text:
    Moore, Defendant in Error, vs. Otis, Plaintiff in Error.
    1. Suit by attachment on anote given by B. F. 0. & Co., was commenced before a justice against B. F. 0. & —■-0. The affidavit alleged that B. F. 0.' & ---— 0. (composing the firm of B. F. 0. & Co.,) were nonresidents. The firm of B. F. 0. & Co. was really composed of B. F. 0. & B. S. Upon appeal to the circuit court, the suit was dismissed as to-0. Before or after this dismissal, (it did not appear which,) a plea in abatement was filed, denying the non-residence of B. F. 0. &-0. Held, the only issue to be tried upon the plea was, whether B. F. 0. was a nonresident.

      Error to St. Louis Circuit Court.

    The case is stated in the opinion. The following instruction asked for the defendant was refused: “If the jury shall believe from the evidence that, at the time of the execution of the note sued upon, and the issuing of the attachment process, Benjamin E. Otis and Robert Scott alone composed the firm of B. E. Otis & Go., and not B. E. Otis &-Otis, as is alleged in the affidavit upon which the attachment was sued out, and that, at the time of the execution of said note and ever since, the said Robert Scott has been a resident of, and resided and still resides in the state of Missouri, they ought to find for defendant on the plea in the nature of. a plea in abatement, notwithstanding the jury may believe that said Benjamin E. Otis was, at said time, a resident of Boston, Massachusetts.” There was evidence that B. E. Otis and Robert Scott were partners in business, and had a house both in Boston and St. Louis. The style of the house in Boston was B. E. Otis & Oo., and in St. Louis, Scott & Otis. Otis resided in Boston and Scott in St. Louis. It did not appear from the record, whether the attachment was levied upon partnership property or not.

      Hart & Jecho, for plaintiff in error.

      C. Harding, for defendant in error.
   Ryland, Judge,

delivered the opinion of the court.

This suit was commenced before Mann Butler, Esq., a justice of the peace, in August, 1850. An attachment was .issued, affidavit being made by Chester Harding, Jr. The suit was originally against B. F. Otis &-Otis. The affidavit on which the attachment issued was as follows : “ Chester Harding, Jr., being duly sworn, upon his oath says, that Benjamin F. Otis and-Otis, f(composing the firm of B. F. Otis & Co.,) are justly indebted to John E. Moore, after allowing, &c., in the sum of one hundred and forty-eight dollars and twenty cents, on account of a promissory note made by said B. F. Otis & Co., and this affiant has good reason to believe and does verily believe, that said Benjamin F. Otis and-.Otis are not residents of nor residing in the state of Missouri."

After notices were given, the defendants not having been served with process, judgment by default was rendered on the 14th of September, 1850. A motion was made by defendant on lTth September, 1850, to set aside the judgment by default ; it was overruled, and an appeal was granted to the Circuit Court.

At November term, 1853, of the Circuit Court, the plaintiff, by his attorney, moved for leave to dismiss his suit as to-Otis ; this motion was sustained, and the cause was, by order of the court, dismissed as to-- Otis. Afterwards, a trial was had on the issue made by the plea in the nature of a plea in abatement, denying the non-residence of B. F. Otis and -- Otis.

I cannot find from the record of this case, now before me, whether the plea in the nature of a plea in abatement was filed, denying the non-residence of B. F. Otis and - Otis, before the plaintiff had leave to dismiss as to-- Otis, or afterwards.

The cause alleged in the affidavit on which the attachment issued, was the non-residence of B. F. Otis and-Otis, the defendants in the suit. This non-residence was denied by the plea putting in issue the truth of the affidavit. The suit-being dismissed as to-Otis, left the issue then to be tried in regard to the non-residence of B. F. Otis alone. This being the case, the instruction given by the court, that “ The only question for the jury to determine is, whether Benjamin E. Otis was, at the date of the attachment, a resident of or residing within the state of Missouri; if the jury believe from the evidence, that he was not a resident of nor residing in this state, they will find for the plaintiff upon the issue joined on the plea in abatement,” was legal and proper from the evidence in the case preserved by the bill of exceptions.

It would have been improper to have given the instruction prayed for by the defendant, in respect to Robert Scott being a partner in the firm of B. E. Otis & Co., and not-Otis. Robert Scott was not mentioned in the affidavit, and from all that appears, was not known as a partner of B. E. Otis & Oo. However this may be, when the suit was dismissed as to-Otis, it left B. E. Otis alone the defendant. The affidavit then may be considered as putting in issue alone his residence or non-residence; and the residence of Robert Scott was foreign to this issue, and the instruction in regard to it properly refused.

The judgment of the court below is affirmed, with the concurrence of the other judges.


source: Caselaw Access Project

author: Scott, Judge,

license: Public Domain

text:
    Thompson & Wife, Appellants, vs. Lyon et al., Respondents.
    1. An infant cannot execute a power of appointment coupled with an interest.
    2. The disability of infancy cannot he dispensed with by the instrument creating the power.
    3. Mere lapse of time, short of the period which would be a bar by the stat- ' ute of limitations, will not prevent a court of equity from interfering to divest a legal title which has;been conveyed by a trustee, by direction of an infant beneficiary exercising a power of appointment.
    4. A court of equity, however, will not, in such a case, interfere against a purchaser for a valuable consideration without notice.

      Appeal from, St. Louis Court of Common Pleas.'
    The case is stated in the opinion of the court.

      Glover & Richardson and B. Bates, for appellants,
    relied upon the following points : 1. An infant cannot execute a power coupled with an interest, though it is otherwise with a naked power. (4 Kent, 816, 824. 1 Sug. on Powers, 213, (13 Law Lib. 114, 116.) Macpherson on Infancy, 39 Law Lib. 302. 3 Atk. 710. 1 Chance on Powers, 222, §587.) 2, Nor is the disability o£ infancy dispensed with in the present case, by the words used in the instrument creating the power. The remarks 'of Chance, in his work on Powers (§583,) and of Preston, in his treatise on Abstracts (p. 826) to the effect that the disability of infancy may be dispensed with, and that the words “ at any time hereafter,” in the clause conferring the power, would be sufficient for that purpose, are not sustained by any adjudicated case, and the doctrine is denied by Kent, Sugden and Macpherson. The law, for wise purposes, declares that an infant is incompetent to convey his own property, and no person short of the supreme power of the state can emancipate him from this disability. (Simson v. Jones, 2 Russ. & Mylne, 365, 13 Eng. Cond. Ch. Rep. 82.) It is said that a party ought to be permitted to dispose of his property on his own terms. So he may. He may confer upon an infant power to convey his land. But he cannot convey his land to a trustee for an infant beneficiary, and then authorize the infant to dispose of it in violation of the law established for his protection. If a deed is made with a void condition, the grant may be good and the condition void. 3. If the power existed, it had to be executed strictly, and this was not done, because Mrs. Thompson did not direct the trustee in writing to whom he should convey.

      Shepley, for respondents.
    I. In the deed from Collins and wife to Foster, as trustee for Virginia M. Wetherell, the statute did not execute the use, and the legal title was in Foster, the trustee, for, 1. It was a deed of bargain and sale, in which the first use was executed in the bargainee. ( Cary v. Jackson, 16 Johns. Rep. 304. Guest v. Farley, 19 Mo. R. 147.) 2. It is not executed because the conveyance is to the separate use of a married woman. (Hill on Trustees, 234. Lewin on Trusts, 103. .dyer Y. Jiyer, 16 Pick. 380. 1 Hilliard on Real Prop. 300. 12 Ohio, 287. 4 Paige, 403. 4 Ad. & El. 582.) 8. It is not executed because the trustee is required to convey. (Hill on Trustees, 324. Garth v. Baldwin, 2 Vesey, 645. Edmondson and wife v. Dyson, 2 Kelly, 307. 7 Vesey, 201. 4 Ad. & E. 582.) II. The legal estate then was in Foster, the trustee, to hold for Virginia Wetherell’s separate use, and to be conveyed by Foster at any time thereafter at her request, and to whom she should direct; and said Foster having conveyed at her request, the conveyance is good, though she was a minor feme covert at the time. There is no controversy as to the power of an infant to execute a mere naked power. The only question is in the case where the infant is the beneficial owner, and, as far as can be found, this question has arisen only in cases where no power has been given in the deed, either expressly or by implication, to execute during minority. It would seem, upon principle, that a grantor can convey an estate with such limitations and conditions as he may be pleased to annex to it, so long as he does not contravene the settled rules of law, as to the creating of perpetuities. (See Bingham on Infancy, p. 277.) It is admitted on all hands that, where an estate is held by trustees, to be conveyed as a married woman may direct, a conveyance made under her direction, her husband not joining, will pass a perfect title. Now how can this be supported, unless it is derived from the power contained in the grant itself. The incapacity of a married woman is greater than that of an infant. Her conveyance is absolutely void, and an infant’s only voidable. So far as authority is concerned, it is not even settled whether, in a grant where neither by express words nor by implication authority is given to execute a power coupled with an interest by an infant under age, that power can be exercised. (See case of Hollingshead v. Hollingshead, quoted in Coventry v. Coventry, 2 P. Williams, 228.) The case of Hearle v. Greenbanle, (8 Atk. 696,) will be found to have been decided upon the ground that, in the will in that case, no power to execute during infancy was given expressly, nor could be inferred from its provisions. Both these cases were decided at a time when the courts held that deeds made by infants were absolutely void. All the late writers hold that an infant may execute a power coupled with an interest, if his infancy be dispensed with, or if, from the nature of the power, it be evident that it was in the contemplation of the author of the power that it should be exercised during minority. (1 Preston.on Abstracts, 326. 1 Chance on Powers, 216 to 225. Macpherson on Infants, 458. See also 3 Henn. & Munf. 399.) The deed in this case clearly shows the intention of the donor of the power that it should be executed during minority. The words are “ at any time hereafter.” (1 Chance on Powers, 583.) III. By the deed of Foster, the trustee, to Hubbard, the legal title passed, and if, on account of her being a minor, she be not absolutely bound by the appointment made in that deed, yet as the act is voidable and she has slept on her rights for about sixteen years after she came of age, she can havehio relief in a court of equity. (2 Story’sEq. §742, 769, 771. 8 B. Monroe, 162.) IY. As the equitable estate created by the deed to her trustee was her separate property, her coverture does not prevent her laches from barring her recovery. (11 Paige, 475. 10 Mo. Rep. 757.) The disabilities are to be separately considered ; one cannot assist the other. (1 Shep. 397. 3 Brevard, 286. 11 Humph. 468.)
   Scott, Judge,

delivered the opinion of the court.

This was an action to set aside a deed, and to recover possession of two lots on Collins street, in the city of St. Louis, brought in May, 1851.' The respondents, who are the defendants, claim title to the premises in controversy, under a deed from Wm. P. Foster and his daughter, Virginia Wether ell, who afterwards intermarried with Wm. F. Thompson, one of the plaintiffs.

In July, 1829, Charles Collins and wife conveyed the premises in dispute to Wm. P. Foster, for the consideration of $700, in trust for bis daughter, Virginia Wetherell, who was then a minor, and to no other. This deed was subject to the following proviso, viz : “ That it shall and may he lawful to and for the said Wm. P. Poster, the trustee aforesaid, at anytime hereafter, upon the request of her, the said Virginia W. Wetherell, to release, assign and convey the whole or any part of the premises herein, described to such person or persons as she shall designate or appoint, and to such use or uses as she shall or may think fit or expedient. John W. Wetherell, the husband of Virginia Wetherell, died during the year 1831. On the 7th day of June, 1831, Wm. P. Poster and his daugh-. ter, Virginia Wetherell, who was still a minor, joined in a deed and conveyed the lots in dispute to Russell Hubbard, for $182 53, which lots, by subsequent conveyances, passed to the respondents. In the year 1834, Virginia Wetherell intermarried with Wm. P. Thompson, who, in conjunction with his wife, brings this suit, on the ground of her infancy when she executed the deed to Russell Hubbard.

On these facts, there was a judgment for the defendants.

Nothing is said in relation to the title derived from the execution on Neville’s judgment against John W. Wetherell, because there is no fact found, which shows that the consideration of the deed from Collins and wife to Poster, in trust for Virginia Wetherell, proceeded from her husband.

The defendants seek a support to the conveyance made by Virginia Wetherell during her infancy in the words of the proviso, which empowered the trustee, at any time thereafter, upon her request, to convey the premises. The dicta in some of the books, which maintain that an infant may make án appointment to uses of trust estates, where such authority is conferred by express terms in the deed creating the trust, do not seem to be supported by any decided case. The case of’ Hollingshead v. Hollingshead, in Gilbert’s Equity Reports, where an infant, having covenanted to settle his estate on marriage, according to a power vested in him, but having died before full age, the remainderman was compelled to perform the covenant, has been called an idle one and not law. (Bing. 81.) Sir Edward Sugden bas remarked, in reference to the opinion that an infant might exercise a power not simply collateral, giren by express words during infancy, that it would be a bold decision that an infant may have a power of disposition over an estate through the medium of the statute of uses. Before the statute, it is clear that an infant could not alien a use limited to him, that is, could not direct his trustees to convey the estate to a third person. In that respect, equity followed the law. Now the statute only operates on what were uses at the time it passed. A power not simply collateral is a beneficial right to direct the trustee to convey the estate to whom you shall appoint. This direction an infant cannot give by reason of his nonage. (Sugden on Powers, 216. Macpherson on Infancy, 302. 4 Kent, 324.) A beneficial power, being in the nature ■of property, which an infant cannot by law alienate, it would be strange that an incapacity which the law imposed should be evaded, by means of a power conferred by an individual. A right to bestow on infants property, with an absolute power of disposal, would enable third persons to destroy that control with which the law has wisely entrusted parents over their minor children. Minors would become adults, as there would be no danger of loss in contracting with them.

The statute of limitations is no bar to the plaintiff’s right of recovery. Although the disabilities enumerated in the statute are not cumulative, yet, as "Virginia Wetherell was under age when she executed the conveyance in 1831, her right of action accrued immediately thereon; consequently, she had twenty years from her majority, within which to bring her action, as a provision of the act of limitations of 1835, still in force, expressly declared that actions theretofore accruing should be governed by the statute in force at the time they accrued. The act of 1825 was in force in 1831, and allowed infants twenty years within which to bring their actions after their disabilities were removed.

As this judgment will be reversed and the cause remanded, with leave to amend the answer, we will state that, had it appeared from the facts in the case, that the defendants were purchasers for a valuable consideration, without notice, they would have been protected in their possession against the claim of the plaintiffs. Virginia Wetherell had nothing but an equity in the disputed premises, and if, by her conduct, she has been the means of that equity passing to a purchaser for a valuable consideration without notice, her infancy cannot avail her. We are here dealing with equitable rights. It is an inflexible rule of equity jurisprudence to grant no relief against a purchaser for a valuable consideration without notice. Virginia Weth-erell is seeking equity through the medium of a procedure in the nature of a bill in equity, and she must submit to the rules of equity courts. Could she sue at law, or in other words, was her title a legal one, her claim could not be resisted. Her incapacity to make the conveyance would be fatal to the defendants’ cause. There is a similar incapacity to dispose of her rights in equity; but having disposed of them, and adopting a proceeding in the nature of a bill in equity, she must submit to the rules of a court of equity. The modification of our rules of pleading, and the blending of law and equity, does not destroy the equitable rights of parties.

The same learned lawyer, whose authority has settled the first question which was made in this cause, says that a court of equity acts upon the conscience, and as it is impossible to attach any demand upon the conscience of a man, who has purchased, for a valuable consideration, bona fide and without notice of any claim on the estate, such a man is entitled to the peculiar favor and protection of a court of equity. Precedents are numerous and ancient where the court has refused to give any assistance against a purchaser, either to an heir or to a vendor, or to the fatherless, or to creditors, or even to one purchaser against another. (2 Sug. Ven. 295.) So he says, if a person, having a right to an estate, permit or encourage a purchaser to buy it of another, the purchaser shall hold it against the person who has the right, although covert or under age. (Id. 300.) The judgment will be reversed, and tbe cause remanded, with leave to tbe defendants to amend.

Judge Ryland concurring. Judge Gamble not sitting.


author: Gamble, Judge,

text:
    Barada, Appellant, vs. Blumenthal, Respondent.
    1. It is settled that no claim was confirmed by the act of J une 13, 1812, which had been previously abandoned.
    2. By abandonment of a lot is meant quitting possession, with the intention that it should no longer he the property of the possessor.
    3. Where there is evidence of abandonment, an instruction which leaves that question out of view, is properly refused. ’
    4. The fact that the claimant of a lot applied for and obtained in 1808, the benefit of an an act for the relief of insolvent debtors, and did not include the lot in his inventory, which was required to be sworn to as a full and perfect discovery of all his real and personal estate, together with the fact that he had previously removed the machinery of a mill which he had erected upon it, and the occupation of which had been his only possession or evidence of title, is evidence to go to a jury of an abandonment.

      Appeal from, St. Louis Court of Common Pleas.

    This was an action for tbe possession of a lot in Carondelet, claimed to have been inhabited, cultivated and possessed by Gregoire Sarpy, prior to December 20, 1803, and confirmed by tbe act of congress of June 13, 1812. The plaintiff claimed under a deed from the heirs of Gregoire Sarpy.
    Tbe defendant claimed under a confirmation by the act of congress of April 29, 1816, to the legal representatives of Joseph Boisvert, to whom the land was conceded on the 4th of July, 1774, by Pedro Piernas, the lieutenant governor of Upper Louisiana. The derivative title of the defendant, under this latter confirmation, was admitted.
    At the trial, there was oral evidence tending to show that, many years prior to 1803, Gregoire Sarpy erected a mill upon the lot in controversy, which was used for grinding corn and wheat; that Sarpy did not live in Carondelet, but the mill was run by bis agent; and that shortly after the change of government, the machinery of the mill was by him removed to St. Louis.
    The defendant read in evidence the proceedings on the application of Gregoire Sarpy for the benefit of the act of October 16th, 1807, concerning “insolvent debtors.” The application was dated January 11,1808, and accompanied with an inventory, to which was annexed an affidavit that it contained, to the best of the applicant’s knowledge, remembrance and belief, a full, just, true and perfect account and discovery of all his real and personal estate and effects. The lot in controversy was not mentioned in said inventory. The plaintiff objected to this evidence, but his objection was overruled.
    The plaintiff asked the following instruction, which was refused :
    “If the lot in controversy is a town or village lot, within the town or village of Carondelet, as the same existed prior to the 20th of December, 1808, and was inhabited, possessed or cultivated by Gregoire Sarpy, or his agent or tenant, prior to said 20th of December, 1803, such inhabitation, cultivation or possession vested in said Sarpy the lawful title to said lot in fee simple, by operation of the act of congress passed on the 13th day of June, 1812, entitled “An act making further provision for settling the claims to land in the territory of Missouri.”
    The court gave the following instruction, among others :
    “ If the jury believe from the evidence that, prior to December 20, 1803, Gregoire Sarpy inhabited, possessed or cultivated the lot in question, either by himself, his agent or tenant, and that the same was a town or village lot, and was within the town or village of Carondelet, as the same existed prior to December 20, 1803, then the title to the same was vested in said Sarpy by the act of June 13, 1812, unless prior to said June 13, the said Sarpy had abandoned the same, or disclaimed all right, title or claim thereto. By abandonment, is meant the quitting of the possession of the lot, with the intention that it should be no longer the property of the possessor.”

      Other instructions asked by the defendant were refused. There was a verdict and judgment for the defendant, from which the plaintiff appealed. The case was orally argued by Mr. E. Casselberry, for appellant, and by Mr. E. A. Dick, for respondent.
   Gamble, Judge,

delivered the opinion of the court.

As the plaintiff claimed title to the lot in question, upon the ground that it was confirmed to Grregoire Sarpy by the act of congress of June 18th,_ 1812, and conveyed by Sarpy’s heirs to him, it was properly made a matter of defence that Sarpy had, previous to the passage of that act, abandoned the property, and that he then had no subsisting claim thereto. (Lajoie v. Primm, 3 Mo. Rep. 368. Page v. Scheibel, 11 Mo. Rep. 183.)

As there was evidence of the fact of abandonment by Sarpy, the court correctly refused to give the instruction asked by the plaintiff, which asserted that the title of Sarpy was confirmed by the act of 1812, if he possessed the lot prior to 20th December, 1803, thus throwing out of consideration the question made in the defence, that Sarpy had abandoned all claim to the lot prior to the passage of the act of 1812.

The first instruction given by the court correctly placed before the jury the law applicable to the plaintiff’s case, and correctly defined abandonment, as that definition is given in the Partidas.

The fact that Sarpy, in 1808, applied for and obtained the benefit of the act for the relief of insolvent debtors, (1 Terr. Laws, 181,) and that, in his inventory, he did not include this property, coupled with the fact that he had previously removed from it the machinery of the mill which he had erected upon it, and the occupation of which was his only possession of the lot, was evidence of abandonment, entitled to great weight.

The obligation upon a debtor applying for the benefit of the insolvent law to include in his inventory all his property of every description, when he is required to swear to its being a full, true, just and perfect account and discovery of all tbe estate and effects in any wise belonging to him, is as strong as it can be made. Although the title to a lot not mentioned in the inventory was not conveyed to the sheriff by the deed which the act required to be executed, and was not divested by the act itself, still, when a jury is considering the question whether the insolvent debtor had, at the time, a subsisting claim to a lot which is not mentioned in his inventory, its omission is strong evidence that he did not claim it. Sarpy had no paper title; he had had possession before the change of government, by erecting and running a mill upon the lot; he quit the occupancy of the lot, and removed the machinery of his mill to St. Louis ; afterwards, he made his inventory as an insolvent, and did not mention the lot as his property; the proceeding under the insolvent act was in 1808 ; the question in the case was, whether he had a subsisting claim to the lot in 1812, which was confirmed by the act of 18th June. The instructions were not stronger than the evidence justified. The judgment is, with the concurrence of the other judges, affirmed.


text:
    The State, at the relation of the Justices of Washington County Court, Appellant, vs. Prewett et al., Respondents.
    1. A court will not interfere to establish the validity of a charity in a will, depending upon a contingency which has not arisen and may never arise.

      Appeal from Washington Circuit Court.

    In 1851, Gabriel Prewett died, leaving a last will, by which he devised all his land to his wife for her life, and after her death, to her children, if she should have any. If she should die without children, then he desired all his land to be “ sold to the best advantage, and appropriated to the use of education of orphan children.” He specified as one of the tracts belonging to him eighty acres entered in the name of his wife.

      The present petition was filed in the Circuit Court in the name of the state of Missouri, at the relation of the justices of the county court, against the widow, son and administrator of Gabriel Prewett, setting forth that it was the duty of the relators to watch over the welfare of orphan children within their county, and praying the court to establish the devise for the benefit of such children as a charity. The petition further set forth that the widow was claiming the eighty acres entered in her name, as her own; and that she was “ a very young and healthy woman,” and might " live half a centuryfor which reason the relator prayed the court to hear the proof while it could be obtained, and declare that the said tract belonged to Gabriel Prewett’s estate. The petition contained other prayers which it is not necessary to state. A demurrer to this petition being sustained below, the relators appealed to this court.

      J. fV. JVbell, for appellant.

      M. Frissell, for respondent.
   Scott, Judge,

delivered the opinion of the court.

As the will of Gabriel Prewett only directed his land to be sold for the education of orphan children, in the event of his wife dying without children, and as his wife is now living, no ground can'be perqeived on which this petition can be sustained. The contingency has not yet arisen, and never may arise, on the happening cjf which a right to the charity will accrue. The wife is represented as a very young and healthy woman, and as one that may yet live for half a century.

The other judges concurring, the judgment will be affirmed.


author: Gamble, Judge, Scott, Judge, dissenting.

text:
    Smith, Appellant, vs. Smith, Respondent.
    1. The provision in the'act regulating practice in chancery, (R. C. 1845,) that a decree rendered against a party who has not been summoned and has not appeared, may he set aside within a time limited, applies to a decree for a divorce. (Scott, J., dissenting.)

      Appeal from, St. Louis Circuit Court.

    The case is sufficiently stated in tbe opinion of the court. It was argued by Mr. E. Casselberry, for appellant, and Mr. Barton Bates, for respondent.
   Gamble, Judge,

delivered the opinion of the court.

In a proceeding commenced in March, 1849, Smith, the husband, obtained a decree against his wife, divorcing her from the bonds of matrimony, without service of process upon his wife, and without her appearance in the cause. In this petition, she is alleged to be a non-resident, and publication was made against her as such. This, as a proceeding instituted before the present code of practice went into effect, was a proceeding in •chancery. The act concerning divorces provides: “That the Circuit Court, sitting as a court of chancery, shall have jurisdiction in all cases of divorce and alimony or maintenance, and the like process and proceedings shall be had in said causes as are had in other causes on the equity side of the court.” (R. C. 1845, p. 426.) The act regulating practice in chancery, (art. 6, secs. 1, 2, 3 and 4, R. C. 1845, p. 851,) provides that, when a decree has been rendered in a chancery cause against a defendant who has not been summoned and has not appeared, such final decree may be set aside, if the defendant shall appear, and by bill of review, verified by affidavit, show cause for setting it aside as against equity. The time for filing such a bill of review is limited to one year after the service of notice of the decree upon the defendant, or to five years after the date of the decree, where notice is not given. The bill of review is required either to show that there is no equity in the original bill, or to contain such denials or allegations as amount to a defence upon the merits. When such bill, is filed within the time, and containing the requisite denials or allegations, the decree is set aside, the defendant in the original cause answers the original bill, and the case proceeds as other cases.

The wife, in the present case, filed her bill within the time limited by the statute, denying all the material allegations in her husband’s original bill, and Paying that the decree rendered against her be set aside and that she be permitted to answer. The Circuit Court set aside the decree, and gave the leave to answer. The answer was filed, showing, on her part, ground for divorce and praying for a divorce. The husband refused to proceed with the cause. The court heard the cause, dismissed the bill of the husband, and decreed a divorce in favor of the wife, with alimony. From this decree he has appealed.

1. As nothing appears before this court by any exception taken to any proceeding, we act only upon the questions arising upon the record proper. The statute which governs the case is clearly that which applies in all chancery cases under the code of 1845, and the review is to be applied for within the time and in the manner in that act provided. The section which requires the petition or bill of review to show that there is no equity in the original bill, or to contain'such denials or allegations as amount to a defence upon the merits, substantially prescribes the statements of the bill upon which the de« cree is to be set aside, and the defendant in the original cause permitted to answer. We have no accasion to examine the nature and objects of, and the modes of proceeding upon a bill of review in the general chancery practice. The statute 'allows a decree to be obtained against a defendant who has never been summoned, and has never appeared in the suit, and then provides a mode in which such defendant may be admitted to defend himself against the suit, even after a decree is rendered. It appears in the record that the husband, after obtaining the decree of divorce, was married to another woman, and this is urged as a reason against setting aside the decree. It is not perceived how the wrong done to the second wife should be any reason for denying the first an opportunity of vindicating herself against the charges of adultery and drunkenness charged in the original bill. Nor do we feel at liberty to indulge feelings, or carry out any views of policy, against what we regard as the obvious meaning of the statute. We have nothing now to say about the effect of the proceeding in this case upon the second marriage or its issue, if there be any, because such matters have no connection with the questions before us.

We cannot consider the question, whether the wife made a proper affidavit to her answer to authorize a decree of divorce in her favor, because there was no exception to it taken in the court below.

There are no other questions in the case of any The decree is affirmed,

with the concurrence of Judge Ryland.

Scott, Judge, dissenting.

In my opinion, the the law regulating chancery practice in relationlto v, . ^ view, (R. C. 1845, p. 851,) do not apply to pr^eleSi^^i&^. stituted to obtain a divorce from the bonds of matrm

In the first place, if the courts in which such proceedings" are begun will execute the law as it is writteu, a case for a review can scarcely arise. The 8th sectiou of the act concerning divorce and alimony prescribes that, in all cases where the proceedings shall be ex parte, the court shall, before it grants such divorce, require proof of the good conduct of the petitioner, and be satisfied that he or she is an innocent and injured party.

In the same section, itis enacted: “ nor shall the guilty party be allowed to marry again by reason of such divorce, unless otherwise expressed in the decree of the court.” This provision impliedly gives the innocent party a right to marry immediately, and such has been the universal understanding of the community.

As the law-making power 'had the subjects of the parties marrying again and ex parte proceedings in its mind, at the same time, and prescribed a period within which the guilty party should not marry, had it been contemplated that the innocent party in ex parte proceedings, could not, with safety, marry again immediately, it would have been so declared.

Now, shall the law give to a man the privilege of marrying, and, after it has been exercised, withdraw it, and thereby make an innocent woman a concubine, and her children illegitimate ? A purchaser for a valuable consideration, without notice, is protected by our law, and shall an innocent woman, in a. matter that is dearer to her than life itself, be in a worse condition than a mere purchaser of property? How could the law ever justify itself to the children of such a marriage ? It is bad enough when, through the frauds, falsehood and imposition of a parent, children are made to hang their heads in shame ; but shall the law itself be made the instrument of so great an outrage ?

Considerations of policy unite with the dictates of justice in forbidding any interference with the parties after a divorce has once been granted. The first marriage, in all such cases, without regard to the divorce, has ceased for all the purposes for which it was contracted. Its sorrows and disappointments have come and are without remedy. The breaking up of the second marriage may be revenge, but it is no reparation for the evils that have been already done. It is only a multiplication of the distresses and misfortunes of innocent women and children.

I consider the provision that the court should be satisfied that the petitioner should be an innocent and injured party, as taking this from the operation of ordinary chancery cases. The woman marries the man on the faith of the decree, which assures her that he is an innocent and injured party. The law in the English cases on this subject, in which divorces a mensa et thoro are. considered, is not applicable. In England, no marriage can be dissolved by the courts, for any cause arising after the celebration of the nuptials.


author: Ryland, Judge,

text:
    Cunningham, Appellant, vs. Gray, Respondent.
    1. The act of March 5, 1849, exempting certain property of wives from the debts of their husbands, only applies where the debts are contracted after the passage of the act and before the wife comes into possession of the property.

      Jlppeal from St. Louis Court of Common Pleas.

    This was an action brought by Cunningham to obtain the legal title and the possession of a lot of ground in the city of St. Louis, which he claimed under a sheriff’s deed, by purchase at a sale under an execution against William T. Gray, upon a judgment rendered February 6, 1850. The record did not show at what time the debt accrued, upon which this judgment was founded. The lot was, by William G. Wright and wife, conveyed to Joseph B. Holland, by deed dated January 8th, 1851, in trust for the sole use of the wife of Gray. The plaintiff, claiming that the lot was purchased with the money of Gray, and that the title was made to his wife’s trustee to defraud his creditors, brings this suit, making Gray and wife and her trustee, defendants.
    At the trial, it was in evidence that the father of Mrs. Gray died in 1838, and by his last will devised to her a female slave, which was in the possession of Gray and wife as early as 1840. It was also in evidence that the mother of Mrs. Gray, about the year 1840, gave her, in money, the sum of $800, and at a later period, $100, and also that, before her death, which took place in January, 1849, she bought a slave for Mrs. Gray. There was evidence tending to show that the lot in controversy was purchased with money arising from the sale of these two slaves, after they had come into the possession of Gray. The court below gave several instructions, the third of which, upon which the case is made to turn, is set out in the opinion of Judge Ryland. There being a verdict and judgment for the defendants below, the plaintiff appealed to this court.

      T. B. Hudson, for appellant.

      Krum & Harding, for respondent.
   Ryland, Judge,

delivered the opinion of the court.

The questions in this case arise upon the instructions given by the court below. These instructions involve the construetion of a statute of our state, passed by the legislature, and’ approved 5th March, 1849, which took effect from its passage. It is entitled “An act to amend an act entitled ‘An act to regulate executions.’ ” The provisions of this act, so far as it is necessary to notice them in this case, are as follows :

§1. “ In addition to the property now exempt from levy and sale under execution, by the tenth, eleventh and twelfth sections of the act of which this is amendatory, the property owned by a woman before her marriage, and that which she may acquire after her marriage, by descent, gift, grant, devise or otherwise, and the use and profits thereof shall be exempt from all debts and liabilities of her husband contracted, or incurred by him previous to their marriage, or previous to the time the wife came into the possession of such property.”

1. This statute cannot have any operation upon debts contracted before its passage. It must operate from its date prospectively. Debts contracted before its passage, and property liable to be sold for these debts before its passage, remain unaffected by it. The constitution of the state prohibits the legislature from passing any “ law impairing the obligation of contracts or retrospective in its operation.” (State Const., art. 13, sec. 17.) It may be then safely assorted that this act of the legislature does not operate, and was not designed to operate upon debts contracted before its passage.

From the record in this case, it cannot be ascertained when the debt on which the judgment of the Court of Common Pleas of St. Louis county was rendered in February, 1850, became due. This judgment is alleged to have been rendered on the 6th of February, 1850. Take this date, then, as the time the indebtedness of the defendant accrued, and it will be after the passage of the act, for the act was passed in March, 1849 ; and from the evidence preserved in the record, it will also be after the property had come into the possession of the wife. ■ Now the act exempts the wife’s property from debts and liabilities of her husband, contracted or incurred by him previous to their marriage, ov previous to the time the wife came into the possession of such property. If the date of the judgment then be taken as the day of the accruing of the indebtedness, all the evidence on the record shows that the property and money of Mrs. Gray were received by her before .that date; and, consequently, the husband’s indebtedness was not before, but after the reception by the wife of the money and property. If this be so, such money and property so received are not exempt from such a debt, under the terms of this statute. If we go behind the date of the judgment, and take a previous day as the time of the indebtedness, then we may go to a day before the act was passed, and, consequently, the debt becomes unaffected by it.

In either view, then, the third instruction, given by the court in this case, is erroneous. This instruction is as follows : “If the said property and money were so acquired by Mrs. Gray after said debt accrued, and were used by her for the purchase of the lot in question, then he did not furnish the money, and the plaintiff cannot recover.” Nowit may be that the money and property were acquired by Mrs. Gray after the debt accrued, and yet be acquired before the passage of the act under which she claims exemption.

The legislature intended that after 5th March, 1849, the property which a woman owned before her marriage, as well as that which she might acquire after her marriage, by descent, gift, grant, devise or otherwise, should be exempt from all debts of the husband, contracted or incurred previous to the marriage, or previous to the time the wife came into the possession of such property. The creditors of the husband, under such contracts, could not be presumed to have become such by means of any such property. It was not in his possession before his marriage; it was not in his possession when he contracted debts after his marriage, but before his wife acquired the property, as mentioned in the statute. Such property and money then, coming to the wife in the manner pointed out in this statute, could not be considered a fund in the husband’s bands, by which be might obtain credit. He was not considered as possessing the means, by such property, of extending and enlarging his power or means of becoming indebted. Creditors did not trust him with an eye to such property.

The judgment below must be reversed, and the cause remanded, to be further proceeded with, in accordance with the views set forth in this opinion.

I have not thought it necessary to notice each particular instruction, supposing that many of them will not be required in the further trial of this case. The other judges concurring, the judgment below is reversed,- and the cause remanded.


author: RylaND, Judge,

text:
    Duhring vs. Duhring. (Cross Appeal.)
    1. The widow of a partner of an insolvent firm is not entitled to dower in real estate bought by the firm as partnership property, and afterwards conveyed ,in payment of a partnership debt.

      Appeal from St. Louis Circuit Court.

    " This was a petition by the widow of Andrew Duhring, for dower in a lot on Main street, in the city of St. Louis, in the possession of Henry Duhring.
    Barrett Williams and Andrew Duhring were partners in business in St. Louis, from 1834 to 1839. The lot in question was, by Joseph Bouju and wife, on the 30th of July, 1836, conveyed .to said Williams & Duhring, in consideration of $522,500, $5000 of which was paid in cash out of the funds of "the firm, and for the balance, eight equal notes of the firm, secured by a mortgage, were given, payable annually. The grantees in the deed from Bouju were described as “Barrett Williams and Andrew Duhring, composing the firm of Williams .& Duhring.” The habendum clause in the deed was as follows : “ To have and to .hold, &c., unto them, the said Barrett Williams arid Andrew 'Duhring, and to their heirs and assigns forever.” The firm bad occupied a store on tbe southern half ■of the lot before the purchase, and continued to occupy the same store afterwards. A store upon the northern half they rented out. The purchase was entered upon the books of the firm as a partnership transaction. The lot was entered in the “ property account,” the money paid in the “ cash account,” and the notes given, under the head of “ bills payable.” On the 10th of May, 1839,"before any of the notes secured by the mortgage had been paid, Barrett Williams, Andrew Duhring and his wife, the plaintiff, joined in a deed conveying the lot to the defendant. The firm of Williams & Duhring was indebted to the defendant about $7000, and the lot was taken by him in. payment, he assuming the payment of the notes secured by the-mortgage, all of which were afterwards paid by him. The firm was actually insolvent at the time of this conveyance, and in. November following, failed and made an assignment. All their' debts have never yet been paid. At the time of the conveyance to Henry Duhring, the plaintiff was under twenty-one years of age, for which reason, she now seeks to avoid the conveyance and obtain her dower in the lot. The - defendant set up in his answer, that the plaintiff was not entitled to any dower in the lot, because it was bought, held and used by the firm of Williams & Duhring, as partnership property ; and that, even if she was entitled to dower at all, it was not until she- had paid her proportion of the mortgage debt paid by him to Bouju. The cause was tried by the court without a jury. Barrett Williams testified that the purchase of' the lot by the firm of Williams & Duhring was a partnership transaction, and that entries were made upon the books as above stated. On cross-examination, he stated that the lot was bought “as an investment, to keep, until the firm closed business.” The court, after finding the-facts as above stated in regard to the deed from Bouju, the-mortgage, the deed to the defendant, the occupation of the lot,, and the entries upon the books of Williams & Duhring, found, that the purchase by said firm “was regarded, at-the time of' making the same, as a mere investment, with a view and intention of ultimately keeping the same.” Upon these facts, the court declared that the plaintiff was entitled to her dower in the undivided one half of the lot, subject, however, to the payment of one-sixth of the debt secured by the mortgage to Bouju, and ordered a reference to ascertain the amount of principal and interest due defendant on the mortgage, after deducting the nett rents and profits received, or which might, with reasonable diligence, have been received by him from the lot, not charging him with the increased rents arising from any permanent improvements erected by him, and making him reasonable allowances for money paid for taxes and repairs, &c. If the plaintiff should, within six months from the confirmation of •the commissioner’s report, pay one-sixth of the amount thus ascertained to be due the defendant, then her dower was to be set apart to her: if not, her dower was to be barred. From this judgment, both parties appealed. The cause was argued in this court by Mr. Casselberry, for the widow, and Mr. Shep-ley, for the defendant.
    Mr. Casselberry made the following points:
    1. The widow is entitled to dower, even where the partners purchase real estate with joint funds for partnership purposes. (2 Edwards’ Ch. Rep. 28. Thornton v. Dixon, 3 Brown’s Ch. Rep. 199. Belly. Phyn, 7 Vesey 453. Balmain v. Shore, 9 Vesey, 500. Coles v.' Coles, 15 Johns. Rep. 159. 7 Serg. &Rawle, .488, Titus v. JVeilson, 5 Johns. Ch. Rep. 452. Park on Dower, 106, 9 Law'Lib.) 2. There is nothing in this case to •show that the property was purchased for partnership purposes. On the contrary, one half of the lot.was rented out and never used by the firm ; and the whole lot was bought “ as an investment, to keep.” 3. The lot was held by Williams & Duhring ■.as tenants in common and not as joint tenants, by virtue of the act of 1885. 4. The court erred in requiring the widow to pay off a part of the mortgage before- obtaining her dower. The •mortgage of which defendant assumed the payment is to be regarded as a part of the price paid by him to Williams •% Duh-rring for their interest in the lot. The judgment below in effect makes the widow pay a part of the defendant’s debt, and gives him the land for less than he contracted to pay.
    Mr. Sh'epléy made the: following points, among others :
    1. That portion -of the finding' which state’s' that the lot was purchased “ as á mere investment, with the view and intention of-ultimately keeping' the same,” is not warranted by the evidence. 2. The lot, from the time of its purchase from Bouju, was partnership property. (Lancaster Bank v. Myley, 18 Penn. State‘Rep. 544. Iioxie v. Carr, 1 Sumner, 178. Dyer v. Clark,-5 Metcalf, 579; 581. Boyers v. Elliott, 7 Humph. 204. Pugh v. Currie, 5 Ala. 446. Pierce v. Trigg,. 10 Leigh, 406. Edgar v. JDonnely, 2 Mun. 387. Smith v. Bamsay, 1 Gil. 873. Walker’s Oh. Rep. 200. Sigourny v. Munn, 7 Conn. 11. 3 Howard (Miss.) 372. ’ 5 Ala. Rep. 446. 1 Dev. & Batt. 510. Parsons on Contracts, p. 125. 3 Kent’s-Comm. (6th ed.) 37, andnete at p. 39.) 3. Partnership real estate is to • be treated as personal property, unless upon a dissolution of the firm and payment of all its debts, it is no longer needed for the purposes of the partnership. (5 Yesey, 189;- 7 Yesey, 425. 1 Russ. &-Mylne, 45. 1-Mylne & Keen, 649. 3 id. 443. 11 Simons, 491, quoted in 11 Barb; S. C. Rep. 72. Buchan v. Sumner, 2 Barb.- Ch. Rep. 165.-5 Metcalf, 562. 4 id. 54. 10’Leigh, 406. 1 Dev. & Batt.-Ch. 510. Pugh v. Currie, 5 Ala. 446.) 4. 'The wife is not dowable in partnership real estate needed for partnership purposes. (Parsons on Contracts, 128. 5"Grill, 26. Greene v. Greene, 1 Ham. 244. Richardsons. Wyatt, 2 Dess. 471. Woodbridge v. Wilkins, 3 Howard, (Miss.) 371. 4 Metcalf, 541. 5 id. 562, 582. 10 Leigh, 406.) The only case to the contrary is Smith v. Jackson, (2 Ed: Oh. Rep. 28,) and the only authority cited to sustain-it is 5 Vesey,. 189, which has long since been overruled in England-. %Cíh¿tn'- ¡"1 / ' (X £P-A ;
   RylaND, Judge,

delivered the opinion of the court.

1. It' will not be necessary, in our opinion, to consider all the-points and questions raised by the parties on this record. Both parties complain of the judgment of the court below, and both bring the case here. The plaintiff alleges that the court erred in regard to the mortgage, and insists that she is entitled to dower in one undivided half of said premises, independent of the mortgage, and that she should not be required to redeem the-same. She alleges that the right to set up said mortgage is barred by the statute of limitations, and that the defendant has no right to be substituted in the place of Bouju.

The defendant insists that plaintiff has not, and never had any right to dower in the lot, because it was purchased by the firm of Williams & Duhring as partnership property; was used as such; paid for, in part, by the cash of the firm, and the notes of the firm given for the balance of the consideration. There can be little doubt that the purchase was made by the firm of Williams & Duhring. They were partners, doing business as merchants in St. Louis, in 1834, and were so engaged in 1836, when they bought the lot of Bouju. The deed from Bouju to them shows the purchase by the firm. The witness, Williams, says it was a purchase by the partnership ; says, “ the purchase took the shape of a partnership transaction on the books of .said firm. There was a property account, and this lot was entered into that account. The cash paid was entered into the cash account, and the notes' given for the purchase, were entered into the books under the head of bills payable.” There were two stores on the lot; one was rented out by the firm, the other was occupied by it. He says “the lot was bought as an investment, to keep until we closed business.”

The partners, Williams & Duhring, executed a mortgage, which was also signed and executed by the plaintiff, the wife of Duhring, to Bouju, to secure the payment of the balance of -the purchase money, being seventeen thousand five hundred ■dollars. The plaintiff was a minor when this mortgage was executed by her.

The firm of Williams & Duhring being largely indebted to Henry Duhring, the defendant, sold him the lot in 1839, and made a deed to him, which was also signed by the plaintiff and acknowledged by her. The. consideration was the sum of $24,500 — $7000 of which was then due and owing to Henry Duhring, by the firm; and he agreed to pay off the debt due ■under the mortgage to Bouju. The firm never paid any more of the original purchase money to Bouju than the first payment of $5000. The balance was paid by Henry Duhring. The plaintiff was a minor when she executed, with the partners, Williams & Duhring, the deed in 1839, to Henry Duhring.

The firm of Williams & Duhring became insolvent, wholly unable to pay the debts of the firm. Some of these debts still remain due and unpaid. The firm was insolvent when the deed ■ was made to Henry Duhring in 1839.

Now is the widow entitled to dower in real estate bought by the firm, paid for with the funds of the firm, and bought for the use of the firm ? If she is not, it will be useless to consider any other question in this case. I lay out of consideration the fact that there were two store houses on the lot, one of which was rented out by the firm ; and the remark of the witness, that the lot was bought as an investment, to keep until the close of the concern. These, taken together, cannot warrant the court in saying it was not partnership property — was not bought for the use of the firm. It was purchased for the stand or store of the firm ; and renting out a part of the real estate, not necessary for the immediate occupation of the firm, did not and cannot change the nature or design of the purchase. I will remark further, before I proceed to consider this question, that the court below was not warranted in finding “ that the purchase was regarded by the parties, at the time of making the same, as a mere investment, with the view and intention of ultimately keeping the same.” There is nothing preserved in the record to warrant this finding. It would be a strange conclusion that, if a mercantile firm should buy a lot for the purpose of carrying on their business as merchants in a city, some thirty or fifty feet front, running a hundred and fifty feet back, and there should happen to be a store house on the front of the lot and an ice bouse in tbe rear, and tbe merchants should rent out tbe icé bouse, that their renting out the ice' bouse should render half tbe lot purchased no longer partnership property.

. Tbe main question, however, must now be considered. Is the widow dowable in real estate belonging to the firm', which' was purchased by the partners for partnership purposes, with partnership funds’? There is no question here between heirs,' personal representatives and widow. The debts of the firm would have swallowed up the partnership 'property here, and still demanded more.

I answer that the widow, in this case, is not entitled to dower. The real estate purchased by the partners must be considered, so far as is necessary to pay the debts of the firm, partnership stock, and liable to the rules and regulations incident to personal property.

It was held in Thornton v. Dixon, 3 Brown’s Ch. Rep. 199, that real estate, used for purposes of a partnership trade, shall go to the heir, and' not to the executor. This case and some others, more modern, (this casé was decided' in 1791,) (see Bell v. Phyn, 7 Vesey, 453. Balmain v. Shore, 9 Vesey, 500,) militate against the' rule above laid down, that such estate becomes partnership stock. But the authority of these decisions has been much questioned.

The general principle now declared in the English law is, that real estate, acquired for the purpose of a trading concern, is to be considered as partnership property, and to be first applied-in satisfaction of the demands of the partnership. In Fereday v. Wightwick, 1 Russell & Mylne, 45, the Master of the Rolls, Sir John Leach,' said: “The general principle is, that all property acquired for the purpose of a trading concern, whether it be of a real or personal nature, is to be considered as partnership property, and is to be first applied accordingly in satisfaction of the demands of the partnership. It is true, á mining concern differs, in some particulars, from a common partnership ; the shares are assignable, and the death or bankruptcy of the bolder of shares does ñot opérate as a dissolution ; but it has been repeatedly held to' be in the nature of a trading cone'ern." In Phillips v. Phillips, 1 Mylne & Keen, 649, it was held that real estate, purchased with partnership capital, for the purposes of the joint trade, is' personal estate, and in respect of the share of a deceased partner, retains that character, as between his real and personal representatives. The Master of the Rolls said in this' caso, “that, with respect to the question, whether freehold and copyhold property, pur-’ chased with the partnership capital, and conveyed to the two partners and their heirs, for the purposes of the partnership trade, is to be considered as personal estate only, for the payment of the partnership debts, or is generally to be considered' to the extent of a moiety, as personal estate of a deceased partner. I confess I have, for some years, notwithstanding older authorities, considered it to be settled that all property, whatever might be its nature, purchased with partnership capital for the purposes of partnership trade, continued to be partnership capital, and to have, to every intent, the quality of personal estate. In the case of Fereday v. Wightwick, 1 Russ. & Myl. 45, I had no intention to confine the principle to the payment of the partnership demands. Lord Eldon has certainly, upon several occasions, expressed such an opinion, and general convenience requires that this principle should be adhered to.” This case was decided in 1832, It was held in Broom v. Broom, 3 Mylne & Keen, 443, decided in 1834, that real estate, purchased with partnership' capital,' and applied to the purposes' of the trade, was, in a court of equity, to be considered as personalty, and that, therefore, the infant heir of a deceased partner, upon whom the estate had descended, was a trustee for the widow and administratrix of the deceased partner. Professor Parsons, in his treatise on contracts, (chap. 12, sec. 2,) says: “All kinds of property may be held in partnership ; but real estate is still subject, to a certain extent, to the rules which govern that kind of property. There is some' conflict and perhaps uncertainty as to the rights and remedies o£ partners and creditors in respect to real property which belongs to the partnership, both in England and in this country. But we consider the prevailing and just rule to be, that when real estate is purchased with partnership funds, for partnership purposes, it will be treated as partnership property, and held like personal property, chargeable with the debts of the firm, and with any balance which may be due from one partner to another, upon the winding up of the affairs of the firm. But it seems to be the prevailing rule in this country that, as between the personal representative and the heirs of a deceased partner, his share of the surplus of the real estate of the partnership, after all its debts are paid, and the equitable claims of its members are adjusted, will be considered and treated as real estate.” He continues : “It has been held that the real estate of a partnership does not acquire the incidents or liabilities of personal estate, unless there be an agreement of the partners to that effect, and that then this change in the legal nature of the property results from this agreement; but we doubt the accuracy of this ruling.” Eor this last doctrine, making an agreement necessary to change the nature of the partnership real property to personal, the author cites Coles v. Coles, 15 John. Rep. 159 ; the case from Brown’s Ch. Rep. of Thompson v. Dixon; Bell v. Phyn; Balmain v. Shore, above cited by me in this opinion, and the case of Smith v. Jackson, 2 Edwards Ch. Rep. 28. This last ease is the principal authority on which the plaintiff relies. But, with Professor Parsons, I greatly doubt the accuracy of the ruling in that case. Parsons says, “the widow has her dower in the estate after the debts are paid, but not until then.” See p. 128, Treatise on Contracts.

In Hoxie s. Carr, 1 Sumner, 183, Justice Story said : “A question often arises whether real estate, purchased for a partnership, is to be deemed, for all purposes, personal estate, like other effects. That it is so as to the payment of the partnership debts, and the adjustment of partnership rights, and winding up the partnership concerns, is clear, at least in view of a court of equity.” Again, in the same case, be said: “ The question here is not whether real estate, when it is partnership property, becomes, to all intents and purposes, in cases of intestacy and wills, personalty ; but whether it is to be so treated in equity, as between the partners themselves and the creditors of the partnership. It seems to be the established doctrine of courts of equity, that it is to be treated as personalty, as between the partners and their creditors, in whose name soever it may stand on the face of the conveyance.” The Court of Appeals of Maryland, in the case of Goodburn and wife v. Stevens et al., 5 Gill’s Rep. 28, says : “ The doctrine that real estate, purchased with partnership funds, for its use and on its account, is to be regarded in a court of equity as the personal estate of the partnership, for all the purposes thereof, stands upon a familiar and just principle. It is the clear case of an implied or constructive trust, resulting from the relation which partners bear to each other, and from the fact that the estate was brought into the firm, or purchased with the funds of the partnership, for the convenience and accommodation of the trade. For this reason, in whose name soever the legal title may reside, the estate is held, in the eye of a court of equity, for the use of the partners as the cestui que trust, and if a partner dies, the legal estate, of which he was Seized as a tenant in common, passes to his heirs or devisees, clothed with a similar trust in favor of surviving partners, until the purposes for which it was acquired have been accomplished.”

Chanceller Kent, (3 Com. 37,) says : “If partnership capital be invested in land for the benefit of' the company, though it may be a joint tenancy at law, yet equity will hold it to be a tenancy in common, and as forming a part of the partnership fund ; and the better opinion would seem to be, that equity will consider the person in whom the legal estate is vested, as trustee for the whole concern, and the property will be entitled to be distributed as personal estate. In the case of Sigourney v. Munn, (7 Conn. Rep. 11,) the English and American authorities were fully examined, and the subject discussed, and the doctrine declared, that real estate purchased'with partnership funds, for partnership purposes, would be regarded in equity as partnership stock, and liable to all the'incidents of partnership property. It was' also declared that it might, by agreement of the parties, be regarded as personal stuck. Chancellor Kent, in á note on page 88 of the third' volume of his Commentaries'on this'subject, quotes the remark of Chief Justice Shaw, in Burnside v. Merrick, 4 Metcalf, 541, that the prevailing judicial opinion now is, that real estate, purchased by partners, with partnership funds, for partnership purposes, though at law it may be held by them as tenants in common, yet, in equity, it is considered as held in trust as part of the partnership property, applicable, in the first place, exclusively to pay the partnership debts.” After citing Dyer v. Clark, and Howard v. Priester, (5 Met. 562, 582,) and Divine v. Mitchum, (4 Ben. Monroe, 488,) he says : “ The prevalence' and correctness of this doctrine appear to be incontestable.” The Vice Chancellor in New York, in Smith v. Jackson, (2 Edwards' Rep. 28,) already cited in this opinion, after reviewing all the conflicting cases on the point, follows the Supreme Court of New York, and holds that, though real estate be purchased with joint funds, for partnership purposes, there is" no survivorship as to the real estate, and the share of a deceased-partner, as a tenant in common, descends to his heirs, unless there be an agreement among the partners that the lands so purchased shall be considered' as personal property; and that then, upon the foot of that agreement, and not without it, equity would apply the lands to pay partnership debts. Nay, he gives the wife her dower in the partnership share of the husband so descended. “ The decisions maintaining this doctrine appear to me,” says the author, “to be a sacrifice' of a principle of policy, and, above all, of a principle of justice, to a technical rule of doubtful authority. There is no need of any other agreement, than what' the law will necessarily imply' from the fact of ah' investment of partnership' funds by the firm in real estate for partnership purposes. If the partners mean to deal honestly, they cannot have any other intention than, the appropriation of the investment, if wanted, to pay the partnership debts.”

In Richardson v. Wyatt, (2 Dessaus. 471,) the widow of a deceased partner, in South Carolina, was denied her dower in lands purchased with partnership funds and held in the names of all the partners. In Pierce, v. Trigg, (10 Leigh, 406,) Judge Tucker, in pronouncing the opinion of the court, laid down the doctrine, that lands purchased by partners, with partnership funds, for partnership purposes, and used as a part of the stock in trade, are to be regarded in equity as partnership property, and though, if the conveyance has been made to both partners, there will, upon the death of one, pass to his heirs a legal title, yet the whole beneficial interest devolves upon the survivor, and he may sue the heirs, compela sale, and dispose of the proceeds as he would' of the personal estate of the firm. I know that there have been some decisions to the contrary, which gave the wife dower to land, but from a very general and careful review of the various decisions, from that of Thornton v. Dixon, down to the present time, I come to the conclusion, that the policy of the law and principles of justice are against the right of the wife to dower in such lands, where they are necessary to pay the demands of the firm, and the weight of authority, both English and American, is decidedly against such right.

I could have contented myself with reference to the views of this court, lately expressed in the case cf. Carlisle’s Adm’r v. Mulhern & Keyser, (19 Mo. Rep. 56.) The principles of that decision mainly settle this case.

The court below having declared the plaintiff, as widow of Andrew Duhring, entitled to dower in one half of the lot, upon certain terms, its decision upon the facts found is erroneous, and its judgment is reversed, with the concurrence of the other judges.


text:
    Williams, Plaintiff in Error, vs. Dongan, Defendant in Error.
    1. D. bought a claim to a tract of land in 1820, and soon afterwards took possession of it, built a dwelling, lived upon and cultivated it for eight or ten years, and then removed to Illinois. Afterwards, he paid all the taxes upon the land, had tenants on it part of the time, and when not tenanted, had an agent in the neighborhood to rent it out for him and protect it from trespassers. Held, this was such an adverse possession as, after the lapse of twenty years, was protected by the statute of limitations.
    2. There is no tacking of disabilities under our statute of limitations.

      Error to St. Louis Court of Common Pleas.

    Action commenced in June, 1851, for tbe possession of 160 arpens of land on the river Des Peres in St. Louis county, being part of a tract of 1600 arpens granted by Zenon Trudeau in 1797, to TherSse Barrois and Erancoise Brazeau, and confirmed by the act of congress of April 29, 1816. On the 2d of April, 1811, the said Therése and Erancoise made a division of the tract, and executed to each other deeds for their respective halves. The western 800 arpens, including the land in controversy, were conveyed to Francoise. On the 4th of April, 1811, Francoise conveyed 266| arpens, including the land in dispute, to her daughter, Genevieve Duchouquette. Genevieve was lawfully married to Pierre Duchouquette in 1797, and they lived together as man and wife until December 24,1803, at which time they separated, and never afterwards lived together. At the time of the separation, they executed written articles, dissolving the marriage (so far as their agreement could dissolve it,) dividing the property owned by them in community, renouncing mutually all rights and powers flowing from their marriage contract, (so far as they could by agreement do so,) and granting to each other the free and absolute disposition and control of their property and conduct, as if they never had been married. Genevieve died November 13, 1822, leaving one daughter, Marie Sophie, who was born Feb-rúary 26,1807, and married to James Gonsollis, January 2, 1823. Pierre Duchouquette died in 1835 or 1836. On the 16th o£ March, 1812, Genevieve Duchouquette sold the 266-| arpens acquired from her mother to John Murphy, and on the same day, Murphy mortgaged the same to Genevieve to secure the payment of a sum of money. On the 27th of December, 1819, Genevieve assigned the mortgage to Archibald Gamble, and on the 17th of January, 1820, conveyed to.him all her interest in the land. On the 17th of July, 1820, Gamble assigned the mortgage to the defendant, Dongan, and conveyed to him all his interest in the land. The defendant instituted a suit to foreclose the mortgage, and became the purchaser of the land at the sale under the judgment of foreclosure, and received from the sheriff a deed bearing date February 6, 1822. Defendant took possession of the land soon after his purchase from Gamble, in 1821 or 1822, built a dwelling, made fields, and lived upon the land for eight or ten years, and then removed to the state of Illinois. Since that time, he has never personally been upon the land, but part of the time has had tenants upon it, and when not tenanted, has all the time had an agent residing in the neighborhood, charged with the duty of renting it out, if tenants could be had to pay the taxes, and to superintend and control, and protect it from trespassers. The defendant always paid the taxes, and no person under whom plaintiff claims ever paid any taxes.
    The plaintiff’s title was as follows : On the 23d of October, 1841, James Gonsollis and Marie Sophie, his wife, claiming the tract of 266f arpens in right of the wife’s mother, conveyed the same to John E. Mower. Mower afterwards conveyed all the tract except the 160 arpens in controversy to James Oonsaul. Mower failing to pay the purchase money, the tract in dispute was sold under a decree of court upon a bill filed by Gonsollis and wife, and P. C. Morehead, under whom plaintiff claims, became the purchaser, and received a sheriff’s deed dated March 11, 1850.
    Upon an agreed case, substantially as above stated, the court below gave judgment for the defendant. The plaintiff brings the case to this court by writ of error.

      Glover & Richardson, for plaintiff in error,
    relied upon the following points : 1. By the Spanish law, whatever property fell to the wife during marriage by any merely lucrative title was paraphernal, (Lindell v. McJYair, 4 Mo. Rep. 382,) and could not be sold by the wife during coverture, unless the husband joined in the sale. (Picotte v. Cooley, 10 Mo. Rep. 312. Youse v. JYorcum, 12 Mo. Rep. 558. Childress v. Cutter, 16 Mo. Rep. 41.) 2. The articles of separation did not confer on the wife the power to alien without further consent of the husband. Those articles were void, as being both against good morals and against the Spanish law. (1 Moreau & Carleton’s Partidas, p. 487, 493, 502. 2 Id. Gonsollis and wife v. Duchouquette, 1 Mo. Rep. 476.)
    Mr. Dayton and Mr. B. Bates, for defendant in error,
    relied upon the following points, among others : 1. The articles of separation between Duchouquette and wife of December 24, 1803, were valid and effectual, and accomplished all the objects therein.mentioned and intended. Mrs. Duchouquette having acquired and sold the land in controversy subsequent to this contract, the title passed to the purchaser. (Labbé’s heirs v. Jlbot et al., 2 Lou’a. 553.) 2. The land in controversy, acquired by Genevieve by deed of gift from her mother, was her separate property, (1 Lou’a. 322. 5 Lou’a. 742. 6 Martin, 14,) which, by the Spanish law, she had a right to sell, even during coverture, without her husband joining in or consenting to the conveyance. (1 Brown’s Civil Law, 269, 82, 255. 1 Domat, 390, §884 to 892. 1 Moreau & Carleton’s Partidas, 523, §17. Flowers v. O'Connor, 8 Martin, (N. S.) 555. Preston v. Humphreys, 5 Robinson, 299. Picotte v. Cooley, 10 Mo. Rep. 318.) 3. But even if the husband’s consent to the sale was necessary, such consent is sufficiently shown by the articles of separation. If, however, a written consent is not shown by the articles of separation, a verbal consent, which, under the Spanish law, was sufficient, will be presumed after this lapse of time and under the circumstances. 4. The statute of limitations is a good bar to the plaintiff’s claim. The possession of Dongan is a sufficient adverse possession. (Angelí on Limitations, (ed. of 1829,) ch. 4, p. 71 et seq. and cases there cited.)
   Ryland, Judge,

delivered the opinion of the court.

As the point raised on the statute of limitations in this case must, in the opinion of this court, determine the question in controversy, it will only be necessary to consider it. We shall not, therefore, touch the other questions involved, but pass them by, with the remark, that they involve much learning, and require more time and research than we can now bestow, especially when the point we decide will settle the case. From the agreed facts, as they are upon the record, it seems that the widow Charleville was the owner of the land in controversy in 1811, and that she granted the same to Genevieve Duchou-quette, her daughter, by deed dated 4th April, 1811; that Genevieve Duchouquette, being in the legal possession of the land, received a mortgage from one John Murphy, on the 16th of March, 1812, for the same land, to secure the payment of a sum of money; that she assigned said mortgage to Archibald Gamble and sold to him all her interest in said land, in January, 1820. The mortgage was assigned 27th December, 1819, and the deed for the land dated 17th January, 1820.

Archibald Gamble sold and conveyed the land by deed dated July 17th, 1820, to the defendant, Dongan. Dongan took possession of the land soon after his purchase of it from Gamble, in 1821 or 1822. He foreclosed the mortgage by a judgment of the Circuit Court of St. Louis county, at the August term, 1821, and purchased the land at sheriff’s sale, on the 6th day of February, 1822, and received from the sheriff a deed for the same, of that date. It is agreed that Dongan took possession of the land soon after his purchase from Gamble in 1821 or 1822, and that he built a dwelling house, made fields, and lived upon the land for eight or ten years, and then removed to the state of Illinois. Since that time, he has never personally been upon the land, but part of the time has had tenants on the land ; and when not tenanted, has all the time had an agent residing in the neighborhood, charged with the duty to rent it out if tenants could be had, to pay the taxes and to superintend and control and protect it from trespasses, and that he habitually paid the taxes ; that no person under whom the plaintiff claims did pay taxes.

It also appears that Pierre Duchouquette and Genevieve Charleville were lawfully married on 23d February, 1797; they lived together as man and wife until the 24th of December, 1803, and then separated, and never lived together after-wards, as man and wife ; that they mutually executed a contract or articles of separation in writing, dissolving the marriage (so far as their agreement could dissolve it,) dividing the property owned by them in community, renouncing mutually all rights and powers flowing from their matrimonial or marriage contract, and granting to each other the free and absolute disposition and control of their property and conduct, as if they never had been married ; that they never went beyond the limits of St. Louis county after their marriage ; that Genevieve died on the 13th November, 1822; that Pierre died in 1835 or ’36, intestate ; that Genevieve had two children, a son and a daughter ; that the son died without issue in the life time of his mother ; that the daughter is the same Sophie or Marie Sophie mentioned'’in the plaintiff’s petition, under whom he derives titles. The said Sophie or Marie Sophie was born on the 26th February, 1807, and on the 2d day of January, 1823, intermarried with one James Gonsollis, who died one or two years before this suit was commenced. At the death of her mother, Genevieve, 13th November, 1822, Marie was a minor, unmarried, and remained single until the 2d January, 1823. Dongan was in possession and .remained in possession for some eight or ten years from the year 1821 or some time in 1822. He took possession soon after he bought of Gamble ; his purchase from Gamble was in July, 1820 ; his purchase at sheriff’s sale was in February, 1822, It may then be supposed he was at the time in possession : his possession was open, public ; he built a house, made fields, lived on the land, paid taxes always, had tenants after he moved to Illinois, and had his agent to take care of and attend to it', in the neighborhood.

The right of the daughter, Marie Sophie, if she had any, accrued upon the death of her mother, which took place on the 13th of November, 1822. She was then sole, and infancy was at that time the only disability under which she labored, or by which her right at that time was protected under the statute of limitations. The statute passed in December, 1818, concerning limitation of actions, must govern this case. That declares, “From henceforth, no person or persons whatsoever shall make entry into any lands, tenements or hereditaments, after the expiration of twenty years next after his, her or their right or title to the same first descended or accrued,” &c.

§2. “ If any person or persons having such right or title be, or shall, at the time such right or title first descended or accrued, be within the age of twenty-one years, feme covert, &c., then such person or persons, and the heir or heirs of such person or persons, shall and may, notwithstanding the said twenty years be expired, bring his, her or their action, or make his, her or their entry, as he, she or they might have done before the passing of this act: Provided, that such person or persons shall, within twenty years next after attaining full age, &c., sue for the same, and at no time after the said twenty years.”

The court, from the agreed facts, found for the defendant, and this finding we think right. From the facts and the statute of limitations then in force, we think the court did not err in giving judgment for the defendant.

There was a space of time between the concurrence of the two disabilities of infancy and coverture. The right descended to her, accrued to her, while she was under one only of these disabilities — infancy. She became of age on 26th of February, in the year 1828. At that time, then, the statute commenced running against her, although she was a married woman. The disability arising from the marriage commenced after her rights had accrued. The twenty years expired then on the 26th February, 1848, and this action was commenced in June, 1851, not within the time, and is consequently barred.

I remarked, in the beginning, that, as this one point would settle this controversy, it would be useless labor to consider the questions arising on the articles of separation, or the power of the wife, to sell lands which had been given to her after this separation, or given to her during her marriage, disregarding the separation.

I am strongly inclined to think that, should the court declare the articles of separation of no effect, in regard to the power of dissolving the marriage relation between the husband, Pierre, and Genevieve, the wife, yet it would be but a fair interpretation of them, to consider them as indicating the consent of the husband to the wife to sell her property. However, as the statute of limitations is, beyond all doubt, a bar to the plaintiff’s action, we confine our opinion alone to that one point. There is no tacking of disabilities under our statute of limitations. See cases of Eager v. Commonwealth, 4 Mass. Rep. 182. Bunce et al., v. Wolcott et al., 2 Conn. 27. Griswold v. Butler, 3 Conn. 227. Doe ex dem. v. Jones, 4 Term Rep. 301, 307. Stowell v. Lord Zouch, Plowden’s Rep. 353, as far back as 10th year of Elizabeth.

The judgment below is affirmed, the other judges concurring.