Reaume v. Chambers

Scott, Judge delivered the opinion of the court. 1. Pierre Reaume marrying in 1815,.by the birth of issue during the same year became tenant by the curtesy initiate. '-The estate of tenancy by the curtesy must be regarded as co•eval in existence with the estate in dower. When the law broke idowm the community existing under the Spanish government — 52 — and created dower for the wife, it at the same time recognized the existence of the tenancy by the curtesy for the husband. In the case of Riddick v. Walsh, (15 Mo. 519,) this court held that the territorial act of July 4, 1807, abolishéd the Spanish law of community and gave the wife dower in lieu of her interest under the Spanish law. As a tenancy by the curtesy is recognized by the same act, it must be intended that the husband’s right in the community was taken away at the same time, and the curtesy given as a part equivalent for it. 2. P. Reaume, being tenant by the curtesy initiate, and having a life estate by virtue of his marriage, his conveyance operated to convey to Pierre Chouteau an estate during his (Reaume’s) life. He had no power to convey a life estate to Chouteau, as his interest in the estate did not permit it. Had Reaume been seized in fee, his conveyance to Chouteau would have given him (Chouteau) a life estate, that being deemed the most valuable in law. (Co. Lit. 1 vol., 30, a; 1 Hilliard on Real Property, 120. 3. Pierre Reaume being still alive, his life estate is outstanding in Chouteau or his representatives, and prevents a recovery by the plaintiffs, who are children of the marriage of P. Reaume with their mother as to the’share of their grandmother, Louisa, as well as to the share of Lewis, who died without children prior to the conveyance to Chouteau in 1819, and of whose interest so much as was owned by the mother of the plaintiffs passed by Reaume’s deed. 4. The case of McNair v. Lindell, (4 Mo. 380,) decides nothing more than that a conveyance made by the husband and wife during the period between the introduction of the common law on January 19th, 1816, and the statute enabling husband and wife to convey real estate belonging to the wife, passed on the 22d June, 1521, in pursuance to the statute law then in force regulating the conveyances of married men’s estates and the mode of relinquishing dower interests therein, will be effectual to convey the real estate belonging to the wife. That case goes so far and no further. It leaves it a matter of doubt. — 53 — ■whether the determination rested on the common law or on the Spanish law. If on the Spanish law, then the Spanish law was retained only so far as to sustain that cáse and those similarly situated, and no further. The inducement which has prevailed with this court heretofore, in upholding- that opinion, was a persuasion that men acting under it had acquired rights which it was deemed unwise to disturb. After the introduction of the common law, the Spanish law no longer had any existence here. It has only been regarded in the interpretation of contracts which had been made before its abrogation and on the adjustment of rights which had accrued prior to the introduction of the common law, just as we would look at this day to the laws of Spain, in interpreting a contract which had been made in that kingdom. 5. The principle that ancient deeds accompanying the possession, and produced from the appropriate custody, prove themselves, has no application to this case. At the date of the deed in question, the law prescribed a mode by which estates should be conveyed. If that law was observed, this court has held that married women might convey their estates by complying with its provisions. If the law then in force regulating conveyances has not been complied with, how can we presume that a deed has been regularly executed when we see from the very instrument produced, in whose aid the presumption is sought, that the law, in almost every particular, has been violated ? Can we presume that the law has been complied with when we see, from the very face of the deed, that it has not been ? When an instrument itself tells us that the law has not been observed in its creation, how can we, from length of time or any other consideration, say that it has been ? Can a presumption in favor of a deed arise when the deed itself tells us that such a presumption is false ? The statute in force at the date of the deed required the wife to join in it with her husband, and acknowledge it before the proper officer, and to declare that she executed it voluntarily and without compulsion or undue influence of her husband. Here the wife’s name alone appears to the deed, — 54 — and it is not acknowledged at all. (Beall v. Lynn, 6 Harr. & John. 351.) 6. The deed of P. Reaume and his wife, executed in Illinois, and acknowledged before a notary, is of no validity as against her. There is no pretence that a deed so executed and acknowledged is a compliance with the statute regulating conveyances then in force. 7. The deed, moreover, wants words of perpetuity, which were essentially necessary at its date to create an estate in fee simple. Its reference to the deed, on the back of which it was written, is not of such a character as to enlarge the life estate conveyed to a fee simple. This is one of those cases in which the bare intent of the parties cannot prevail. The law had appropriated certain words for passing a fee simple in real estate, and unless they were used, the intent, however forcibly expressed, could not prevail. 8. As to the question whether actual seizin of the wife’s land is necessary to entitle the husband to' curtesy, we are of the opinion that such an idea never prevailed here. Whatever may be the common law on the subject, the circumstances of the country demand a modification of the rule. Titles to land conferred by the United States, were supposed to give seizin in deed to purchasers. Descents with us depend not on actual seizin, but on the statute regulating descents, and we have allowed the conveyance of lands whilst in the adverse possession of others. (Green v. Leter, 8 Cr.; Cook v. Foster, 2 Gilman, 652: 4 Kent, 30.) 9. Mrs. Colin was a feme covert when her right of entry accrued. It is clear, from the language of the statute of limitations, that a right of entry may accrue to a married woman. The 16th section of the third article of the' act prescribing the times of commencing actions, directs that the provisions of that statute shall not apply to cases where the right of action or entry shall have accrued before the first day of December, 1835, but the same shall remain subject to the laws then in force. By the law in force prior to the 1st December, 1835, a married — 55 — woman was allowed twenty years within which to bring her action after she was discovert. Mrs. Colin’s husband died in 1840, consequently she had twenty years, from his death within which she might bring her action, her right of entry having accrued prior to the 1st of December, 1835. Each party having sued out a writ of error on the judgment, the entire judgment is affirmed, each party paying the costs of his writ in this case. Ryland, J. I agree to affirm the judgment, but do not assent to all the views taken by Judge Scott. I differ with him in some important propositions laid down in the above opinion.