Chouquette v. Barada

33 Mo. 249

Opinion

Bates, Judge,

delivered the opinion of the court.

• The deed of the City of Carondelet was properly admitted in evidence. The City of Carondelet having power to dispose of its common, the deed is presumed to have been executed in pursuance of that power, and it was unnecessary for the plaintiffs to show special authority by resolution or ordinance, and therefore the objections to the resolution introduced for that purpose are not considered.

*

The benefits of Madame Motier’s possession devolved upon the defendants, who became in privity with her by act of law, but it was competent for either party to prove the character of that possession; and the defendants, having given in evidence declarations of Madame Motier on that subject, cannot object to similar testimony on the part of the plaintiffs.

The plaintiffs, in making their case, showed only a title under the City of Carondelet; but the defendants, in showing their own claim under the elder Motier, showed also that of the plaintiffs under Motier, the ancestor of some of them and of the grantors of the others, and they cannot apply their testimony to defeat the case made by the plaintiffs to the exclusion of the case which they themselves have made for the plaintiffs.

They cannot say that because the plaintiffs claimed under the City of Oarondelet, and Madame Motier’s possession was adverse to Oarondelet, that, therefore, her possession was adverse to the plaintiffs, notwithstanding that she in fact may have held possession in privity with and for the plaintiffs.

The other judges concurring,

judgment is affirmed.

See Swartz v. Page, 13 Mo. 603.