Collins v. Briggs

Porter, J. delivered the opinion of the court. Appearance in court and contesting the cause on any other ground than the want of citation, cures all defects in the citation of appeal. A motion is made to dismiss the appeal in this case, in consequence of the appellee not being legally cited. The objection would, as we have already intimated, be fatal, if the appellee had not appeared in this court, and contested the right of the appellant to obtain a certiorari to amend the record on matters independant of the want of citation. The rule has been long settled in this court, that appearance in court, and contesting the cause on any other ground than the want of citation, cures the defect. See 9 Martin, 497. 11 ibid. 20. On the merits the case appears to be this. The plaintiff, as heir of his deceased mother, claims the undivided half of a house and three lots of ground in the town of Madison-ville, together with fifty arpents of land in the parish of St. Tammany, in virtue of a marriage contract between his mother and one James Tate, made on the 22d of March, 1817. The clause in the marriage contract on which the plaintiff rests his demand, is in these words: “ And further, in case the said intended marriage shall take place, in consideration thereof, the said James Tate doth agree to settle on the said Anne, and the heirs of her body to be begotten by the said James, one undivided half of a house and three lots of ground in the town of Madisonville; that is to say, the lot on which the said house stands, and the two adjoining westwardly, to contain one hundred and eighty feet front on the river Tchefuncta along St. Tammany-street, and north-wardly one hundred and twenty feet; also fifty arpents of land on the east side of said river, conveyed by J. Laurens to the said Tate, who obligates himself to convey one undivided half of said fifty superficial, together with one half of a tract or parcel of land lying on the east side of Silver creek, held by conveyance from William P. Rose to the said James Tate, and his brother, Thomas Tate, together with the sum of two thousand dollars, at the death of said James Tate, if the said Anne should outlive him, to and for the use of the said Anne, and the heirs of her body; but in case of no issue, or that issue should die before marriage, or the ages of twenty-one, then, and in that case, at the death of said 259 Anne, the said estate is to return to the heirs of said James Tate; and itis agreed that the aforesaid property and money shall remain for the joint use and benefit of said James and Anne; and the said Tate doth hereby agree and obligeJhim-self, his heirs, executors and assigns, that in case of his death before the said Anne, that they shall in one year thereafter, cause to be conveyed to the said Anne, the above described real estate, to and for her only proper use during her natural life.” a party who under a contracC must first show the fulfilment of sivenIf children had proceeded from this marriage, it is questionable if the contract would not have contained a substitution, and have been void. But as none such were born, the case may be considered on more obvious grounds. There appears to have been three contingencies contemplated by the parties. The property is given to the wife if she should outlive the husband; if she outlived him and had no issue, or said issue died before marriage, she ’was to have a life estate; and if there was issue which lived until marriage, then a complete estate vested in them. It is not proved the -ill •wife outlived the husband, 1 he condition on which the property was given not being accomplished, the plaintiflf can-claim nothing under the contract. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed; and it is further ordered and decreed, that there be judgment for defendants, with costs in both courts.