Chouquette v. Barada

Scott, Judge, delivered the opinion of the court. It is apparent from the petition that the plaintiffs only claim through the title they acquired from Carondelet, and on that they rely for a recovery in this case. This makes it unnecessary to inquire into any title they or any portion of them may have as the heirs of Antoine Motier. It can not be disputed that, in order to make a continuous adverse possession in successive occupants, it is necessary that there should be some privity between them. When one occupant enters after another, it must be with the consent of his predecessor, indicated by contract, or by an act of the law passing the possession from one to another, in order to make a continuous adverse possession. Possession may be adverse as to one, whilst it is not so as to another. Mrs. Motier’s possession may have been adverse to Carondelet and not to her children. This consideration, so far as the present case is concerned, disposes of all the authorities produced by the plaintiffs to show that the possession of the matter was not adverse to her children. The law of those cases is not controverted. The question presented for our determination is, whether there was an adverse possession of sufficient duration, as against the town of Carondelet, to bar the plaintiffs who rely exclusively on the title derived from that town. Whether we regard Mrs. Motier as holding under the will of her deceased husband, or [337] in virtue o£ ber right to quarantine, either aspect will make her possession in privity with that of her husband, and that possession, when transferred by act of the law, will constitute a continuity of her adverse possession in those to whom her right was transferred. The will of Motier was not a nullity. An inofficious will or testament, though voidable by those who are injured by it, yet, as against strangers, passes the title to the devisees or legatees. Had Mrs. Motier brought an ejectment against a stranger, and relied on her husband’s will in support of her title, we know of no principle on which the stranger could assert its nullity on the ground that the children of the testator were unprovided for. Qui libet potest renunciare juri pro se introducto. The children are not bound to claim against the will, and if they renounce the right conferred by law, who shall insist on it for them ? If the children should' ' never assert their right against the will, the title must remain in the devisee. This is similar in principle to the cases in which the law declares instruments void as to those who are injuriously affected by them, whilst it holds them effectual between the parties. Besides, the proviso to the 20th section of the act concerning wills, (R. 0. 1825,) shows that the will, though by its terms it makes no provision for the children, yet by evidence aliunde may be supported by establishing the fact that the children were provided for in the lifetime of the testator— a provision entirely inconsistent with the idea that an inofficious will is a nullity. When the children complain, the widow may show that they were advanced in the lifetime of the testator ; but surely, she will not be required to do this at the suit of a stranger. In addition to this, the 23d section of the same act provides a remedy by which the pretermitfced children may obtain their rights under an inofficious will, which scarcely contemplates that such a will is an absolute nullity. The will of Motier being only voidable by his heirs in the event they were not advanced in his lifetime, until it was avoided the right to the possession was in his wife, and that possession having been transferred to the defendants by the act of the law, there [338] was such a privity of possession between Motier and bis wife, and between his wife and the defendants, as would make a continuous adverse possession for more than twenty years as against the town of Oarondelet. As the facts are found which constitute the adverse possession, and as it is stated in the finding that the possession was adverse to Oarondelet, the implication necessarily arises that Mrs. Motier held claiming title. We think it sufficiently appears that she held and occupied claiming title adversely to the town. Though not found in so many words, it is in equivalent language. In the case of Pijopseot Proprietors v. Nicholas, (10 Maine, 256,) the finding was, “ that the defendant has held quiet possession of the demanded premises for more than twenty years,” — a finding different from that in this case, inasmuch as if is entirely silent as to the hostile character of the possession. Since the above opinion was written, it having been suggested that the plaintiffs have another title which was not tried in this action, and that it may be jeoparded by an affirmance of this judgment, the cause will be remanded, at the costs of the plaintiffs ; Judge Byland concurring.