Sutton v. Casseleggi

• Decision Date: 30 April 1883
• Citation: 77 Mo. 397
• Parties: SUTTON, Appellant, v. CASSELEGGI.
• Court: Missouri Supreme Court

77 Mo. 397

SUTTON, Appellant,

v.CASSELEGGI.

Supreme Court of Missouri.

April Term, 1883.

Appeal from St. Louis Court of Appeals.

REVERSED.

Britton A. Hill for appellant.

Cline, Jamison & Day for respondents.

MARTIN, C.

This was an action of ejectment, commenced on the 2nd day of November, 1873, to recover a parcel of ground on Third street in block 63 of the city of St. Louis, containing a front of thirty-two and a half feet on Third street, by a depth of fifty-four feet. The defendants filed separate answers, putting in issue the plaintiff's title, and denying all joint possession or occupancy, and setting up the defense of the statute of limitations. Pauline Dalton, in her answer, avers that she is the owner of the lot of ground; that she rented the south half to Casseleggi, and the north half to Dolan, her co-defendants, who were in possession as her tenants at the beginning of the suit, and are still in possession as such tenants. The replication puts in issue the new matter of the answers, and contains a denial of ownership in said Pauline to any interest exceeding one-third thereof. The case was tried by the court without the intervention of a jury, and resulted in a judgment for plaintiff for an undivided one-eighth of the lot sued for, and for $1 rents and profits, and $1 monthly value. Both parties appealed to the St. Louis court of appeals. The judgment was there affirmed in all things. See 5 Mo. App. 122. From this judgment of affirmance the plaintiff has appealed to this court, and the errors, if any, made against him, come before us for correction. The defendants have abided with the decision of affirmance, and have prosecuted no appeal.

An agreed statement of facts took the place of much evidence, and as it has a controlling effect, as far as it goes, I will set it out.

Agreed statement of facts:

“It is admitted in the trial of the cause that Joseph Montaigne is the common source of title to the lot sued for, and owned the said lot in fee on the 8th day of June, 1818; that J. Baptiste Robidoux had disappeared for several years from his family and his home, and Rosalie Robidoux came from Canada to St. Louis with her daughter Archange, in the year 1817; that soon after Rosalie came to St. Louis, she being regarded as a widow, and her husband, Robidoux, as dead, one Lange Allard took her as his wife, and lived with her as such during the year 1818; and until J. Baptiste Robidoux appeared in St. Louis and claimed his rights as a husband, in the year 1819. Lange Allard left and went up to the mountains and died there within a few years. J. B. Robidoux lived with his wife Rosalie, in the city of St. Louis, from 1819 up to the time of his death in 1826. His widow, Rosalie, thereupon married Paul Morris, who died in 1832, and after the death of Morris the widow married Victor Chataigne in 1836, and they lived together as husband and wife until 1853, when he died, leaving said Rosalie, his widow, surviving him. Said Rosalie died the 18th day of October, 1858, leaving her last will, that was probated on the 21st day of October, 1858. Archange, her daughter, had married one McDowell, in 1836, and had issue of said marriage five children--Robert A., John B., Emily, Rosalie and Mary. Mary died in 1863, intestate and without issue. All of the surviving children of McDowell were of the age of twenty-one years in 1861, December 5th. Emily married Joseph W. Renfrow, in 1863, and Rosalie married James A. Maclay, in 1864. Archange McDowell died in 1871, intestate, and her husband died in 1864, intestate. Laurent Robidoux is still alive, and has eight children, who are all alive. The net rents, over and above taxes, were $1,137 a year, prior to 1873, and $937 a year since January 1st, 1873. The said Mary McDowell was eighteen years and eight months old on the 6th day of December, 1861. The said Pauline Dalton has all the right, title and interest in and to said premises sued for which was vested in her husband, John Dalton.”

Several conveyances were submitted by both sides, as well as oral evidence bearing upon adverse possession as vesting title under the statute of limitations in favor of plaintiff as well as defendants.

For the purpose of tracing down the record title from the common source admitted in the agreement, I will not notice deeds which have been justly held to be ineffectual to pass title by reason of defective acknowledgments or non-joinder of husbands. After ascertaining the record title transmitted to the claimants or their grantors, I will then consider to what extent the title so transmitted has been lost or divested by adverse possession.

Joseph Montaigne was the original owner of the premises. On the 8th day of June, 1818, he conveyed the lot to Lange Allard and Rosalie Allard, his wife. Rosalie Allard was not his wife, but was in truth Rosalie Robidoux, who had left her husband in Canada and was co-habiting with Allard as his wife. This deed gave the land to Lange Allard and Rosalie as tenants in common, Rosalie thereby becoming vested with one undivided half in fee, while the other half vested in Allard. In 1819, J. Baptiste Robidoux, her lawful husband, hunted up his wife Rosalie in St. Louis, claimed his marital rights, and lived with her till his death in 1826. Before the death of Robidoux, Lange Allard, who had given Rosalie back to him, conveyed, on the 8th day of June, 1818, the undivided one-half of the land to Horatio Cozzens as trustee for Rosalie for life, with remainders as to said half in fee to Laurent and Archange, son and daughter of Rosalie by Robidoux, her husband. At this date the title stood one-half in Rosalie in fee, the other half in her for life, with remainder in fee as to that half in Laurent and Archange, one-fourth in each undivided. Thus stood the title at the death of Robidoux in 1826. It remained unchanged in November, 1828, at which date Rosalie married Paul Morris, which fact is evidenced by a marriage contract of that date. He died in 1832. In 1836 Rosalie married Victor Chataigne, her third and last husband, with whom she lived till his death in 1853. The title remained unchanged at the death of Rosalie, which took place in 1858. It appears in evidence that by herself or tenants she had occupied the lot up to the time of her death.

She left a last will by which, after certain other devises, she willed all the rest and residue of her estate, one-third to Laurent, one third to the children of Laurent, and one-third to the children of Archange. These two persons were her son and daughter. This will carried to the devisees all that she died seized of, viz: one-half undivided. As to the other half undivided she had possessed only a life estate, which terminated at her death. Thus her decease left the title, one-fourth in Laurent and one-fourth in Archange, which came to them from the deed of Lange Allard, made in June, 1821. The other half of which Rosalie had died seized in fee by virtue of her will vested, as to one-third of one-half or one-sixth, in Laurent, one-sixth in the children of Laurent, and one sixth in the children of Archange. The devolution of the record title is very clear. No one could claim any part of this title except by deed, devise or descent from Laurent or Archange or the children of Laurent or Archange.

According to the statement of facts, Archange married one McDowell in 1836, and had issue five children--Robt. A., John B., Emily, Rosalie and Mary. Mary died intestate in 1863, without issue, leaving her brothers and sisters to inherit her share. Emily married Renfrow in 1863, Rosalie married Maclay in 1864, Archange, the mother, died intestate in 1871. Laurent is living with eight children, all alive.

The plaintiff submitted three deeds from three of the four heirs of Archange, Robert, Emily and Rosalie, Jr., all made on the 13th day of April, 1873. These four heirs, as we have seen, acquired one fourth from the Allard deed, as heirs of Archange, and one-sixth from their grandmother's will. These three deeds from three of the four heirs gave to plaintiff three-fourths of the one-fourth coming from Allard, and three-fourths of the one-sixth coming by the grandmother's will, amounting to one-eighth, making in all fifteen-forty-eighths. There was no valid deed given in evidence taking any part of this title from the plaintiff or his grantors. The court of appeals held that as to the portion coming through the conveyance from Allard the title was lost by the statute of limitations, and allowed recovery only for the one-eighth coming by the will of Rosalie, their grandmother, and the plaintiff comes here by appeal, insisting that under the law and evidence he is entitled to have judgment for the three-fourths of the one-fourth denied to him by the circuit court and court of appeals, being nine-forty-eighths of the whole.

It is necessary for us to consider the facts relied upon by the defendant for defeating this portion of the plaintiff's title. But before doing this, I may as well call attention to the record title submitted in evidence by Pauline Dalton, the defendant. It consisted of a deed of trust by Laurent and wife to secure a debt of $4,000, dated March 2nd, 1861, and the deed of the trustee to John Dalton, dated January 29th, 1862. This placed in Dalton the one-fourth acquired by Laurent from the Allard deed, also the one-sixth acquired by the will of his mother, which would be five-twelfths or twenty-forty-eighths of the whole. By the agreement in the case, Pauline Dalton is possessed of all the title acquired by John Dalton, which, as we have seen, amounted to twenty-forty-eighths. There remained five-forty-eighths outstanding in John B., the son of Archange, and eight-forty-eighths in the children of Laurent, none of whom are parties to this suit.

The facts of adverse possession relied on by defendants may be briefly recited. On the 16th day of November, 1820, Rosalie joined with her husband, Robidoux, in a conveyance of the...