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.
