred and eighty chains to the intersection with the line between township fifty-one and fifty-two north, range two east; thence west with the said township line, and the line between township fifty-one and fifty-two north, range one east, to the intersection with the southwestern line of survey one thousand seven hundred and thirty-seven; thence north thirty degrees west, with the said southwestern boundary line, thirty-six chains and seventy-four links to the most western corner and place of beginning, containing one thousand and six hundred and fifty-five acres and six hundredths of an acre, being pareel of a tract of land granted by Zenon Trudeau, Lieutenant-Governor of Upper Louisiana under the Spanish government, to Joseph Brazeau, and subsequently confirmed under the authority of the United States to said Brazeau, and bounded northwardly by land now or lately claimed by the heirs of Auguste Chouteau; southwardly by lands now or lately claimed by Pierre Chouteau, and by land now or lately claimed by Auguste A. Chouteau, and eastwardly by land of the United States, or of persons claiming under the same, and is the same tract described in the deed executed by Antoine Soulard and Julia, his wife, Marie Therese Brazeau, widow of Joseph Brazeau, and Baptiste Douchouquette, to Mary E. Carter, Walter Coles, and Edward Coles, dated twenty-fifth day of November, in the year 1818; that the same is situate in the counties of Pike and Lincoln, and State of Missouri, and was conceded to the said Joseph Brazeau, by the proper authorities of the Spanish government, on the 18th day of December, in the year 1797; that the said Joseph Brazeau became thereby seized and possessed thereof, and being so seized and possessed, he, on the 5th day of May, in the year 1798, made his last will purporting to devise the said tract of land, in full enjoyment and during her natural life only, to Marie Therese Delisle, his dear spouse, and from and after her death, to his niece, Marie Brazeau, absolutely and forever; that on the 22nd day of November, in the year 1816, at St. Louis, in the territory of Missouri, the said Joseph Brazeau, being so seized and possessed of said tract of land, departed this life; that on the 26th of November, in the year 1816, at St. Louis, in the territory of Missouri, the last will aforesaid, of the said Joseph Brazeau, was duly proved; that the said concession was confirmed by the United States, on the 12th day of April, the year 1814, to the said Joseph Brazeau; that the said Joseph Brazeau, and Marie Therese Delisle aforesaid, his wife, were married at Kaskaskia, in Illinois, on the 17th day of November, in the year 1769; that the said Marie Brazeau, niece and devisee aforesaid of the said Joseph Brazeau, intermarried on the 3rd day of July, in the year 1798, at St. Louis, in the province of Upper Louisiana, with Jean B. Douchouquette; that the said Marie Brazeau, wife of the said Jean B. Douchouquette departed this life at St. Louis, in the territory of Missouri, on the 8th day of July, in the year 1818; and the said Jean B. Douchouquette departed this life on the 23rd day of March, in the year 1833, at St. Louis, in the State of Missouri. And Marie Therese Delisle, widow of Joseph Brazeau, departed this life at St. Louis aforesaid, on the 3rd day of February, in the year 1834; that a marriage contract was executed between the said Marie Brazeau and Jean B. Douchouquette, previous to their intermarriage, to-wit: on the 2nd day of July, in the year 1798, at St. Louis aforesaid, by which it was provided that the said Jean B. Douchouquette, and Marie Brazeau, have promised to take one another in the name and law of marriage, and to have the same made and solemnized in the Catholic, Apostolic and Roman church, our holy mother, as soon hereafter as may be, or as soon as one or other of the parties shall require it of the other; the said future husband and wife to be united and common in all estate ( biens), movable and immovable purchases ( conquets), and acquisitions ( acquets) according to their desire, without power to change anything from this position, even if they should make purchases, or transfer their residence in a country where the laws, usages and customs are contrary, which they expressly derogate and renounce; the said future husband and wife take each other with all their rights and estate ( biens), such as have come and follow to them, or may fall to them from the succession of their father and mother, to whatever sum they may amount, of whatever nature they may be, and in whatever place situate, even from this present time, with those they may have of their own, either by donation or otherwise; it shall and may be lawful to the said future wife, and to the children which may issue from said marriage, in renouncing the present community, to retake freely, clearly, and frankly all and whatever she may have brought, or may have happened and befallen to her during the said marriage, either by inheritance, gift, bequest, or otherwise. And the jurors aforesaid, upon their oaths aforesaid, do further find that Therese Picotte, one of the plaintiffs, is a daughter of the said Jean B. Douchouquette and Marie Brazeau, his wife; that said Therese was born at St. Louis aforesaid, on the 9th day of February, in the year 1813, and intermarried at the same place on the 15th day of August, in the year 1831, with Honore Picotto, one of the plaintiffs; that John P. Lesperance, another of the plaintiffs, is the surviving husband of Elizabeth Lesperance, deceased, which said Elizabeth was a daughter of the said Jean B. Duchouquette and Marie Brazeau, his wife, and was born at same place on 9th day of September, in the year 1815, and intermarried at same place on the 7th day of July, in the year 1834, with said Jno. B. Lesperance, and died at same place on the 29th day of July, in the year 1838, leaving in full life her said husband, John B. Lesperance; that John B. Douchouquette and Joseph Douchouquette, two of the plaintiffs, are sons of said Jean B. Douchouquette and Marie Brazeau, his wife; that the former was born at same place on the 1st day of December, in the year 1810, and the latter was born at same place on the 10th day of October, in the year 1808; that Theodore Papin, another of the plaintiffs, is the surviving husband of Celeste Papin, which said Celeste was a daughter of the said Jean B. Douchouquette and Marie Brazeau, his wife; was born on the 25th day of...