Jones v. DeLassus

Black, J. This was an action of ejectment for a tract of some two acres of land in Perry county. The property is known as Bailey’s Landing, and is on the Mississippi river. The case made concedes that Cerón E. DeLassus and Joseph Y. Beauvais were the owners as tenants in common of a large body of lands, of which this was a part. In 1852 they made to each other quitclaim deeds for the purpose, it is admitted, of making-partition of their lands. These deeds convey the land described in each, without mention of the fact that they were tenants in common. The deed from DeLassus to Beauvais includes within the boundaries this parcel, and the habendum clause concludes as follow: “Savingand excepting to my wife and myself, and our legitimate descendants, the use and privilege of the landing on the Mississippi river on the first tract or parcel mentioned in this deed, and the warehouse now at the same, which we now enjoy and possess, so long as the same shall remain a steamboat landing.” On September 23, 1855, Beauvais, by warranty deed, conveyed the lands allotted to him, to Francis L. Jones, in which deed there is also the following reservation or exception: “Saving and reserving, however, out of the [546] first named tract in favor of Cerón E. DeLassus and wife- and their legitimate descendants, the use and privilege of the land on the Mississippi river, and the warehouse now on the same,' as same is reserved and excepted in a deed from said Cerón E. DeLassus and wife to said Joseph V. Beauvais, dated the 5th day of April, 1852, and for the time therein stated, that is, so long as it shall remain-a steamboat landing.” The evidence shows that DeLassus and Beauvais used and carried on business at the landing together, to the-date of the deed to Jones; afterthat, Jones and DeLassuscarried on a shipping business together, and after the death of the latter, his widow received one half of the proceeds of the landing. Plaintiffs are the heirs of Jones, and defendant is a son of Cerón E. DeLassus. Defendant now, and for a fey years before the commencement, of this suit, claims that he is entitled to the sole use and possession of the landing, and his right depends upon the clauses in the deeds before quoted. If we look to the deed from DeLassus, it not appearing to be for an undivided interest, the clause in question-would seem to imply that DeLassus should have the entire use of the landing and warehouse, and if this clause is to be regarded as a reservation, strength would, probably be added to* this view, for he would then stand upon the footing as having acquired the use as a grantee. As the landing and warehouse were in esse at the time the-deed was made and were included within the general description of the premises conveyed, we conclude the-clause should be regarded as an exception, and, therefore, the use remained to the grantor as of his former-right and title only, which was in common with Beauvais. But the case does not depend upon such distinctions for entire solution. That which is saved and reserved is that use of the landing and warehouse “which we now enjoy and possess.” What use did they, DeLassus and wife, [547] for they both joined in the deed, then enjoy and possess? To answer this we must look to the evidence aliunde, and from that it is seen the use was one in common with Beauvais. The deed was but a quit-claim and conveyed such interest in the land, and excepted such use and right. to enjoy the landing as DeLassus then had and no more. The deed may be construed in the light of the circumstances under which it was made. Gathwright v. Callaway County, 10 Mo. 664. Besides all this, the parties to this deed and those claiming under them, by their acts and conduct, for a period of some twenty years, gave to it a construction which the courts are not at liberty to disregard. Patterson v. Camden, 25 Mo. 13; St. Louis Gas Light Co. v. City of St. Louis, 46 Mo. 121. It follows that the right which DeLassus retained, to use the landing, was one in common with Beauvais, and it was this and this only, which was stiE reserved to De-Lassus in the deed to Jones. The plaintiffs are the owners of the fee, and they may maintain ejectment. Morgan v. Moore, 3 Gray 319; Tillmes v. Marsh, 67 Pa. St. 507. But their possession, when acquired, must be subject to the dominant estate of defendant, and the other descendants of DeLassus, that is to say, they may all use the landing in common, the descendants of De-Lassus having the use to the extent of one half, and the same to the heirs of Jones. This was the judgment below and it is affirmed. The other judges concur.