Wilkinson v. American Iron Mountain Co.

20 Mo. 122 | Mo. | 1854

Gamble, Judge,

delivered the opinion of the court.

The first question presented by the parties in the discussion of this case is, whether the land granted by the Spanish authorities to Joseph Pratte came into the community established by the contract between him and his wife. If it did not, there is ¡an end of the case, because the plaintiffs only claim under the wife of Joseph Pratte, upon the ground that it was property of ¡the community.

We look to. the petition which was presented to the lieutenant governor, and to that alone, to ascertain the grounds upon which Pratte applied for a concession, and when the order to put the party in possession of the land, made by the lieutenant governor upon the petition, suggests no other consideration for the grant than that contained in the petition, we find the motives and considerations upon which the concession was made to be just those set out in the petition. In the present case, the grant was a mere bounty, having no reference to the existence of the community.

A royal grant or gift to either of two spouses did not enter into the community of acquisitions and gains, which, under the Spanish law, resulted from the mere fact of marriage. (Gay-oso v. Garcia, 1 Mart. N. S. 334. Frique v. Hopkins, 4 Mart. N. S. 212. 5 id. 98. Hughey v. Barreno, 4 Arm. L. R. 250-.) In Frique v. Hopkins, the rule of the Spanish law is considered as applying to concessions made in Louisiana, and the application of the rule is made, upon consideration of the motives upon which such concessions'were ordinarily given. If it appeared that the-concession was made upon a consideration which was a burden on the community, the case would be an exception to the general rule. This concession or the land granted would not have come into the community created by law upon the marriage of Joseph Pratte and his wife.

The question then arises upon the construction of the marriage contract between Pratte and his wife, whether that contract had the effect of making it a part of the community property. The petition alleges that the contract is in the French language, and the original is not filed with the petition, but a paper is, which is called a translation, and which is treated throughout the trial as a correct translation.

The clause in it which establishes the community, is in these words : “ The intended consorts shall be in community as to all personal property and real estate acquired during marriage, according to and in conformity with the custom of this place, according to which their community shall be regulated, although they might hereafter live or acquire property in countries governed by contrary laws, usages and customs, which they do by these presents expressly renounce and disclaim.”

It is to be regretted that we have not the original of this contract in the record, for some of the terms employed in the translation, such as “personal property” and “ real estate” satisfy us that it is rather a free translation, if the words of the original are those commonly used in such instruments, and in the argument of the case, the counsel have admitted that the words “ acquets” and “ conquets” are used in the original as a designation of the property brought into the community.

But we will consider the words used in the translation. The parties are to be in community as to all personal property and real estate acquired during marriage, according to and in conformity with the customs of the place. What is to be according to and in conformity with the custom ? Not the acquisition of the property certainly. Then it can only be the community in the personal and real property, which is to be according to and in conformity with’ the custom. The clause has the same meaning as if it read, “ the parties shall be in community according to and in conformity with the custom of the place, in all personal property and real estate acquired during marriage.” The words were arranged in the first clause of the sentence in the order in which they stand in the contract, simply because, in the latter clause of the sentence, the custom was to be declared the rule of the community in other countries, and by making the custom the last subject in the first clause, the second applies to the same subject, without any necessity for repetition of words, and without interrupting the train of ideas.

Taking this to be the meaning of the clause which establishes the community, we look only to the custom referred to, in order to ascertain what property came into the community, and in the absence of any special local custom, if we take either the custom of Paris, or the Spanish law to be the rule, a royal gift to either spouse does not belong to the community. It has been insisted that other clauses of this contract give a wider scope to that which creates the community.

The clause which brings into the community the money due to the husband out of the inheritance of his deceased mother, and that promised to the wife by her father, by way of advancement, if it be understood to bring to the coihmunity funds which, from their character as inheritance or donation, would not enter into the community as created by law, shows that the first clause, which established the community, was not understood to have the effect of bringing them in by its general terms. The argument then, from this clause, is legitimate, that it was deemed necessary to specify, as parts of the community property, that which was not of a description otherwise to become sucb by law, and consequently a royal grant did not enter into it without a specification that would embrace it.

The clause providing for a renunciation of the community by the wife, or her children, is also supposed to afford a reason for giving to the community clause a construction which will bring within it the present property, although a royal gift. This clause allows the wife, upon a renunciation of the community, to take hack all that she shall have brought into the marriage, without its being liable for the debts of the community, and giving a mortgage upon all the husband’s property for the reimbursement of any sums she may have been obliged to pay, and for the general fulfillment of the clauses and stipulations of the contract. The argument is that, because she is allowed to take back all that she shall have brought to said marriage, “ and all that shall have come and fallen to her during marriage, whether it be personal or real property, by inheritance, donation, bequest or otherwise that, therefore, the community is to be held to include all property of every description.

A renunciation of the community is an abandonment of all claim under it, and places the parties in altogether different relations in respect to the property which they respectively possessed and the profits arising from its use during marriage. The language of this clause is in a common form, and does not contribute to give greater force or scope to that which fixes the extent of the community. The case of Fabre v. Sparks, 12 Rob. 31, gives no support to the construction here contended for. There, a marriage contract which created a community in all their estate, real and personal, “present and to come,” stipulated that, upon the death of either party, without children of the marriage, the amount of “ property brought into the community” should go to the surviving husband or wife. The question was, what property was embraced in this last clause in favor of the survivor, and it was held that all the property of each, “present and to come,” being brought into the community, that was the property to which the survivor was entitled, whether owned at the time of the marriage or subsequently acquired. In the present case, the attempt is to enlarge the operation of the principal clause establishing the community, by reference to another clause providing for a renunciation of the community. The latter clause cannot have this effect, nor, in fact, does it require us to give such force to its language, if it could legitimately so affect the first clause. The chief object of this latter clause is, to free the property of the-wife, on a renunciation, from liability for the debts of the community, and give her a mortgage on her husband’s property, so as to preserve to her the right of election at the dissolution of the community, either to abide by it and take her interests under it, or if that was not to her interest, then to take back her property without liability for debts, and so to stand preferred over all creditors, and also to have a mortgage for her security upon her husband’s property.

Upon the whole, we think this property did not enter into the community, and therefore the plaintiffs are not entitled to recover. The judgment is, with the concurrence of the other judges, affirmed.