Riddick v. Walsh

15 Mo. 519

Opinion

Scott, J.,

delivered the opinion of the court.

The first question which presents itself for our consideration is., whether, after the taking effect of the territorial act of July 4th, 1807, which gave dower to the widow in her deceased husband’s estate, the widow of a deceased person, who was married subsequently to the period that the said act took effect, and prior to the introduction of the common law of England, was entitled to the provision made for her by the Spanish law of community, in addition to her dower; or, in othet words, whether the Spanish law of community prevailed in this State, after the taking effect of the act of July 4th, 1807, in favor of women who were married subsequent to that event. The question is stated-with this precision, in order to relieve us from answering a portion of the argument which is founded on a state of circumstances which do not exist in the cause now under consideration.

By the Spanish law of community, the husband and wife became partners in all the estate, real and personal, which they respectively possessed. All that was acquired or purchased during coverture, whether real or personal estate, went into partnership, as being presumed to have been the fruits of the joint industry and economy of thé husband and wife. On the dissolution of the partnership, by death, the surviving party and the representatives of the deceased, each tools tack what was brought on his or her side into the partnership in value or kind; in value of personal estate, in kind, of real estate; and what remained, being considered as gain or profits, was equally divided as between partners. The husband, being the most suitable person, managed the concerns of the partnership, and might, without the consent of the wife, dispose of any of the partnership effects, purchased during the marriage.

It is conceded that all the Spanish laws which prevailed here prior to the cession of Louisiana, continued in force until they were superseded by competent authority.

The act of 1807 gave the widow, as dower, in the event of there being lawful issue, one-third of the lands and slaves during her life, and one-third of the personal estate absolutely, after the payment of the debts of the deceased. Comparing this provision, for the widow, with the subsequent laws in relation to dower, we can see no great difference between it and the dower that has been allowed since the undoubted repeal of the law concerning community. The fact that the first provision made by law for widows, does not materially vary from that now ¿Hewed them, furnishes an argument that, in the judgment of the legislature, the dower given under the act of 1807 was a sufficient allowance for them ; consequently there can be no ground for supposing that their rights, under the law of community, were intended to be preserved. A thing which is in the intention of the makers of a statute, is as much within the statute as if it were within the letter. 7 Bac. The act of 1807 made provision for the administration and distribution of the entire estate of a deceased person. It is impossible to conceive that if, in the intention of the legislature the law of community existed, but that some mention of, some reference to it must have been made. Looking at the rights of the wife under the law of community, as above stated, could a statute for the administration of estates have been framed without some reference to it? If we reflect on the closeness of the connection between the two subjects, such an omission would have been almost a matter of impossibility. It may be put to the profession, whether, if the law of community was in force at this day, it would be possible to avoid its mention in framing the statutes concerning administrations, descents and distributions, and last wills and testaments? These statutes, with modifications, were in force from 1807 until 1816, and yet during all that time, no reference was ever made in any of them to the law of community as being in force.

The 15th section of the act of 1807 declares, that the share therein allotted to the widow, shall be in lieu and satisfaction of her dower at common law. From the proviso to the 7th section of the act concern^ing dower and alimony, it would seem that the Spanish law, in relation to rights growing out of the marriage state, was in the mind of the legislature. It is said that there was no such thing as dower here at the date of the act of 1807, and consequently that the clause above cited, provides that the widow’s claim under it shall be in lieu of what she had no right to, and Could not demand. We are so much in the habit of considering the common law of England as the only common law existing, that when these terms are used, we are at a loss to conceive how they can be applied to any other system of law. The idea of the common law is familiar to the minds of all legislators informed in o>ur system of jurisprudence. It imports a system of unwritten law, not evidenced by statutes, but by tradition and the opinions and judgments of the sages of the law. Is it singular, then, that American legislators, coming into a country where they found existing a provision for married women, which was a substitute for dower as known to thern^ whose existence depended, so far as they knew, on unwritten law, custom and usage, should term that substitute, “dower at common law?5’ Although the thing is misdescribed in terms, yet that which was intended is clearly signified. In construing a statute, we must, if posssible, give effect to all its provisions. To say that the terms “dower at common law,” meant dower as it was understood by the English common law, would render the 15th section of the act of 1807 entirely inoperative. It is said that the law of community was evidenced bye written law promulgated by the king of Spain, to whom, under the Spanish system of government, exclusively belonged the power of legislation. This may be so; yet it is an historical fact, that the books containing those laws had never been seen at that day in this State. To the people here it was an unwritten law, known only by usage and custom as the common law was known, and under such circumstances it was -not at all remarkable that it should be called “the common law.” We 'are informed that the first printed book brought into this State, containing any Spanish law, was the Partidas, and that event occurred latér than the year 1820. But there were weighty reasons operating on the minds of the legislature, why the Spanish law of community should be abolished, and dower, as known in the American states, substituted in its place. The French and Spanish inhabitants in the State, at that-day, to whom the law of community was only known, were not numerr ecus. No increase of their numbers was anticipated from emigration, while there were many Americans from the United States, to who® dower at common law was known and approved; and if not then, it was foreseen that in a few years, they would he much the larger portion of the inhabitants, and would continue to increase until there would bean unmeasurable disproportion between them and the ancient inhabitants df the province. It was wise in the legislature, then, to frame its laws in conformity to the notions of a large portion of the inhabitants 'then residing here, and who, it was foreseen, would in a few years overspread the entire State. It is a circumstance not without its influence^ in the determination of this question, that no case can be found in our books of reports in which this claim is asserted, much less maintained, although the period of forty-four years have elapsed since it might have been done. The case of McNair vs. Biddle, 8 Mo. Rep. is not an exception, as Mrs. McNair was unmarried prior to the passage of the act ef 1807. We are of opinion, then, that the dower given to the surviving wife, by the law of 1807, was in lieu of her interest under the Spanish law, in what is called the community.

The next question arising is, whether Mrs. Riddick was entitled to dower at her husband’s death in 1830? and if entitled, under what law that was in foreo at the date of the marriage, or that was prevailing at the time of the death of her husband? Judge Story, in his conflict of laws, says, that the two following propositions have much of domestic authority for their support, and none in opposition to them: 1st. Where there is no express contract, the law of the matrimonial domicil will -govern as to all the rights of the parties to their present property in that place, and as to personal property every where, upon the prinoiple that movables have no situs, or rather, that they accompany the person, every where. As to immovable property, the law rei sitae will prevails: 2nd. When there is no change of domicil, the same rule will apply to. future acquisitions, as to present property. But where there is a change ,of domicil, the law of the actual domicil, and not of the matrimonial domicil, will govern as to all future acquisitions of movable property^ and a3 to all immovable property, the law rei sitae. It would seem to follow, as a consequence from these principles, that the law existing at the time of the marriage, and not that at the time of its dissolution by death, would determine the material rights of the parties. Whatever might he the inclination of our minds in relation to this question, if it was now presented to us as a new one, yet the contrary opinion has so long prevailed, as well in regard to foreign as to domestic marriages, and has been so universally acted upon, that its overthrow would introduce great confusion in estates that have been already administered. If ever the maxim communis errorfacit jus was worthy of application, it would be on this occasion. The common opinion, in this instance, is not merely speculative and theoretical, but has been made the ground work and substratum of practice. Every estate within our knowledge has been administered upon the supposition that the law existing at the time of the dissolution of the contract by death, regulates the right of the widow to dower, as well in cases where the marriage was celebrated in other states as in this State.

The next question that presents itself is, whether the .special execution, issued on the judgment rendered in the suit, to forclose the equity of redemption under the mortage, barred the dower of Mrs. Riddick. Mrs. R. was no party to the proceedings to foreclose the equity of redemption, although she executed the deed and relinquished her dower to the lands thereby conveyed. The act of 1825, under which the dower claimed in this suit must be assessed, provided that no widow should be entitled to dower in any lands which had been sold, in good faith, under execution against her husband in his lifetime. There is no difference affecting this question, between a sale under a general judgment and one under the statute concerning mortgages. A sale under a general judgment, conveys all the right, title and interest, the debtor had in the lands sold on the day of the rendition of the judgment; a sale on a special fieri facias, disposes of such right only as could have been conveyed at the date of the mortgage deed, had it been an absolute one. On the one hand, it was argued that as the land out of which this right of dower is claimed, had been sold under a special fieri facies on the judgment in the mortgage proceedings, that was a sale under execution, within the meaning of the act, and therefore the right of dower was barred. On the other hand, it was contended that the wife was a necessary party to the proceedings to foreclose the equity of redemption, and not being joined, she could not be affected by a judgment in a suit to which she was no party. There is a, marked distinction throughout the books between cases where a suit affects a wife’s interest in real estate, which is claimed in her own right, and those in which she has only an inchoate right of dower. In the former class of cases, no instance is to be found in which it is not maintained, that a wife is a necessary party to the proceedings, in order to divest her right. In the latter class, the husband alone is deemed the proper party to defend a proceeding instituted to divest the title to land to which a mere inchoate right of dower has attached. Whoever heard of a wife’s being joined as a party defendant to an action of ejectment, brought to recover land possessed and claimed by the husband in his own right ? In the case now under consideration, if the husband had given no mortgage, and if suit had been brought for the debt secured by it, in the common way, the land might have been sold by execution, and the right of dower thereby extinguished. Can it make a difference, that a mode of procedure more favorable to the husband than an ordinary suit at law, was adopted? In the mode prescribed, the wife has given her assent to the deed, and there must have been at least nine months intervening between the commencement of the suit and the sale of the mortgage premises. The fact that the mortgage property could only have been sold on the special execution, makes no difference; for if the execution had been a general one, the husband could have elected that the land mortgaged should have been first sold to satisfy the debt; and the property, saved from execution by the sale of the mortgaged premises, would have remained, from which dower would have been taken.

The execution of the mortgage, with the wife’s acknowledgment and relinquishment of dower, the proceedings to foreclose the equity of redemption, the judgment, execution and sale by the sheriff, together with his deed, are the links in the chain of title of the purchaser at the sheriff’s sale. The wife having given her assent to the deed, and having a mere inchoate right to dower in her husband’s estate, who was still in existence, and he being competent to defend such interests of the wife in all other proceedings against him, no reason is perceived why the wife should have been made a party to this suit. So, in either point of view, the wife is barred of her dower. If, before the foreclosure, the wife’s right to dower had become consummate by the death of her husband, the attitude of this case would be entirely different.

The case of Dent vs. Narmy, 8 Barbour’s Rep. 618, has been examined, and it seems to stand so much upon the provisions of the N. York Code, as to furnish little analogy for the determination of the cause now under consideration. The case of Bell vs. The Mayor of New York, 10 Paige’s Rep. seems rather to furnish views in support of the conclusion to which we have arrived.

Judge Ryland concurring, the judgment will be reversed and the cause remanded.

Judge Gamble did not sit in the cause.