Dessaunier v. Murphy

Bates, Judge, delivered the opinion of the court. When this case was here before, the defendant claimed a presumed title under Brazeau. That claim is now abandoned, and the case now presented is as follows : The land was confirmed to Bizette’s representatives. It was originally conceded to William Bizette, and in 1775, after the death of William Bizette, it was judicially sold to Charles Bizette, who died leaving three children. One of those children, Marie Louise, married Louis Boissy and died in 1818, leaving five children, of whom Emily and Margaret wore two. The plaintiffs claim to be the representatives of these two, and as such claim an undivided interest in the land. Emily 'first married John B. Gagnon, who died about 1834, and she [191] then married Dessaunier. Margaret married Paschal Mallet; she died about 1834, and her husband some ten years afterward. Defendant showed possession of the land since about 1829. .The possession was commenced by Brown Cozzens, under whom defendant claimed. The plaintiffs showed that in 1833 Louis Boissy conveyed his interest to Brown Cozzens. The plaintiffs also showed conveyances by some of the other descendants of Charles Bizette to Provenchere, and by Provenchere to Augus. L. Lang-ham, but did not connect Langham’s title (or possession, if he had any) with Brown Cozzens’ title or possession, or with the defendant’s, who claims under Brown Cozzens. The plaintiffs showed that when Cozzens took possession of the land, their ancestors, Emily Boissy (then wife of Gagnon) and Margaret Boissy, wife of Mallet, were married women. The precise times of the death of Gagnon, husband of Emily, and of Margaret, wife of Mallet, were not definitely shown by the evidence, though they occurred about twenty years before the suit was brought. Eor the defendant the court instructed the jury as follows: a. If the jury believe from the evidence that the defendant, and those through whom he obtained possession of the property sued for, had had a continuous possession thereof for twenty years next before the commencement of this suit, claiming the same as their own, then they should find for the defendant as against each of the plaintiffs who has not proved herself or himself either under twenty-one years of age, or a married woman, at the commencement of such possession ; and the burden of proof is upon each of the plaintiffs claiming to have been under such age, or a married woman at the commencement of such possession, to prove it affirmatively ; and until it be proved to the satisfaction of the jury, the contrary thereof should be presumed by the jury. B. If the jury believe from the evidence that the defendant, and those through whom he obtained possession of the land sued for, had had such a length of possession thereof next [192] before the commencement of this suit, as described in instruction marked a, claiming the same as their own, after the plaintiff Emily Dessaunier was of the age of at least twenty-one years and unmarried, they should find for the defendant as to her. c. If the jury believe from the evidence that the defendant, and those through whom he obtained possession of the land sued for, had had such a length of such a possession thereof next before the commencement of this suit, as described in instruction marked a, claiming the same as their own, after Margaret Mallet, mother of the plaintiffs named Mallet, was of the age of at least twenty-one years and unmarried, and that neither she nor her husband was ever in possession of said land, and that the same at and before her death was in possession of others claiming the same as their own, then they should find for the defendant. And the court, at the instance of the plaintiffs, instructed the jury, that “ if at the time of such adverse possession taken by defendant, and those under whom he claims, the plaintiffs, or those under whom they claim, were married, the said term of twenty years does not begin to run until the termination of said marriage.” These instructions properly state to the jury the law applicable to the facts of this case. The disabilities set up by the plaintiffs were that Emily and Margaret were, when Cozzens took possession of the laud, married women. Those disabilities ceased when they ceased to be married women, and no other disabilities could be tacked to or cumulated upon these. As to the plaintiff Emily, when her husband Gagnon died, the statute of limitations began immediately to run against her and never afterward ceased. As to Margaret, immediately upon her death the statute began to run against her representatives, without regard to any disabilities under which they might be, for this would be in effect a cumulation of disabilities. So holding, it is unnecessary for us to determine whether the husband of Margaret Mallet had a life estate as tenant by the curtesy in the case stated in instruc [193] tion c of their lack of possession during their marriage, and the fact of an actual adverse possession. Whether with these instructions the jury was justified by the evidence in finding for the defendant, we do not inquire further than to see that there was some evidence to authorize the verdict, as there was in this case. The verdict being for the defendant, it is not necessary to notice the instructions in reference to the amount of interest in the plaintiffs if they should recover at all. The first instruction refused the plaintiffs was properly refused, because no connection is shown between the defendant and Langham. The second was also properly refused, because the court had, by refusing the defendant’s instruction on that subject, declined to give any effect to the Brazeau title, and in fact it was withdrawn from the consideration of the jury. If the matter was still considered as before the jury, however, that instruction, as prayed, was not proper, because it called upon the court to declare that, in the absence of a sale to Brazeau, the plaintiffs were entitled to recover, which the court could not do without assuming facts proper for the jury to decide. This case had been tried twice before — once in 1854 and once in 1857. Cecile Lecompte, a witness for the plaintiffs, (who at the time of this trial was dead,) had testified at each of the previous trials, and her testimony had been preserved in the bills of exceptions. Her deposition had also been taken by the plaintiffs in 1856, and filed in the cause. At this trial the plaintiffs read to the jury from the bill of exceptions her testimony given at the trial of 1854. The defendant then read to the jury from the bill of exceptions selected portions of her testimony given at the trial in 1857, and selected portions of her deposition. The plaintiffs objected to these portions being read, unless her whole testimony was read; their objections were overruled, and they then offered to read the whole themselves. The defendant objected to their reading it, except as to such portions as were [194] of the same subject he had read of, and his objection was sustained. We cannot see how the plaintiffs are injured in this matter. If Madame Lecompte had been alive, and had testified for the plaintiffs, she could have been called by the defendant to testify upon a particular subject, without his being-required to examine her on other subjects, and the plaintiffs would not have acquired any right to examine her in rebuttal on other subjects. Her death had not changed the rights of the parties as to her testimony. The plaintiffs had her testimony taken at throe different times, and no doubt selected to read to the jury that which they thought most favorable to themselves; and if her testimony, taken at other times, included additional matter, they could have read that also ; but the matter excluded by the court was no new matter, being a .mere repetition of her testimony read to the jury. Judgment affirmed; the other judges concur. Note. — Brown Cozzens entered in 1829, Mrs. Mallet being then a married woman and under disability. She died in 1831, leaving her husband living and children. By the statute of 1825, p. 511, § 3, the heirs of a person dying under a disability are entitled to the same benefits that such person would have had by living until their disabilities should have ceased or been removed. Had Mrs. Mallet lived and survived her husband, she would had twenty years after her discoverture within which to sue. (Reaume v. Chambers, 22 Mo. 36.) Quere—Have not her heirs twenty years after Mr. Mallet’s death within which to sue 1