Schultz v. Lindell

• Decision Date: 31 March 1867
• Citation: 40 Mo. 330
• Parties: JOHN A. AND GEORGE SCHULTZ, Respondents, v. PETER LINDELL, JR., et al., Appellants.
• Court: Missouri Supreme Court

40 Mo. 330

JOHN A. AND GEORGE SCHULTZ, Respondents,

v.PETER LINDELL, JR., et al., Appellants.

Supreme Court of Missouri.

March Term, 1867.

Appeal from St. Louis Court of Common Pleas.

This was an ejectment to recover possession of a common-field lot conceded to William Bizet, February 7, 1769, and confirmed to his legal representatives by act of Congress of July 4, 1836 (Dec. 286), and surveyed as U. S. survey No. 3,340, and being the same lot cultivated by John B. Provenchere prior to December 20, 1803, and conveyed by Mary Provenchere and John Louis Provenchere to Risdon H. Price by deed dated August 29, 1816.

The defense was a traverse of plaintiffs' title, and the statute of limitations.

At the trial, the plaintiffs gave in evidence the grant to William Bizet for 1 x40 arpents, dated February 7, 1769, the confirmation, and the U. S. survey No. 3,340.

William Bizet, by will dated May 30, 1772, devised his estate to his brother Charles Bizet.

Charles Bizet married Marie Papin, January 29, 1774, and entered into a marriage contract of that date establishing the customary community between the parties, to be common in all personal property and in all after-acquired real property; and by the same contract the survivor of the community was to take a life estate in all the property left by the party first dying.

Charles Bizet died May 26, 1780, leaving his widow Marie (who subsequently married John B. Provenchere) and three children, Paul, Antoine and Marie Bizet.

Marie Bizet married Louis Boissy, September 1, 1795, and left five children; she died September 27, 1813; her husband died October 12, 1819.

Antoine Bizet married Cecile Compare, and died leaving issue, who died before their mother, and their title to the land sued for vested in the mother, and was conveyed to Peter Lindell, the defendant, by deed dated _____, 1849.

Ve. Marie married John B. Provenchere, 1st September, 1781, and the parties made a marriage contract establishing the customary community.

Testimony was given by the plaintiff to prove that John B. Provenchere cultivated this lot prior to December 20, 1803, and that the lot was confirmed by act of June 13, 1812.

John B. Provenchere and Marie Bizet had issue John Louis Provenchere and Margaret, who married Pierre Tournot dit Lajoie; she left one son, Pierre Tournot, who conveyed the locus in quo to Lindell on 20th June, 1854. Marie Provenchere died January 23, 1819; John B. died in 1814 or 1815.

Plaintiffs presented two chains of title, one under Bizet, and the other under John B. Provenchere.

Under Bizet.--Deed from Paul Bizet to John Louis Provenchere dated August 13, 1833, conveying all his claim in the property of Charles Bizet; deed from John B. Boissy to the same, dated August 20, 1833, to the same purpose and effect; deed from John L. Provenchere to Robert Forsyth, conveying this field lot, the undivided interest, &c., dated January 15, 1838; deed from Robert Forsyth to the plaintiffs in this suit, dated March 1, 1855.

Under this title plaintiffs could only recover six-fifteenths of the land.

Title under J. B. Provenchere.--Deed from Marie Provenchere and John Louis P. to Risdon H. Price, dated July 29, 1816--acknowledged July 31, 1816, but not recorded until May 17, 1847--by which the parties sold “their title, claim, interest and estate to a lot of 1x40 in the Big (or Grand) Prairie, about three and one-half miles west of the town of St. Louis, bounded north by land now belonging to Joseph Lacroix, as it is said, and south by land cultivated formerly and said to belong to one Simoneau; it being the same tract or parcel of which the said John B. Provenchere, in his life-time, cultivated for many consecutive years prior to 1803.” They warranted the land against themselves, but not against third parties. Deed from R. H. Price to Horatio Cozens, dated May 11, 1825, but not acknowledged or recorded until August, 1846. Horatio Cozens died, and letters of administration were granted July 20, 1826. Deed from administrator of H. Cozens to Fred. Jenkins, dated April 25, 1848, upon order of sale made September 22, 1847. Horatio Cozens left two children, William H. Cozens, born September 5, 1819, and a daughter, born in September, 1826, three months after her father's death. Deed from Frederick Jenkins to plaintiffs, dated December 16, 1853.

Under this title plaintiffs could claim to recover one-half of the land.

The plat of township 47 N., R. 7 E., was put in evidence. This shows that the lot of Joseph (or Louis) Lacroix was four arpents north of the premises sued for, and there was no evidence of any lot cultivated or claimed by Simoneau on the south.

To show an outstanding title under John B. Provenchere, defendants read a deed from Marie Provenchere and John Louis Provenchere, dated July 25, 1816-- acknowledged July 25, 1816, and recorded July 29, 1816--by which the parties, as heirs of John Baptiste Provenchere, did grant, bargain and sell to Sylvester Labadie and Joseph Phillipson, their heirs and assigns, a lot of land situate about 3 1-2 miles from the town of St. Louis, at a place commonly known as the Grand Prairie, which lot cotains 2 arpents in front by 40 in depth, and is bounded on the north side by a road of 36 feet which separates it from the lot which Pierre Chouteau has acquired of Alexis Marie, and on the south by lot of owner unknown, and which lot belongs to us as having been cultivated for many years by the said John Baptiste Provenchere, lately deceased, of whom we are the heirs. In this deed there was a warranty against themselves, their heirs and assigns, and all the other heirs of J. B. Provenchere.

To show the location of this lot, and that it embraced the locus in quo, defendant deraigned a title to himself to a common-field lot of 2x40 arpents immediately adjoining the premises sued for, on the north, under Pierre Chouteau, claiming under Alexis Marie.

February 27, 1806, Alexis Marie, by deed, conveyed to Pierre Chouteau a lot in Grand Paririe of 2x40, bounded north by _____ Labarge, and south by _____ Provenchere, and recited that he had made a verbal sale of the land four years previously.

March 2, 1818, Pierre Chouteau conveyed to the heirs of Vincent Bouis this 2 x40 lot, as bounded north by lot formerly of F. Labarge, and south by lot formerly of John B. Provenchere, deceased.

June 1, 1825, this claim was proved before U. S. Recorder Hunt, and confirmed to A. V. Bouis' legal representatives, for 2x40, as bounded south by J. B. Provenchere, and U. S. survey No. 1,813 was made of the tract so confirmed. The title of Bouis passed to defendant in eighteen hundred and thirty-five.

The confirmation by Recorder Hunt to P. Barribeau of a lot of 1 1-2x40 arpents, March 5, 1825, bounded north by Benito Vasques, and south by Joseph Lacroix, was also in evidence.

Concession of a lot to William Bizet, February 7, 1769, for a lot of 2 1-2x40 in Grand Prairie, bounded north by widow Hebert, south by widow Dodier, confirmed in 1816, and surveyed as U. S. survey, 1,589.

This lot was sold to Charles Bizet by public sale, February 18, 1775, by administrator.

Defendant then showed title in himself to the New Madrid location No. 161, of Joseph Hunot, by patent in 1859, and by deeds commencing from 1818, and also to the New Madrid location of Joseph Conway; and offered evidence to prove that he, and those under whom he claims, had been in possession of these lands, which include the locus in quo, from A. D. 1819. Defendant personally had possession of the premises sued for since 1828.

Defendant also deraigned the title of Labadie and Phillipson to this lot, to show that he had obtained such title since suit commenced.

The title of Riviere dit Bacanne for the lot on the north of the locus in quo, and interfering with the Bouis or Marie lot of 2x40, was shown to have passed to defendant in the year 1828.

The testimony of F. Noise for plaintiffs, and of W. H. Cozens for defendants, showed that there was an old Spanish road between the Marie and Provenchere lots. There were other roads running through the prairie. There was no proof nor any evidence tending to prove that J. B. Provenchere ever cultivated the William Bizet lot of 2 1-2x40, U. States survey 1,589. The testimony of Cozens showed that there was no Spanish road between the William Bizet lot of 2 1-2x40 and that of widow Hebert; that Bizet lot survey 1,589 was not bounded by the lot P. Chouteau claimed under Marie, survey 3,297.

In rebuttal of defendants' evidence, plaintiffs offered in evidence:-- Confirmation of a lot in Grand Prairie to Pierre Chouteau under Alexis Marie for a common-field lot of 2x40 arpents, confirmed by Recorder Bates in 1816; also, proof and confirmation by Hunt of same lot, bounded north by Ve. Chouteau, and south by lot formerly of Bequette, surveyed as U. S. survey 3,297; a mortgage by Charles Bizet, executor of William Bizet, to Gabriel Cerre, made June 7, 1776, for the lot of 2 1-2x40, bounded by Cotte and Hebert, released November 12, 1782, to J. B. Provenchere; a deed from Antoine Bizet to John Louis Provenchere, dated September 11, 1817, for the lot of 2 1-2x40, bounded north by Dodier, south by Hebert, and sold as land of William Bizet, 18th February 1774.

There was no evidence showing that this lot of 2 1-2x40 of William Bizet was ever cultivated by J. B. Provenchere, and the evidence did not show any Spanish road upon its northern boundary.

The following rough sketch shows the connection of the Grand Prairie common-field lots as laid down on the township plat. The two claims of Chouteau under Marie are more than a mile apart:

TABULAR OR GRAPHIC MATERIAL SET AT THIS POINT IS NOT DISPLAYABLE TABLE

For the plaintiffs, the court gave the following instructions, to which defendants excepted:

1. If the jury believe from the evidence that John Baptiste Provenchere, an inhabitant of the town or village of St. Louis prior to the twentieth day of December, (1803) eighteen hundred and three, claimed...