Bates, Judge,
delivered the opinion of the court.
This suit is an action, in the nature of ejectment, to recover two-flftlis of a forty arpen lot, in the common field of St. Louis, confirmed to the representatives of Francis Moreau, by the act of 29th April, 1816. Both parties claim under Moreau. The plaintiff derives title by sheriff’s sale, on execution, under a judgment against Angelique Mallette, Pierre Wilhelmine and Melaine Cené his wife, and Felix Pingal and Josephine Cené his wife. Angelique Mallette was a daughter of Francis Moreau, and the wives of Wilhelmine [57]*57and Pingal were daughters of Helen Cené, deceased, who was also a daughter of Francis Moreau, deceased. The defendants relied upon a supposed deed from Antoine Mallette and said Angelique his wife, and Pierre Cené and said Helen his wife, and other descendants of Francis Moreau, to Pierre Chouteau, which deed, and the circumstances attending its execution, will be found at large in the case of Reaume v. Chambers, 22 Mo. Rep., p. 39 and following. Before offering that deed in evidence, the defendants, to prove the execution of it, gave in evidence the deposition of Angelique Mallette, as follows :
Deposition of Angelique Mallett, a witness of lawful age, produced, sworn and examined, at the residence of Pascal Mallett, in the county of St. Clair, and State of Illinois, before me, Theodore Engelmann, a notary public within and for the county of St. Clair, and State of Illinois, in a certain cause now pending, in the St. Louis Land Court, in the State of Missouri, between Jeremiah T. Boyle, plaintiff, and John Sexton, defendant, on the part of said defendant.
The witness being French, not understanding the English language, Francis Lemay was sworn to interpret the questions put to her into the French language and her answers thereto into English ; and the deposition was taken through him as interpreter. The witness deposes and says, to
Interrogatory 1. State your age, name, and place of residence. Answer 1. My name is Angelique Mallette ; I am about sixty-seven years old; reside with Pascal Mallet, in St. Clair county, Illinois.
2. How often have you been married ? Name your husbands. Ans. I was married but one time, to Antoine Mallette.
8. Whose child are you ? Give the name of your parents. Ans. I am the child of Francis Moreau.
4. Name your sisters. Ans. Lisette Moreau, Mary Moreau. Lisette was married to Menard; Mary was married to a man by the name of Caieu; Ellen and myself are twins ; Ellen was married to a man by the name of Pierre Sné (Cneay).
[58]*585. Had Francis Moreau, your father, any tract of land in St. Louis county ? If so, state whore it was. Ans. I never knew it from him; we were too young when he died.
6. Was any tract sold by his heirs to any body ? If so, to whom ? Ans. No, sir.
7. Did Pierre Chouteau ever ? (Withdrawn.) Since your father’s death, did you ever sell your right to any tract of land as his heir ? (Objected to as leading.)
8. Have you ever heard of any tract of land in St. Louis county, belonging to the heirs of Francis Moreau ? (Objected to by counsel for plaintiff as leading and incompetent.) Ans. I heard something about it; it was so recorded; one of the sisters stated to me we had some land over there, but did not know where it was.
9. What sister stated so to you, and when ? Ans. I cannot say, it is so long ago; it is about eighteen years since she died, and it was some time before that.
10. Did you or your sister do anything about that land ? Ans. No.
11. Did Peter Sné own any lot in St. Ferdinand? Ans. Yes.
12. From whom did he get it ? Ans. I understood he had it from Mr. Cadet.
13. Whom do you mean by Mr. Cadet ? Ans. Never heard any other name but Mr. Cadet.
14. What was the name of the family of Mr. Cadet of whom you speak ? Ans. I do not know; Mrs. Berthal is a daughter of Mrs. Cadet; she is an old woman.
15. Do you know why Mr. Cadet sold this lot in St. Ferdinand to Mr. Sné ? Ans. He exchanged it for a piece of land.
16. State all you know about that exchange. Ans. I know nothing of it.
17. State what piece of ground it was that he exchanged for it. Ans. I do not know; I do not know where it is.
18. Did Peter Sné ever speak to you about it ? Ans. He spoke to my husband about it.
[59]*5919. Wliat was said, and what was done about it? Ans. Mr. Sné came there with another man, I understood, to make an exchange of land.
20. What had you and your husband to do with it ? Go on and tell all that occurred. Ans. Mr. Sné came there with another man and made me sign a paper, and I do not know what they have done afterwards.
21. What was that paper about ? Ans. I signed it for Mr. Sné, to make an exchange of a house and lot.
22. Where was that house and lot ? Ans. I cannot tell the place at present; I think it may have been at Elorissant.
23. What was the piece of land she and her husband exchanged for the house and lot of land at Florissant ? Ans. I do not know.
24. What were your rights to the piece of land which you exchanged ? Ans. If I had anything it had come to me.
25. How had they come to you, and from whom ? Ans. I do not understand.
26. Had you inherited or acquired the right you sold? Ans. The land came from my father.
27. Where did you understand that land to lie ? Ans. I do not know where that land was.
28. Have you ever heard where it lay ? Ans. I have not.
29. Did your husband sign it at that time ? Ans. Yes.
30. Did any other person sign that paper ? Ans. I heard that others signed it; but I do not know.
31. Who else did you hear sighed it ? (Objected to by plaintiff’s counsel as leading and incompetent.) Ans. I understood that my brother, and my sister, and my niece, signed it; but do not know it.
32. Give the names of those you heard of haying signed it. (Objected to by plaintiff’s counsel as leading and incompetent.) Ans. Joseph Moreau, Mary Moreau, and Leonore -Menard, my niece.
33. What did you say just now about Madam Ortice and Madam Oolin ? Ans. I understood that they also signed it, but do not know.
[60]*6034.. From whom did you hear that Mary Moreau signed it ? Ans. By Mr. Sné.
35. From whom did you hear that Leonore Menard signed it ? Ans. By Mr. Sné, and no other person.
36. From whom did you hear that Madam Colin signed it ? Ans. By Mr. Sné, and no person else.
37. From whom did you hear that Madam Ortice signed it ? Ans. Mr. Sné told me they had signed it; nobody else.
38. Did any of these claim the land after the exchange ? Ans. No, sir.
39. How long ago was this exchange ? Ans.
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Bates, Judge,
delivered the opinion of the court.
This suit is an action, in the nature of ejectment, to recover two-flftlis of a forty arpen lot, in the common field of St. Louis, confirmed to the representatives of Francis Moreau, by the act of 29th April, 1816. Both parties claim under Moreau. The plaintiff derives title by sheriff’s sale, on execution, under a judgment against Angelique Mallette, Pierre Wilhelmine and Melaine Cené his wife, and Felix Pingal and Josephine Cené his wife. Angelique Mallette was a daughter of Francis Moreau, and the wives of Wilhelmine [57]*57and Pingal were daughters of Helen Cené, deceased, who was also a daughter of Francis Moreau, deceased. The defendants relied upon a supposed deed from Antoine Mallette and said Angelique his wife, and Pierre Cené and said Helen his wife, and other descendants of Francis Moreau, to Pierre Chouteau, which deed, and the circumstances attending its execution, will be found at large in the case of Reaume v. Chambers, 22 Mo. Rep., p. 39 and following. Before offering that deed in evidence, the defendants, to prove the execution of it, gave in evidence the deposition of Angelique Mallette, as follows :
Deposition of Angelique Mallett, a witness of lawful age, produced, sworn and examined, at the residence of Pascal Mallett, in the county of St. Clair, and State of Illinois, before me, Theodore Engelmann, a notary public within and for the county of St. Clair, and State of Illinois, in a certain cause now pending, in the St. Louis Land Court, in the State of Missouri, between Jeremiah T. Boyle, plaintiff, and John Sexton, defendant, on the part of said defendant.
The witness being French, not understanding the English language, Francis Lemay was sworn to interpret the questions put to her into the French language and her answers thereto into English ; and the deposition was taken through him as interpreter. The witness deposes and says, to
Interrogatory 1. State your age, name, and place of residence. Answer 1. My name is Angelique Mallette ; I am about sixty-seven years old; reside with Pascal Mallet, in St. Clair county, Illinois.
2. How often have you been married ? Name your husbands. Ans. I was married but one time, to Antoine Mallette.
8. Whose child are you ? Give the name of your parents. Ans. I am the child of Francis Moreau.
4. Name your sisters. Ans. Lisette Moreau, Mary Moreau. Lisette was married to Menard; Mary was married to a man by the name of Caieu; Ellen and myself are twins ; Ellen was married to a man by the name of Pierre Sné (Cneay).
[58]*585. Had Francis Moreau, your father, any tract of land in St. Louis county ? If so, state whore it was. Ans. I never knew it from him; we were too young when he died.
6. Was any tract sold by his heirs to any body ? If so, to whom ? Ans. No, sir.
7. Did Pierre Chouteau ever ? (Withdrawn.) Since your father’s death, did you ever sell your right to any tract of land as his heir ? (Objected to as leading.)
8. Have you ever heard of any tract of land in St. Louis county, belonging to the heirs of Francis Moreau ? (Objected to by counsel for plaintiff as leading and incompetent.) Ans. I heard something about it; it was so recorded; one of the sisters stated to me we had some land over there, but did not know where it was.
9. What sister stated so to you, and when ? Ans. I cannot say, it is so long ago; it is about eighteen years since she died, and it was some time before that.
10. Did you or your sister do anything about that land ? Ans. No.
11. Did Peter Sné own any lot in St. Ferdinand? Ans. Yes.
12. From whom did he get it ? Ans. I understood he had it from Mr. Cadet.
13. Whom do you mean by Mr. Cadet ? Ans. Never heard any other name but Mr. Cadet.
14. What was the name of the family of Mr. Cadet of whom you speak ? Ans. I do not know; Mrs. Berthal is a daughter of Mrs. Cadet; she is an old woman.
15. Do you know why Mr. Cadet sold this lot in St. Ferdinand to Mr. Sné ? Ans. He exchanged it for a piece of land.
16. State all you know about that exchange. Ans. I know nothing of it.
17. State what piece of ground it was that he exchanged for it. Ans. I do not know; I do not know where it is.
18. Did Peter Sné ever speak to you about it ? Ans. He spoke to my husband about it.
[59]*5919. Wliat was said, and what was done about it? Ans. Mr. Sné came there with another man, I understood, to make an exchange of land.
20. What had you and your husband to do with it ? Go on and tell all that occurred. Ans. Mr. Sné came there with another man and made me sign a paper, and I do not know what they have done afterwards.
21. What was that paper about ? Ans. I signed it for Mr. Sné, to make an exchange of a house and lot.
22. Where was that house and lot ? Ans. I cannot tell the place at present; I think it may have been at Elorissant.
23. What was the piece of land she and her husband exchanged for the house and lot of land at Florissant ? Ans. I do not know.
24. What were your rights to the piece of land which you exchanged ? Ans. If I had anything it had come to me.
25. How had they come to you, and from whom ? Ans. I do not understand.
26. Had you inherited or acquired the right you sold? Ans. The land came from my father.
27. Where did you understand that land to lie ? Ans. I do not know where that land was.
28. Have you ever heard where it lay ? Ans. I have not.
29. Did your husband sign it at that time ? Ans. Yes.
30. Did any other person sign that paper ? Ans. I heard that others signed it; but I do not know.
31. Who else did you hear sighed it ? (Objected to by plaintiff’s counsel as leading and incompetent.) Ans. I understood that my brother, and my sister, and my niece, signed it; but do not know it.
32. Give the names of those you heard of haying signed it. (Objected to by plaintiff’s counsel as leading and incompetent.) Ans. Joseph Moreau, Mary Moreau, and Leonore -Menard, my niece.
33. What did you say just now about Madam Ortice and Madam Oolin ? Ans. I understood that they also signed it, but do not know.
[60]*6034.. From whom did you hear that Mary Moreau signed it ? Ans. By Mr. Sné.
35. From whom did you hear that Leonore Menard signed it ? Ans. By Mr. Sné, and no other person.
36. From whom did you hear that Madam Colin signed it ? Ans. By Mr. Sné, and no person else.
37. From whom did you hear that Madam Ortice signed it ? Ans. Mr. Sné told me they had signed it; nobody else.
38. Did any of these claim the land after the exchange ? Ans. No, sir.
39. How long ago was this exchange ? Ans. I do not know; cannot recollect, it is so long ago ; I think about thirty years — may be more; Emilie, the wife of the interpreter, was not born.
40. Did you know John Mullanphy? Ans. Yes, the old man, the father of Mr. Chambers, I knew.
41. Did you know him very well, or see him often ? Ans. I knew him and saw him often.
42. Did you ever speak to him about this land ? Ans. I did not know he had it; never heard him speak about it; I have heard of it since.
43. Did you or your husband ever claim it after the exchange ? Ans. No.
44. Were you on good terms with Mr. Mullanphy? Ans. I had nothing against him, and think the other party had nothing against me.
45. Did you get goods from his store, and were they always paid for; and if so, how ? (Objected to as leading and incompetent.) Ans. He was giving not only to myself but to all the poor.
46. How long did this continue, in regard to yourself ? Ans. He might have given me a hundred dollars’ worth at different times during the year; perhaps more than a year, as far as I can recollect.
47. When was this ? Ans. When I got married he gave me some money; and when he went to France he left me a dollar’s worth to get every week at the store, as he did to [61]*61other poor orphan children; this was about thirty years ago.
48. Do you know how to read or write ? Ans. No.
49. Have you made any other deed except the said deed of exchange ? Ans. No other; only with Mr. Sné.
50. Do you know Eremont and Reber? Ans. Yes.
51. Did you ever make them any act ? If so, what ? Ans. Yes; I made a deed to Mr. Fremont and Reber.
52. What was that deed for ? Ans. I do not know.
53. How came you to make that deed to Fremont and Reber ? Ans. They told me I had a piece of land, and I gave it to them to plead in half, and afterwards I sold it to them.
54. Did you sell all your interest in the same to them ? Ans. Yes.
55. Were you to receive nothing in case they gained the suit ? Ans. Mr. Fremont told me if he gained the land, he would give me a good recompense.
56. Did you ever sign more than one act to Fremont and Reber? Ans. No, sir.
57. Did Fremont and Reber tell you who claimed the land ? Ans. No.
58. Was the land sold to Fremont and Reber the same as in the exchange ? Ans. I believe, yes.
. 59. Did you know this at the time you made the act to Fremont and Raber ? Ans. No.
60. Did you ask any questions about this, when you made the act to Fremont and Reber ? Ans. I do not recollect. Did you ask whether it was the land sold to Mr. Cadet ? (Objected to as leading by plaintiff. Withdrawn.)
61. Did you ask Fremont and Reber any question about what land it was ? If so, state all that passed. Ans. They said it was land that never was sold. I do not recollect anything.
62. Did you understand that it (the land) was la grange de terre ? (Objected to by plaintiff’s counsel as leading.) Ans. I do not recollect. ^ Ques. Was suit to be brought for the land by Fremont and Reber ? (Objected to by plaintiff’s counsel as leading. Withdrawn.)
[62]*6263. What was Fremont and Reber to do with said land ? Ans. They did not tell me ; I do not know what they were,to '" do with it; if they had gained it, I suppose it would have been theirs.
64. Who were to sue for it ? Ans. I have heard nobody say who was to sue. Ques. Was not suit to be brought? (Objected to by plaintiff’s counsel as leading. Withdrawn.)
65. In whose possession was the land which you sold to Fremont and Reber ? Ans. I do not know; they had not told me who was in possession.
66. Were you in possession or not ? (Objected to as loading.) Ans. No.
67. What do you mean when you say that it would be Fremont and Reber’s when it was gained? Ans. It would belong to them ; they bought it and it would be theirs.
68. What do you mean by “its being gained”? Ans. I do not understand.
69. How was it to be gained ? Ans. By going to law.
70. Who was to bring that suit, and at whose expense? Ans. I think it was at their expense; I had sold it to them, and they were to plead it for half and to pay all expenses.
71. Were you ever asked to pay the costs of the suit brought for that land ? Ans. No.
Cross-examination by plaintiff’s counsel.
Gross-interrogatory 1. The paper which you say you and your husband signed, was it not to Mr. Sné? Ans. Yes.
2. Bid you ever sign any paper to Mr. Chouteau ? Ans. No; never saw Mr. Chouteau; did not know him at that time.
3. Did you ever sign any paper to Mr. Cadet ? Ans. No.
4. Did you ever sell any land, or make any act, either to Mr. Cadet or to Mr. Chouteau ? Ans. I have never sold nor made any contract to Mr. Cadet or Mr. Chouteau.
Re-examined by defendant’s counsel.
Interrogatory 1. Did you or your husband not receive ten dollars for some land sold to Mr. Chouteau or Cadet ? (Objected to by plaintiff’s counsel as leading.) Ans. Not Mr. [63]*63Chouteau or Mr. Cadet, but Mr. Sné, has paid five or ten dollars to my husband.
2. Was this sum you received for the exchange of land, or for a different transaction ? (Objected to by plaintiff’s counsel as leading and incompetent.) Ans. It was, and I do not know how Mr. Sné arranged it afterwards; I made a deed to Mr. Sné, and I do not know how he arranged it afterwards; at that time the land was not worth much; I did what my husband said, and do not know how he fixed it with Mr. Sné; Mr. Sné got a house and lot in St. Ferdinand from Mr. Chouteau.
8. Was Mr. Sné to give you a house and lot in St. Ferdinand ? (Objected to as leading.) <Ans. No.
4. To whom was the house and lot in St. Ferdinand to belong for which the exchange was made ? Ans. To Mr. Sné.
5. To whom did you understand the land was to belong for which you signed the paper for Mr. Sné ? Ans. I signed for Mr. Sné, and I think it ought to belong to him.
6. Between what two persons was this exchange made ? Ans. Between Mr. Sné; Mr. Sné was there with another man ; I do not know who he was.
7. With whom did Sné exchange this land ? Ans. I know he got a house from Mr. Cadet, but do not know how he arranged it with him.
8. Was not this house and lot from Cadet given in exchange for the land you sold ? (Objected to by plaintiff’s counsel as leading.) Ans. I do not know how they fixed it between them.
9. Was this the same paper signed by your sisters and brothers, spoken of by you before. (Objected to by plaintiff’s counsel as leading.) Ans. Mr. Sné told me they had to sign it, but I never saw it.
10. Have you not said, that Mr. Sné got this house and lot as pay from Mr. Cadet for procuring your signature to the sale of your father’s land. (Objected to by plaintiff’s counsel as leading and incompetent.) Ans. No.
11. Did you ever sign any other deed for said land, except [64]*64the paper to Sné, before that to Reber and Fremont ? No ; except one to Mr. Clemens.
Angelique Mallette, + her mark.
The deed having been offered in evidence, it was, on objection made by the plaintiff, excluded as to Angelique Mallette, Helen Cené, and Marie Colin, and admitted as to the others. The defendants also gave in evidence a deed from Pierre Chouteau to John Mullanphy, under whom the defendants claim. The defendants moved the court to instruct the jury that said deed, if executed by Antoine Mallette, operated to pass his wife’s interest in the land to Chouteau, subject to be avoided by the wife, which the court refused to do.
Mr. Field, the counsel for appellants, now makes these points: 1. That the deed of 1818, being more than thirty years old, and having been produced from the proper custody, was admissible in evidence without further proof.
2. That the execution of the deed by Mrs. Mallette is proved by her deposition.
3. That, by the Spanish law, the right was vested in the husband, upon his marriage, to convey the paraphernal property of the wife, with her consent, and that this right was not taken away by the introduction of the common law.
4. That, by the rules of the common law, the deed of the husband is effectual to convey the fee in the lands of the wife, subject to be avoided only by the wife or her heirs; .and in the present case no such avoidance is shown.
I. As to the second point. The deposition of Mrs. Mallette does not prove her execution of the deed to Chouteau ? If it prove the execution of any deed, it is of one to Pierre Cené, and not to Chouteau. No circumstances are shown to support the supposition that the deed was to Chouteau, and that, in exchange therefor, Chouteau conveyed a house and lot to Cené. If that had been the fact, doubtless it could have been shown by other testimony. The deed, therefore, remains unproved.
II. As to the first point. It was not admissible in evidence [65]*65as an ancient deed. The Supreme Court of the United States has so held, in the case of Meegan v. Boyle, 19 How., on page 149. That case covers all the ground of this case, and is certainly entitled to the very highest respect, whether it be regarded as governing this case authoritatively or not. As the decision in that case was upon matters occurring in the Territory of Missouri before the establishment of the State, it may well be considered as of actual authority.
Judge Scott, too, in the case of Reaume v. Chambers, 22 Mo. Rep., at page 53, held that the principle upon which ancient deeds are held to prove themselves has no application to this case.
III. As to the third point. It is conceded that this property in the wives of Malette and Cené, was paraphernal property. Whether the husband may administer such property with the consent of the wife or by her appointment, it is not material to inquire, as it is not claimed that he can do so without her consent or appointment, and there is no evidence of either in this case.
IY. As to the fourth point. Mr. Field has shown great research into the ancient common law, in order to show what estate the husband has in the lands of the wife; what is the effect on the estate of the wife of the alienation by the husband of her lands, and in what manner the defeasible estate of the husband’s alienee can be avoided.
Without consenting to the conclusion to which he has arrived, it is sufficient to say that it was never understood in Missouri that the husband could alien the estate of his wife in lands without her consent. All acts of the legislature of the Territory and of the Slate, and all decisions of the courts, which touch or affect the subject, deny, in some form, his right to do so. It is not the common law of Missouri.
So, considering the third and fourth points upon which the appellants rely for a reversal of the judgment, it is not necessary to give any opinion upon the vexed question whether the introduction of the common law, by the act of 1816, repealed the Spanish law, or in what manner it affected it. [66]*66For the purpose of this case, such an opinion is not required, and it is not supposed that the question is of any general importance.
A question was made as to the right of the plaintiffs as tenants in common with the defendants to recover damages against their co-tenants.
That question was not argued by the counsel of the appellants, because it was expected that it would be fully argued in some other case, in which the appellants are much more largely interested than in this case in which the amount of damages is but small. No opinion is, therefore, given on that question.
Judgment affirmed,
the other Judges concurring.