| Mo. | Mar 15, 1859
If the legislative divorce in 1816 be treated as a nullity and Jobn W. Honey survived bis wife, the interest of the plaintiff in the premies is one-fortieth; and if that interest has not been disposed of or in any manner barred, the judgment of the court of common pleas was of course correct. If the legislative divorce and subsequent deed and marriage be upheld, Mrs. Chouteau’s interest in the premises is one-eighth upon the supposition that the deed of June, 1827, was inoperative, and that no subset quent act of hers operated to convey her interest.
We have been unable to perceive any principle which would authorize this court to give efficacy to the second section of the divorce act of 1816, disregarding the first. Whatever construction the language of that section might admit of if it were an independent enactment, it is plain that its provisions were made altogether in reference to the subject matter supposed to have been provided for and attained in the first section. The powers conferred on Mrs. Honey, whatever they were, were not supposed to be given to her as a married woman. They were conferred as a consequence of the divorce previously granted. The legislature had no intention of distinguishing the marital relations and their incidents of John W. Honey and his wife, whilst they retained this relation to each other, from those incident to any other man and wife in the territory. Aside from the provisions of this act, the deed from John W. Honey to his wife can not be sustained on common law principles, or on such modifications of them as existed in this territory at that time. (Frissell v. Roper, 19 Mo. 448" court="Mo." date_filed="1854-03-15" href="https://app.midpage.ai/document/frissell-v-rozier-7999305?utm_source=webapp" opinion_id="7999305">19 Mo. 448.)
The deed of June, 1827, not being operative to convey the plaintiff’s interest in the lot, because not executed in the mode which the law then made essential, there is nothing done by her to affect her title until January, 1848, when she conveyed to Rankin her interest in the north half of the lot. To construe this last deed, not only as giving efficacy to the deed of 1827 for the northern half of the whole lots, but as an adoption of its recitals so as to estop her claim to the south
It is clear that the partition proceedings in 1827 can not in any way affect the plaintiff’s interest, as she was no party to them, nor in any manner concurred in them.
The decision of the case, then, depends altogether upon the validity of the divorce law of 1816. On this subject I have only to say, that the decisions of this court, made without my concurrence, have determined me to let the judgment of the court of common pleas stand. It is true that these decisions are mainly based upon a provision of our state constitution prohibiting one department of the government from exercising powers properly belonging to another, but they are also to some extent placed upon the ground that marriage is a civil contract and within the provision of the constitution of the United States which prohibits the passage of a law impairing its obligations. Although not responsible for the reasoning or conclusion of the court in these cases, I am not prepared to say that the legislature of the state had any less power on this subject than the territorial legislature which preceded it; and this conclusion is strengthened by observing that as early as 1807 there was a territorial law making ample provisions for divorces, which, with some modification, was reenacted in 1816. Moreover, the question, we may reasonably presume, is likely to prove a mere abstraction, except so far as the disposition of the present case is concerned, and there is no peculiar hardship in its facts and circumstances which prevents the enforcement of the previous adjudications on this subject.
Judgment of common pleas affirmed.
I do not concur in affirming this judgment. The territorial assembly, in my opinion, had authority to grant divorces, which is a different question from from that arising on the right of the general assembly to do so under our state constitution as it was originally framed.