La Riviere v. La Riviere

Sherwood, J. Ejectment by tenants in common against tbeir co-tenants for one-fifth of certain premises situate in the city of St. Louis. The plaintiffs claim as heirs of their father, Antoine La Riviere, their' mother being a three-quarter blood Ponca Indian woman. The contention in the trial court by the defendants, was on two points: 1st, That the father of plaintiffs was not the Antoine La Riviere who was the son of Mary La Riviere, deceased. 2nd, That even if he were the same person, plaintiffs could not recover by reason of the invalidity of his marriage with the mother of plaintiffs. I. The question of the identity of the,father of plaintiffs with the Antoine La Riviere who was the son of Mary La Riviere, was submitted to the jury under unexceptionable instructions, and upon sufficient evidence, and their verdict on the point is consequently conclusive. II. The same may be said touching the question of the validity of the marriage of plaintiffs’ father. The principles announced by this court respecting the marriage of whites with Indians, in the cases of Johnson v. Johnson’s Admr., 30 Mo. 72, and Boyer v. Dively, Admr., 58 Mo. 510, were fully and correctly applied to the facts of the case at bar, by the instructions given, and no more need be said. III. The defendants, by controverting the title of plaintiffs, thereby admitted the ouster, and superseded necessity of proof thereof. Peterson v. Laik, 24 Mo. 541; Sedgwick & Wait Trial of Title to Land, § 209; Miller v. Myers, 46 Cal. 535 ; Greer v. Tripp, 56 Cal. 209; Harrison v. Taylor, 33 Mo. 211. The answer of defendants, being a general one, [518] must then under the authorities be regarded as an implied admission of the ouster; for it is not permissible for a co-tenant in an ejectment suit to have the benefit of disputing the title of his co-tenant, the plaintiff, and still at the same time have the benefit of denying the ouster. He cannot have such cumulative advantages; he cannot in one breath deny the co-tenancy and claim the benefit of the relation. And, as a matter of course, if the answer of the defendants in the present case is to be regarded as an admission of the ouster, it is an admission of the ouster as laid in the petition of plaintiffs, so that there was nothing improper in the trial court taking the date of that ouster as the correct one in instructing the jury. IV. "We find no fault with the trial court in permitting the plaintiffs, pending the motion in arrest, to dismiss as to defendants Mary Johnson and Theresa Badeau, and in permitting the judgment to be amended accordingly. Jackson v. Bowles, 67 Mo. 609; R. S. 1879, § 3570; Blaisdell v. Steamboat Wm. Pope, 19 Mo. 157; Blumenthal v. Kurth, 22 Mo. 173; Webster v. Blount, 39 Mo. 500. Eor these reasons we affirm the judgment.