Lemay v. Poupenez, 35 Mo. 71

Lemay v. Poupenez

35 Mo. 71 | Mo. | 1864

Bates, Judge,

delivered the opinion of the court.

Antoine Mallette and Angelique Moreau made a marriage contract on the 30th day of September, 1805, which was recorded on the same day. It was not sealed by them, and it was not acknowledged or proved. Among other provisions it established a community between the parties, who were then married. Dining the marriage, a lot in the town of Carondelet was acquired by the wife, by deed. After the death of the husband, the widow, on the 21st of October, 1848, conveyed the lot to one of her sons, Francis Mallette, who subsequently conveyed the same to the defendant Pou-penez. There were children of the marriage, and some of them bring this suit as heirs of Antoine Mallette, claiming that his heirs are entitled, under the marriage contract, to *76one-lialf of the lot. There was judgment for the defendant, and the plaintiffs appealed.

The first point in the case is upon the question whether the defendant was' chargeable with notice of the contents of the marriage contract, because of its having been recorded, and the lower court instructed that he was not so charged.

In the act to quiet vexatious land litigation, approved February 2d, 1847, (sec. 8, p. 95) it is provided “that the records made by the recorder of the proper county, by copying from any deed of conveyance, deed of trust, mortgage, will, or copy of a will, that has neither been proven nor acknowledged, or which has been proven or acknowledged, but not according to the law in force at the time the same was done, shall, from and after the passage of this act, * * impart notice to all persons of the contents of such instruments ; and all subsequent purchasers and mortgagees shall be deemed, in law and equity, to purchase with notice thereof.”

In the revision of 1855, there was added to the list of instruments mentioned, the general words “ or other instrument of writing.”

The marriage contract was not a deed of conveyance, nor any instrument mentioned in the act of 1847, and, consequently, the defendant was not, by virtue of the provisions of that act, charged with notice of its contents.

The plaintiffs also gave evidence tending to prove actual notice to Francis Mallette and the defendant Poupenez; and the court, at the instance of the defendant, gave to the jury the following instruction: “ Unless the jury find from the evidence that Francis Mallette or Joseph Poupenez had actual notice of the contents of the marriage contract between Antoine Mallette and Angelique Moreau, before or at the time of the making of the several deeds to them, the plaintiffs cannot recover.”

This instruction is right in requiring actual notice (the recording being no notice), and is right in requiring the notice to both Francis Mallette and Joseph Poupenez; for a want of notice to either was a sufficient defence to Poupenez. *77Another instruction was, however, given for the defendant which was erroneous. It was as follows: “ To entitle the plaintiff to a verdict in this case, the proof of notice of the existence and contents of the marriage contract, and of the claim of the heirs of Antoine Mallette under it, must be explicit, clear and positive, so as to leave no reasonable doubt in the minds of the jury that the taking of their respective deeds by Francis Mallette and Joseph Poupenez, with the intention of claiming the whole lot therein conveyed, were, under the circumstances, acts of bad faith towards the heirs of Antoine Mallette.” It was error to require proof of notice of a claim under the contract, in addition to the notice of the contents of the contract. The specification of the character of proof required of the plaintiffs was also erroneous. Notice is a fact to be proved, as other facts, by evidence direct or circumstantial. The burden of proof was on the plaintiffs, but the issue was to be decided by the preponderance of the testimony, and it was error to require proof of bad faith beyond a reasonable doubt.

Another instruction given for the defendant was without evidence upon which to base it.

Judgment reversed and cause remanded.

Judges Bay and Dryden concur.