77 Mo. 397 | Mo. | 1883
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. Erom 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
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*400 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.
Eor 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, tyith 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 undi
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 Eosalie 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 — Eobt. A., John B., Emily, Eosalie and Mary. Mary died intestate in 1863, without issue, leaving her brothers and sisters to inherit her sh^re. Emily married Eenfrow in 1863, Eosalie married Maelay 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
It is necessary for us to consider the facts relied upon by tbe 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 Ar-change, 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
In 1850, joining with Chataigne, her last husband, Eosalie executes a lease of the premises to Jesse Little for fifteen years from March 1st, 1850. Little entered into possession as her tenant. After the death of, Eosalie, which took place in 1858, her two children, Laurent and Archange, claiming that the life estate upon which the lease rested was at an end, brought suit for possession against Little in the St. Louis land court, to the March term, 1859. On the 9th day of June, 1860, judgment was rendered for $1,500 damages, and $100 monthly rents. Laurent and Archange in this suit evidently regarded themselves as tenants in common as to the fee of the lot. Little died while the suit was going on, and his executor compromised the damages on the judgment, in 1861, which compromise left open the right of appeal. The appeal was duly proceeded with, and in the meantime the rents were collected from the tenants by John Maguire and paid over to Laurent and Archange. Matters remained in this
The court held that as to that interest the possession of the Daltons was not adverse till 1865, which left the defendants outside of the statute of limitations, this suit having been brought in 1873. The plaintiff is satisfied with this ruling, and the defendant is not a complainant before us of any error in respect to it. "When the courts below held that this possession of the Daltons was adverse as to that portion of the title of Archange and her heirs which came from the Allard deed, being a one-fourth interest, it was predicated upon the assumption that for ten years prior to 1873, Archange, in her lifetime, and her children after her death, could sue for their rights. The fact, however, is clear on this record, that Archange was a .married woman, and that the saving clause of the statute (preserved her right unimpaired. The agreed statement recites that Archange married McDowell and had by him the children from whom plaintiff holds deeds. It also recites that Archange died in 1871, intestate, and her husband died intestate in 1864. She was, therefore, under coverture between May, 1862, when it is claimed the Dalton title became adverse, and 1864, when her husband died. The statute did not run against her during those two years; and a deduction of these two years leaves the defendant with only nine years of adverse possession. It follows from this that upon the record of the case, the plaintiff ought to recover for the rest of the title to the children of Archange, which vested in him by his deeds, being nine-forty-eighths of the same, making in all fifteen-forty-eighths of the whole.
It is urged by respondent here that the question whether Archange McDowell was a married woman March 2nd, 1861, when she executed the deed of trust which was
It is unnecessary to examine the instructions in the case. They are declarations relating to the deeds or possession, which are disposed of in our decision upon the title and the extent and effect of adverse possession. The plaintiff has a great number of instructions applying to the long possession of Rosalie, by virtue of which he claimed the fee simple to the whole property. In view of the fact that his replication seems to concede a portion of the title in defendants, these instructions are out of place in this case.
An action in ejectment must be brought against the
It seems to me the defendants brought the matter up properly in an instruction that the plaintiff could not recover as long as he persisted in proceeding in this way. But Judge Scott intimates in Keene v. Barnes, that the proper method of taking advantage is by motion to compel the plaintiff to elect as to which cause of action he will proceed with. The instruction that plaintiff could not recover ought to have been treated, to say the least, in the nature of a motion to elect. The instruction was refused and judgment went for plaintiff’, but for only nominal damages.
The error of this practice, as it stands on 'the record, is not a material one against the defendants, as to the re
So far as the adjudication and recovery of his right of possession is concerned, we allow the judgment to stand, because the error is immaterial and works no injustice. But we could not recognize it as applying to the rents and profits without sanctioning an injustice resulting from a violation of our methods and forms of procedure. If the action was in the nature of an equitable ejectment, we might consider the propriety of giving a decree of accounting for the rents and profits.
The conclusion we have reached upon the whole case is, that according to the evidence in the record the plaintiff was entitled under the law to recover the additional nine-forty-eighths of his record title, but that he was not entitled to a judgment for rents and profits beyond a
The other commissioners concurring, the judgments of the court of appeals and the circuit court are reversed, and the circuit court of the city of St. Louis is ordered to enter up a new judgment in conformity with the directions of this decision.