4 Mo. 380 | Mo. | 1836
Opinion of the court by
In the year 1816, the territorial assembly adopted the common law of England and all the statutes of the British Parliament in aid of, or to supply the defects of the said common law, made prior to the fourth year of James the first, and of a general nature and not local to that kingdom;, which said common law and statutes, not contrary to the laws of this territory nor repugnant to, nor inconsistent with the constitution or the laws of the United States, it is declared shall be the rule of decision in this territory, till altered &c. The laws of Spain, which prevailed here, when the transfer from Prance to the United States was made, allowed a woman and her husband to alienate her paraphernal property &c. — 3 Febrero, 134, where he says the husband is not prohibited from alienating the paraphernal effects of the wife with her consent, although she do not swear to the contract &c. The author had in a former part of his work, given the definition of dotal and of paraphernal property. Dowry among lawyers, he says, is a species of donation whidi the woman makes of her own property to her husband by reason of the marriage, and which she or another in her name, delivers to her husband, to sustain by its revenues, the matrimonial charges. In another place, he says the property, which a woman brings into the marriage, without including therein her dowry or which falls to her by any lucrative title after the marriage, is paraphernal — 2 Febrero, 127 and 129. The dotal immovable pi’operty of the wife could not be alienated by the consent of the husband and wife, unless she swore to the execution of the contract of sale; The paraphernal property, as above stated, might be sold by herself and husband without an oath. It does not appear that this was dotal property. We have no evidence of a marriage