10 Mo. 312 | Mo. | 1847
delivered the opinion of the Court.
This was an action of ejectment, commenced against the defendants in error by the plaintiffs in error, for a tract of land situate in the county of Pike. On the trial of the cause, the jury found the following special verdict: “As to the trespass and ejectment in said declaration mentioned on and in the parcel of 'the tract of land, in said declaration mentioned, and situate in the county of Pike, bounded , as follows, to-wit: commencing at the north-western corner of United States’ survey number one thou-
And the jurors aforesaid, Upon their oaths aforesaid, do further find that there was no child born of the said marriage between the said Joseph Brazeau and Marie Therese Delisle.
And the jurors aforesaid, upon their oaths aforesaid, do further find that on the 14th day of February, in the.year 1817, the said Jean Duchouquette and the said Marie Brazeau, his wife, executed a writing, under their hands and seals, purporting to convey to Marie Therese Delisle, widow of Joseph Brazeau, in fee all their interest in the quantity of 1008 arpens, or the seventh part of said tract of land; that said instrument in writing was, on the same day acknowleged by the makers thereof, before the clerk of the Circuit Court, of the county of St. Louis, in the territory of Missouri; and that the wife of the said Jean B. Duchouquette was, previously to h'er acknowledgement, examined separate and apart from her husband, and by the officer taking her acknowlegement made acquainted with the contents of said writing, and upon such examination and information, declared that she executed the -same freely, voluntarily, and of her own free will and accord, without fear, (constraint,) restraint, coercion, or undue influence of her said husband. And that the said writing, thus acknowleged, was on the 13th day of March, in the year last aforesaid, filed for record with the recorder of the county of St. Charles, in the territory of Missouri, and recorded; in
On this verdict the Court rendered judgment for the defendants, and the plaintiffs have brought the case to this Court by writ of error.
The contract of marriage between Joseph Brazeau and Marie Therese Delisle, was executed at Kaskaskia,in Illinois. At that time the French law prevailed at that place. Nothing more appearing than what is stated in the special verdict on the subject, we are warranted in saying they were domiciliated in Illinois. They afterwards came to Louisiana, where the Spanish law prevailed. The difference between the French and Spanish law of community is not very great. By the Spanish law, the husband and wife, by the mere act of intermarriage, became partners in all the estate, real and personal, which they respectively possess, except what the civil law calls' the income and profits of public offices, civil or military, held by the husband, which belong exclusively to him. All that is acquired or purchased during coverture, whether real or personal, goes into partnership, as being presumed to be the fruits of the joint industry and economy of husband and wife. Not so with property acquired by devise, bequest, gift, succession or inheritance, this remains the separate property of the party to whom it accrues, because not the fruits of the joint industry. This is what the French law calls “les propris,” which means separate property. Acquets and conquets mean the property jointly acquired. In all these respects the custom of Paris is the same with the Spanish law, except that the personal property, only possessed by the paities at the time of the marriage, enters into the partnership, as also acquets and conquets acquired during coverture, whether real or personal. But real property, held by either party at the time of
This I understand to be the law relative to that community which exists between man and wife, by operation of law, uninfluenced by any contract. If the law itself would not place a gift from the king to either party in the community, does it follow that the law went farther and prohibited a donee from disposing of a gift in any manner he thought proper. The law of itself would not make a disposition of it, but because this was declined, it does not follow that he, to whom the gift was made, could not dispose of it, especially as that disposition was not to take effect until after his death. Such a restriction would very much impair the value of the gift. This is said upon the supposition that the concession to Jos. Brazeau was a royal gift. I do not know what should warrant us in saying so. In the absence of all knowledge as to the means bv which the concession was obtained, are we to presume it was purelv voluntary? Suppose it was for services rendered, or on conditions to be performed, are we to presume that they were performed at the expense of the husband alone, or may they not have been at the joint expense of the husband and wife?
If, then, the land conceded to Joseph Brazeau entei’edinto the community established by contract between him and his wife, at the time of the marriage, then the land in controversy, at his death, belonged one half to his wife, and the other half went to his niece, Marie Brazeau, under the will, subject to a life estate of the wife. But this matter of the life estate of Mrs. Brazeau in Marie’s, the niece’s half, mayr be thrown out of the consideration, a- it only serves to embarrass, and does nototherwise affect the question.
Then Madam Brazeau, and Douchouquette and wife, conveyed five-sevenths of the land to Soulard. As Madam Brazeau owned one-half of the land, and Douchouquette and wife the other half, we must suppose that Madam Brazeau conveyed one-half, and Duchouquette and wife one-half, of what was granted. This would leave one-seventh remaining in Mrs. Brazeau, and one-seventh in Douchouquette and wife. Then Douchouquette and wife convey one-seventh to Madam Brazeau. Thus
The counsel for the plaintiffs contended that the land devised by Brazeau to Mrs. Douchouquette, did not enter into the community. If it did not enter into the community, then clearly it was paraphernal, and if paraphernal it might be conveyed by the husband and wife. Lindell vs. McNair, 4 Mo. R. ,380. But, if by the marriage contract, the land entered into the community, then the husband and wife, by joining, passed the title to Madam Brazeau and S.oulard. By supposing that the order of the conveyances between Madam Douchouquette and her husband, and Madam Brazeau, different from that before stated, that is, that Madam Brazeau first conveyed one-seventh to Douchequette and wife, and they afterwards conveyed one-seventh to her, it will appear that one-seventh remained in Douchouquette and wife, to the half of which Madam Douchouquette would be entitled, and consequently the plaintiffs entitled to recover one-fourteenth. But the order of time, in which the conveyances were made, is not stated, and as, in this Court, the presumption is that the judgment is for the right party, and he who would gainsay it, must show the error of the judgment below, we will not be warranted in disturbing it unless something is shown which would sustain our action.
It will have been seen that this, case depends on the question settled in the case of Lindell vs. McNair, before cited. Whatever may be thought of that opinion, if the question was now for the first time to be settled, we consider it has been too long determined, and too many rights may now rest upon it, to make it expedient to disturb it.
Judge Napton concurring, the judgment will be affirmed.