Schultz v. Lindell

40 Mo. 330

• Court: Supreme Court of Missouri
• Decided: March 15, 1867
• Status: Published

Opinion

Fags, Judge,

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.

This was an action of ejectment, commenced in the St. Louis Land Court and removed by change of venue to the Court of Common Pleas, to recover a lot of one by forty arpents of land conceded to William Bizet on the 7th day of February, 1769, and confirmed to his legal representatives by act of Congress of the 4th of July, 1836. Plaintiffs, for a more perfect description of the premises sued for, allege that this was “ the same tract of land which was cultivated and possessed by Jean Baptiste Provenchere prior to the 20th day of December, 1803, as a common-field lot of the Grand Prairie common.fields adjoining and belonging to the town of St. Louis, and conveyed by Marie Provenchere, widow of Jean B. Provenchere, deceased, and Jean Louis Provenchere, to Risdon H. Price by deed of the 29th day of July, 1816.”

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 entirely abandoned in the theory of the case as presented by the instructions given at their instance. Their chain of title under J. B. Provenchere consisted of, 1st, a deed from Marie Provenchere, widow, and Jean Louis Provenchere, son of the said Jean Baptiste, to Risdon H. Price, dated July 29, 1816, acknowledged two days afterwards, but not recorded until May 17,1847. The following is the description of the property conveyed by this deed: “ All the right, title, claim, interest, property and estate which we have had or possessed of, in and to a certain tract or parcel of land situate, lying and being at the place commonly known by the name of Big Prairie, about three and a half miles west of St. Louis, and containing one arpent in front by forty arpents in depth, bounded north by land now belonging to Joseph Lacroix, as it is said, and south by land cultivated formerly and said to belong to one Simoneau, it being the same tract or parcel of land which the said John Bte. Provenchere in his lifetime cultivated for many consecutive years prior to eighteen hundred and three.” 2d. A deed from Risdon H. Price to Horatio Cozens, dated May 11, 1825, but not acknowledged or recorded until August, 1846.

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 that the entire estate of J. B. Provenchere passed in equal portions to these two children, and plaintiffs were therefore only entitled to the interest of Jean Louis.

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 Provencliere of the lot sued for, under the act of June 13, 1812, superseded any title which might have been claimed under the concession of 1769 to William Bizet, and the confirmation to his legal representatives under the act of July 4, 1836; the latter confirmation and survey No. 3,340 serving no other purpose than as links in the chain of evidence to fix the location of the tract which J. B. Provencliere had cultivated prior to December 20,1803. So vague and indefinite are the calls in the deed to Price, that many collateral facts and circumstances were introduced for the purpose of throwing additional light upon this question of identity, but we do not feel called upon to examine them. We confine ourselves strictly to the point of objection made by the appellants.

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, situated in a certain locality, containing many lots of different sizes, and designated as the one cultivated for many years prior to a fixed period of time and by a certain individual. These were all parts of a description that must necessarily be taken into consideration in settling the question of identity, and the court permitted them to go to the jury without telling them that any one of these parts controlled the location. The lot claimed by defendants was just double the size of the one sued for in cultivation for “many years,” it is true, by the same individual, but not at any fixed period of time. The whole question of identity was, we think, fairly presented by the instructions, and we are not disposed to disturb the verdict on that account.

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 twenty years after the right of action accrued, saving to infants, femmes coverts, &c., after the removal of their disabilties. The right and title acquired by the heirs-at-law of Cozens was not extinguished until the year 1848, when his administrators cohveyed to Jenkins, and the estate passed to him with all the rights that attached to it in the hands of the heirs. The proof was that the actual possession of this tract by Lindell commenced after the death of Horatio Cozens, and the eldest child would not have been barred before the year 1860. The possession of Lindell, so far as it related to this identical tract, was without even color of title down to the year 1849.

* The question of the identity of the lot having been determined in favor of the plaintiffs, it excludes the idea that this was the property intended to be conveyed by Marie and Jean Louis Provenchere to Phillipson and Labadie. The defendants, therefore, have no right to complain that the deed of the same parties to Price, and upon which rests the claim of plaintiffs, was not recorded until the year 1847.

The judgment of the Court of Common Pleas is affirmed.

Judge Wagner concurs; Judge Holmes not sitting, having been of counsel.

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.