Chouquette v. Barada, 28 Mo. 491

Chouquette v. Barada

28 Mo. 491 | Mo. | 1859

Scott, Judge,

delivered the opinion of the court.

I do not see liow the plaintiffs can get along with their first instruction; If they relied on the documentary title, (which I understand to be the deed from Carondelet,) then they did not claim as heirs of Motier, and the case was nothing more than it was when formerly here as reported in 23 Mo. 331. I adhere to the opinion expressed in that case. If the heirs of Motier rely for title on the deed from Caron-delet and nothing more, (and the instruction is based on that deed alone,) then twenty years’ adverse possession in the defendants and those with whom they claim in privity will bar Carondelet and those claiming under her. Motier’s will was not a nullity; it would pass a title, though a defeasible one. Under the circumstances, I do not see what the deed from Carondelet had to do with the plaintiffs’ case. Their right, *497as founded on that deed, has been contested, and I have seen nothing since to indupe me to depart from the judgment heretofore pronounced on that title. The instruction was wrong in itself. It took for granted that the deed, whose legal existence was in issue before the jury, was a legal and effective instrument. Whether the deed was one or not was a question for the jury, and the court could not, by an instruction, usurp their province and direct them that the existence of an instrument was established when the question was one exclusively for them.

The deed from Carondelet was read and objections were made to it, but there was no objection on the ground that the seal of the corporation was not proved. Under these circumstances, that objection can not be regarded in this court.

By the first section of article eight of the act incorporating Carondelet, the corporation had authority to dispose of its commons. The seal of the corporation being fixed to the deed by the proper officer and signed by him, the presumption is that it was done by proper authority, and the burden of proof is on him who maintains the contrary. (The Public Schools v. Risley, ante p. 415, decided at this term.)

The record does not show that there were any objections made to the reading of the deed. There is an instruction asked directing the jury that the deed was void. But a party should not, by way of instruction, be permitted to take an exception to a deed in evidence, when if the objection had been taken on the trial it might have been obviated.

As the lease was made and the forcible entry and detainer tried during the life of Madame Motier, I do not see what influence these facts could have had on the merits of the case. If these occurrences had taken place after the death of Madame Motier, they would have been evidence against those who were agents in them.

If there was an. understanding between Madame Motier and her children that she should remain in possession of the land as doweress or as being entitled to remain there under *498the law until her dower was assigned, and that she would not take the land under the will nor claim it otherwise, no writing was necessary to prove this arrangement, and under it the statute of limitations could have no operation against her children, whatever may have been the law as to Caron-dclet. The statute of frauds would have nothing to do with such arrangement, as it had actually been earned into effect. Such an agreement by parol and if executory could not be enforced, but after it has been made and carried into effect by the parties there is nothing in the statute which prevents its previous existence from being shown by parol, as it was not done with a view to maintain an action on the agreement. Whether or not the defendants had notice of this understanding can not vary their condition. They bought the right, title and interest of Madame Motier, and they can not insist on the statute of limitations for her, when by her conduct she had given assurances to her children that her occupation was not in hostility to their rights. Nor could they force her to accept the devise.

After any interest in the land Madame Motier may have possessed had been sold, of course she could not affect it in the hands of the purchasers by her conduct or declarations. But it was a question for the jury, under all the circumstances, whether there was an understanding with regard to the holding by the widow and the time at which it was made.

Whether by the understanding Madame Motier was to have a life estate only, or the fee simple, was a question of fact for the jury, as the agreement was not in writing. (Halbert v. Halbert, 21 Mo. 275.)

The will was in evidence, and the defendants were at liberty to make such comments upon it and to draw such inferences from its existence as were warranted under the circumstances. When a party has secured the admission of his evidence, he has no right to give it an undue importance by an instruction to the jury as to the use they may make of it. Counsel can make their own comments on the evidence, and the jury will determine their weight. If such instructions *499are refused, they can not come into this court and complain that their refusal was tantamount to telling the jury that the inference they sought to draw from the evidence was unwarranted. We do not know that refused instructions are read in the hearing of the jury, and, if they are, counsel can not expect, by asking improper instructions, to gain an advantage in this court. No court in trying a cause would permit the refusal of an instruction to operate to the prejudice of the party asking it by suffering such refusal to be made the ground of an unwarrantable inference. Where the law fixes the weight or effect of evidence, there is no impropriety in the courts declaring it to the jury ; but when one fact or piece of evidence is merely used to show the existence of another fact which is to be found by the jury, the court can not, by way of instruction, direct the jury that the inference is warranted. If it is so, the law presumes the juror more competent to draw it than the judge. Our law will not allow the judge even to comment on the evidence, where the jury may give what weight they please to the comment. But this practice would, by way of imperative instruction, compel the jury to make an inference or otherwise have their verdict set aside, a consequence which does not necessarily follow from a refusal on the part of a jury to be governed by the comments of the court. In my opinion, the judgment should be reversed and the cause remanded.

RichaedsoN, Judge.

The plaintiffs claim the land in controversy under two titles; first, as purchasers from Caronde-let, and secondly, as heirs of Antoine Motier.

The possession of the widow was in privity with that of her husband, and whether she claimed the absolute estate, or only a life estate, recognizing the right of her children to the reversion, is immaterial so far as Carondelet is concerned, for her possession was certainly adverse to Carondelet, though it may not have been so as to her children. Her possession was transferred by act of law to the defendants, and so a continuous adverse possession for more than twenty *500years was established after the period that Oarondelet was incorporated and in a condition to sell. (23 Mo. 331.) The second instruction then was erroneous, for the plaintiffs went to the jury with proof in reference to both of the titles under which they claimed, and the facts hypothetically stated in the instruction did not prevent the statute of limitations from running against one of them.

In my opinion there is nothing in the will to prevent the plaintiffs from recovering on their title as heirs of their ancestor. The will is not void, and for many purposes, as against strangers, it may operate as a valid instrument; but, like the deed of an infant, it may be avoided by the children hot named nor provided for ; and when, as in this case, all of them are pretermitted, they may avoid it in an action of ejectment. The course would be different, if some of the heirs were provided for in the will and others not. (Hill v. Martin, ante p. 78.)

I am in favor of reversing the judgment and remanding the cause.