Riviere v. La Riviere

• Decision Date: 18 February 1889
• Parties: LA RIVIERE et al. v. LA RIVIERE et al.
• Court: Missouri Supreme Court

10 S.W. 840

97 Mo. 80

LA RIVIERE et al. v. LA RIVIERE et al.

Supreme Court of Missouri.

February 18, 1889.

1. MARRIAGE — SOLEMNIZATION — CUSTOMS.

A marriage contracted according to the customs of an Indian tribe need not be contracted in the territory of the tribe in order to be valid.

2. EJECTMENT — JUDGMENT — DAMAGES AND COSTS.

Judgment in ejectment for possession, damages, and costs, against one who, or whose wife, was never in possession, and never received any of the rents, though the wife was a tenant in common with the person in possession, is erroneous.

3. TRIAL — INSTRUCTIONS.

An instruction is not liable to the objection that it assumes the existence of a certain fact, where the court by another instruction states that that fact must be proved.

Appeal from St. Louis circuit court; DANIEL DILLON, Judge.

Ejectment by Napoleon La Riviere and others against John La Riviere and others. Defendants appeal.

A. J. P. Garesche, for appellants. J. D. Foulon, for respondents.

BLACK, J.

This is an action of ejectment for one-fifth of the described premises. The case was here before, (77 Mo. 513.) Both parties claim title under Mary La Riviere, who died in 1872, leaving five children, the defendant John La Riviere, being one, and Antoine was another. The plaintiffs sue as the heirs and children of Antoine by a marriage with a half-breed Ponca Indian woman. The evidence shows or is to the effect that Antoine went from St. Louis to the Indian country, now northern Nebraska, in 1852 or 1856. One witness says, in unqualified terms, that Antoine was then with the Ponca Indians, and that he married a daughter of one Michael Cerre. Captain Lebarge, who knew Antoine well, says the last time he saw Antoine he was at the Ponca agency with Cerre, "father of his squaw." Other evidence shows that, in 1859, Antoine was not living on the Indian reservation, but was living with this woman at a place not far from it. She died in 1872, and he was killed by the Indians in 1873.

There is much evidence to the effect that, during this time from 1859 on to her death, they lived together as man and wife, raised a family, to which he seems to have been devoted, and that he in all respects treated and spoke of her as his wife.

For the plaintiff the court instructed the jury "that, if they believed from the evidence that Antoine La Riviere, the son of Mary La Riviere, was married to the mother of plaintiffs in the Indian country, according to the Indian customs, and that from the time of his said marriage with the mother of plaintiffs he held her out to the world as his wife, and lived with her as such, and that plaintiffs are the issue of such marriage, that both before and after the death of their mother he treated plaintiffs as his lawful children, then his marriage was a valid marriage, and the jury must find for the plaintiffs." But the court refused the following instruction, asked by defendants: "That a marriage, according to the custom of the Ponca Indians, to be valid, must have been contracted in the territory of the Ponca Indians, and without...