Williams v. Dongan

• Decision Date: 31 October 1854
• Citation: 20 Mo. 186
• Parties: WILLIAMS, Plaintiff in Error, v. DONGAN, Defendant in Error.
• Court: Missouri Supreme Court

20 Mo. 186

WILLIAMS, Plaintiff in Error,

v.DONGAN, Defendant in Error.

Supreme Court of Missouri.

October Term, 1854.

1. D. bought a claim to a tract of land in 1820, and soon afterwards took possession of it, built a dwelling, lived upon and cultivated it for eight or ten years, and then removed to Illinois. Afterwards, he paid all the taxes upon the land, had tenants on it part of the time, and when not tenanted, had an agent in the neighborhood to rent it out for him and protect it from trespassers. Held, this was such an adverse possession as, after the lapse of twenty years, was protected by the statute of limitations.

2. There is no tacking of disabilities under our statute of limitations.

Error to St. Louis Court of Common Pleas.

Action commenced in June, 1851, for the possession of 160 arpents of land on the river Des Peres in St. Louis county, being part of a tract of 1600 arpents granted by Zenon Trudea in 1797, to Therese Barrois and Francoise Brazeau, and confirmed by the act of congress of April 29, 1816. On the 2d of April, 1811, the said Therese and Francoise made a division of the tract, and executed to each other deeds for their respective halves. The western 800 arpents, including the land in controversy, was conveyed to Francoise. On the 4th of April, 1811, Francoise conveyed 266 2/3 arpents, including the land in dispute, to her daugher Genevieve Duchouquette. Genevieve was lawfully married to Pierre Duchouquette in 1797, and they lived together as man and wife until December, 24, 1803, at which time they separated and never afterwards lived together. At the time of the separation, they executed written articles, dissolving the marriage (so far as their agreement could dissolve it,) dividing the property owned by them in community, renouncing mutually all rights and powers flowing from their marriage contract, (so far as they could by agreement do so,) and granting to each other the free and absolute disposition and control of their property and conduct, as if they never had been married. Genevieve died November, 13, 1822, leaving one daughter, Marie Sophie who was born February, 26, 1807, and married to James Gonsollis, January 2, 1823. Pierre Duchoquette died in 1835 or 1836. On the 16th of March, 1812, Genevieve Duchoquette sold the 266 2/3 arpens acquired from her mother to John Murphy, and on the same day, Murphy mortgaged the same to Genevieve to secure the payment of a sum of money. On the 27th of December, 1819, Genevieve assigned the mortgage to Archibald Gamble, and on the 17th of January, 1820 conveyed to him all her interest in the land. On the 17th of July, 1820, Gamble assigned the mortgage to the defendant, Dongan, and conveyed to him all his interest in the land. The defendant instituted a suit to foreclose the mortgage, and became the purchaser of the land at the sale under the judgment of foreclosure, and received from the sheriff a deed bearing date February 6, 1822. Defendant took possession of the land soon after his purchase from Gamble, in 1821 or 1822, built a dwelling, made fields, and lived upon the land for eight or ten years, and then removed to the State of Illinois. Since that time he has never personally been upon the land, but part of the time has had tenants upon it, and when not tenanted, has all the time had an agent residing in the neighborhood, charged with the duty of renting it out, if tenants could be had to pay the taxes, and to superintend and control, and protect it from trespassers. The defendant always paid the taxes, and no person under whom plaintiff claims ever paid any taxes.

The plaintiff's title was as follows: On the 23rd of October, 1841, James Gonsollis and Marie Sophie, his wife, claiming the tract of 266 2/3 arpens in right of the wife's mother, conveyed the same to John E. Mower Mower afterwards conveyed all the tract except the 160 arpens in controversy to James Consul. Mower failing to pay the purchase money, the tract in dispute was sold under a decree of court upon a bill filed by Gonsollis and wife, and P. C. Morehead, under whom plaintiff claims, became the purchaser, and received a sheriff's deed dated March 11, 1850.

Upon an agreed case, substantially as above stated, the court below gave judgment for the defendant. The plaintiff brings the case to this court by writ of error.

Glover & Richardson, for plaintiff in error,relied upon the following points:

1. By the Spanish law, what ever property fell to the wife during marriage by any merely lucrative title was paraphernal, (Lindell v. McNair, 4 Mo. 382,) and could not be sold by the wife during coverture, unless the husband joined in the sale. (Picotte v. Cooley, 10 Mo. 312; Youse v. Norcum, 12 Mo. 558; Childress v. Cutter, 16 Mo. 41.)

2. The articles of separation did not confer on the wife the power to a lien without further consent of the husband. Those articles were void, as being both against good morals and against the Spanish law. (1 Moreau & Carleton's Partidas, p. 487, 493, 502; 2 Id; Gonsollis and wife v. Duchoquette, 1 Mo. 476.)

Mr. Dayton and Mr. B. Bates, for defendant in error, relied upon the following points, among others.

1. The articles of separation between Duchoquette and wife, of December 24, 1803, were valid and effectual, and accomplished all the objects therein mentioned and intended. Mrs. Duchoquette having acquired and sold the land in controversy subsequent to this contract, the title passed to the purchaser. (Labbe's heirs v. Abot, 2 Lou'a, 553.)

2. The land in controversy, acquired by Genevieve by deed of gift from her mother, was her separate property, (1 Lou'a. 322; 5 Lou'a. 742; 6 Martin, 14,) which, by the Spanish law, she had a right to sell, even during coverture, without her husband joining in or consenting to the conveyance. (1 Brown's Civil Law, 269, 82, 255; 1 Domat, 390, § 884 to 892; 1 Moreau & Carleton's Partidas, 523, § 17; Flowers v. O'Connor, 8 Martin, (N. S.) 555; Preston v. Humphreys, 5 Robinson, 299; Picotte v. Cooley, 10 Mo. 318.)

3. But even if the husband's consent to the sale was necessary, such consent is sufficiently shown by the articles of separation. If, however, a written consent is not shown by the article of separation, a verbal consent, which, under the Spanish law, was sufficient, will be presumed after this lapse of time and under the circumstances.

4. The statute of limitations is a good bar to the plaintiff's claim. The possession of Dongan is a sufficient adverse possession. (Angell on Limitations, [ed. of 1829,] ch. 4, p. 71 et seq. and cases there cited.)

RYLAND, Judge, delivered the opinion of the court.

As the point raised on the statute of limitations in this case must, in the opinion of this court, determine the question in controversy, it will only be necessary to consider it. We shall not, therefore, touch the other question involved, but pass them by, with the remark, that they involve much learning, and require more time and research than we can now bestow, especially when the point we decide will settle the case. From the agreed facts, as they are upon the record, it seems that the widow Charleville was the...