Napton, Judge,
delivered the opinion of the court.
This is an action of ejectment to recover a tract of land included in United States Survey 2,541, which was made under New Madrid certifícate No. 164, in the name of John Brooks or his legal representatives.
The record of the trial shows that both parties claim under Charles Lucas, who bought of Brooks in 1807.
Charles Lucas, on December 4, 1808, by a marriage contract with Sarah Graham, conveyed this property to her in contemplation of marriage, which was recorded April 29, 1809. During the marriage Charles Lucas conveyed this property to one Tanner, and from Tanner the title passed through various persons to defendant. After the death of Lucas, his wife conveyed the same property to one Gillespie, and the plaintiff possesses the title so acquired.
On the trial the plaintiff had judgment.
[218]*218There seems to be only two questions involved in this case. First, as to the validity and effect of this marriage settlement on Sarah Graham and her conveyance after the death of her husband; and, second, as to the statute of limitations. There is no dispute as to the possession of defendants claiming under Charles Lucas for more than twenty years before suit, but as the legal title never passed from the United States until the act of congress of 1864, our State statute of limitations was no bar under the decision of the Supreme Court of the United States in Chouteau vs. Gibson. For that cause was, as this is, a New Madrid location, and we are unable to distinguish the one from the other; and therefore,altliongh entertaining tthe same opinion as the counsel for the defendant in regard to the effect of that decision, as overturning and destroying many bona fide possessions, acquired and retained on the faith of our State laws and Stare decisions under these laws, we have no alternative but to pursue the same course taken in the case of McElhinney vs. Ficke (61 Mo., 329).
We shall, therefore, dismiss from our consideration all questions arising under the statute of limitations, and the question of title alone remains. And it is clear that the relative value of the titles of plaintiff and defendant depends entirely upon the validity and effect of the marriage settlement from Charles Lucas to his intended wife in 1808. It is objected that this deed is not proved. It purports to have been sealed and delivered in the presence of Edward M. Mathews, Jr., and Robert Trotter, and acknowledged before Stephen Ross, a justice of the peace in the district of New Madrid, 'territory of Louisiana, and is found duly recorded in the clerk’s office of what is now New Madrid county. The only objection is that it transfers lands in the district of Cape Girardeau as well as in New Madrid, and that the land in lieu of which New Madrid certificate No. 164 was issued, was in the district of Cape Girardeau, as appeared from the claim of John .Brooks before the first board of commissioners, and by the report of recorder Bates. It is obvious, however, that a New Madrid certificate could not issue for land in Cape Gir[219]*219ardeau, and the mistake must- have originated in recorder Bates, and not in the deed of Lucas. No objection is made to the proof of the deed.
This deed obviously conveyed to Sarah Graham the land in controversy on the event of her marriage with Charles Lucas, or rather it conveyed the land in New Madrid, which is the basis of the location under the act of congress of 1815, and which location covered the land in controversy.
It is urged that this conveyance must be regarded as made under the Spanish law, and that under that law a man could not convey to his intended wife more than one-tenth of his property by way of arras or donation on account of marriage; and this seems to be the correct construction of the Spanish law. (White Recop., vol. 1, p. 56 and note.)
In White’s N. Eecopilacion the word arras is translated into jointure, as conveying nearly the same meaning, and the writer defines arras as “a dowry assigned to or settled upon the wife by her husband for her maintenance after his death, which cannot exceed in value or amount the tenth part of his fortune or property,” and the right of the wife to arras is likened to her right to dower under the common law.
Whatever may be the true construction of the Spanish-law concerning “arras” or “dote,” its counterpart, it is clear that this conveyance, although made in 1808, and before our statute had introduced the common law, was made or supposed to be made in conformity to the common law — since it did not conform to any provisions of the Spanish law.
The arras and dote of the laws of Spain were simply regulations fixing the interest of the wife in the husband’s property and the interest of the husband in his wife’s property, and then the same law determined what was ganancial property, and regulated the rights of the husband, the wife and the children.
The peculiar condition of this territory, from 1804 up to 1816, has been the subject of frequent remark in our court, and the occasion of adjudications growing out of this anomalous condition.' The American population, that came here [220]*220upon the acquisition of Louisiana from France, very soon exceeded in number the old settlers. They of course knew nothing of the laws of Spain or the civil law, and made their contracts in view of the laws with which they were familiar, whilst the old inhabitants of French origin were still in many instances acting in conformity to the civil law with which they were alone conversant. It will be seen by an examination of the decisions of this court, that it has been the object of our courts to give effect to the intent of the parties to a contract, so far as the law existing at the time would allow, whether made with a view to the Spanish law or to the common law, both systems prevailing to some extent previously to 1816. (Lindell vs. McNair, 4 Mo., 380 ; Picott vs. Cooley, 10 Mo., 312; Youse vs. Norcum, 12 Mo., 553; Cutter vs. Waddingham, 22 Mo., 252; Beaume vs. Chambers, 22 Mo., 53.)
It will be observed that before the marriage of Charles Lucas to Sarah Graham, and before the deed from Lucas to his intended wife, there were several territorial statutes, all manifestly the work of legislators conversant with the common law, and all regulating the subjects legislated on with reference only to that system of law, and some of these statutes, passed as they were before the introduction of the common law generally by the act of 1816, were still totally inconsistent with the civil law, or Spanish law, or the custom of Paris, which had previously prevailed in the territory. Take for instance, the act concerning marriages, passed 24th April, 1805 ; a second act, on the same subject, passed July 2, 1806 (Edwards Terr. L., p. 83); the act concerning divorce and alimony, passed March 13, 1807 (Terr. L., p. 90); the act concerning wills, descent and distribution, passed July 4,1807 (T. L., p. 125); the act concerning recorders and dower, passed July 7,1807 (T. L., p. 178); an act concerning the dower of widows and marriage contracts, passed June 18, 1808 — all of which were totally inconsistent with, and of course so far repealed the Spanish law on these subjects. The act concerning descent and distribution and wills, espe[221]*221cially, cannot be reconciled with the arras and dote of the Spanish law, or with the rules of succession or privilege of making wills, as recognized by the Spanish law.
Free access — add to your briefcase to read the full text and ask questions with AI
Napton, Judge,
delivered the opinion of the court.
This is an action of ejectment to recover a tract of land included in United States Survey 2,541, which was made under New Madrid certifícate No. 164, in the name of John Brooks or his legal representatives.
The record of the trial shows that both parties claim under Charles Lucas, who bought of Brooks in 1807.
Charles Lucas, on December 4, 1808, by a marriage contract with Sarah Graham, conveyed this property to her in contemplation of marriage, which was recorded April 29, 1809. During the marriage Charles Lucas conveyed this property to one Tanner, and from Tanner the title passed through various persons to defendant. After the death of Lucas, his wife conveyed the same property to one Gillespie, and the plaintiff possesses the title so acquired.
On the trial the plaintiff had judgment.
[218]*218There seems to be only two questions involved in this case. First, as to the validity and effect of this marriage settlement on Sarah Graham and her conveyance after the death of her husband; and, second, as to the statute of limitations. There is no dispute as to the possession of defendants claiming under Charles Lucas for more than twenty years before suit, but as the legal title never passed from the United States until the act of congress of 1864, our State statute of limitations was no bar under the decision of the Supreme Court of the United States in Chouteau vs. Gibson. For that cause was, as this is, a New Madrid location, and we are unable to distinguish the one from the other; and therefore,altliongh entertaining tthe same opinion as the counsel for the defendant in regard to the effect of that decision, as overturning and destroying many bona fide possessions, acquired and retained on the faith of our State laws and Stare decisions under these laws, we have no alternative but to pursue the same course taken in the case of McElhinney vs. Ficke (61 Mo., 329).
We shall, therefore, dismiss from our consideration all questions arising under the statute of limitations, and the question of title alone remains. And it is clear that the relative value of the titles of plaintiff and defendant depends entirely upon the validity and effect of the marriage settlement from Charles Lucas to his intended wife in 1808. It is objected that this deed is not proved. It purports to have been sealed and delivered in the presence of Edward M. Mathews, Jr., and Robert Trotter, and acknowledged before Stephen Ross, a justice of the peace in the district of New Madrid, 'territory of Louisiana, and is found duly recorded in the clerk’s office of what is now New Madrid county. The only objection is that it transfers lands in the district of Cape Girardeau as well as in New Madrid, and that the land in lieu of which New Madrid certificate No. 164 was issued, was in the district of Cape Girardeau, as appeared from the claim of John .Brooks before the first board of commissioners, and by the report of recorder Bates. It is obvious, however, that a New Madrid certificate could not issue for land in Cape Gir[219]*219ardeau, and the mistake must- have originated in recorder Bates, and not in the deed of Lucas. No objection is made to the proof of the deed.
This deed obviously conveyed to Sarah Graham the land in controversy on the event of her marriage with Charles Lucas, or rather it conveyed the land in New Madrid, which is the basis of the location under the act of congress of 1815, and which location covered the land in controversy.
It is urged that this conveyance must be regarded as made under the Spanish law, and that under that law a man could not convey to his intended wife more than one-tenth of his property by way of arras or donation on account of marriage; and this seems to be the correct construction of the Spanish law. (White Recop., vol. 1, p. 56 and note.)
In White’s N. Eecopilacion the word arras is translated into jointure, as conveying nearly the same meaning, and the writer defines arras as “a dowry assigned to or settled upon the wife by her husband for her maintenance after his death, which cannot exceed in value or amount the tenth part of his fortune or property,” and the right of the wife to arras is likened to her right to dower under the common law.
Whatever may be the true construction of the Spanish-law concerning “arras” or “dote,” its counterpart, it is clear that this conveyance, although made in 1808, and before our statute had introduced the common law, was made or supposed to be made in conformity to the common law — since it did not conform to any provisions of the Spanish law.
The arras and dote of the laws of Spain were simply regulations fixing the interest of the wife in the husband’s property and the interest of the husband in his wife’s property, and then the same law determined what was ganancial property, and regulated the rights of the husband, the wife and the children.
The peculiar condition of this territory, from 1804 up to 1816, has been the subject of frequent remark in our court, and the occasion of adjudications growing out of this anomalous condition.' The American population, that came here [220]*220upon the acquisition of Louisiana from France, very soon exceeded in number the old settlers. They of course knew nothing of the laws of Spain or the civil law, and made their contracts in view of the laws with which they were familiar, whilst the old inhabitants of French origin were still in many instances acting in conformity to the civil law with which they were alone conversant. It will be seen by an examination of the decisions of this court, that it has been the object of our courts to give effect to the intent of the parties to a contract, so far as the law existing at the time would allow, whether made with a view to the Spanish law or to the common law, both systems prevailing to some extent previously to 1816. (Lindell vs. McNair, 4 Mo., 380 ; Picott vs. Cooley, 10 Mo., 312; Youse vs. Norcum, 12 Mo., 553; Cutter vs. Waddingham, 22 Mo., 252; Beaume vs. Chambers, 22 Mo., 53.)
It will be observed that before the marriage of Charles Lucas to Sarah Graham, and before the deed from Lucas to his intended wife, there were several territorial statutes, all manifestly the work of legislators conversant with the common law, and all regulating the subjects legislated on with reference only to that system of law, and some of these statutes, passed as they were before the introduction of the common law generally by the act of 1816, were still totally inconsistent with the civil law, or Spanish law, or the custom of Paris, which had previously prevailed in the territory. Take for instance, the act concerning marriages, passed 24th April, 1805 ; a second act, on the same subject, passed July 2, 1806 (Edwards Terr. L., p. 83); the act concerning divorce and alimony, passed March 13, 1807 (Terr. L., p. 90); the act concerning wills, descent and distribution, passed July 4,1807 (T. L., p. 125); the act concerning recorders and dower, passed July 7,1807 (T. L., p. 178); an act concerning the dower of widows and marriage contracts, passed June 18, 1808 — all of which were totally inconsistent with, and of course so far repealed the Spanish law on these subjects. The act concerning descent and distribution and wills, espe[221]*221cially, cannot be reconciled with the arras and dote of the Spanish law, or with the rules of succession or privilege of making wills, as recognized by the Spanish law.
These acts were all passed prior to the marriage of Lucas, and prior to his deed to Sarah Graham. The objections to this deed, based upon the Spanish law of arras, and the rights of the wife and children under that law, seem hardly applicable. Besides, the deed itself is plainly a mere common law conveyance from Lucas to his intended wife, in consideration of marriage. There is nothing in its terms to justify the least suspicion that it had any reference to the Spanish law of arras — nothing to show that the property conveyed constituted the one-tenth of the whole, or any other proportion of the grantor’s estate. Considering, then, the territorial laws to which we have referred, and which were in force at the date of this deed and prior to the marriage, which took place shortly after the deed, and looking at the deed itself it is difficult to see how any other conclusion can be reached, than that this conveyance, and the marriage which followed it, and the rights of the husband and wife, and of the children of the marriage, must all be governed by the common law, or at least so much of it as had been, by positive statutes, introduced into tire territory; and the statutes in regard to dower and regulating descents manifestly abolish the Spauish or civil law on these subjects.
This view of the case disposes of all the points made by the counsel for defendants based on the Spanish law.
The deed of Mrs. Lucas to Gillespie according to the common law conveyed the title. The deed of Lucas to Tanner, during the marriage, conveyed only a life estate. It is hardly necessary to state that the marriage was clearly proved, and the death of Lucas before his wife’s deed in 1821 to Gillespie. These facts were submitted to the jury, and there was ample evidence to sustain their verdict.
The main defense was the statute of limitations, which, as has been already stated, was in our opinion a valid and sufficient one. The Supreme Court of the United States claim [222]*222the right to review the decisions of this court on that subject, and have the power to enforce that claim. It would therefore profit neither party for this court to disregard their decision.
The judgment is therefore affirmed. Judge VorieS absent; the other judges concur.