Chouquette v. Barada

1. In order to constitute such a continuous adverse possession in successive occupants as will amount to a har under the statute of limitation, it is necessary that there should he some privity between such occupants. 2. A will not providing for children of the testator, though voidable under section 20 of the act concerning wills and testaments, (K. C. 1825, p. 195,) by those injured by it, is good as against strangers ; unless the children of the testator assert their right against the will, the title will remain in the devisee. 3. A finding by the court that possession has been held adversely, is equivalent to a finding that the possession has been held under a claim of title.

Error to St. Louis Land Court. This was an action in the nature of an action of ejectment, to recover possession of a lot in the city of Carondelet. The petition, so far as it is necessary to set forth the same, is as follows : “ Plaintiffs state that they are tenants in common of the following described lot of ground or parcel of land, lying in the city of Carondelet [describing it] ; that said plaintiffs are entitled to immediate possession of said land, as tenants thereof, in fee simple absolute, having acquired the same by deed from the city of Carondelet, dated August 14th, 1852, and herewith filed, and the said Moritz Taussig and William Taussig have acquired by deeds, herewith filed, the interest conveyed by said deed of the town of Carondelet to Antoine Mo-tier and Ophelia, wife of Joseph N. Yien, so that the said Ju-lien Chouquette is entitled to one half of said land in his own right, the said Julien Chouquette and Victoire his wife, in right of the said Yictoire, are entitled to one-eighth of said land, the said Charles Motier to one-eighth, and the said Moritz and William Taussig to one-fourth ; that the said land was formerly part of the commons of Carondelet, and was conveyed as aforesaid to the said parties, who are legally entitled to the possession thereof in the proportions above named and mentioned,” &c., &c. Sullivan and Papin, landlords of Barada, being permitted to defend, by their answer denied the title of plaintiffs, and set up the statute of limitations. It was agreed that the cause should be tried by the court upon certain agreed facts and admissions, the substance of which is as follows : “It is admitted that the land in controversy lies within the survey made of the common of Carondelet in 1834 by Brown, and in that part of it lying north of the River des Peres ; that Antoine Motier resided on the land in controversy from 1825 until his death, which took place in 1834, about the 1st March; that he left eight children, whose names are Antoine (1), Yictoire (2), married to Julien Chouquette, Charles (3), Baptiste (4), Andrew (5), Elizabeth (6), married to Garci, Louis (7) and Ophelia (8), and also his widow, Felicité ; that Felicité died before 1st August, 1852 ; that the annual value of the land is twenty-five dollars, and at that rate per month; that Carondelet was incorporated on the 2d of August, 1832. “ On the part of the defendants, it is admitted by the plaintiffs that Antoine Motier occupied and lived on the land sued for from the year 1825 till his death in 1834, and that Felicité, his widow, occupied and lived on the same land from her husband’s death until October, 1847 ; that by virtue of a regular judgment against Felicité Motier, the sheriff of St. Louis county levied on and sold to Sullivan and Papin the land in controversy, as the land of Felicité Motier, the deed to Sullivan and Papin being executed in 1845 ; that Sullivan and Papin then Sued Mad. Motier in ejectment, recovered judgment, and executed a writ of possession in October, 1847, and that ever sirice then Sullivan and Papin have had possession of said land, claiming it as their own. “By the defendants it is admitted that in the interval between 1834 and 1853, the town of Carondelet has repeatedly recognized Brown’s survey of the common ; that after the death of A. Motier, his family continued to reside with their mother on the land in controversy for several years ; that A. Motier died in March, 1834, having first made his will, by which, without mentioning or providing for any of his children, he gave all his interest in this land to his widow, Felicité.” The finding of the court was as follows : “ Upon the pleadings, evidence and admissions of the parties, the court finds the following facts, to-wit: 1. That the land described in the petition lies within and was formerly part of the Carondelet commons ; that the city of Carondelet, by deed dated August 14th, 1852, conyeyed all its estate and interest therein, as follows : to the plaintiff, Julien Chouquette, one half; to the plaintiff, Yictoire Chouquette, one eighth ; to the plaintiff, Charles Mo-tier, one eighth, and to Antoine Motier, and Ophelia, wife of Joseph hi. Yien, each one eighth; and that before the commencement of this suit, the plaintiff, Moritz Taussig, by deed, acquired all the interest of the said Ophelia and her husband in the said premises, and the plaintiff, Wm. Taussig, in the same manner acquired all the interest of said Antoine Motier therein. 2. That the defendants, Sullivan and Papin, are in possession of said land, and have been in possession thereof, claiming the same as their own, from the 6th of October, 184T, and the said Sullivan and Papin, and Felicité Motier and Antoine Motier, under whom said defendants claim, have been in the actual and continuous possession óf said land from the year 1825 to the present time, and have held the same during said time adversely to the inhabitants of the town of Carondelet, and, after the incorporation of the city of Carondelet, adversely to the said city, under which the plaintiffs claim title. 8. That the inhabitants of the town of Carondelet were incorporated August 2d, 1832, and the city of Carondelet on the 1st day of March, 1851. “ Upon the facts of this cause as found, the court is of opinion, and so declares the law to be, that the plaintiffs are not entitled to recover.” Judgment was accordingly for defendants. Plaintiffs bring the case here by writ of error. I. There was no bar by the statute of limitations, because, 1st. The approved United States survey of the common of Carondelet bears date July 29, 1834, and this suit was brought within twenty years of that date, to-wit, on 28th January, 1854. Before that survey was approved, there was no complete right of action, and in fact no right of action at all. 2d. There was no adverse possession of the land, or no possession of it adverse to the heirs of A. Motier, before the 6th October, 1847. 3d. Less than twenty years elapsed between the death of A. Motier and the bringing of this suit, and defendants claim under a different person from the heirs of Motier. 4th. Defendants can not connect their possession with that of Motier, sr. The will of A. Motier was, as against his children, a nullity. 5. The case does not state any evidence or contain any admission warranting the inference that the possession of Madame Motier was adverse to her children. 6th. Mad. Motier’s possession was not exclusive. The case states that her children lived with her on the land for several years. They had the right of their father, be it much or little, by descent from him, the attempt to devise to their mother being a nullity. 7th. Mad. Motier’s possession was the possession of her children, and would be so, no matter what her intentions were on the subject. The law will hear no evidence to vary its own intendment. (See generally Donald v. Byrne, Batty’s Rep. 873 ; Cook v. Nicholas, 2 Watts & Serg. 27; Buller’s Nisi Prius, 102 ; 1 Fairfield, 2'56 ; R. C. 1825, Act concerning Wills and Testaments, see. 20, p. 795 ; 7 Paine C. C. 457 ; 9 Wheat. 288, 289 ; 2 Serg. & R. 527 ; Reading v. Royston, 2 Salk. Rep. 423 ; Empson v. Shackelford, 5 Burr, 2604.) I. The deed of Carondelet of August, 1852, passed no title for the obvious reason that the city had no title to convey. Twenty years’ adverse possesssion had taken away the common title. (Biddle v. Mellan, 13 Mo. 853 ; Joyal v. Rippey, 19 Mo. 660, 667; Blair v. Smith, 16 Mo. 273.) II. The inhabitants of Carondelet were incorporated August 2, 1832, and could have brought their suit immediately with or without a survey. (Carondelet v. McPherson, 20 Mo. 192.) III. There was a possession for twenty years adverse to Ca-rondelet, and it is totally immaterial that it was held part of the time by the ancestor of some of the plaintiffs. The plaintiffs cannot declare on one title and recover on another. (Butcher v. Death, 15 Mo. 271 ; Link v. Yaughn, 17 Mo. 585 ; Perry v. Barrett, 18 Mo. 140 ; Duncan’s adm’r v. Fisher, 18 Mo. 403 ,* Beck v. Ferrara, 19 Mo. 30 ; Payne v. Clark, 19 Mo. 152.) Besides, the plaintiff, Julien Chouquette, shows no connection with the possession of the Motiers. IV. The possession of the defendants, Sullivan and Papin, and that of Felicité Motier and Antoine Motier, was so connected as to be a continuous possession of more than twenty years adverse to Carondelet, and of course adverse to any claiming under Carondelet. (Angel on Lim. p. 447.) '