40 Mo. 330 | Mo. | 1867
delivered the opinion of the court.
Upon the record of the case, as presented by the appeal from the St. Louis Court of Commoxx Pleas to this court, we find but two points upon which it would seem to be necessary that any opinioxx should be given ; both of these points relate to the direction of the jury as to the law applicable to the facts shown by the testimony.
It appears that William Bizet died in 1772, leaving a will by which all of his estate was devised to his brother, Charles Bizet. The latter in 1774 married Marie Papin, and died in 1780 leaving the said Marie his widow and three children, Paul, Antoine, and Marie Bizette. In 1781, Marie Bizet, widow of the said Charles, married Jean Baptiste Provenchere. It is not shown at what exact period of time the said J. B. Provenchere took possession of the land in controversy, but there was testimony introduced by the plaintiffs to pro've that he had the actual possession of it and cultivated the same for many years before the 20th day of December, 1803, and that he continued in the possession of the same claiming it as his down to the period of his death in the year 1814. This fact indeed seems not to have been controverted upon the trial. On the contrary, the only paper title shown by the defendants to this property was derived from J. B. Provenchere, with the exception perhaps of the interest of Antoine Bizet in the estate of his father, Charles Bizet, deceased, conveyed to Peter Lindell by deed dated in the year 1849. Plaintiffs, on the trial, presented a chain of title under Bizet to a portion of this land, amounting together to six fifteenths of the whole; but this title seems to have been
Cozens died in 1826, and his administrators, under an order of sale of the Probate Court of St. Louis county made in September, 1847, sold and conveyed the property in question to Fred. Jenkins by deed dated April 25, 1848. Horatio Cozens left a widow and one child, William H. Cozens, who was born September 5, 1819; he had also other issue, a daughter, born in September, 1826, three months after her father’s death. Jenkins conveyed to plaintiffs by deed dated September 26, 1853. This suit was commenced in September, 1855. The defence was simply a denial of the plaintiffs’ title and a plea of the statute of limitations. It was not pretended under this chain of title that plaintiffs were entitled to more than one undivided one half of said property, as the said J. B. Provenchere left two children, Jean Louis and Margaret. There seems to be no controversy about the fact
The defendants relied, first, upon a deed from Marie Provenchere dated July 25, 1816 — just four days previous to the deed from the same parties to Risdon H. Price, and upon which plaintiffs’ claim to this property is really founded— recorded July 29, 1816, by which the said parties conveyed all of their right and title to a tract of land described as follows : “ situated about three miles and a half in the western part from the town of St. Louis at the place commonly denominated ‘ Grande Prairie,’ which land contains two arpents in front by forty in depth, and is bounded on the north side by a road thirty-six feet broad, which separates it from the land which Pierre Chouteau bought of Alexis Marie, and on the south side by a land of an oioner unknown, on the east and ivest by vacant lands; which land belongs to us as having been cultivated during a number of years by the said Jean Baptiste Provenchere, deceased, and whose heirs we are,” &g. This title was acquired by Lindell after the commencement of the suit by plaintiffs. There were shown to be several interferences with the survey of the lot in question, viz., the New Madrid location No. 161 of Joseph Hunot, the New Madrid location of James Conway, and the confirmation of widow Camp (the title to all of which has been acquired by Lindell), and also the sixteenth section; so that, upon the theory that the deed to Phillipson and Labadie of 1816 was intended to pass the title to the lot in question, the claim of defendants was older in point of time, and covered the only interest in the premises to which the plaintiffs could allege any claim whatever. So far as this point is concerned, then, it was not a question of title, but one that related exclusively to the identity of the property intended to be conveyed.
If this question was fairly presented to the jury by the instructions of the court below, the finding ought not to be disturbed, The instructions given on behalf of plaintiffs assumed correctly, as we think, that the confirmation to
There was no such call for the lines of adjoining proprietors as would justify the court in saying to the jury that established lines were called for, and that the grant to plaintiffs must be adjusted to these lines ; and if they could not be found by the testimony, the land sued for was not the land intended to be conveyed by the deed to Price. The descriptions in the two deeds of Marie and Jean Louis Provencliere to Price and to Phillipson and Labadie were in many respects similar. In both the land is said to be situate in the Grand Prairie, about three and one half miles west from St. Louis. The deed to Price conveyed a lot of “ one by forty arpents,” and being the same cultivated by Provencliere ‘■'•for many consecutive years prior to 1803”; the deed to Phillipson and Labadie conveyed a lot of “two by forty arpents,” claimed to belong to the grantors by reason of the fact that the same had “ been cultivated for mmy years by the said John B. Provencliere, deceased.” The testimony showed that the lot sued for answered the description as to quantity, and although that should not ordinarily be taken as a part of the description, yet there are many cases in which it must be so taken. Here were no natural or artificial monuments referred to, no courses and distances, and no established lines of known proprietors; but it is a lot of certain dimensions,
It cannot be said of the calls in either one of these deeds, that they were intended to apply to,|t particular tract of land, the boundary lines of which were so fixed and established as to be absolutely certain in their character, or that they could be definitely determined from anything that was referred to as fixed and established. At all events, in attempting to settle the intentions of the parties to the deed of Marie and Jean Louis Provenchere to Price, we think the directions of the court to the jury placed the wholie matter in a light most favorable to the defendants, and they really have no ground of complaint. The rule seems to be pretty well settled by the authorities, that where a particular tract of land cannot be located by the calls for monuments, or for course and distance, “ the intent of the parties is not to fail if there be other matter in the instrument indicative and certain of such intent”—Seaman v. Hogeboom, 21 Barb. (S. C.) 398, and the cases there cited.
The only remaining question to be considered is the plea of the statute of limitations. The testimony shows that Horatio Cozens (the person to whom Price conveyed) died in July, 1826, and that two minor children survived him — the eldest born in 1819, and the youngest three months after his death. By the act approved February 21, 1825 (R. C. 1825, p. 510), real or possessory actions were limited to
The judgment of the Court of Common Pleas is affirmed.
Lindell had been in possession from the year 1828, claiming title under the New Madrid locations of Hunotand Conway, which covered the premises sued for. (See statement.) — Rep.
