Robidoux v. Cassilegi

• Decision Date: 28 June 1881
• Citation: 10 Mo.App. 516
• Parties: PAUL ROBIDOUX ET AL., Appellants, v. ANTOINE CASSILEGI ET AL., Respondents.
• Court: Missouri Court of Appeals

10 Mo.App. 516

PAUL ROBIDOUX ET AL., Appellants,

v.ANTOINE CASSILEGI ET AL., Respondents.

St. Louis Court of Appeals, Missouri.

Jun. 28, 1881.

1. A certificate of acknowledgment of a deed to land in St. Louis County, Missouri, is not bad because the officer does not state that the St. Louis County of which he declares himself to be an officer, is in the State of Missouri.

2. Under the statute of 1825, an acknowledgment, taken before a judge of the County Court, which does not appear to have been taken in open court, the certificate being made by the judge and not the clerk, and which does not state that the grantor, a married woman, “does not wish to retract,” is defective.

3. In an action of ejectment, certified copies of deeds recorded for thirty years, are competent as tending to show the character of the grantor's possession, and that there had been no ouster, though the acknowledgements thereof be defective in form.

4. Being in possession of land and exercising acts of ownership, and executing a lease for fifteen years, is not inconsistent with a tenancy for life only.

5. Where one takes possession of land under a deed which makes him a tenant in common with another, he is presumed to do so for his co-tenant as well as for himself.

6. Where a co-tenant has been in possession, receiving rents to his own use, which has been long acquiesced in by the other, it is for the jury to say whether, under all the circumstances, there has been an ouster and adverse possession.

7. The knowledge required to make a defendant in ejectment liable for damages before the commencement of the action is not established by merely showing a good title in the plaintiff.

APPEAL from the St. Louis Circuit Court, THAYER, J.

Affirmed.

ALEX. J. P. GARESCHÉ, for the appellants: The Statute of Limitations confers a title as absolute as if by deed.-- Biddle v. Mellon, 13 Mo. 335. Allard's title being barred by the statute, the defendants could not invoke it.-- McDonald v. Schneider, 27 Mo. 405; Totten v. James, 55 Mo. 494. A certificate of membership must be in conformity with the statute.-- McDowell v. Little, 33 Mo. 526; Steffen v. Bauer, 70 Mo. 399. Tenants in common with plaintiffs, the defendants cannot acquire an adverse title in derogation of the rights of their co-tenants.-- Laughlin v. Stone, 5 Mo. 53; Boyd v. Jones, 49 Mo. 202.

CLINE, JAMISON & DAY, for the respondents: The effect of a deed to husband and wife depends, not on the terms of the deed merely, but upon the fact that the grantees be in reality husband and wife, and that the conveyance be made to them jointly; for if made to them as tenants in common, they take as such.-- Gibson v. Zimmerman, 12 Mo. 385; Jackson v. Stevens, 16 Johns. 110; Doe v. Parrat, 5 Term Rep. 652. Laurent Robidoux and Archange McDowell were privies to the said marriage contract, and could claim under it by virtue of the recitals in said contract; and the legal representatives of said Rosalie are estopped from claiming anything more than a life estate in the premises.-- Clamorgan v. Greene, 32 Mo. 285; Joeckel v. Easton, 11 Mo. 118; Dickson v. Anderson, 9 Mo. 156; Carver v. Jackson, 4 Pet. 82; Bensley v. Burdon, 8 L. J., chap. 85. The deeds offered and read in evidence by the defendants were proper, although some of them were defectively acknowledged. They were admissible to show the character of the possession of said Rosalie, as well as a ratification by other deeds duly acknowledged.-- Hamilton v. Boggess, 63 Mo. 233; Musick v. Barney, 49 Mo. 458. The declarations of a person in possession of lands are competent evidence against himself and all persons claiming under him, for the purpose of showing the character of his possession and by what title he claims.-- Pitts v. Wilder, 1 N. Y. 525; Abeel v. Van Gelder, 36 N. Y. 513; Jackson v. Bard, 4 Johns. 230; Rogers v. Moore, 10 Conn. 13.

BAKEWELL, J., delivered the opinion of the court.

This is ejectment for a lot in St. Louis. The answer is, not guilty, and the Statute of Limitations. The cause was tried by the court, a jury being waived. The finding and judgment was for plaintiffs for one undivided sixth of the property in question, and rents and profits from the date of the action.

On the trial, plaintiffs introduced in evidence a deed for the lot in question to Lange Allard and Rosalie Vermet, his wife, dated June 8, 1818. From oral evidence on behalf of plaintiffs, and admissions, the following facts appeared: Rosalie Vermet, grantee in the deed above mentioned, was, at the date of its execution, the lawful wife of Jean Baptiste Robidoux, by whom she had at that date two children, Laurent Robidoux and Archange, who afterwards married one McDowell. The plaintiffs are the children of Laurent Robidoux, and he had no other children at the date of the action. Such other children as Laurent had had, were then dead, intestate, and without issue. At the date of the deed to Allard and Rosalie above referred to, Rosalie was living in St. Louis in adultery with Lange Allard, the other grantee in the deed, and she was falsely named in it as his wife. In 1819, Robidoux was again living in St. Louis, and Allard had left St. Louis for the West, and did not afterwards return to St. Louis. In 1826, Robidoux died. In 1828, Rosalie married one Morris, who died in 1832; and, in 1836, Rosalie married one Chataigne, who died in 1853. In October, 1858, Rosalie died, being then the widow of Chataigne.

Plaintiff introduced a lease of the premises in question by Chataigne and his wife to one Little, dated January 1, 1850, for a term of fifteen years from May 1, 1850. Also the will of the widow Chataigne, in which she makes no mention of the lot in question, but, after certain specific bequests, devises all her remaining estate, one-third to her son Laurent, one-third to the then living children of Laurent, and one-third to her daughter Archange McDowell.

Plaintiffs also introduced as witnesses two or three old residents, who testified that, from the time Allard left in 1819, they never saw or heard of him, and that Rosalie devil on the premises in dispute, claiming to own them, up to the lease to Little in 1850.

Defendants offered in evidence a deed from Lange Allard to Horatio Cozens, dated June 9, 1821. This deed seems to be effectual to convey to Cozens the property in dispute, in trust for Rosalie Robidoux for life; after her death, for Lange Allard for life; and after his death, for Laurent Robidoux and Archange Robidoux, the children of Rosalie Robidoux.

It was objected to by plaintiffs on the ground that the certificate of the justice of the peace who took the acknowledgment begins, “County of St. Louis, SS.,” and nowhere states that the county of St. Louis of which he declares himself a justice, was in the State of Missouri. The acknowledgment is dated June 9, 1821, and the deed was recorded November 5, 1823.

We see nothing in the objection. There is nothing tending to show that this justice was not a justice of the county of St. Louis in which the land lay. There is an admission that Allard was not in St. Louis after 1819. But there is no admission that he was not in St. Louis County on June 9, 1821. And it appears by this certificate that he actually was in that county at that date.

Defendants next offered a deed of Lange Allard and Rosalie, his reputed wife, which was admitted to be the deed construed in McDowell v. Little, 33 Mo. 526. This is evidently a mistake for a deed insufficiently acknowledged, by which J. B. Robidoux and wife, on November 16, 1820, attempted to convey to Horatio Cozens the property in question to use of Rosalie Robidoux for life, and after her death, to use of Laurent and the heirs of his body for one half; the other half, to use of her daughter Archange and the heirs of her body, with cross-remainders to each in tail; reversion to the heirs of Rosalie Robidoux.

The marriage contract between Morris and Rosalie, dated 1832, in which her interest in this land is spoken of as a life estate, was then introduced, as was also a deed of Morris and his wife Rosalie, together with Belcour, her trustee under the marriage contract. This deed is dated December 5, 1828, and purports to convey the property in question to Laurent Robidoux in fee. Defendants then introduced a deed from Laurent Robidoux and wife, dated January 29, 1829, purporting to convey the premises in question to one Leduc, to hold for the separate use of Rosalie Morris during her natural life. All these deeds were objected to by plaintiffs as not being sufficiently acknowledged.

It was...