State ex rel. Morrison's Administrator v. St. Gemme's Administrator

| Mo. | Oct 15, 1860

Scott, Judge,

delivered the opinion of the court.

The fifth section of this act concerning marriage contracts, approved December 22, 1824, (R. C. 1825, p. 526,) directs that all marriage contracts heretofore entered into may be recorded in like manner as contracts hereafter entered into ; and from the time of recording the same shall (as to all property affected thereby within the county in which it is recorded) impart full and perfect notice to all persons of the contents thereof, and no such marriage contract, which shall not be recorded within six months after the taking effect of this act, shall be valid or binding, or in anywise affect any property, real or personal, (except between the parties thereto and such as have actual notice thereof,) until the same shall be deposited with the recorder of the county wherein such property is situated for record. The marriage contract between Maria T. St. Gemme and her husband was made on the 11th day of February, 1798, before Louisiana became a part of the United States; yet the case of Wilkinson v. Rozier, 19 Mo. 446, held that such a contract was within the purview of the act of 1824, and, in order to affect strangers to it, that it must be recorded. St. Gemme died during the year 1824. The administration bond executed by his wife M. T. St. Gemme as administratrix, was dated the 10th May, 1824. Her death, then, occurred before the act of 22d December, 1824, was passed: but that circumstance did not dispense with the obligation to place the contract upon the record ; for whatever the effect of the failure to record the instrument might have had on the rights of St. Gemme, if any, yet, as Mrs. St. Gemme was a party to the contract and had a right under it, for the protection of those rights it was necessary to record it. The contract was binding between the parties, though not recorded; the statute declares it so. If the contract, though unrecorded, is binding on the wife, how then will it be with paraphernal property, which, by the contract, was subjected to the community ? In consideration of stipulations favorable to her, she placed in the community property which otherwise would not have gone into it. By the' contract the slaves entered into the community. The effect, then, of not recording the contract is, that the wife loses her property and the consideration she was to receive for it. She loses her dowry or avers the benefit of the renunciation of the community, and retaking the property placed in community freed from the payment of debts. Thus while the contract operates against her, she can derive no benefit from it against third persons claiming without notice.

We have said that the slaves given by her father to M. T. Gemme entered into the community. The contract, as translated in the record, stipulates that the parties “ take each other with the goods and rights to each belonging at present and hereafter acquired, (éclm ou a échoir,) which goods and rights shall be common between them, ('lesquels entreront en communauté,) no matter what sum they may amount to, or in what place the same may be.” The words “ belonging at present or hereafter acquired” do not properly express the meaning of the words “ éclm ou a échoir.” The dictionary of the French Academy says the word “ échoir se dit ordinairement des dioses qui dévolues par le sort, ou qui arrivent par cas fortuit.” The clause of the contract which confers on the wife and children the right to renounce the community shows the sense in which this word is used, and what modes of coming into the possession of property it embraces. The clause of the contract cited is sufficiently comprehensive in its terms to place in the community all donations made to the wife during its continuance. Granting that the deed of 1810, executed by her father, was ineffectual to convey the slaves mentioned in it to St. Gemme, that they passed by the gift immediately following the marriage, and that by the Spanish law property coming to the wife during the marriage by a gratuitous title would not enter into the community but be paraphernal; yet, as to this matter, the parties by their contract could vary the law and place property in the community which otherwise would not have gone into it, and as this was done by the terms of the contract, the slaves became subject to the law of community, and were liable for the debts contracted by the husband during its continuance.

The precipul was by the terms of the contract to be paid at the division of the goods of the community, and as there was nothing to be divided, it could not be paid. Besides, as the contract was not recorded, it could not have been paid to the injury of creditors even had it been made a preferred debt.

The clauses of the contract giving dowry to the wife and conferring on her the right of renouncing the community and taking back every thing she brought into it, must fail of effect against a creditor by reason of the omission to record the marriage contract.

We do not see any ground on which the conduct of the county court in adjudging the widow her dowry under the marriage and paying the precipub can be sustained. We concede that if the county court had jurisdiction of the subject matter and its judgments were only erroneous, they could not be overturned in a collateral proceeding. But we can see no authority in the law for the course adopted. The act of January 21, 1815, § 74, 75, (Terr. Laws, vol. 1, p. 418,) directed how a widow should proceed to obtain her dower in slaves and lands. The seventy-seventh section of the same act provides that the same proceedings that are hereinbefore prescribed with respect to dower shall be had for the purpose of carrying into effect the marriage contracts that may have heretofore been made or shall hereafter be made in pursuance to any laws, usages and customs now or hereafter in force in this territory. The sections referred to show that a widow, in order to obtain her dowry in slaves, or to carry into effect any marriage contract, a regular suit was required ; a petition was to be filed in the circuit court; a summons was issued, and a service was required on the person or persons against whom she complained.

The foregoing provision in the territorial laws for the assignment of dower and the carrying into effect marriage contracts were omitted in the revision of 1825, and by the code of that date dower in slaves was no longer assigned to the widow as was her dower in her lands. The only provision for setting apart the widow’s dower in slaves was embraced in the section of the administration law relating to distribution. (§ 65.) But the distribution there directed could not be made without, notice to those interested. In executing the marriage contract in September, 1828, the county court acted under the code of 1825, which contained no provision sanctioning the conduct; the act therefore was coram non judice, and void.

This is an action on the administration bond of Mrs. St. Gemme. On a former occasion, when this case was here, (8 Mo. 287,) it was held that an action on the bond was not barred. The present action was commenced within a year from the discontinuance of the former one. This suit, then, is not barred by the statute of limitations. But it is maintained that Mrs. St. Gemme held the slaves adversely from the year 1828, when the county court carried into effect the marriage contract between her and her husband; consequently, that the slaves were converted at that time, and she is only liable for the value of them at that date. But Mrs. St. Gemme, when the county court assigned the slaves to her, was the administratrix of her husband’s estate; if the slaves were taken and held adversely from that time, it was her duty as administratrix to sue for and recover them. No other person could sue. How, then, could she, in her own right as claima.nt, hold adversely to herself as administratrix ? The slaves were required for the payment of debts. None but the creditors of the estate had an interest in them, and the creditors could only be represented by the administratrix. If, at the time the slaves were assigned to her, she resigned her letters and another administrator had been appointed, there might be some semblance of right in this pretension.; but under the circumstances we do not see how it can be maintained.

The other judges concur.