Perkins v. Fourniquet
55 U.S. 313

Annotate this Case

U.S. Supreme Court

Perkins v. Fourniquet, 55 U.S. 14 How. 313 313 (1852)

Perkins v. Fourniquet

55 U.S. (14 How.) 313

APPEAL FROM THE CIRCUIT COURT OF THE UNITED

STATES FOR THE SOUTHERN DISTRICT OF MISSISSIPPI

Syllabus

Releases given by the complainants in the present case decided to cover the matters in controversy, and therefore to put an end to all claim by them, inasmuch as there is no proof that they were obtained by fraud or circumvention.

The case, in some of its branches, had been before the Court three times before. A motion to dismiss a case between the

Page 55 U. S. 314

same parties at January term, 1848, is reported in 47 U. S. 6 How. 206. It came up again at January term, 1849, and is reported in 48 U. S. 7 How. 160. Again, at December term, 1851, a dispute, growing out of the same matters was before this Court, and the judgment of the court below affirmed by a divided Court. Consequently it was not reported, but the mandate, which was issued therein gave rise to a difficulty which will be the subject of the succeeding case in this volume. Ewing and wife were parties, together with Fourniquet and wife, to the present suit, but the controversy cannot be distinctly understood without a reference to the case in 48 U. S. 7 How. 160. The family connection of the parties is there explained.

The present claim of Fourniquet and wife and Ewing and wife against Perkins was founded on the alleged rights of the marital community of Mrs. Perkins, the mother of Harriet and Anne with Mr. Perkins, according to the laws of Louisiana.

The bill alleges the marriage was consummated in Louisiana, where both the widow Bynum and the defendant Perkins were then citizens, and that the defendant always retained his legal and political domicil in Louisiana, though sometime after the marriage, for the ostensible purpose of health, established a family residence near Natchez in the State of Mississippi. The bill charges that defendant, during the marriage, expended of community funds in the State of Mississippi in permanent investments of real estate an amount of about $39,600, which remained in kind at the dissolution of the marriage by the death of his wife in 1824, but which he has since sold and disposed of to his own use. That defendant had no revenues or resources in Mississippi from which these investments were made, but it was all derived from the revenues of his and his wife's property and cotton estates in Louisiana, and were partnership funds in which complainants, as heirs of their mother's community, had rights of partnership, and now have right to hold defendant to account therefor. They charge that if defendant intended and expected to get an advantage to himself by investing the community funds in the State of Mississippi, rather than in Louisiana, then it was a fraud on his part for which he is liable, or if intended in good faith, yet such investment charged defendant with a trust for which they pray he may be held responsible.

But complainants aver that as defendant has heretofore kept back and concealed from settlement this investment and never accounted for the same, but in settlement with them obtained their receipts and release in full in which this matter was not included, that said releases, so far as they may be invoked to

Page 55 U. S. 315

bar this claim, were obtained by fraud and circumvention. And they declare the matters of this bill were kept back by defendant and never accounted for. And they call on defendant to produce the account and items rendered by him when he obtained these releases and show for what they were given.

They aver too that Harriet's release was given while she was yet a minor.

They pray for an account of proceeds, or amount of said investment, with eight percent interest, and for general relief.

Answer

Defendant, in his answer, admits the marriage in Louisiana, admits the parties, and admits substantially the investments made in the State of Mississippi. But qualifying and explaining, says that same year of the marriage, he and his wife removed to the State of Mississippi and continued their domicil there during all the time of their married life, which terminated by the death of his wife on the 12th August, 1824. That this removal was in pursuance of an understanding had between them before marriage with a view to health and facilities of educating the children. Admits he retained some political rights in Louisiana after his removal till 8th of June, 1821, but says his civil domicil was changed as aforesaid, and on this allegation predicates his first and principal ground of defense -- viz., that by reason of this domicil,

"respondent has always acted under the belief that there was no community of acquets and gains of property lying in Louisiana between respondent and his said wife under the laws of Louisiana."

As a second ground of defense, he submits also that if, as alleged in said bill, the domicil was not changed, yet, as head of the community, he was entitled to the absolute disposal of the acquets and gains without accountability to his wife or her legal representatives.

As a third ground of defense, denies that the investments in Mississippi were made with money to which his wife had any legal or equitable title whatever. And denies they were made to gain any unjust advantage over his wife or her heirs.

Fourth point of defense is matter in abatement, in which defendant assumes that if liable to the demand made in said bill, it is only to an administrator of his wife's estate, and not to the complainants.

Fifth ground of defense is that he has obtained the releases of complainants for all claims on account of the estate of their father and mother, and relies upon them as if formally plead in bar, denying they were obtained by fraud or concealment

Page 55 U. S. 316

Sixth ground of defense submits that if said investments were made with money in which his wife had an interest, yet that defendant is entitled to the property as tenant by curtesy during his natural life, and he interposes this right as if plead in bar.

Upon the final hearing, the circuit court passed the following decree:

"In chancery. Final Decree."

"The report of William H. Brown, master in chancery made in the above-stated case and filed herein on the 3d day of April A.D. 1850, having been confirmed on a former day of this term, and the report of said master made herein and filed on the first day of October, A.D. 1850, having also been confirmed on a former day of this term, except as to the said sum of five hundred dollars therein stated as having been paid by defendant subsequent to the death of Mrs. Perkins, wife of said defendant:"

"It is now thereupon further ordered, adjudged, and decreed that the said complainants, the said Harriet J. Fourniquet, together with the said Edward P. Fourniquet, in right of his said wife, but to her sole and separate use; and the said Ann S. Ewing, together with the said Martin W. Ewing, in right of his said wife, but to her sole and separate use, do have and recover of the said defendant, John Perkins, the amount stated in said first named report, to-wit, the sum of sixteen thousand nine hundred and sixty-eight dollars and seventy-six cents $16,968.76, to be paid to the said complainants by the said defendant within thirty days hereafter, together with interest thereon at the rate of eight percent per annum from the first day of April, 1850, or in default thereof that said complainants have execution therefor. It is further ordered, adjudged, and decreed that said complainants do recover of the defendant all their costs hereby in this suit incurred and herein taxed."

"November 20, 1850 S. J. GHOLSON"

From this decree Perkins appealed to this Court.

Page 55 U. S. 322

MR. JUSTICE WAYNE delivered the opinion of the Court.

The suit was brought in the Vice-Chancery Court of Mississippi, and was transferred to the circuit court upon the application of the respondent under the 12th section of the Act of September 24, 1789, to establish the judicial courts of the United States.

Harriet J. Fourniquet and Anne M. Ewing are the stepdaughters of the respondent from his intermarriage with their mother, Mary Bynum. She was the widow of their father, Benjamin Bynum.

The object of the suit was to recover their portion of $39,600, alleged by them to be marital community gains of the respondent and was their mother, which they charge he invested in Mississippi and was in hand at the death of their mother. The respondent is charged with having had no means of his own to make such investments; that the money was derived from the cotton estate in Louisiana; that the same, by the laws of that state, became a community of acquets and gains, one-half of which, upon the death of their mother, became theirs and her other heirs; and they charge him further with having fraudulently taken the money derived from the Louisiana property into Mississippi to invest it there in order to give him undue advantages over his wife's and their interest in the fund. It is said that at the death of their mother, there were then living four children of the first husband and three by the respondent. Three of the four and two of the three are still living. Mary B. Eskridge, one of the survivors of the Bynum children, and John Perkins and William Perkins, adults and heirs of the complainant, do not concur with them in their suit, and for that reason are not made parties. The respondent, besides being charged generally with fraud, is especially so in reference to certain receipts and releases which these complainants gave to him which they now say were obtained by concealment and circumvention.

The respondent, in his answer to the bill, admits his marriage in Louisiana at the time and place stated, that he removed to Mississippi with his wife in 1818, that their domicil was there continued to be kept during the coverture, and that their removal was not only with the consent of the wife but in pursuance of an understanding between them before their marriage

Page 55 U. S. 323

took place. He denies that any community of gains was established conventionally or that it legally could occur under the law of Louisiana, on account of the residence of himself and wife in that state when they were married, because it was their intention, before the marriage took place, to remove into Mississippi. He denies that any money invested by him in lands in Mississippi belonged either legally or equitably to his wife in either state; and asserts, even if there was a marital community between them, he was entitled to dispose of the gains as he pleased, without any liability under the law of Louisiana to account for the same to his wife or her representatives. He denies the charge that he was without productive property or available means to purchase the property in Mississippi. That property consists of several tracts of land and the improvements put upon them, as is said, by community funds. The tract upon which the improvements were put contained one hundred acres. It was bought from Arthur Mahan on the 30th October, 1818, for $9,926. It was improved for a residence for the respondent with his family, including the children of the wife by the first husband. There was another tract, containing 2,100 acres, bought by the respondent from Elihu Hall Bay, in January, 1819, for $5,000. There were two other purchases -- one of them a lot in Natchez, bought from Walter S. Parker, in March, 1823, for $600, and the other is a purchase from Sugar Zenor, in March, 1824, for $1,000. The aggregate sum given for these lands, and the improvements upon the first, amount to $39,600. The complainants allege that they have a right to elect to take their interest in them in money, with interest upon the amount from the time of their mother's death.

To this answer the complainants filed the general replication.

The case was tried and the court below gave an interlocutory decree against the respondent. It declares that a community of gains had existed between the respondent and his wife during the marriage, that its resources were altogether in Louisiana, that the respondent had invested from the gains large sums in the purchase and improvement of real estate in Mississippi, and that it was held by him, in 1824, when the marriage was dissolved by the death of Mrs. Perkins. The court also referred the matter to a master to take an account conformably to its decree. In the course of the reference, the master sustained an objection to an allowance for which the complainants contended. It was submitted to the court whether he had properly refused it. He was instructed that it was only necessary for him to ascertain the amount of the funds vested by the respondent in Mississippi during the community, and that, as to the source

Page 55 U. S. 324

from which Perkins derived them, the court would decide under all the proof. The master proceeded accordingly. He reported, without any proof of the source from which Mr. Perkins obtained the money, that $16,968.76 was due to the complainants. The report was subsequently confirmed, and the court gave a final decree for them for the sum just stated, with interest at 8 percent from the 1st April, 1850.

It does not appear that the court's attention had been particularly directed to the releases which the complainants admit they gave to the respondent and which he says were given to him with a positive denial of the statement that he obtained them by fraud, concealment, and circumvention.

If it had been, we think that the court would have determined the effect of the release upon the case before it gave its interlocutory decree, and that it would not have made a final decree upon the master's report.

We proceed to give our view of these releases.

The first, from Ewing and wife, was executed on the 11th April, 1828. Fourniquet and wife executed theirs on the 27th May, 1834, within a month of six years after the other.

They are as follows:

"Release from E. P. Fourniquet et ux. to John Perkins"

"Received, Natchez, May 27, 1834, of John Perkins, on settlement of all accounts, debts, dues, and demands whatever up to the present day, one hundred dollars in full, having, on a previous occasion, received from him, as the guardian of my wife, Mrs. Harriet J. Fourniquet, late Miss Bynum, all the estate portion, and share, which she inherited by the death of her late father, Benjamin Bynum, late of Concordia, Louisiana, deceased, or her mother, Mrs. Mary Perkins, of the County of Adams and State of Mississippi, and brother, Benjamin S. Bynum, of the County of Clariborne and state last aforesaid, deceased, and do by these presents, jointly with my said wife, release and forever discharge the said Perkins from all and every claim which she or either of us might or could have against him, the said Perkins, either as guardian or otherwise, growing out of the estates aforesaid or in any other matter and shape whatsoever, and forever exonerate him, by these presents, his heirs and executors and administrators therefrom."

"[In] witness whereof, we have hereunto set our hands and seals the day and year first above written, to-wit, in the year of our Lord one thousand eight hundred and thirty-four, in the presence of Elijah Bell and John E. Maddux, whose names are hereunto subscribed, as witnesses hereunto, the said John

Page 55 U. S. 325

Perkins being also personally present, and by these presents accept."

"E. P. FOURNIQUET [SEAL]"

"HARRIET FOURNIQUET [SEAL]"

"JOHN PERKINS [SEAL]"

"Witnessed, signed, sealed, and delivered, in the presence of:"

"ELIJAH BELL"

"JOHN E. MADDUX"

"Release from M. W. Ewing to John Perkins"

"Received of John Perkins two negro slaves, Lewis and Anderson, also his draft on A. Fisk, for four hundred and seventy dollars, thirty-four cents, in one hundred and twenty days, endorsed by R. M. Gaines, which, when paid, will be in full of all claims and demands of every kind and description which we or either of us may have against said Perkins individually or against him as curator of the estates of Benjamin Bynum and Mary Perkins in the Parish of Concordia, State of Louisiana, or as executor of the will of the said Mary Perkins, dated March 30, 1822, and in full of all claims of every kind, which we or either of us may have against said Perkins in any way whatever, we having received from said Perkins heretofore the following named slaves, to-wit: Judah Myers, aged 25 years; Edward, about 4 years; Harry, about 7 months; Little Daniel, about 16 years; Patrick, 13 years; Lewis 5 years; Big Daniel, 50 years; Big Sarah Miambo, about 50 years; Ned, 16 years; Polly, 14 years; Frank, about 50 years; Maria, his wife, 37 years old; Frank, aged about 1 year; Fanny, about 7; Samuel, about 19 years. Also two mules, thirty head of cattle, and a chest of tools, and the said Perkins accepts hereof as a full satisfaction and discharge from the said Martin W. Ewing, and Anne, his wife, in the premises."

"Witness our hands, this 11th day of April, A.D. 1828."

"MARTIN W. EWING"

"ANNE EWING"

"JOHN PERKINS"

"Att. R. M. GAINES"

The operative words of these releases are as full as they can be, and they cover the subject matter for which the complainants brought the suit.

We have carefully examined and considered this record without finding in it anything against the fairness of the releases. The complainants do not give any proof against it. Nothing is in proof from which it can be inferred that they were given in ignorance of their rights in the estates of Benjamin S. Bynum and Mary Bynum when the releases were made, or that they were in any way circumvented by the respondent. Their testimony in the case is exclusively upon the community of gains,

Page 55 U. S. 326

and upon the inability of the respondent to make such purchases and improvements from his own means.

It consists of copies of conveyances for the property bought, of depositions, in which there is not a word relating to the releases, and of answers by the respondent to other suits against him, one of which was a suit in equity brought by these complainants in the Circuit Court of the United States, in Louisiana.

In that answer may be found a narrative of the respondent's business connection and dealings with the estate of Benjamin S. Bynum and that of his widow, afterwards the wife of the respondent. It shows that he rendered an account of both; that it was done in an open manner and with an intention that it should be examined by those who were interested. It is further shown that after the accounts had been officially filed, there was a partition of all the property among the heirs, and that it was consummated by receipts and acquittances from all of them, among them those given by Ewing and his wife, and by Fourniquet and his wife, as they have been already recited in this opinion. The respondent also denies in that answer the charge there made by these complainants, as it is repeated in that suit, that these acquittances were obtained by fraud, misrepresentation, and concealment, and avers that they were executed by the parties with a full knowledge of all their rights and for a valuable consideration. In that case, as in this, there was no proof that those receipts or releases were fraudulently obtained. The witnesses Henderson, Montgomery, and Walworth in this suit are not questioned as to the execution of the releases. The same interrogations were put to all of them. The answers of each are very immaterial for any purposes in this suit. No one of them knew anything concerning the respondent's pecuniary situation when he married or when he removed into Mississippi, or of the sources from which the money came which was invested in Mississippi. The same may be said of Wren's testimony. Loria's testimony is as indefinite as that of the others, and he also was not questioned concerning the execution of the releases. On the other hand, the evidence produced by the respondent in this suit shows that the releases were not precipitately made, that neither of the complainants gave them until after they had had time to examine his accounts, and not until they had examined them. Whatever they may have thought of the integrity of the respondent, they did not act then as if they suspected it. We see them receiving from him their portions of the estates, of which they were distributees, and other property besides, as gratuities from the respondent, and dealing with both, among themselves and with others, and acting towards the respondents as if they were

Page 55 U. S. 327

content with that he had done and with what they had received.

There was an interval of five years and eleven months between the releases given by the complainants to the respondent. The accounts upon which they were given were all that time accessible to them. The proofs show that Ewing had scanned them before he gave his release. His interest in the estates were the same as Fourniquet's. It was a family business, talked of, no doubt, among themselves, as such matters always will be, and it cannot be supposed that Fourniquet took his wife's portion of the estates without knowing that Ewing had given to the respondent a release when he took his wife's part or without having had the same means as his associate to learn the condition of the estates and the truthfulness of the respondent's official statement of them. Their acceptance of the portions of their wives must be taken as an admission that the respondent had dealt fairly in the business, and that he meant to do so, until they shall prove that it was his design to cheat all of the heirs, including his own children, as well as the wives of the complainants. He may not have acted in his long management of the estates with all caution and exactness, but nothing has been shown in this case, in his final settlement with the heirs, that he did not mean to act with fairness and liberality or that any one of them did not think he had done so when they made these releases.

With the view of these releases, we think that the court erred in giving its interlocutory order for an account to be taken. We are relieved by it from considering the points which were made in the argument concerning any community of gains between the respondent and his wife. However that may have been, the releases put an end to all controversy between these parties about it. They were fully argued by counsel, as they should have been, as they could not foresee what would be our view upon the effect of the releases. We could not add anything to the decisions of the courts of Louisiana upon connubial or legal communities of gains between husband and wife.

We are satisfied, whether it did or did not exist, that the releases given by the complainants are conclusive against them for any claim upon the respondent on account of the estates in which they were interested. No proof having been given that these releases were obtained by any fraud or circumvention, we shall order the decree of the court below to be

Reversed and that the bill of the complainants shall be dismissed.

MR. JUSTICE CURTIS dissented.

Page 55 U. S. 328

Order

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the Southern District of Mississippi, and was argued by counsel. On consideration whereof it is now here ordered, adjudged, and decreed by this Court that the decree of the said circuit court in this cause be and the same is hereby reversed with costs, and that this cause be and the same is hereby remanded to the said circuit court with directions to dismiss the complainant's bill.

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