In Missouri, where a deed was offered in evidence, purporting to
convey the titles of married women to land, and their names were in
the handwriting of other persons, and there was no proof that the
women had either signed or acknowledged the deed, it was properly
refused by the court to be allowed to go to the jury.
The property was paraphernal, and could not be conveyed away by
their husbands.
The facts in the case were not sufficient to warrant the jury to
presume the consent of the married women.
Page 60 U. S. 131
The original deed not being evidence, a certified copy was not
admissible.
An old will which had never been proved according to law was
properly excluded as evidence. Moreover, no claim was set up under
it, but, on the contrary, the estate was treated as if the maker of
it had died intestate.
Neither the deed nor the will come within the rule by which
ancient instruments are admitted. It only includes such documents
as are valid upon their face.
The statute of limitations did not begin to run until after the
disability of coverture was removed.
Boyle, who was a citizen of Kentucky, brought an action of
ejectment against Meegan to recover a lot within the present limits
of the City of St. Louis, in Missouri, which was particularly
described in the declaration. There was no dispute about location,
and both parties claimed under the title of Francis Moreau. The lot
was recommended for confirmation by Recorder Bates in 1815 and
confirmed to Moreau's representatives (he being then dead) by the
Act of Congress passed on the 29th of April, 1816.
Boyle alleged that a portion of the title remained in Moreau's
descendants until 1853, when it was levied upon under a judgment,
and sold to him at a sheriff's sale. On the other hand, it was the
effort of Meegan to show that these descendants had parted with
their title by deed, or that Moreau had willed away the property a
long time before the sheriff's sale. The portion of the title which
Boyle claimed was the entire share of Angelique, one of Moreau's
daughters, who married Antoine Mallette about 1804 or 1805; the
shares of two of Moreau's granddaughters, being the children of his
daughter Helen, who had married Pierre Cerre, said granddaughters
having married, one of them Pierre Willemin, and the other Felix
Pingal. Boyle also claimed the derivative share which these persons
were entitled to as the heirs of two of Moreau's children, whose
title was alleged to have remained vested in them at their deaths
without issue. One of these deceased children was Marie, who had
married Collin.
The judgment under which Boyle claimed was recovered in 1852
against Angelique Mallette, then a widow, the daughter of Moreau,
Pierre Willemin and Melanie Cerre, his wife, a granddaughter of
Moreau, and Felix Pingal and Josephine Cerre, his wife, another
granddaughter of Moreau
Upon the trial, Boyle offered in evidence the certificate of the
recorder of land titles in Missouri, the survey, the confirmation,
and the pedigree of Moreau's family, with the dates of the deaths
which had taken place. He then gave in evidence the sheriff's deed
to himself, and proved that Meegan had been in possession of the
premises since 1839.
Page 60 U. S. 132
The line of defense was to show that the title had passed out of
Moreau's heirs to a person named Chouteau, and from him to
Mullanphy, who had been in possession since 1820. For this purpose,
a paper was offered in evidence, purporting to be a deed from
Moreau's heirs to Chouteau dated September 3, 1818. It had attached
to it the names of three of the daughters of Moreau, amongst other
signatures,
viz., Marie Collin, Angelique Moreau, and
Ellen Moreau. It had also the signatures of the husbands of the two
last --
viz. Antoine Mallette, the husband of Angelique,
and Pierre Cerre, the husband of Ellen or Helen. Marie Collin's
name was written; the others made their marks. It was proved that
her name was in the handwriting of her husband, Louis Collin; the
names of Antoine Mallette and Pierre Cerre were in the handwriting
of Guyol, and that of Ellen Moreau, the wife of Pierre Cerre, was
in the handwriting of Hawley. John O'Fallon testified that he
became the executor of Mullanphy in 1833, and that this deed was
received by him amongst the other title papers of Mullanphy. The
defendant then offered to read the deed in evidence.
To the admission of which the plaintiff objected because the
deed was not signed or acknowledged by Marie Collin, Angelique
Mallette, and Helen Cerre, under whom he claims, and because there
was no proof that it had been executed by them under whom he
claimed, and because the deed did not convey or pass the title of
Mrs. Collin, Mallette, and Cerre, under whom he claims, which
objections were sustained by the court, and the same was not
admitted in evidence, to which ruling of the court the defendant
excepted.
The defendant was allowed to read in evidence a deed from
Chouteau and wife to Mullanphy dated 30 October, 1819, to which the
plaintiff did not object because, if Chouteau had no title, he
could convey none to Mullanphy.
The defendant then offered a certified copy of the deed from
Moreau's heirs to Chouteau, to the admission of which the plaintiff
objected for the same reasons urged against the original deed. The
objection was sustained, the copy excluded, and the defendant
excepted.
The defendant then offered a paper purporting to be the will of
Francis Moreau, executed on 2 August, 1798, before sundry official
persons by which he made his son, Joseph Moreau, his universal
legatee.
To the admission of which the plaintiff objected because the
will had not been probated or proved in any lawful manner, because
the conditions were not proved to have been complied with, because
the Spanish law authorized no such disposition
Page 60 U. S. 133
of property as therein made, and because there was evidence
before the court to show that the devisee had not accepted the
estate under the will, but had renounced it, which objections to
the will were sustained by the court, and the will was not admitted
in evidence, to which ruling of the court the plaintiffs then and
there excepted. At the same time the will was offered, sundry deeds
and documents were read in evidence the purport of which was to
show that the estate of Francis Moreau was treated, after his
death, as if he had died intestate.
The defendant then prayed the court to give the following
instructions to the jury:
"1. If the jury find that Francis Moreau, in his lifetime, was
the owner of the lot in controversy, that he died prior to 1804,
and that his two daughters, Mrs. Mallette and Mrs. Cerre, took
their husbands prior to 1804, then the several interests of said
daughters in said lot became, upon their marriage, and was their
paraphernal property."
"2. If the jury find as mentioned in instruction No. 1, and
further find that in the year 1818, Mallette and Pierre Cerre,
husbands of said daughters, made the deed read in evidence by the
defendants, then, under the evidence in this cause, the jury may
presume that said daughters gave the administration of said
paraphernal property to their husbands and that the same was
alienated with their consent."
"3. If the jury find as mentioned in instruction No. 1, and
further find that the defendants and those under whom they claim
have had open and continued possession of the lot in question for
thirty years and more before the bringing of this suit, claiming to
own the same, then the plaintiff cannot recover any interest in
said lot derived by Mrs. Mallette or Mrs. Cerre from their said
father."
If Mrs. Pingal was dead, leaving a child, at the time of the
sheriff's sale, under which plaintiffs claim, and during all the
time of the coverture of said Mrs. Pingal, the lot in controversy
was in the possession of the defendants and those under whom they
claim holding the same adversely to Mrs. Pingal and her husband,
and there never was any entry on the part of the wife or husband,
then the plaintiff derived no title to the lot in controversy under
Mrs. Pingal or her husband.
The court gave the instruction No. 1, and refused the others,
whereupon the defendant excepted.
The jury found the following verdict:
"We find the defendant guilty of the trespass and ejectment
complained of, as to two-fifths undivided of all the block of land,
part of the premises demanded, lying in the City of St.
Page 60 U. S. 134
Louis, bounded north by the north line of the Moreau arpent,
being survey No. 1,480; south by the south line of said survey,
1,480; east by Seventh Street; west by Eighth Street, excepting
only the two lots No. 7 in said block, as shown by the proceedings
in partition between the heirs of John Mullanphy, deceased, and we
assess the plaintiff's damages, sustained by the plaintiff by the
said trespass and ejectment, at the sum of ten dollars, and find
the monthly value thereof to be one dollar, and the defendant is
not guilty as to the residue of the premises demanded. "
Page 60 U. S. 143
MR. JUSTICE McLEAN delivered the opinion of the Court.
Page 60 U. S. 144
Boyle brought an action of trespass and ejectment in the circuit
court for a common field lot in what was formerly known as the Big
Prairie of St. Louis, containing one arpent in front, on Broadway,
in the city aforesaid, by the depth of forty arpens, running
westwardly, being the same lot of land granted by the Spanish
government to Moreau, and confirmed to his representatives by the
United States, and known as survey 1,480.
The defendant pleaded not guilty. A verdict of guilty was found
against him for an undivided two-fifths of the land described.
A grant of the land claimed under the Spanish government was
proved to have been made to Francis Moreau, who occupied the land
some time before his death, which took place in 1802. He left seven
children surviving him -- three sons and four daughters. His sons
were named Joseph, Alexis, and Louis; his daughters, Manette, widow
of one Cadeau, and afterwards wife of Louis Collin; Marie Louise,
wife of Joseph Menard; Helen, who afterwards intermarried with
Pierre Cerre; and Angelique, who intermarried with Notaine
Mallette.
The plaintiff gave in evidence a sheriff's deed, dated the 24th
of February, 1853, which recites a judgment in favor of David Clary
and William Waddingham against Angelique Mallette, Pierre Willemin,
and Melanie Cerre, his wife, Felix Pingal and Josephine Cerre, his
wife, by her guardian, for $455.31, on which an execution was
issued, and levied on the defendant's land, designated as survey
1,480, and the same was sold the 19th of February, 1853, to the
plaintiff Boyle, to whom the above deed was given, which purports
to convey all the right and interest of the defendants.
The plaintiff proved that defendant had been in possession of
the premises since 1839.
On the part of the defendant it was proved that in the summer of
1820, John Mullanphy built a small brick house, which stands partly
on the premises sued for and partly on one of the common field lots
confirmed to Vien. Soon after the house was built, Mullanphy fenced
three or four acres of ground, including the house. In 1822 or
1823, he enclosed fifteen or twenty acres, and in 1835 or 1836,
John O'Fallon, the executor of Mullanphy, induced Waddingham to
enclose all the land claimed by the estate of Mullanphy in that
neighborhood, which included the land sued for. The house and
enclosures were rented to different persons from time to time, and
were occupied with occasional intervals, sometimes of several
months. In 1846 or 1847, Waddingham's fence fell down, and the
tract
Page 60 U. S. 145
lay vacant and unenclosed for a year or two, when portions of it
were enclosed by the heirs of Mullanphy.
At the trial, a paper was offered in evidence purporting to be
the deed of Jeseph Moreau and others, heirs of Francis Moreau,
deceased, dated the 3d of September, 1818, conveying to Pierre
Chouteau all their estate and interest in the tract of land in the
declaration described. A certificate of Thomas R. Musick, a justice
of the peace, certifying that Joseph Menard and wife, Joseph Ortiz
and his wife, signed the instrument and acknowledged it to be their
deed. There was also offered an instrument purporting to be a deed
of Pierre Reaume and Marceline, his wife, and of Joseph Menard and
Marie Louise Moreau, dated 6 November, 1819, conveying to Pierre
Chouteau their interest in the land conveyed by their co-heirs, by
the foregoing deed. Also there was offered a certificate of Raphael
Widen, notary public, of the acknowledgment of this instrument, the
6th November, 1819; and also a certificate that both the
instruments were recorded 6 June, 1822.
It was proved that the above papers, after the death of John
Mullanphy, came into the possession of John O'Fallon, having been
found among the papers of the deceased.
The signatures to the first instrument were affixed by marks,
the names being in the handwriting of F. M. Guyol and others.
Certain persons swore that they heard several of the heirs say
they had sold their land to Pierre Chouteau. That Joseph Moreau
lived in Louisiana in a destitute condition, where he died, and
that he was never heard to claim any land in St. Louis, and in fact
that he said he had sold his land in Missouri.
Pierre Chouteau and wife, on the 30th October, 1819, conveyed
the tract in controversy to John Mullanphy by deed, which was duly
acknowledged and recorded.
On the above evidence, the two deeds in 1818 and 1819 were
offered in evidence, to which the plaintiff objected
"because the first deed was not signed or acknowledged by Marie
Collin, Angelique Mallette, and Helen Cerre, under whom he claims,
and that it did not convey any title of the
femes
covert."
The defendant then offered in evidence a copy of the will of
Francois Moreau, certified by S. D. Barlow, recorder, to have been
taken from among the archives of the French and Spanish
governments, deposited in his office, and filed for record on the
17th August, 1846, being archive 2,257. If the recorder had power
to certify as to the deposit of the will, it does not appear by
whom it was made, nor at what time.
Page 60 U. S. 146
This instrument states that
"In the year 1798, on the 2d August, we, Louis Collin, in
default of a notary, went to the home of St. Francis Dunegant,
capitain commandant of St. Ferdinand, of Florisant, assisted by
Antoine Rivierre and five others named; where St. Francois Moreau
went with Joseph Moreau at my residence; that said Francis Dunegant
and the said Francois Moreau declared and requested to make his
last will, which he pronounced to us in a loud and intelligible
voice, as follows &c:"
" Among other provisions, the testator names his son Joseph
universal legatee, and afterwards declares it is with the reserve,
that he shall reimburse to each of his brothers and sisters $27
silver out of the estate of their deceased mother, and it is
declared that Joseph Moreau obliges himself to furnish certain
articles annually to his father during his life."
The testimonium is as follows:
"Done and passed at St. Ferdinand, in Florisant, the day and
year aforesaid, and signed after being read before Don Francis
Dunegant, captain commanding, and the aforesaid witnesses, the said
Francis Moreau made his ordinary mark, &c."
At the time of offering the will, the following deeds and
documents were read in evidence as bearing upon said will and its
admissibility in evidence: a deed dated 2 April, 1818, from Joseph
Moreau and others, for a lot on Third Street, Town of St. Louis. In
the deed it is stated that Joseph Menard, Aurora, the wife of
Joseph Hortiz, are children of _____ Moreau, alias Manard,
deceased. Also the inventory and account of sales of the estate of
Francis Moreau, the inventory of the community property of Francis
Moreau and wife, under the direction of Francis Dunegant,
commandant, &c.
On the foregoing testimony the defendant moved the court to
instruct the jury as follows:
"1. If the jury find that Francis Moreau, in his lifetime, was
the owner of the lot in controversy; that he died prior to 1804,
and that his two daughters, Mrs. Mallette and Mrs. Cerre, took
their husbands prior to 1804, then the several interests of said
daughters in said lot became upon their marriage, and was their
paraphernal property."
"2. If the jury find as mentioned in instruction No. 1, and
further find that in the year 1818, Mallette and Pierre Cerre,
husbands of said daughters, made the deed read in evidence by the
defendants, then, under the evidence in this cause, the jury may
presume that said daughters gave the administration of said
paraphernal property to their husbands and that the same was
alienated with their consent."
"3. If the jury find as mentioned in instruction No. 1, and
further find that defendants and those under whom they
Page 60 U. S. 147
claim have had open and continued possession of the lot in
question for thirty years and more before the beginning of this
suit, claiming to own the same, then the plaintiff cannot recover
any interest in said lot derived by Mrs. Mallette or Mrs. Cerre
from their said father."
"4. If Mrs. Pingal was dead, leaving a child, at the time of the
sheriff's sale under which plaintiff claims and during all the time
of the coverture of said Mrs. Pingal the lot in controversy was in
possession of defendants and those under whom they claim, holding
the same adversely to Mrs. Pingal and her husband, and there never
was any entry upon the part of the wife or husband, then the
plaintiff derived no title to the lot in controversy under Mrs.
Pingal or her husband."
The court gave the first instruction and refused the others, to
which refusal exception was taken.
It is argued that the deed of the heirs of Moreau to Chouteau
dated September 3, 1818, and that offered as the act of Pierre
Reaume and wife dated 6th November, 1819, ought to have been
admitted in evidence; that the execution of the last-mentioned deed
was fully proved by proof of the death of the subscribing witnesses
and their handwriting.
Some of the grantors in this deed acknowledged the execution of
it before Thomas R. Musick, a justice of the peace, but there was
no proof that Angelique or Helen Cerre, or Marie Collin, had signed
or acknowledged the deed, and these were the heirs under which the
plaintiff claims. It was proved by Colonel O'Fallon that he was the
executor of John Mullanphy, and that in 1833 he received from the
son of the deceased the title papers of the estate, among which was
the above original deed, with certain endorsements. And it was
proved that the deed was in the handwriting of Guyol, a justice of
the peace, with whose handwriting he was well acquainted. It was
also proved that the signatures, Antoine Mallette, Pierre Cerre,
and Joseph Moreau, were in the handwriting of Guyol, and that of
Marie Collin in the handwriting of her husband, Louis Collin; the
signature, Ellen Moreau, the wife of Pierre Cerre, is in the
handwriting of Hawley. Guyol, the witness states, was a man of good
character. There was some proof that Pierre Cerre and Antoine
Mallette, after the date of said paper, stated often that they had
sold their land to Pierre Chouteau, Sr., but there appears to be no
proof that Angelique Mallette or Helen Cerre or Marie Collin had
ever stated or admitted that they had parted with their interest in
the land.
One of the defendant's witnesses stated that Joseph Moreau said
that after the decease of his father, he set up a claim to
Page 60 U. S. 148
the succession, and that he was imprisoned for doing so, and
that Pierre Chouteau had him released. Some evidence was given as
to the deed's having been deposited in the recorder's office for
record, and an endorsement that it was to be handed to
Mullanphy.
The common law was adopted in the Missouri Territory in 1816,
and consequently it governs all subsequent legal transactions.
The children of Moreau, being seven at the time of his decease,
were reduced, by the death of Louis intestate, and Marie, who also
died intestate, to five. And it seems that the plaintiff derived
his title from two of the surviving daughters -- Angelique and
Helen, and their heirs; he therefore claims under Louis, Marie,
Helen, and Angelique. It seems not to be contested that the
property vested in the daughters, under the civil law, was
paraphernal. A succession accruing to the wife during marriage is
her paraphernal property, which she may administer without the
consent or control of her husband.
O'Conner v. Barre, 3
Martin La. 455. The wife may give the control of this property in
writing to her husband. 1 White's New Recopilacion 56, note 33.
The circuit court committed no error in excluding from the jury
the above deed. The execution of it by the parties under whom the
plaintiff claims is not proved, nor do the facts relied on, from
which a presumption is attempted to be drawn in favor of its
validity, authorize such presumption. The
femes covert
were under disabilities. They could only divest themselves of their
rights in the mode specially authorized. Their husbands had no
power, without their concurrence and action, to convey their real
estate.
The defendant offered to read a certified copy of the deed, to
show its condition at the time it was recorded, but the court
refused to permit such copy to be read. If the original deed was
not evidence, it is difficult to perceive for what legal purpose a
recorded copy of it could be read. There was no error in this
ruling by the court.
There was no evidence that the will had been proved or that the
conditions stated in it had been complied with.
A deed dated 2 April, 1813, from Joseph Moreau and his brothers
and sisters, conveying to Hempstead and Farrar a lot which would
have passed by the supposed will to Joseph Moreau had it been
operative. Also there was shown a sale bill of the personal
property of the estate on the 19th of April, 1803, Joseph Moreau
being present, and that he purchased a part of the property devised
to him by the will.
Also it was shown that an administrator was duly appointed
Page 60 U. S. 149
on the estate of Francis Moreau, and his estate was administered
in the same manner as if he had died intestate.
By the Spanish law, a will was required to be proved by the
attesting witnesses within one month after the decease of the
testator, and when proved, it is required to be recorded. 1 White's
Recopilacion 111; 2 Moreau and Carleton's Partidas 975-977. The
testator cannot disinherit a child without naming the child, and
the reasons for doing so. 1 White's Re. 107. No heir can claim a
devise without performing the condition annexed to it. 1 White's
Re. 103. It is required that he shall appear before the judge and
either accept or reject the devise. 1 White's Re. 111, 127. None of
these requisites was performed by Joseph Moreau, who was made by
the will universal heir.
If the will was a genuine instrument and Joseph was the
universal heir, it could not have remained dormant, it would seem,
for fifty years or in the archives without being brought to the
light and having on it some judicial action. But whether it be a
genuine instrument or not, it has not been treated as valid, as no
claim has been set up under it, and all the heirs have acted, in
regard to the estate of their father, as though he had died
intestate.
Neither the deed to Chouteau nor the will can be admitted in
evidence without proof, as an ancient instrument. The rule embraces
no instrument which is not valid upon its face, and which does not
contain every essential requirement of the law under which it was
made. Neither the deed nor the will comes within the rule, and we
think the court very properly excluded them both from the jury.
In regard to the second, third, and fourth instructions, which
the court refused to give to the jury, there was no error.
As early as December 17, 1818, the territorial legislature
passed an act limiting real actions which remains in force. The act
abolished all the rules of prescription under the Spanish law and
substituted a limitation of twenty years after action accrued, and,
in case of disability by coverture, twenty years after it ceased.
In 1820 it appears Mullanphy took possession of a part of the
premises in controversy, and from that time retained possession.
Some of the husbands had a life estate in the lands, but whether
this was so or not is immaterial, as there is no bar to the claim
of the plaintiff by the statute of limitations.
By an act "prescribing the time for commencing actions,"
approved March 10, 1835, Revised Code, 396, it is declared in the
11th section that
"The provisions of this act shall not apply to any action
commenced, nor to any cause where the
Page 60 U. S. 150
right of action of entry shall have accrued, before the time
when this act takes effect, but the same shall remain subject to
the laws now in force."
It will be observed that the limitation act of 1818, being still
in force, cannot operate on any of the
femes covert of
whom the plaintiff claims. It did not being to run against them
until they became
discovert, from which time it required
twenty years to bar their right. Under such circumstances, no
presumption can arise against them, as they had no power to
prosecute anyone who entered upon their land. No laches can be
charged against them until
discoverture, and there is no
ground to say that either the statute or lapse of time, since that
period, can affect the rights of the plaintiff, or of those under
whom he claims. The court therefore, did not err in refusing to
give to the jury the instructions requested.
Upon the whole, the judgment of the circuit court is
Affirmed with costs.
