Cutter v. Waddingham

22 Mo. 206

Opinion

Leonard, Judge,

delivered the opinion of the court.

'This is a suit to recover possession of a forty arpent lot of ground, now in the city of St. Louis, originally granted to Lirette in 1769, and sold by him in 1774 to JohnB. Yifvarenne. The title of both parties is derived from Yifvarenne. The plaintiff’s claim from the last surviving child, Louis Yifvarenne, by conveyances from the descendants of his two surviving paternal aunts, his next of kin of the blood of bis father; and the defendants derive their title from three half-brothers of Louis Yifvarenne, children of the mother, by Jacques Marechal, her second husband, insisting that the half-brothers succeeded to the whole lot as heirs to their mother and half- brother, one or both, to the exclusion of the. paternal aunts.

The questions discussed involve the law of property between husband and wife as it stood here in 1777 when the marriage contract between J. B. Yifvarenne and wife was entered into, the Spanish law of second marriage, the law of successions down to the American law of descents and distributions, introduced by the territorial act of 1807, and the proper construction of the twelfth section of that act. The defendant raised other questions in reference to the statute of limitations, and the presumption of title proper to be made under the circumstances of the case. ,

We remark that the case involves a large amount of property, and that the questions discussed and to be decided depend upon a foreign system of law quite different from that to which we were bred, and with which, of course, we have very little familiarity. These questions, too, spring out of the transactions of a foreign, race of men, the French inhabitants of this city, whose manners and customs as well as institutions, both legal and social, were very different from our own. We have therefore approached the case with a corresponding distrust in the correctness of the conclusions to which we should come. But it was our duty to decide, and having given to the subject the most deliberate and attentive consideration that we are capable of, we proceed now to state, as briefly as possible, our opinion, without however claiming for its correctness that deference and respect that the place from Tyhich it is pronounced would otherwise entitle it.

The marriage contract between J. B. Vifvarenne and his wife, Genevieve Cardinal, was dated 5th August, 1777, Vifvarenne being then the owner of the lot in question. The husband died in 1781 or ’82, leaving surviving him his wife and two children of the marriage, Louis and. Francis. The mother subsequently married J. Marechal, and died about the 2d of November, 1792, leaving surviving her .three children of this marriage. The children of the first marriage, Louis and Francis Vifvarenne, died many years ago, without any descendants, leaving surviving them their three half-brothers, the source of the defendant’s title, and two paternal aunts, from whom the title on the other side comes.

1. We begin with an inquiry into Madame Cardinal’s title, alleged to have been required by force of the marriage contract, and the first question that meets us at the very threshold is, what law prevailed here then? the customary law of Paris, which the French colonists brought with them to Louisiana, as their right under their king’s charter ; or had that law been at that time superseded by the law of the new sovereign?

In 1816, the supreme court of Louisiana, decided, in Beard v. Poydras, 4 Mart. 367, that the Spanish law was introduced into the province of Louisiana by the Spanish authorities, shortly after O’Reilly’s proclamation issued in 1769, upon taking possession of the country, and that'it came, if not by the mere legal force of that instrument, at least by the practical adoption of it which followed immediately upon the acces-' sion of the Spanish authorities to the government of the coun try. Mr. Jefferson insisted, in the celebrated Batture case, (2 State papers — public lands 1,) that this proclamation only changed the civil organization and the form of judicial proceedings, and that the French law still continued in force in reference to the civil rights of the inhabitants. However, that opinion it seems has not prevailed, the opinion of the supreme court of Louisiana having, we believe,' been generally recognized and acted upon, not only in that state but here also. Indeed, in the present case, the appeal is made by both parties, as if by common consent, to the Spanish law of successions and of second marriages, for the purpose,of ascertaining the rights of the parties; and some of these rights accrued only a few years after the date of the contract.

2. We assume then that the Spanish law was prevailing here as early as 1777, and that law, it will be seen, would not allow parties to introduce by contract a foreign law to regulate affairs, no matter how unimportant; and with much greater reason would they be prohibited from introducing a foreign law to regulate the property relations of husband and wife, a matter everywhere, under every system of law, of the first importance, and never left unprovided for.

In the Partidas, (3 Tit. 14, law 15,) it is said: “If the laws of jurisprudence of another country, over which our authority does not extend, should be appealed to, we order that in our dominions they shall not be received as evidence, except in disputes arising between individuals of such foreign country or contracts made there.” In Bourcier v. Lanux, 3 Mart. 581, the question was as to the validity of a contested sale of community property, and as the sale was valid by the French law, and the parties, by their marriage contract, which was made jin Louisiana after the accession of the Spanish government, had submitted themselves to that law, it became -necessary to decide the very question'now before us, and the court held that under the Spanish law, then in force in Louisiana, it was not compe"tent for parties, by special agreement, to- introduce a foreign law for the regulation of the conjugal community, and there fore, as the sale lacked the necessary Spanish solemnities, it was void, no matter how it might be under the French law. Indeed, this is a principle of universal jurisprudence, and almost of necessity adopted and acted upon in every civilized community. No one can fail to see the great uncertainty and confusion that would prevail where such things were allowed and generally put in practice. There is a special provision in the present written code of Louisiana, allowing parties, about to marry there, to regulate their mutual rights of property according to the laws of any other State of this Union ; and no one supposes that if this contract were to be executed here to-day between competent parties that it would confer upon either the rights of property that would exist under it by the French law. What then, in 1777, was the Spanish law of husband and wife, in relation to the property of each other, present and future ? W'hat changes could the parties make in it by express agreement ? And what changes were in fact made in the present case in reference to this property by the contract given in evidence ? The Roman law must be looked to as the original of the Spanish law upon this subject, although, of course, it has been greatly changed in the long lapse of years, both by usage and by the written laws of the Spanish sovereigns. There, husband and wife, were considered in reference to each other’s property as distinct persons — each one enjoying and exercising, in his own name, all the rights of ownership over what belonged to him. The marriage union itself did not confer upon either party the property, or any rights in the property, of the other. The husband w'as bound to support the wife during the marriage and was entitled to her earnings, and on his death she was allowed a provision out of his succession, not exceeding a certain proportion, for her support, if she had not property enough of her own for that purpose. Of course it was competent, where a marriage took place, for the parties and their relations and friends to make gifts to the spouses on account of marriage, and these were governed by laws peculiar to such transactions ; and the parties themselves were also at liberty to make any mutual agreement with one another in reference to their property, present and future, and for its administration during the marriage, and distribution when the marriage union came to be dissolved.

There does not seem to have been any conjugal community of goods in the Roman law, and the institution of ganancial property, or the community of gains, found in the Spanish law, as incident to the relation of husband and wife, is, we are told, one of the few institutions for which that law is not indebted to Roman jurisprudence, although even this is said not to be supported by the unanimous assent of writers, some of whom insist that among the ancient Romans, as far back as Romulus and Numa, all property acquired during the marriage was ganancial or common. It seems also to have been even of modern growth in Spain, for we are told that no mention is made of it in the Partidas. Custom gave rise to it, and the first recognition of it by the “ lex scripta,” is said to be the notice taken of it in L. 17, Tit. 2, Lib. 4, Del Fuero Juzgo. (Institutes of the Civil Law of Spain, by Aso and Manuel, translated by Judge Johnson, of Trinidad, and found in White’s Compilation, book 1, Tit. 7, note 43.) There does not seem to be any controversy (or, indeed, ground for controversy) as to the character of the Spanish customary conjugal community in relation either to the property that goes in it, the manner in which it is administered during the marriage, or as to how it is distributed when the marriage is dissolved. We will refer, however, to some authorities in reference to this matter, and begin with the explanation of certain terms used in the Spanish, law at the time of the Partidas, before the Spanish customary community had been established.

Dowry, or dofe, “ is that which the wife gives the husband on account of marriage, and is a sort of donation made with a view to his maintenance and to the support of the marriage;” and, “arras, is that which the husband gives the woman on account of marriage.” 1 Partidas, 507 and 508. “Although they put each other into possession (of these donations), yet the husband ought to remain master and have control of the whole, and receive the 'fruits in general, as well of that which the wife has given, as of that which he had given himself, for the maintenance of himself, his wife and family, as well as for the proper support of the marriage. ” 1 Partidas, 514. Paraphernalia is “ all the estate and things, whether movable or immovable, which the wife retains separately, and which are not comprehended in the dowry.” 1 M. & C’s. Partidas, 523.

In the Institutes of the Civil Law of Spain, before referred to, the rules of this customary community are very fully explained, and we make several short extracts from book 1, Tit. 7, chap. 5. “The right to ganancias is founded in the partnership which is supposed to exist between the husband and wife, because she bringing her fortune {capitales) in dote, gift and paraphernalia, and he his in the estate and property which he possesses, it is directed that the gains which result from the joint employment of this mass of property or capital be equally divided between both parties.”

“ Ganancial property is all that which is increased or multiplied during marriage. By multiplied is understood all that is increased by onerous cause or title, and not that which is acquired by a lucrative one, as inheritance, donation, &e.”

From all which it is inferred,

“ 1st. That what the husband or wife brings into the marriage, his or her own peculiar property, or acquire during it by lucrative cause or title, does not come into partition.

“ 2d. That the property acquired during marriage, by purchase, sale, or other onerous cause or title, does come into partition.”

From the first principle it is inferred, 1st, “ that dote, arras, marriage gift and paraphernalia, are not ganancial property, or property subject to partition or division.”

From the second principle it is deduced, 1st, “ that the fruits produced from all these sums {capitales) gained and improved during the marriage, come into partition.”

It will be seen by reference to these authorities, that this Spanish community is not a community of the existing property of the spouses, but a community of gains, acquisitions, profits, made during the marriage, like the ordinary community of the Roman law, and the modern partnerships of the commercial world — into which whatever is put by the partners, goes in as capital and is refunded before the profits are declared; that the administration of its affairs is given to the husband to the exclusion of the wife, the gains to be applied to the support of the family, and that upon its dissolution the capital put in by each partner is restored, and the residue (the gains), after the payment of the debts, equally divided between them ; and such, we believe, is the view of this matter always heretofore taken in this court.

It was competent, however, for the parties to alter, by their agreement, the provisions of the legal community; they were at liberty to create a conventional one, different from that ordained by the law ; and it is insisted that they have done so, and that this is a community of all the property of the spouses present and to come, in suchwise, that upon its dissolution all belongs to them, both that put in and that afterwards acquired, like the ganancials of the Spanish community, and must be divided in like manner.

8. The contract is, we understand, in the usual form of a French marriage contract. The first provision declares that the future spouses shall be “ one and common in all goods movable, and acquisitions immovable, according to the ancient custom established in the colony, to which the said parties submit themselves by reason of the present contract.” And this, we are told, is the very language in which the custom of Paris describes the community of goods which is instituted by that law upon the mere fact of marriage. A subsequent clause in the contract — the clause of “ ameublissement” as it is called— provides, that “the future spouses take each other with the property and rights to them now belonging, and such as may happen to come and belong to them hereafter, whether by sue- cession, gift, legacy or otherwise; which property, from which side soever it may come, shall wholly enter into the community without any reserve;” and this we are told has the effect, by the custom o£ Paris, of converting the lot into a movable, for the purpose of the contract, and carrying it, as such, into the community, with all the incidents annexed by the “ custom” to the movables of the parties.

It is then argued that the French conjugal community differs both from an ordinary partnership"and the Spanish community of husband and wife, in the distribution that is to be made of its effects upon a dissolution. We are referred to the 229th article of the custom of Paris, for the rule that “ after the death of one of said parties, the property of the community is divided in such manner that the half of it belongs to the survivor, and the other half to the hems of the deceased;” and are told, that Le Brun, a French writer, after examining, on principles of natural equity, the question whether property brought into the community of husband and wife, should be taken back upon its dissolution, and stating the conflicting opinions of other writers, remarks in favor of the negative opinion, that “ usage has confirmed this so absolutely for our communities between spouses, that no commentator has found any difficulty in respect to it.” Now, admitting all this to be true, the vice of the argument is, that it assumes either that the customary law of Paris was the law-here when the contract was made, or, if not, that the parties introduced it by their agreement. It may be conceded, that if the parties had expressly provided that every thing that entered the community should be divided as profits equally between them, that provision would have been effectual. But that is not done here. The parties have not provided how the partition shall be made by any words expressive of that intention taken by themselves, and without reference to some custom or law upon the subject-They have agreed “ to be one and common in their movables,” and that “ their immovables shall also enter into the community ;” and if they had stopped there, these clauses must have been construed by reference to some custom or system of law, or entirely disregarded as too indefinite to be carried into execution. This is the case with all contracts expressed in general terms. They mu'st be understood and interpreted by reference to some law, or altogether fail of effect. The counsel for the defendants were fully aware of this, and felt that they must resort to some system of law in order to ascertain the effect of these clauses. The contract may be sufficiently explicit upon its face, without reference to any thing external, to carry the lot into the community ; but there are no words in it that fix the character of the community, in reference to the matter now in . controversy — the distribution of its effects when it comes to be dissolved. Those, too, who framed this formula of a marriage contract, were aware of this, and therefore made the parties expressly refer to the law or custom that was to govern their community. If the words here used for that purpose must be understood as referring to the existing law of the province, they are lawful, although perhaps superfluous, and will be effectual; but if they refer to the custom of Paris, it is nothing other than an attempt to introduce a foreign law here for the purposes of this contract, and can not prevail. The French law is a sealed book to us in reference to this matter, and the appeal to it is made in vain.

We pursue this subject no further. We are satisfied, and the result is, that Madame Cardinal took no interest in the lot under the marriage contract at the death of her husband, and this is the conclusion to which the court came when the case was lase here, although it is now placed on somewhat different grounds.

We do not stop to inquire into the effect of the special donation of six hundred livres, made to the wife. If she thereby became a creditor of the husband, even with a security upon his estate, and this right passed to her succession, it of course can only be exercised in a suit between proper parties, and not in a controversy between purchasers of a lot in the husband’s succession, claimed on one side from the husband, and upon the other side from the wife. If the wife’s succession had any such demand, it is enough here that it has not been transferred to these defendants, and they of course can not exercise rights that belong to others.

4. For the Spanish law of succession we must look also to the Roman law upon this subject, to be found ’in Justinian’s celebrated ll'8th novell, which has become, as it were, the law of the civilized world, on account, we may suppose, of its expressing the general sentiment of mankind in reference to the distribution of a man’s property after his death. The great difference between the Roman and the English common law of descents is, that the former looked alone to the intestate, and called his kindred to his succession according to their proximity of relationship, the nearer excluding the more remote, without any reference to the source from which .the property was derived. The common law, proceeding upon feudal reasons, after the descendants of the last owner were exhausted, looked to the source from which the property came, and by its sixth canon, adopted, as Blackstone tells us, as a rule of evidence to carry out the preceding canon in favor of the blood of the first purchaser, excluded all the collateral kindred of the last proprietor that were not of the full blood of the intestate. Again, the Roman law, still proceeding upon the same principle, called the three principal lines of kindred to the inheritance in the order of natural affection : first, lineal descendants, then lineal ascen.dants, and lastly, collaterals ; while the common law, upon the same feudal reasons, excluded the lineal ascendants. The civil law, therefore, paid no regard to the line from which the property came, nor to quantity of blood, except in the case of brothers and sisters of the whole blood and their descendants, who took before and to the ex elusion of the brothers and sisters of the half-blood.

In all these particulars the Spanish law appears to have corresponded substantially with the Roman law — calling, first, descendants, then Ascendants, and, lastly, collaterals; making the same distinction between brothers and sisters of the whole and the half-blood, and paying no regard to the line from which the property came, except in the single instance of a deceased brother, leaving both paternal and maternal goods, and half-brothers and sisters on both sides.

Applying these rules to the present case, if Francis Vifvarenne died under the Spanish law, leaving no descendants but his mother, and brothers both of the whole and of the half-blood, his mother succeeded to him to the exclusion of all the brothers ; and if Louis Vifvarenne afterwards died under the same law without descendants, or ascendants, leaving brothers of the half-blood only, and paternal aunts, the brothers of the half-blood succeeded to the exclusion of the paternal aunts. In reference to the order in which the three lines of kindred are called to the succession, it is to be observed, that the Roman law made an exception in favor of brothers of the full blood of the children, whom it admitted as co-heirs with the ascendants, a privilege, however, not extended to the brothers of the half-blood. Butitis assumed, in this case, that the Spanish law made no such distinction in favor of brothers of the full blood, and however this may be, under the view we have taken of the case, the result here would be the same under either rule.

5. It was the Roman law of second marriages, adopted also into the Spanish law, that a forfeiture was thereby incurred to the surviving children of the first husband of all the property that came to the survivor of the deceased spouse. The forfeiture extended to all that came either immediately or through an intestate succession to a deceased child of that marriage; it accrued immediately upon the second marriage, so as to vest the property from that moment in the children, although the woman retained the usufruct during her life; it went to the children of the deceased parent as children, and not to them as heirs ; and, finally, it embraced only such things as came to her by a lucrative title, and does not extend to any thing that she derived from husband or child for an onerous cause. Under the Spanish law this forfeiture was incurred by the wife only when she was left a widow over twenty-five, the age of Roman majority.

The questions discussed in this part of the case have been confined to the character of Madame Cardinal’s title to the lot, supposing she had acquired an interest in it, under the marriage contract, and to the character of Louis Yifvarenne’s title to the part that his brother Francis succeeded to from the father, upon the supposition that this interest descended to the mother and was afterwards forfeited by a second marriage. The first question is already disposed of by our opinion in reference to the effect of the marriage contract, and the other will be better considered in connexion with that pa-rt of the case that relates to the proper construction of the law of 1807, in reference to what must be considered a title “ by descent, gift or devise,” within the act. We may remark here, however, while upon the law of second marriage, that it sufficiently appears from what has been already said, that it is not a title by immediate descent from the father to Louis, although it should be considered as derived remotely from the father through the brother and mother. (Domat’s Civil Law, part 2, book 3, tit. 4, secs. 1 and 2, from 3431 to 3443.)

6. The act of 1807 was the first American law of descents introduced here ; it superseded the Spanish law of succession, and was a complete scheme, which provided for the whole subject and left nothing to be supplied by any other code. It was the work of men familiar with the common law and strangers to the Roman law, and was no doubt adopted by our territorial lawgivers from the written laws of the older states of the Union, and not constructed here with any special reference to the existing law of this country.

The words of the 12th section are : “ There shall be no distinction in the distribution of any intestate’s estate, between kindred of the whole or half-blood, unless when the inheritance came to the said person so seized by descent, devise or gift, of some one of his or her ancestors, in which case all those who are not of the blood of such ancestors shall be excluded from the inheritance.”

The previous sections provide for descendants — for father and mother, brothers and sisters, and husband .and wife. The 18th section contains a general provision for all posthumous children ; and then follows the 14th section, calling to the inheritance when there is neither widow nor lineal descendants, nor father or mother, nor brother sor sisters, or their descendants, the next of kin in equal degree. And the defendants insist that the effect of the 12th section is merely to postpone the brothers of the half-blood to those of the full blood, and not to exclude them entirely in favor of more remote kindred; that the provision is confined in its operation to the preceding parts of the act, so as only to effect a repeal of the Spanish preference given to full brothers over half-brothers, and to exclude the common law rule of exclusion from being applied to them, and that it does not extend over the whole statute, providing in the specified cases new stocks of descent, whose blood is to inherit when the lineal descendant of the last owner are exhausted.

The section embraces two distinct provisions : 1. That in the matter of descents there shall be no distinction between the full and the half-blood, except in the cases there specified ; and 2. That in those cases, that is, when the estate comes to the intestate by “ descent, devise or gift of some one of his ancestors, all who aré not of the blood of such ancestor shall be excluded.” The first provision is sufficiently explicit, and was probably quite superfluous; the statute- having provided a complete scheme of descents and directed what kindred should inherit, without making any distinction on the score of quantity of blood or double relationship ; none of course existed; all are brothers and sisters, whether they be of the whole or of the half-blood, and the proximity of relationship is the same, whether the parties derive their blood from the same single ancestor, or from the same pair of ancestors. The effect of the clause no doubt would be, if necessary, to exclude from this law of descents not only the Spanish rule of preference between brothers of the full and of the half-blood, but also the common law rule of entire exclusion. It was, however, quite unnecessary for either purpose, although it was no doubt aimed, in the state where the statute was originally constructed, at the common law rule of exclusion, and inserted only out of the abundance of caution.

The other provision of the section is effective in the construction of the statute. When the estate comes by descent, devise or gift, from an ancestor, none shall inherit who are not of the blood of that ancestor. This is not the Roman or Spanish law of preference between brothers of the whole and of the half Mood, nor the common law rule of exclusion, but a new canon prescribed by the law given for this new scheme of descents. It is a general provision, extending over the whole statute, and regulating all the cases that may arise,- to which it is applicable. What reason is there for limiting it to the first degree of collateral kindred ? Such a construction is not warranted by the words used nor by the context; and it would impute to the law-giver the folly of merely repeating what had already been declared in the preceding part of the section, and result in rendering the whole section without any real effect in the operation of the statute. There can not, we think, be any doubt in the matter. Wherever the case that is provided for occurs, none can inherit who are not “ of the blood” of the ancestor ; and the words, “ of the blood,” exclude those only who have none of the blood, without reference to proportion or quantity. Those, however, such as have none of -the blood are entirely excluded; and then those “of the blood” who stand next in degree of proximity, are, in reference to this inheritance, the next of kin, and take as such. If, therefore, the lot came to Louis Yifvarenne by descent, devise or gift of his father, his half blood brothers aie entirely excluded, and his paternal aunts are his next of kin, and inherit, if he died after the law took effect.

Other questions, however, still remain. Does the expression, “come to (him) by descent, devise or gift of some one of his ancestors,” limit the acquisition to a proximate and immediate descent, devise or gift from ruch ancest r directly to the intestate? or does it include a descent, devise or gift, which can be deduced mediately from any ancestor, no matter how remote, who was the first purchaser to the intestate ? The defendants insist, that it looks only to the immediate descent; and the plaintiffs, that it has reference to the origin of the title in the first purchaser, and only requires that the heir should be of the blood of that purchaser. As to the half of the lot that Louis Vifva'renne took by descent immediately from his father, there is no difficulty. The father was not only the first purchaser, but the ancestor from whom it came by immediate descent, and the half-brothers not being of the blood of the fathers, the paternal aunts inherit as next of kin, as to this half. But the question is important as it regards the other half that descended to Francois, and thence to his mother, and was afterwards either forfeited by her to Louis Vifvarenne, on her second marriage, or passed on her death to all her children of both marriages, each taking one-fourth.

This question was in the Supreme Court of the United States, in the case of Gardner v. Collins, (2 Pet. 58,) upon a clause in the Rhode Island statute of descents, very similar in its language to our statute. The case was ably and fully argued, and the opinion of the court delivered by Judge Story. He states the question in the case to be, 1st, whether the words “ of the blood,” include the half or exclusively apply to whole blood ;” and, 2d, whether the wrnrds of the statute, “ come by descent, gift or devise from the parent or other kindred of the intestate,” mean an immediate descent, &c., or include a descent, &c., which can be deduced from or through any ancestor who was the first purchaser to the intestate; and the opinion of the court was, “ that the words £ of the blood’ comprehended all persons of the blood, whether of the whole or the half-blood ; and that the words, £ come by descent, gift or devise from the parent or other kindred,’ &c., mean immediate descent, gift or devise, and make the immediate ancestor, donor or devisor the sole stock of the descent.”

He remarks, “It is true that in a sense an estate may be said to come by descent from a remote ancestor to a person upon whom it has devolved through many intermediate descents. But this, if not loose language, is not that sense that is ordinarily annexed to the term. When an estate is said to have descended from A. to B., the natural and obvious meaning of the words are, that it is an immediate descent from A. to B.”

And again: “The cases cited at the bar do, however, demonstrate that in those states where similar language is used in their statutes of descents, the expression has been uniformly construed to mean immediate descents, gifts or devises, unless that construction has been overruled by the context.”

We are entirely satisfied with the reasoning by which the court reached its conclusions ; and there is nothing in the words or context of our statute to induce us to put a different construction upon them, or to depart from what seems to be the usual interpretation put upon similar language in the statute of other states. We are accordingly of opinion, that the person referred to in the act as the new fountain of inheritable blood, is the ancestor from whom the property came to the intestate by immediate descent, gift or devise.

If, then, Louis Vifvarenne inherited from his brother or mother the half of the lot that first descended to Eranqois, they, both mother and brother, constitute new stocks of descent in relation to this property, and the half-brothers being of the blood of both, are not excluded froin this inheritance. But if he acquired it by the forfeiture incurred by the second marriage, the plaintiffs insist that this is a title by gift from the father within the meaning of the act. We have construed the statute with reference to the law that prevailed here at the time it was passed, and looking only at substance, without any regard to form, have treated a Spanish title by succession from an intestate as a title by descent, within the meaning of the law; and if we could consider this title as substantially an immediate gift from the father to his son Louis, it would be sufficient to constitute him a new stock of descent as to this part of the lot also. It is true, the father was the original owner of the property, and it is from him that this title may be said to have been ultimately derived, and that, too, without any value paid or received. Yet it was Franpois and not Louis that was immediately indebted to the father’s bounty for this part of the lot. He permitted it to descend to his mother, and the title o.f Louis Yifvarenne accrues through a forfeiture imposed upon the mother by law. It is to the law then that Louis may be said to be indebted for the property. It is given to him, it is true, as the surviving child- of the first marriage, because it came to the mother from the father through a child of the same marriage, and the law directed that the forfeiture it imposed as a penalty upon the second marriage, should accrue to the surviving children of the deceased husband. This forfeiture, however, is not a condition to which the father originally subjected the property, so that those who take under it may be considered as substituted by the terms of the original transaction as objects of the donor’s bounty, in the place of the first donee, but is a penalty existing under the law, and therefore subject to be changed or established by law at any time before rights actually attach by reason of a forfeiture. We conclude, therefore, that if the mother forfeited to Louis Yifvarenne what she inherited from Franpois, this was not a title in Louis by the gift of the father, and therefore, as to this interest, the brothers of the half-blood, who are his next of kin, succeed to the exclusion of the paternal aunts.

We do not think the circumstances of this case were such as' to entitle the defendants to the instruction they asked as to the presumption of title;

7. In reference to the statute of limitations, we only remark, at present, that, although the possession of part of a connected whole may be and is for many purposes considered the possession of every part of it, yet we are not prepared to concede that these contiguous lots could, under the circumstances, so far as as they have been disclosed, be considered a single tract, to which this rule would be applicable for the purposes of the statute of limitations ; and, therefore, if Mullanphy built upon one of the lots and extended the enclosure about the house over upon this lot, accidentally, through mistake or ignorance of the boundaries, and without any design of taking possession of it, this is not a possession within the meaning of the statute of limitations; although the actual detention, “pedis possessio,” exists', there is wanting the intention on the part of the possessor, which is necessary to constitute a civil possession.

8. We remark, further, that we are by no means ready to yield to the doctrine that one who has taken possession of a small proportion of a large lot of ground of the character and situation of the present one, under a deed, not of the lot, but merely of whatever interest the grantor may be found to have in it, has, without any thmg more, a possession extending over the whole lot, within the meaning of our law of limitations.

The result of this opinion is, that the judgment must be reversed, and the cause remanded, to be retried in conformity with it;

and the other judges concurring,

it is so ordered.

Scott, Judge.

Whether this case is to be regarded as subject to the Spanish law, or to be governed by the custom of Paris, will not materially vary its result. Whether the property, if ameubled, would, after the dissolution of the community, be governed by the Spanish law or the custom of Paris, is a question which was not argued, nor, from 'he turn the case has taken, is there any necessity for my opinion in relation to it. It seems that, by the custom of Paris, property ameubled was subject to the law of second marriages. Ferriere, in his introduction to the practice, says, “' 1’ameublissement est sujet a l’edit des secondes noces.” Whilst concurring in the opinion, in other respects, I do not wish to be understood as giving my views whether this contract was to be governed by the Spanish law or by the custom of Paris.

A motion for a rehearing, in this case, was made by plaintiff’s counsel and overruled.

Reasons for a rehearing presented by R. M. Field.

The sum of the decision is understood to be that as early as 1777, the date of the marriage contract in question, the body of the Spanish law had been introduced into the district of Illinois, of which St. Louis was then a part; and that the contract appeals to a foreign law as the rule to regulate the rights of the parties,, contrary to the express prohibitions of the Spanish law, and is therefore inoperative.

As the points decided were not discussed, nor even suggested at the bar, and as they seriously affect the rights of the parties to this suit, and may become the means of disturbing a great many titles, it is deemed not improper for counsel to present the grounds of the motion for a rehearing somewhat more fully than is usual in ordinary cases.

I. It becomes important, according to the opinion of the court, to ascertain wdien the Spanish law was introduced among the French inhabitants of the Illinois, so as to abrogate and render null their established forms of contracts. If we are able to say when this was done, we ought to be prepared to show how it was done. It might be expected that in a case of a cession by one friendly power to another, a change in the whole body of the laws of the'ceded country would be preceded by some public act of state promulgated to the people. But it is admitted on all hands that there was no such act on the part of the Spanish authorities that by its own force worked this change of law, in any part of Louisiana. The proclamation of O’Reilly of 25th November, 1769, did not profess to supersede the whole existing body of the French law. It abolished the old municipal government and erected another in its stead. The articles annexed to the proclamation are confined to matters of municipal and police regulation. The instructions prepared by Urristia and Rey, and published along with the proclamation, comprise only six sections, five of which relate only to proceedings in courts of justice and to punishments for crimes ; one briefly explains the forms of testaments and the rules of succession. Not a word on the subject of private contracts appears in these instructions. They were prepared for the purpose of communicating elementary instruction on certain heads of the Spanish law, in order to pave the way for the introduction at some future day of the whole body of Spanish jurisprudence. The proclamation and instructions may be found at large in American State Papers, vol. 1, miscellaneous, p. 363, et seq.

As this proclamation plainly did not by its terms abrogate the great body of the French laws, it became a question in what manner the Spanish law came to be, as in fact it did become, the controlling rule in Lower Louisiana. The prevailing opinion seems to be that the use of Spanish forms in legal proceedings that followed the proclamation, led to the introduction of the whole Spanish law; — in other words, the proclamation led to the use, and the use, in the course of time, introduced the Spanish law, to the entire exclusion of the former system. This is the account of the matter given by Judge Martin, in his history of Louisiana. He says that by usage the Spanish law gradually and imperceptibly supplanted the French, so that the precise time when the transition from the one system to the other became complete, can not be fixed. (2 Martin, 8-14.)

The Supreme Court of Louisiana reasoned upon the subject in the same way, in the case of Beard v. Poydras. It held that the Spanish law came into Lower Louisiana by usage consequent upon O’Reilly’s proclamation. The case involved the mere question of the status of a person depending on facts that occurred subsequently to 1785. The ease is undoubtedly of authority to show that the Spanish law was in force in Lower Louisiana at that date; but it falls far short of deciding that' the same law had been introduced into the district of Illinois eight years before.

On the part of the defendants it is insisted that O’Reilly’s ■ proclamation did not extend to the district of Illinois, and that, go far from there being any adoption of the Spanish law in this district in the matter of contracts, the usage, up to the date .of the contract now in question, was all the other way.

The country of the Illinois, embracing the territory on both sides of the Mississippi river, north of the mouth of the Ohio, was originally settled by the Canadian French. .Kaskaskia is said to have been founded in 1682 by LaSalle, on his return from the discovery of the mouth of the Mississippi. This fact has been questioned ; but it is unquestionably true that this settlement and several others in the Illinois existed in a flourishing condition full twenty years before the foundations of New Orleans were laid. During the course of the French and Spanish dominations, this country was under a government distinct and separate from that of Lower Louisiana. Its government was indeed subordinate to the latter, just as the latter was subordinate under the French to the government of New France, and, under the Spaniards, to the captain general of Cuba. On the dissolution of the French company of the west in 1732, the king appointed Perier governor of Louisiana and D’Artaguette lieutenant for Illinois. The latter was succeeded by La Buissioniere, and he in his turn in 1751 by the Chevalier Macarty. The last remained in command until the cession of the province. (1 Monette, p. 276, 296.) All these lieutenants held commissions directly from the king. Immediately after the surrender of the eastern part of the Illinois to the British, in 1765, captain St. Ange, a subaltern of Macarty, acting as it may be presumed under the orders of his superior, came over the river and took command of the post at St. Louis. He remained in command until the advent of the Spanish governor, in 1770 ; and although his grants out of the royal domain have been decided to be inoperative, his general administration as civil commandant is believed to have been strictly legal.

When Spain took possession of the province in 1769, Piernas was appointed lieutenant governor of the Illinois district. From this time forward there is an unbroken series of lieutenant governors for the Illinois district, holding their commis sions directly from the crown. Their style of office, up to 1798, was “ Lieutenant Governeur des etablissemens des Illinois.” In the last named year this style was changed to “ Lieutenant Governeur de la Haute Louisiane.” The general powers of these officers in the administration of the public affairs of their district was as great as those of the governor genera], subject, however, to revision by appeal to the latter officer. (Stoddard’s Louisiana, p. 250, 275.)

The proclamation of O’Reilly makes no mention of the Illinois district. The motive for the changes effected by the proclamation are declared in the preamble to be the forcible resistance opposed to Spanish authority the year before by the people of New Orleans and its vicinity. No such opposition was offered by the people of the Illinois. Rious, with a party, of soldiers, came to St. Louis as early as 1768, and took possession for the Spanish crown, without the slightest resistance on the part of the inhabitants. He remained here a year and' was hospitably entertained. (See Primm’s Address- at St. Louis celebration in 1844.)

Soon after the date of the proclamation, O’Reilly addressed to the commandant at St. Louis long instructions touching the government of Illinois. An imperfect, abstract of this document is given in Gayarre’s history of Louisiana, under Spain, p. 23. No allusion is made to the proclamation, nor to any actual or proposed change in the laws of the district. It is certainly extraordinary that so important a matter as the total subversion of the whole body of the laws under which the people of Illinois were living, should have been passed over in silence in this communication of O’Reilly.

In February, 1770, O’Reilly-published his regulations in respect to grants of land. They will be found at large in American State Papers, vol. 1, miscellaneous, p. 376. In terms, they extend throughout the province. But Stoddard expressed the opinion that they had no force in Illinois, partly because Illinois is not named in the regulations, and partly for the reason that the lieutenant governors, who must have known the extent of their own powers, practically disregarded them, of which he cites several instances. (Stoddard, 273.)

On the 3d of November, 1770, just five days after O’Reilly left New Orleans to return to Spain, Unzaga, the governor general of Louisiana, issued his own proclamation reciting that frauds had been practiced in the sales of negroes, immovables and real estates, and therefore ordering and decreeing that “ no person shall henceforth sell any negroes, plantations, houses, or any kind of sea-craft, except by a deed executed before a notary public, to which shall be annexed the certificate of the registrar of mortgages ; that all other acts made under any form shall be null and void,” &c. This proclamation was to be promulgated with beat of drum, and a copy sent to all the posts. The proclamation will be found entire in the appendix to Gayarre’s history, p. 631. This proclamation certainly was never in force in Illinois, as has been decided repeatedly by this court and the Supreme Court of the United States. If the court will recur to page 69 of the printed record, it will see that the plaintiff’s principal title paper of 1774 was not executed according to the forms prescribed by Unzaga, and, according to the terms of the proclamation, it was of no effect. But this proclamation is not cited for the purpose of proving the invalidity of that title paper. It is brought to the notice of the court to illustrate the great powers claimed and exercised by the Spanish governors, and to show that proclamations issuing from the officers of Lower Louisiana were not regarded as extending to Illinois.

The practice and usage at St. Louis, subsequent to O’Reilly’s proclamation, appear in the archives in which many of the marriage contracts were deposited. An abstract of all the contracts there preserved has been prepared and is now submitted to the court. This abstract shows that from the accession of Piernas, up to the date of the contract in dispute, nineteen marriage contracts were entered into before Piernas and Cruzat. Of these, eleven adopt precisely the formula of the one in dispute, and six of the others bear plain marks of their origin in the French law. Only six are in the Spanish language. Four of these are verbal translations of the French formula of the contract in dispute. Of the remaining two, one (that of Martin Duralde, the Spanish surveyer general), creates no conventional community, and the other (that of Sylvester Labadie), seems to have been prepared with an eye to both the Spanish and French law. It plainly, however, treats the French law as being at that time the prevailing system, for it carefully restricts, by express stipulation, the- community to the acquets and gains made during the marriage.

It is manifest, from this abstract, that, in the matter of contracts, there was not as early as 1777 any adoption of the Spanish law at St. Louis ; but, on the contrary, that, by consent of governors and governed, it was excluded.

The testimony of Brackenridge, the historian, is to the same purpose. In his history of Louisiana, p. 241, he says : “ The Lieutenant Governor, who resided at St. Louis, was the commander of the militia, and had a general superintendence of the public works and property ; but I do not know the exact extent of his powers. The laws of Spain were in force here, but it does not appear that any other had been in practice besides those relating to lands and the municipal arrangements. Laws regulating civil contracts are so intimately interwoven with the manners of a people, that it is no easy task to separate them. Here, la eoutume de Paris, the common law of the French colonies, was the system by which their contracts were governed.” If, on the whole, it should be regarded as doubtful whether the Spanish or the French law was in force at the date of the contract in question, the presumption ought, in reason, to be in favor of the existence of such a state of things as would uphold the contract, rather than of such as would render it of no effect. And this presumption is much strengthened by the circumstance that the contract was executed in the chamber of the government, and in the presence of governor Cruzat, Judge Labuxiere and Mr. Perrault, gentlemen who understood the true state of the law at that day much better than any of the present generation.

II. Taking it for granted now that the Spanish law was in force to its fullest extent at the date of the contract, it is to be considered whether there really be any rule in the Spanish law that renders the contract inoperative, so far as the defendants seek to give it effect. The matter must be determined in the same way as if the contract came to be judged in Madrid.

The law of the Partidas, cited in the opinion of the court, is admitted to do no more than lay down a rule of universal jurisprudence. The rule is acknowledged everywhere that laws have no extra-territorial operation. They are never admitted in another state as having any force proprio vigore.

Furthermore, it is conceded that the citizens of one state can not, by any form of agreement, introduce into it the laws of another state, as laws; in other words, to be obeyed, as expressing the will of a foreign sovereign. These principles belong to universal jurisprudence, fpr they flow of necessity from the nature of sovereignty and of government. But these principles fall far short of excluding a reference to foreign laws, when such reference becomes necessary to ascertain the meaning of a contract. The first duty of a court, in judging a contract, is to ascertain the intention of the parties, and the last to declare whether the ascertained intention be consistent with the law.

Manifestly the contract in question has but one meaning the world over. The rules of interpretation by which that meaning is to be arrived at are the same, whether those rules are applied by a French, Spanish, or American court. It becomes a different question when the lawfulness of the ascertained intention is inquired into. Here the local law is supreme, and all other laws have no effect.

The difficulty in the present case seems to arise from losing sight of the distinction between the instruments of evidence and the rules of law. The defendants do not appeal to the custom of Paris as furnishing the rule of law by which the validity of the contract is to be tested, but as supplying the means, and the only means by which the intention of the parties can be ascertained.

By the French and Spanish law, in all cases, and by the English law, with rare exceptions, parties to contracts are at liberty to adopt any forms of expression to signify their intentions. They may refer to any document, paper, law, statute, ordinance, custom or usage, domestic or foreign, and the thing thus referred to becomes a part of the contract, with the same effect as if its terms were incorporated into the contract in words. This is familiar learning.*

It is understood to be conceded in the opinion of the court, that if the parties had copied the words of the 229th article of the custom of Pans into their contract, these words would then have expressed an intention to which the Spanish law would have given effect. But it is manifest that, under the rule just mentioned, this has been in substance done by the apt words of reference contained in the contract.

Let it be supposed that the stipulation in the contract in question had been expressed in this form : “ The said parties are to be one and common in all property, according to the terms of a certain parchment writing kept in the Chátelet at Paris, containing 362 articles, and entitled La Coutume de la Prevote et Vicomte de Paris.” And suppose that the writing thus referred to had been produced in court: could it be made a serious question, whether the writing, with its 229th article, was to be taken as part of the contract? Would the whole effect of such a reference be destroyed as soon as it turned out that a people on the other side of the Atlantic had adopted that parchment writing as their public law ?

It was held by the Supreme Court, in the ease of Cutter v. Childress, admitted by the plaintiff’s counsel in the argument of this case, and nob now controverted in the opinion of the court, that by the words in the contract, “ the ancient custom established in this colony,” the parties pointed to the terms of that parchment writing just spoken of.

It is conceded on all hands that under the Spanish law the parties had the privilege of making their contract in the French language. From this simple privilege every thing that the defendants claim on this point, follows as a necessary consequence.

It is an established rule of interpretation that when technical words are used in an instrument, they must be construed according to the meaning which they have in the art or science from which they are borrowed. This rule is recognized by all courts, and is applicable to all languages.

Now the contract in question is full of these technical terms, borrowed from the French law. The words conquets, donaire, prefix, precipul, are of this description. To the ear of a judge of Spanish or English law alone, they are mere gibberish. By the light of the French law, their meaning is plain. He who, in expounding this contract, lays aside the French law as a sealed book, will' put away the only interpreter by which the meaning of its terms can be known.

What is true of particular words may be predicated of clauses. Take the clause of ameublissement. In the light of the English law it has no sense. In the light of the Spanish law it is nugatory. With the aid of the French law, its meaning and force become apparent. As the clause is technical, the parties will be presumed to have used it in the sense which it has in the French law, from which it was borrowed.

But this rule of interpretation is not confined to words and clauses. It is applicable to the whole instrument. If, in taking up the marriage contract, and examining it as a whole, by its parts and its four corners, we recognize it as a formula devised under a particular jurisprudence to accomplish particular purposes, we must have recourse to that jurisprudence to learn the purposes to be accomplished, and in this way become acquainted with the real intention of the parties expressed in the contract.

The practical application of this rule of interpretation to the present case would result in this, as the expressed intention of the parties, that all the property of the parties to the marriage contract was carried into conjugal community in suchwise that on the dissolution of the community the property was to be divided between the survivor and heirs of the first deceased, by moieties. It is understood to be conceded, in the opinion of the court, that the parties intended by their contract to bring about this result; and that the result, when brought about by express contract, is repugnant t¡o no rule of the Spanish law.

There are undoubtedly inconveniences attending the interpretation of contracts by reference to a foreign law with which our courts are not familiar, but these inconveniences fall mainly, if not entirely, upon the parties. As they have., referred to that law as expressive of their intentions, they must show by evidence the terms of the law, just as they are required to produce any instrument or writing which, by like reference, they have made a part of their agreement.

In this connection, however, it is proper to remark that there is an inaccuracy in calling the custom of Paris a foreign law. Strictly speaking, it is a domestic law repealed. In 1770, it had been in force at this place, as part of the Illinois district, full three quarters of a century. Supposing it to be then repealed, it could not, in 1777, the date of the contract, be called a foreign law in any other sense than as our revised code of 1835 is now a foreign law. And it is conceived that our courts are bound to know and take notice of the custom of Paris in the same manner and to the same extent as of any other of our repealed codes. The parties, therefore, were not required to prove the custom of Paris as matter of fact on the trial.

The views that have been suggested, it is believed, are fully sustained by authority.

There has been a great variety of opinion among jurists as to the particular law that should govern the rights of property between husband and wife in cases where there was no marriage contract. Some hold it to be the law of the matrimonial domicil, others of the future or actual domicil, and others still of the situs of the property. These different opinions are cited and commented upon by Story, Conf. Laws, 143, et seq. Where, however, a marriage contract has been entered into, there has been no diversity of opinion — all jurists agreeing that the contract is operative everywhere. (Story, 159, adfiwm.)

It must be admitted, however, that the rule which gives effect to a marriage contract everywhere, does not meet the difficulty suggested in the opinion of the court. The objection in the case at bar is that the contract is invalid, because it refers to a foreign law, and therefore it can not be known what the contract is until the foreign law is known, and that is a sealed book. The objection is obviously one of mere form.

In France, before the revolution, a part of the provinces was governed by the civil law, and was called pays du droit ecrit. The remainder of the provinces was governed by particular customs, and was called pays coutumiere. In the customary provinces, with one exception, (Normandy,) conjugal community existed. In the provinces subject to the written law, a legal community did not exist, but, as in the Spanish law, it might be introduced by contract, and modified at the pleasure of the contracting parties. It was in like manner lawful for the parties to modify by contract the legal community existing in any of the customary provinces. (See Pothier, Traite Com. article pretiminaire.) In this respect, therefore, France and Spain were equally liberal. Now, Ferriere, in his Science des JYotaires, p. 364, has given the formula of a marriage contractby which parties, domiciled in a province of the written law, may adopt the rule of community prevailing at Paris. It is conceived in general terms, stipulating for a community, “ suivant et au dcsir de la communavté de Paris.” The same writer, at page 373, gives a like general formula for the parties domiciled in Normandy, who may chose to adopt the custom of Paris. Ic is plain, from these examples, that the distinc'ion between referring to. a.law by its name or title, and setting forth its terms at large, is a subtlety that has altogether eluded the notice of French lawyers.

The English courts have dealt with this subject in a spirit of enlightened liberality, a striking example of which is furnished in the very recent case of Duncan v. Cannon, decided in the court of appeals during the last year. (31 Eng. Law and Eq. Rep. 443.) The case was this: A Scotch gentleman married an English lady in London. A marriage contract between the parties was executed at London, by the terms of which the husband was to have <£ a conjunct fee and life rent” in the property of the wife. The married couple went to Scotland to reside. In a few years they removed to England, wheréíthe husband embarked in business and subsequently became bankrupt. A controversy arose between the wife and the assignees in respect to the husband’s rights in her property under the contract. There was no direct reference in the contract to the law of Scotland ; but the master of the rolls laid hold of the circumstances that the contract was in Scotch form, and the husband had a Scotch domicil, as sufficient evidence of the intention of the parties in that respect. He accordingly received proof of the Scotch law and interpreted the contract by that law. From this decision there was an appeal; and the court above, without hearing argument for the appellees, affirmed the judgment. Lord Justice Bruce, in giving the opinion, said : “ It was, I think, conceded at the bar, (but however this may have been, I consider it to be clear from the Scotch form, the expressions and the nature of the contract, and the husband’s Scotch domicil at the time when he entered into it, a domicil which he does not appear at that time to have intended to change, and which continued at the time of the marriage,) that the contract must receive the same construction and produce the same effect as it would have received and produced if it had been prepared and signed in Scotland, if the domicil of the wife had then been in Scotland and the marriage had been solemnized in Scbtland. The contract, therefore, must bo construed by the law of Scotland or with reference to that law.5-’

In another part of the same opinion, the learned Lord Justice said: “The expressions of this contract are expressions with which the English law is not familiar, which it does not indeed understand. They are foreign. It knows nothing of conjunct fee and life rent — nothing of an express provision for children, being no provision at all for children. The interpretation, coming as it must from Scotland, tells us the meaning of the terms used.”

It will be observed that the doctrine of this case goes much farther than what is claimed by the defendants in the present case. There the judges went out of the contract to find the law by which it should be interpreted. In the present case, the parties have in the contract expressly furnished the rule of interpretation. There the judges declared that the validity of the contract must be tested by the foreign law. Here the parties are content that their contract, when ascertained, shall be judged by the domestic law.

The following cases, though not deciding the precise point now under consideration, serve to show the readiness with which English judges resort to foreign law, when such a reference is necessary, to learn the intention of contracting parties : Faubert v. Turst, 1 Bro. P. C. 129 ; Anstruther v. Adair, 2 Mylne & K. 513; Este v. Smyth, 18 Beav. 112; Guepratte v. Young, 4 De Gex & Smale, 217.

In the case of Le Breton v. Miles, (8 Paige, 262,) Chancellor Walworth, following the example of the English courts, had resort to a foreign law for the interpretation of a contract made by the parties in reference to that law. In that case it appeared that the parties, being domiciled in the state of New York, made a marriage contract reciting that they intended to remove to France, and declaring that “ the law of community is the rule under which we understand ourselves as marrying.” The contract was in the French language, but was executed in New York, and the marriage took place there. The parties never did in fact remove to France, and a controversy arose as to the effect of this contract on property in New York. The chancellor held that it appeared by the recital that the parties contracted in reference to the law of France, and he took means to ascertain that law and gave effect to the contract accordingly. A superficial reader of the report of this case might suppose that effect was given to the contract because the parties expressed an intention of removing to France ; but on a careful examination, it will become manifest that this circumstance is referred to only as showing what particular law of community was in the minds of the parties. The parties stipulated for a community, but they did not in terms declare whether it should be the community of the French, Spanish or Canadian law. There was a doubt as to the community intended. The expressed intention to remove to France solved the doubt. It is plain that the chancellor did not mean to say any thing quite so absurd as that two citizens of New York, by the mere recital of their intention to go abroad, acquired a privilege, above all other citizens, of violating the principles of universal jurisprudence. The case at bar is obviously much stronger than the one just quoted. The court has no need to grope about in search of a law by which to construe the contract. The parties have set down the rule for interpretation in plain words on the face of their agreement.

The courts of New York have, in other cases, freely referred to foreign law, where it became necessary to ascertain or effectuate the intention of contracting parties. (See Decourche v. Savetier, 3 J. C. R. 190 ; De Barante v. Gott, 6 Barb. 494; Crosby v. Berger, 3 Edward’s Ch. R. 538.)

The case cited from Louisiana, (Bourcier v. Lanuse,) is not regarded by the defendants as really deciding any thing adverse to the doctrine for which they contend. On the contrary, it illustrates the very distinction on which they rely. In that case there was a marriage contract adopting the custom of Paris. An alienation of the community property was made by the husband in a form good by the custom of Paris, but invalid by the Spanish law as wanting the formalities required by that law. The court decided that an agreement to submit to the custom of Paris could not dispense with the solemnities prescribed by the Spanish law in the alienation of property. The conclusion was correct. No one would suppose at the present day, under our law, that parties here could, by any form of agreement, dispense with the rules that a deed is requisite for the conveyance of real property, and that a privy examination of a married woman is necessary to render her conveyance effectual. The Louisiana judges did in truth no mere than declare the maxim of universal jurisprudence, locus regit actum. It is perhaps superfluous to repeat that the defendants in the present case admit that the intentions of the parties to the contract, when ascertained, -can be carried out only in the event that they are found to be consistent with the local law.

Diligent search has been made for an adjudged case, in which it has been held that a contract became inoperative because it referred to a foreign law. No such case has been found, and it is believed that none exists in the books.

It is well known that commercial contracts containing such references are of every day occurrence. Take the common case of a promissory note payable in a foreign currency ; the value of such foreign currency can never be known without knowing the foreign law by which it is established. Take the case of an obligation for money with interest after the rate allowed by the British law. What shall be done ? Shall the creditor have no interest at all, or shall the debtor be compelled to pay more than five per cent., which would be found to be the rate allowed by British law, if we were permitted to look into it? There would be no end of citing instances of the like kind occurring in the common business of life, but it is not deemed necessary to pursue the subject farther.

III. Supposing now that the Spanish law was in full force here at the date of the contract in question, and that parties by that law were prohibited from making any reference to a foreign law under pain of nullity, it is to be considered whether the contract in the present case can not be upholden on the ground that the custom of Paris became here, under the Span ish rule, a valid local custom. In Spanish jurisprudence, custom was regarded as having all the force of an express law. The requisites to its validity are explained in 1st Partida, tit. 2, law 5. This law, in Moreau & Carlton’s abridgement, is in these words : “ By the people is understood all the inhabitants of any country or place, without distinction ; and if all or a greater part of them observe any usage for a term of tenor twenty years, with the knowledge of the sovereign and without being opposed by him, such usage will have the force of custom, if during that time there had been pronounced two uncontradicted judgments conformably thereto ; or a decision declaring the existence of such a custom, after it had been disputed. Usage, to have the force of custom, ought moreover to be reasonable, not contrary to the law of God, the empire or natural law ; nor to have been established through error: for otherwise it would be an abuse, and could have no effect.”

It might be supposed, from the terms of this law, that no custom was valid until two judgments were rendered in its-favor, but such construction would be plainly absurd. Gregorio Lopez, the great commentator on the Partidas, in his 7th gloss on this law, says that the judgments mentioned in this law are put as examples of one kind of proof of the custom, and that others may be resorted to. His language is this : “ Si non sit iste modus probandi sed alius, ex quo colligi possit tacitus consensus populi, non excluditur per istam legem. Illud enim, quod inducit consuctudinem, est usus et mores populi; non ergo debit arctari ad sententias tantum. Ostendit igitur ista lex unum modum inducendi et probandi consuctudinem, et per hoc non alios excludit.”

White gives an extract from the Manual del Abogado that fairly expresses the Spanish law in this particular: “ Custom is unwritten law that has been introduced by use. In order to be such and not vicious, it is required that the usage be that of the people or the greater , part of them for the space of ten years, and that it be in harmony with the general utility. Two uniform judgments or sentences are one of the proofs of cus tom. • A legitimate custom has the force of law; derogates the former law that is contrary to it, and interprets the doubtful law ; from whence it is said that there is a custom beyond the law, contrary to the law, and according to the law.” (1 White, 360.) Escriche, in his Dictionary of Jurisprudence, says: “ Custom is either general or special; general when it is observed throughout the whole kingdom — special when it is observed in some particular district. We must not confound custom with usage; usage is no more than a fact, custom is a law; there may be usage without custom, but there can be no custom without usage to accompany or precede it: usage consists in the repetition of acts, and custom arises out of this repetition. The usage leading to a custom may be proved by public writings, by the testimony of distinguished and ancient persons of the country, or by two concurring judgments upon the matter to which it relates.” (Escriche, Dicc. voc. Costumbre. See also Recopilacion de leyes de las Indias, lib. 2, tit. 1, law 4, in 2 White, 25.)

It will be seen that the requisites of a good local custom under the Spanish law, are that it shall have been used by the greater part of the people for the space of at least ten years ; that it should have been approved or at least acquiesced in by the public authorities, and that it should not be immoral or unreasonable. Let us test the Ancient Custom by these rules.

When the Spanish officers superseded the French authorities in the district of Illinois, in 1770, they found there a population entirely French, and acquainted with no other system of municipal law than.the custom of Paris, which had been in use from the time oE the first settlements, about four-score years before. The abstract of the marriage contracts in the hands of the court, shows that up to this date there were sixteen marriage contracts entered into at this place, which were deposited in the archives, and still remain there. Fifteen of these created a community in express terms, according to the custom of Paris (suivant et au desir de la eoutume de Paris). The other does not name the custom expressly, but it contains the clause of ameublissement, and is thoroughly French in its character.

During the first ten years of the Spanish government, under the administration of the royal governors, Piernas, Cruzat and Leyba, there were twenty-eight marriage contracts entered into that still remain in the archives. The custom of Paris is not mentioned in any of them by name, but, with only two exceptions, they plainly refer to it by apt words of description, such as the ancient custom, customary law, &c. No less than nineteen adopt the precise language of the contract now in question. There are two that clearly do not adopt the custom. The one says nothing on the subject of community, and the other expressly adopts the Recopilación of Castile. It is not deemed important to examine the abstract farther, although it will be found that the same old custom is generally adopted in the marriage contracts made during the Spanish rule, and the last, in point of date, that is found in the archives, was entered into before Stoddard, the American commandant, and is an exact copy of the formula of the contract now in question.

Confining our attention to the first ten years of the Spanish administration, as being the term fixed by the Spanish law for the ripening of an usage into a custom, it is found that more than eleven-twelfths of the marriage contracts then executed adopt the custom of Paris. This happened with the concurrence of the sovereign, for the royal officers set their hands to every one of them. The end accomplished was not repugnant to the law of Glod, to the public utility, or to the dictates of right reason. The case then, at all points, falls in the category of a valid local custom, under the Spanish law.

We need not be surprised at this result. The same result was brought about in another way in the other part of the French possessions in America. When the English received Canada from the French in 1764, under the treaty of cession, their first act was to extend the English law over the country by act of parliament, couched in terms less dubious than those of O’Reilly’s proclamation. The Canadian French were disgusted with the change; they remonstrated against it; they persisted in petitioning the king and the parliament, until at the end of ten years the English government restored the custom of Paris under the name of the “ Custom of Canada.” This custom remains to the present day the basis of the jurisprudence of Lower Canada.

It is curious to mark the working of national pride and jealousy in these transactions. The English, as we have just seen, restored the custom of Paris to Canada, but took care to give it a new name. In a like temper, the Spanish government permitted the people of the Illinois district to make their contracts according to the custom of Paris ; but, that the national dignity might not be compromised by the mention of the capital of a rival power, la coutume de Paris was turned into Pancienne coutume.

IV. It only remains to consider the effect of the circumstance that the contract in question was entered into before the royal governor, and was sanctioned by the official signature of that officer.

We see that the parties intended to adopt the community established by the custom of Paris. The governor advised them that the intention was lawful; and he drew up the contract in a form to effectuate that intention. After a lapse of well nigh eighty years, we are told that the governor did not understand his business ; that he ought to have written out the 229th article of the custom of Paris in words at length, instead of referring to it by words of description; in short, that the contract is bad in point of form. The contract is not invalid by reason of any immorality or unreasonableness in its terms, but because it trenches on the sovereignty of his Catholic majesty by a broad allusion to a law of his most Christian majesty.

It has just been assumed that governor Cruzat informed the parties that their intention to adopt the custom of Paris was legal. This is implied from the circumstances. Neither party could read or write. In Spanish practice, formal instruments were to be drawn up by or under the supervision of some public officer. It was the duty of the officer to explain to illiterate parties the legal effect of its particular clauses, and the officer himself was amenable to severe penalties if he inserted any stipulation that was contrary to the laws. (1 Febrero, 177 ; 3 id. 417.)

Beyond all question the contract is to have the same effect now that it had when entered into. If Labuxiere and Roussel, the subscribing witnesses and brothers-in-law of Yifvarenne, had, on the death of the latter, in 1781, set up the pretension that is now brought forward by a party claiming under them, the matter would then have been judged by Cruzat, the officer before whom the contract was made. There is no difficulty in conjecturing what would have been the result. It is not denied that this court may correct the errors of governor Cruzat; but the function is a very delicate one, and ought not to be exercised, save in a case clear beyond all doubt.

The Supreme Court of the United States, in speaking of the acts of the Spanish governors, holds this language: “No principle can be better established by the authority of this court, than that the acts of an officer, to whom a public duty is assigned by his king, within the sphere of that duty, are prima facie taken to be within his power. The principles on which it rests are believed to be too deeply founded in law and reason ever to be successfully assailed.” (Strother v. Lucas, 12 Pet. 437, and many cases there cited.)

Under the Spanish constitution of government the power of making and dispensing with the laws was vested in the king ; and the power might be delegated to another at the-royal pleasure. The 12th law of the 1st Partida, in the Latin version of Gregorio Lopez, says : “Imperator aut Rex in dominio suo,, vel alius ejus mandato, potest legem condere super temporalibus.” The power of modifying the general laws of the kingdom, so as to suit the condition of the distant colonies, was undoubtedly delegated to the royal governors. Upon- no. other: principle can the proclamations, of O’Reilly, of Unzaga, of Carondelet, of Gayoso, be upholden.

White, in his Recopilación, (vol. 1, p. 367,) has given extracts from Solorzano’s work on the political government of the Indies under Spain. They serve to show the large powers conferred on the Spanish governors ; a portion of these extracts is here transcribed:

“ Subjects have ho obligation to investigate or know the orders and instructions of a secret nature which are given to the viceroys, in which bounds are put to their power, for if they do not obey them, they are subject to reprehension and punishment ; but what they may perform must be sustained, because they are in quality of factors or substitutes to royalty, for whose actions he who named them is accountable as having put them in that charge, which is indeed conformable to right. * * * But this, as I said, proceeds with reference to common law, and it is fit that the viceroys and governors of the Indies never cease to bear it in mind; still, as regards the municipal duties of these, the whole, or almost the whole, is left to their discretion and prudence. * * * The provinces of the Indies, being as they are so distant from Spain, it became necessary in these more than in any other, our powerful kings should place these images of their own, who should represent thorn to the life and efficaciously. * * * What I reckon as certain is, that the person to whom there is the greatest likeness is to the kings themselves who appoint them and send them out. * * * From which it happens that regularly in the provinces entrusted to them, and in every case and in all things which are not'especially excepted, they possess and exercise the same power, authority and jurisdiction with the king who names them. * * * And all this is very right; for wherever the representation of another is given, there the true copy of that other is given; and, in general, this representation is more resplendent when the viceroys and magistrates are further removed from the masters who influence and communicate it to them — as Plutarch finely expresses it by the example of the moon, which becomes of greater size and splendor in proportion as she removes from the sun, which is the object that gives her that splendor. * * * Much greater pains are required with viceroys for the new world, which is so much further distant from the eyes of their kings, and is composed of so many different nations and mixtures of people, and comprehends so many new provinces, in which every day there occur some new and unthought of affairs — where mutiny and sedition are contemplated — where sudden and dangerous changes are experienced — where municipal laws are not known or not found sufficient for every case ; and if we wish to malee use of the Homan code or the Castilian, these do not square with those of the country ; and the very state of the republic is so inconstant, varied and different in itself every day, that things which yesterday might be judged and considered very straight and regular, to-day would become unjust and pernicious. * * * The first established rule and sentence is that viceroys can act and dispatch in the provinces of their government, in cases that have not been specially excepted, all that the prince who named them might or could do if he were himself present. * * * All which is indeed conformable to the purpose for which these honorable and preeminent employments were instituted, which was, as it appears, that subjects, who live and reside in such remote provinces, may not be obliged to go and seek the king who lives so far off; that they may have near them a substitute of his, to whom they can apply; with whom and of whom they can treat. The lawyer Ulpiano dares to say, in an absolute style, ‘ that there is no case in the provinces which can not be dispatched by them and the same doctrine and many examples to confirm it are taught to us by many other texts of law, civil, canonical and royal. * * * Even when they exceed their powers or secret institutions, they must be obeyed like the king himself, although they transgress and are after-wards punished for it.”

It is impossible to read the foregoing extracts from Solorzano and doubt the ample authority of governor Cruzat to give full validity to the contract in question, although it might not be strictly conformable to the general laws of the kingdom.

Some observations will now be submitted on the separate opinion of one member of the court to the effect that property ameubli, according to the custom of Paris, was subject to the law of second marriages, and therefore the result would be the same under the facts of the case, whether the rights of the parties were determined by the French or Spanish law.

1. The law of second marriages is in its nature penal, and it is supposed that the French penal laws were out of use here in 1792, when Genevieve Cardinal, the twice married woman, died, and the rights of the children, under the law of second marriages, attached.

2. It is thought to be not altogether clear that the law of second marriages ever had any force in the French colonies. The Supreme Court of Louisiana has forestalled this inquiry only as to the Spanish law. The law is in its nature wholly unfitted for an infant colony.

3. The law was no part of the custom of Paris. It was introduced into the kingdom by an edict of Francis I., A. D. 1560. The 279th article of the custom of Paris created certain disabilities in the wife marrying a second time, but that article has no bearing on the rights of the present parties.

4. By the edict of Francis I., the widow marrying a second time was required to reserve for the children of the former bed her interest in the excess of the first husband’s contributions to the community above her own. The language of Pothier on the subject is this: “L’avantage, qui résulte a une femme de ce que son défunt mari a apporté de plus qu’elle a la communauté, paraít aussi, lorsqu’elle l’a acceptée, etre un avantage sujet au s.econd chef de l’édit, pour la moietié de ce qu’il a apporté de plus qu’elle.” (Traite du Mariage, 607.)

Applying the rule as stated by Pothier, it would be necessary to take an account exhibiting the value of what was brought to the community by the husband and wife respectively. Surely such an account can not be taken in this action of ejectment.

R. M. Field, of Counsel for Appellants.

5. In another particular the French law of second nuptials was more favorable to the wife than the Spanish law. By the former law she was not required to reserve what came to her by succession from a child of the former marriage. Pothier, after stating the changes in the civil law, in this respect, says : “Nous n’avons pas admis, en pays coutumier, eette réserve des biens, auxquelles la femme, qui a convolé en secondes noces, a succédée a quelqu ’un de ses enfans du premier mariage ; quoiqu 1***5ils viennent du premier mari par le canal de cet enfant, elle ne les tient point de son premier mari: elle ne les tient point de son premier mariage ; le titre de succession, auquel ils lui sout óchus, est un titre tout different.” (Traite du Mariage, 609.)

6. Under the construction of the territorial law of descents, adopted by the court, it is of no importance to the present parties whether the Spanish or French law of second marriages was in force here. But it may turn out to be of great importance whether the property in dispute went into the community according to the one law or the other. In truth it may so happen that one quarter part at least of this highly valuable estate may fall to the one or the other party, as this question may ultimately come to be decided by the court.

Footnotes

*

Such references, as is well known, are in constant use, nob only in private agree~ luents, hub in the most solemn acts of state, in public statutes and in the entries of formal judgments of courts of ju-tice. In the early legislation of Vermont, there were severaJ instances in which the legisliture ahipted statutes of Connecticut by their titles only, declaring that they should be the law of Vermont as they stood on the Connecticut las# book.