author: Mr.. Justice CATRON

text:
    The United States, appellants, v. William Marvin.
    The act of .the 26th of May, 1830, providing for the final settlement of land claims in Florida, must be construed to contain the same limitation of time within which claims were to be presented as that provided by the act of 23d of May, 1828.
    That limitation was one year. The courts of Florida, therefore, had no right to receive a petition for the confirmation of an incomplete concession after the 26th .of May, 1831.
    The case in 15 Peters, 329, examined and distinguished from the present.
    This was an appeal from the Superior Court for the district of East Florida.
    It was á land- claim, and as the opinion of the court turned entirely upon the question, whether or not the claim was filed in time in the coiirt below, it is. only necessary tp state the circumstances which bear upon that point.
    On the 23d of May, 1828, (1 Land Laws, 439,) Congress passed tin "act, the 12th section of which was as follows:
    “That any claims to lands,., tenements, and hereditaments, within the purview of this act, which shall not be brought by petition before said court within one year from the passage of this act, or which, being brought before said court, shall, on account of the neglect or delay of the claimant, not be prosecuted to a final decision within two years, shall be for ever barred, both at law and in equity; and; no. other action at common law, or proceeding in equity, shall ever thereafter be sustained in any court whatever.”
    On the 26th of May, 1830, another act was passed, (1 Land Laws, 466,) providing for the final settlement of land claims in Florida. It confirmed certain claims under a league square, which' had been recommended for confirmation by the register and. receiver of the land-office, acting as commissioners in the district of East Florida, and then proceeded to enact by the 4th, section, as follows:
    “ That, all the remaining claims which have been presented according to-law,'and not finally acted upon-, shall be adjudicated and finally settled upon the same conditions, restrictions, and limitations, in-every respect, as are prescribed by the act of Congress, approved 23d May, 1828, entitled “ A.n act supplementary to the'several acts providing for the settlement and confirmation of private land claims in Florida.”
    On the 17th of June, 1843, Marvin filed in the clerk’s office of the Superior Court for the district of East Florida, a petition, claiming title .to seven thousand acres of land which had been-granted to Bernardo Segui,.in the year .1815, by Estrada, then the Governor of East Florida. He further stated that the claim had been presented to the commissioners, recommended by them to Congress for confirmation, mid confirmed by Congress to the extent of one league square, by the act of May 23, 1828.
    An answer being filed on behalf of the United States, and sundry matters being given in evidence by the petitioner, the cause came on for trial, when the court decided that by the act-of Congress of May 26,1830, the claimant was not bound to file his petition within one year from the passage of said act, and then proceeded to. decree in favour of the claim.
    From this decree the United States appealed to this court.
    The cause was argued by Mr. Nelson, (attorney-general,) on behalf of the United States, and by Mr. Marvin, for the defendant in error!
    Mr. Nelson referred to the acts of Congress above cited, and said that the question-under this head was, whether the limitation of time prescribed by the act of 1828 was continued by the act of 1830. The case in 15 Peters, 319, was relied upon by the other side, and was the foundation of the opinion giver by the court belpw. But the point did not arise in'that case, because there .a petition had. been ill A in time. In all other land laws - there was a limitation, because the policy of the government was to have all land claims settled within a given time.

      Marvin argued in the following manner..
    The petition in-this case was filed June 17, 1843, and the only point of any difficulty in thel.case, and the only one argued in the court below, is, whether the petition was filed in proper time.
    The correct decision of this question depends upon the construction to be-given to the 4th section of the-act of Congress of May 26, 1830, entitled <£ An act to provide for the final settlement, of land claims in Florida,” and to the 12th section of the act of May 23d, 1828, entitled “ An act supplementary to the several acts providing, for the settlement and confirmation of private land claims in Florida.”
    By the 4th section of the act of May 26,1830, it is provided, that “ all the remaining claims which have-been presented according to law, and not finally acted upon, shall be adjudicated and finally settled, upon- the same conditions, restrictions, and limitations as are prescribed in the act of 1828.” This claim had been presentedj according to law, to the land commissioners, and by them presented to Congress, and recommended for confirmation. It remained to be finally settled,- Congress confirming only to the extent of one league square.
    The;point of difficulty, if any,' is in the true meaning .of the words “ conditions, restrictions, and limitations.” These words do not neces-' sarily mean a limitation as to time. By the 12th; section of the act of May, 1828, claims were to be brought by petition before the court, within one year thereafter, i.- e. by May 23d, 18.29, and prosecuted to final decision in two years, i. e. by May 23d, 1830. Yet the Congress says, May 26, 1830, more than two years afterward, that the remaining claims shall be adjudicated upon the same limitations,, &c.„ as in the act of 1828, which would. be impossible, if these words included the-, idea of time y for the time to file the petition, and even for final decision, had already expired, and no proceed--ings could be had. But the Congress intended, by the 4th section of the act of 1830, -that the proceedings .should bé had for a final settlement. The title' of the act is, “ to. provide for. a final settlement,” &c. These words then cannot intend n limitation as to the time of commencing proceedings,. but mean those various conditions, restrictions, and limitations, in regard to the practice, course of proceedings, &c., &c., required by the act of 1828, and the Missouri act upon the same subject-.
    This point was argued in the case-of the United States v. Delespine, 15 Peters, 319, and the court says, there <c is no direct limitation in the act of 1830.” Will- the court imply a limitation as to time in this highly remedial statute, and by such implication defeat a-final settlement of these land claims, to effect which was the object of passing the act, and in which both parties are interested; and that, too, in a case where the minority of heirs repels any imputation of" laches on the part of the ■ claimants ? Justice and public-policy are both against any such implication.
   Mr.. Justice CATRON

delivered the opinion of the court.

This is an appeal from a decree- rendered by the Superior Court of the district of East Florida, by which it was adjudged that no limitation existed to the filing for adjudication a claim for land under the acts of 23d May, 1828, and of 26th May, 1830.

The petition to the Superior Court of- Florida was filed in 1843 by Marvin, to have confirmed to him seven thousand acres.of land on the river St. John’s, by a concession in the first' form made in favour of Don Bernardo Stegui, on the 20th December, 1815, by Governor Estrado: and the first question presented below was, ana is here, had the Superior Court jurisdiction to entertain the cause ? That court having adjudged‘that the act of 1830 had no limitation in it, and our conclusion being to the contrary, we will briefly state our reasons for reversing the decree and for ordering the petition to be dismissed.

The first act conferring jurisdiction on certain courts of the United States, to adjudge tides to land of the foregoing description, wqs that of May 26, 1824, and applicable to lands lying within the state of Missouri and territory of Arkansas. By. the 5th section óf that act it was declared, that all claims within its purview should 'be brought by petition before the District Court within two years from, the passing of 'the act; and when so brought before the court, if the claimant, by his' own neglect or delay, failed to prosecute the cause to final decision within three years, he' should b'e for ever barred, both at law and in equity; and that no other action at common law, or proceeding in equity should ever thereafter be sustained, in any court whatever in relation to said claims.

By the act of 1828, sect. 3, the provisions of the act of 1824 were extended to the Superior Court of Florida, with some" modifications.; and among others by sect. 12, that any claims to lauds within the purview of that act which should not be brought by petition before the proper court within one year from the passing of the act; or which, being brought before the court, should not on account of the neglect, or delay of the claimant, be prosecuted to a filial decision within two years, should be for ever barred; and that no action at common law or in equity should ever thereafter be sustained in any court whatever. And by sect. 13, the decree was to be conclusive between the United States and the claimant.

The. act of 1830, in its 1st, 2d, and 3d sections, confirms various claims; and in the 4th section declares, that all the remaining claims which had been presented according to law to certain boards of commissioners referred to in the previous sections, and not finally acted on by Congress, should be adjudicated and finally settled upon the samé conditions, restrictions and limitations, in every respect, “ as areprescribed’by the act of Congress approved May 23, 1828, entitled an act supplementary to the several acts providing for the settlement and confirmation of private land claims in Florida.” The last law. of 1830 is also entitled an act to provide for the same purpose: It is supplementary to, and in effect re-enacts the law of 1828; carrying with it the'entire provisions of the previous statutes, save in so far as previous parts of them were modified by subsequent conflicting provisions. The policy of Congress was to settle the claims in ,as short a time as practicable, so as to éñable the government to sell the public lands.; which could not be done with propriety until the private claims were' ascertained. As these "were many in number, and for large quantities, no choice was left to the government but their speedy settlement, and severance •from the public domain; such has been-its anxious policy throughout, as appears. from almost every law passed on the subject. In Í828 the time for filing petitions before the courts was evfen reduced from two years, to one, and a positive bar interposed in case of failure. This policy we think Congress intended to- maintain, and that the courts of Florida had .no jurisdiction to receive a petition for the confirmation of an incomplete concession like the one before us, after the 26th of May, Í831.

So.me stress has heen placed on the language .employed by this court in 'Delespine’s case, 15 Peters, 329; and on which it is supposed the court below founded its decree on the head of jurisdiction. There an amended, petition.had been filed after the expiration of. a 'year' from the 26th of May, 1831, and the., question was whether the defective petition, filed-in time, had .saved the bar, and it was held, that it had: But so far from holding that no bar existed, the contrary is rather tó be inferred; the direct question was neither decided or intended to be.

• For the reasons stated,/we order the decree of the Superior .Court of ‘East Florida to be reversed, and .direct that the appellees? petition be dismissed.


source: Caselaw Access Project

author: Mr. Justice CATRON

license: Public Domain

text:
    Llewellyn Price, Jun., for the use of Daniel W. Gaulley, Plaintiff in error, v. Martha A. Sessions.
    Where a testator devised certain property to his infant daughter, to he delivered over to her when she should arrive at-1 the age of eighteen years, and the daughter, at the age of_sixteen, married the executor who'had the principal management of the estate, and possession of the property'devised, he must he considered as holding it as executor, and not as husband.
    The executors had no power to deliver the property to the daughter, or to her guardian, .or to her husband, before the happening of the contingency men.-tioned'in the will.
    The law .of the state of Mississippi, providing that a wife should retain such ' property in her own right, notwithstanding her coverture, having gone into operation before the daughter arrived at.the age of "eighteen years, the distribution to her must he considered to have beén made under that law. ■
    The' property, therefore, cannot be responsible for the husband’s debts.
    This case was brought up, by writ of error, from, the Circuit Court of the United States for the southern district of Mississippi.
    The facts were these.:
    In'June, 1836, Russell Smith died, leaving á will, the second section of which directed that his just' .debts and funeral expenses be paid, and that, for this purpose, the force bé kept together on his plantation, Sylvan Vale, and-prudently managed until , that crop, or .the subsequent one,' should yield a fund to pay said debts.
    ■ The third section bequeathed to his step-son, William D. Griffin, four quarter-sections of land, and seventeen slaves; and continued as follows:' “ which property is to be delivered to the said William D. Griffin,by my executors, .when he shall arrive at the age of twenty-one years; and should he, the said WilliamJB. Griffin, die before he arrives at the age of twenty-one years,- then, and in that event,' the aforesaid property, real and personal, is to be equally divided between, my dear beloved-,brothers-in-law, E. J. Sessions, P. W. Defiance, W. Le. Defiance, and Charles A. Defiance,-provided they be living; if not,' then it is to revert to my estate again, to be disposed of as hereinafter provided.
    “'áthly. I give and. bequeath unto my dear beloved daughter, Martha Ann Smith, all the remaining balance of my estate, real-and personal; not mentioned in my bequest to William D. Griffin, -and should he and the others before-mentioned, to whom the said legacy was tó-descénd,: all be dead,-she is.also to inherit if; the said legacy td'.W. D. Griffin; but, at all events, the. property is to be kept together, arid the force worked on the plantation, until my said daugh-. tér, Martha Ann, arrives at the agé of eighteen years, at which time my_ executors are to'deliver over to her alb of the property first set apart for her, and still retain the possession of the legacy to W. D. Griffin, and not deliver it to her, if he lives until he is twenty-one. years of age; and if he dies, the.-mode is'pointed out for them to pursue. But should my said daughter, Martha Anri-, die before-she arrives at the age of eighteen, or has .an heir of her own body, then .the legacy left her, as also that may descend' to her from the first legacy, (to W. D. Griffin,) isto be disposed of as follows,; to wit:” &c., &c.
    He further appointed E. J. Sesslons, P. W. Defrance; John Lane, and George Selser, executors;- and John Lane guardian to his daughter, Martha, the defendant in error,in the present suit, who was, at that time, about fourteen years of age.
    On the 25th of July, 1836, the will was admitted to probate, and letters testamentary were granted to three of the executors, viz., Sessions, Lane, and Selser; and Lane was also appointed -guardian to the child.-
    On the 8th of May,..1838, Sessions, together with Samuel Fernanda, and H. Femandis, executed to Price,, the plaintiff in error, two .promissory notes; one payable eight months after the 1st of May, 1838, for $2345 11, and the other payable twelve months after the 1st of May, 1838, for $2401 16; both being negotiable and payable at thé office of the Planters- Bank, Vicksburg, Mississippi.
    . In September, 1838, Sessions, one of the executors, married Mar-thei, the daughter of the testator, she being, at that time, about sixteen years of age.
    In August, 1839, Price, a citizen of the republic of Texas, and suing for the..úse of Gaulley, a.citizen of the state of New York, brought suit against the three, makers of the notes aforesaid, in the Circuit Couit'.of the United States.
    Af November term, 1839, he obtained.a judgment against the whole three, and in December following issued á fieri facias upon the judgment.
    , The property levied upon was suffered to remain in the hands of the possessors, upon.fheir executing a forthcoming bond.
    In 1839, the legislature of Mississippi passed an act, (Acts, 72,) the 22d. and 23d sections of which' were as follows:
    “ Sect. 22'. Any married.woman máy become seised or possessed, of any property, real, or personal, by direct bequest, demise, gift, purchase, or distribution, in her own iiaine, and as of her own property; provided, the . same does not come from her- husband, after coverture. .
    . “ Sect. 23. Hereafter, when, any woman, possessed of a property in slaves,, shall marry, her property in such slaves, and their natural increase, shall continue to her, notwithstanding her coverture; and she shall have, hold, and' possess, the same, as her separate property, exempt from • any liability for the debts • or contracts of the husband:”
    The 24th section gave to a woman who became entitled to slaves, during coverture, the .sa.me right which the preceding' section gave to those women who possessed slaves at the time of.marriage.
    In. January, 1840; Session^ and wife executed two mortgages; one to the Commercial and Railroad Bank of Vicksburg, of land and negroes, to secure $21,661 19, and the other to the Planters’ Bank, of other land and negroes, secure $7121 20;
    In May, 1840, the forthcoming bond; already spoken .of, was forfeited, the effect of which was equivalent' to a judgment against principal' and sureties, for debt, interest, and costs.
    On; the 23d of November, 1840, the executors of Russell Smith presented their account to the Probate Court,-by which it was received, examinedj- allowed, and. ordered tó be recorded; and the executors Were discharged from further accounting with, the court, . unless thereafter cited by parties interested.
    The estate was made Dr., $39,345 70
    And allowed a credit of 13,636 12
    By which it appeared the executors had overpaid $25,709 48 In January, 1842, an' alias fieri facias was issued against Sessions, together with the securities on the forthcoming bond, and levied upon the land and negroes which were devised to Martha byher father; In February, 1842, Martha claimed the property as her own, and the'question was brought before- the court below on the validity of said claim.
    . Upon the trial, the claimant then introduced John Lane, one of flie executors, whose competency was objected to by the plaintiff,., but was permitted to testify by thé court. . Said witness testified that Egbert j. Sessions, (me of .the. defendants in the above-named fieri facias, had ácted as executor from the time he. qualified as such, in conjunction with the two other executors; that Egbert J.-Sessions had'taken charge of the plantation and slaves, as executor, and had-since had the actual control and management thereof; that the possession of Sessions was joint, with the other executors, and the control of the .slaves was given to-him by the other executors as a mat-' ter of convenience, as he, Sessions, lived bn . the adjoining plantation. The' witness further testified* -that the estate, of Russell Smith was .unsettled, and that there are now outstanding debts against the estatejof-Russell: Smith, unpaid, amounting to -upwards of twenty thousand .dollars. Witness further testified, that the accounts of the affairs of the estate had been kept ánd rendered mostly by Egbert J. Sessions, the witness,. Lane,-having made but two .annual settlements. . Witness stated-that he had. rendered' accounts, as guardian of clainaant, Martha A. Sessions. ‘ Witness further stated, that he considered' Egbert J. Sessions in the possession of the property, in the capacity of executor of Russell Smith '; that the-claimant and Eg-bert J. Sessions had intermarried in 1838 ; that said Sessions was now in-the possession- of the property since the marriage; that ho formal act of .deli very of the property tó E. J. Sessions, by ..the exe- ■ cutors, had taken place, since the marriage of the claimant with said Sessions.
    The plaintiff proved that Claimant, was now about twenty years of áge, and was sixteen years of- age -at the time of her marriage with said Egbert J. Sessions, which was in' September, 1838.
    The plaintiff proved by John Lane, that he assented to the execution ' of the two mortgages above .named, by Sessions and wife, the present claimant.
    The claimant, then proved, that the. .debts enumerated in said' mortgage, before referred to, was, as she -believed, in renewal 'of debts contracted with the bank by Russell Smith, in- his lifetime, the claimant’s father.
    Said John Lane further proved, that' he was a director in one of .the banks to which said mortgages are made; that he had assisted Sessions in making the arrangement with the bank,'and also assented that he, Sessions, and claimant should mortgage the property to the banks.
    This was all the proof in the.cause; find,.thereupon,.the court instructed the jury, “that the property^ devised and bequeathed by the will of Russell Smith to the claimant, Martha A., did not vest in her, nor was she entitled to the possession of it until she, the fclaimant, arriyed at the age of eighteen, years: and although she married the' defendant in the execution before that time, the title of die property could not' be vhsted in him'until the claimant attained eighteen years of age, at which time, under the will, she became entitled to the possession of it ; that the property in controversy is a chose in action, and could not vest in her husband until die or he had reduced it to possession, which could-not be done,.by the terms of the-will, before she was eighteen yeafs of age. If, therefore, when the act of the Mississippi legislature, securing to married women their property, free from the .debts of their husbands, (which went, into-effect in April, 1839,) the claimant had not attained the ge of eighteen years, the husband had no legal estate in it, and-it ould not be subject to this execution; and if they believe from the vidence, that the possession held by Egbert J. Sessions, one of the efendants in the execution, was held as executor up to that time ioiñtly. with the other executors, such-possession vested in him no legal interest by his‘marriage with ' the'claimant, either to the land Or slaves, or other personal property.
    “ To which instructions,of the court the plaintiff excepted, and tendered this his bill of exceptions at the time, before the jury retired from the bar, which he prayed might be signed, sealed, enrolled, and made a part of the record,.which.is done, accordingly.
    ‘jj. McKlKXEY,- [SEAL.]”
    Under these instnictions the jury found a verdict for the claimant, and to review their eórréctness, the writ of érrór was-brought:

      HendersoA, for the plaintiff in error.

      Crittenden, for the defendant in error.

      Henderson referred to the following assignment of errors which had been filed in the court below:
    1. The court erred in instructing th§ juiy—
    ■ “ That the property devised and bequeathed by the will of Russell Smith to the claimant Martha Ann, did not vest in her until she arrived at the age of eighteen years.
    2. The court erred in instructing the jury—
    “ That the title, to the property did not vest in Egbert J. Sessions until the claimant-arrived at eighteen years Of age.”
    3.. The court erred in instructing the jury— - “That the property in controversy is'a chose in action, and could not vest in the husband of the-claimant, until-she or he had reduced it to possession.. .
    4.' The court erred in instruc-. the jury — •
    “ If, when the act of the M.issi ppi legislature, securing to mar-riéd women their property, free from the debts of their husbands, (which went into effect in April, 1839,) the claimant’ had not at- . tained the age of eighteen years, the husband-had no legal estate in it, and-it could not be subject to this execution.”

      5. The court erred in instructing the jury—
    “ If they believed, .from the evidence, that this possession held by Egbert J. Sessions,'one of the defendants in the execution, was held as executor up to ¿hat time, (when the act of the legislature of Mississippi,, above referred to, was passed,) jointly' with the other executors, such possession vested in him no legal interest.by his marriage with the claimant, either to the land or slaves, or other personal property.”
    6. The court instructed the jury contrary to the law of the case.
    .His argument then proceeded as follows
    Notwithstanding that Russell Smith-died in June, 1836, and'his daughter Martha married the said Egbert in September, 1838, and the married women’s act took effect on the 15th April,-1839, yet, as from the proof it. is to be inferred that Martha was not eighteen years old till about June, 1840, it is -assumed the legacy could not vest till the, latter date, and therefore was property acquired to her-after the said statute took effect, and was therefore secured to her .by the 3d section of that áct, which is as follows:
    “That.when any woman during coverture shall become entitled to, or'possessed of, slaves by conveyance, gift, inheritance, distribution, Or otherwise, such slaves, together with their natural increase, shall inure and. belong to the wife, in like manner .as is above provided as to. slaves which she may possess at the time of marriage,”
    As to all such slaves, she is entitled, as .per sect. 2, to hold them as her property;.the control and usufruct, however, -to belong to the husband, agreeable to laws heretofore in force.
    The Superior Court of Mississippi has-decided that this statutory estate, of a married woman is not the .sole and separate estate known to the common and chancery law: that ■ the latter may still be ere; ated, though .the- statute has not' created such estate, but has only secured personal property to a1 married-woman, in the . same way lands,-in her own right, -were secured to her at common law. 2 Smede & Marshall’s.Rep. 165, 57Q. ■
    We maintain—
    1st. That by.the will of Russell Smith, the'legacy to his daughter Martha vested on the instant of his death, and possession only was deferred; and her marriage-with Egbert J. Sessions-invested him with a right of property in said legacy, subject only t0 like postponement of possession'. 4 Hen. & Muiif. 411; 4 Call’s Rep. 321.; 1 How. Miss. Rep. 563, 564; 3 How. Miss, Rep. 312, 395, 396; 1 Wash. Va. Rep. "30.
    That to fix a husband’s right of property to a legacy accruing to his wife, either before or-during coverture, it is not necessary he should reduce it to- possession. 3 How." Miss. Rep. 395, 396; 4' How. Miss. Rep. 214.
    Especially is-this true of a legacy, the'possession of which is postponed by the will, by which the husband’s right to reduce to possession is delayed. 4 Hen. & Munf. 411.

      2d. The court below erred jn charging the jury, that “the property in controversy is a chose in action, and could not vest in her husband until he or she had reduced it to possession, which'could not be done by the terms of the wil^until she was eighteen years,” and therefore that the.title could not vest in husband-, &c., till after wife was eighteen.
    Whatever question may be made of what constitutes a chose in action, whether it' may be property out of possession, or -only a right to recover money due by contract, or by tort, it- is manifest, from the state of facts-in this case, these .slaves were not, (in relation to Egbert J. Sessions,); in any sense, a chose in action. He had the actual and controlling possession of the slaves from the time of-marriage. And the right to them, which vested in him by virtue of the marriage, concurring with his actual possession, precludes the possibility that these slaves were’, to him, choses in action. Himself was the executor — whom could he sue? hoth title and possession were-his own — for what'could he sue? -True, he had a right to account with the probate court for his administration, but he neither could sue, nor be sued, for- these slayes. See 1 How.. Miss.' Jtep. 563, 564.
    3d. The court erred, also,' in instructing the jury that if Egbert J. Sessions had possession of the slaves levied, before'his wife was eighteen years old, such possession could only be as executor, and . could not invest him with the necessary possession to- fix his marital right in the property.
    .If possession of a wife’s legaey be postponed by the will, the -husband, it is true, cannot be entitled to recover.its possession; -but for that sáme cause his marital right to-the legacy shall, not be', prejudiced. 4 Hen. & Munf. 411; 3'How. Miss. Rep. 313; 1 Wash. Va. Rep. 30. ..
    Now, by the laws of Mississippi,' where a will does not otherwise, appoint,.executors and administrators are bound to pay over legacies, or make distribution, twelve months after letters granted. Rev. Co., How. & Hutch, p. 406, sects. 70, 71.
    ' The executors -had this estate in administration from testator’s dealh, in June, 1836, till Martha Ann married E. J. Sessions, (one of the executors,) in September, 1838,.two years and three months in alii
    .But for the provision of the will, that the slaves should be kept together {HI the legatee, Martha, should arriye at eighteen years of age, the law would have terminated the executor.’s right of possession more than a year before the marriage.
    It "was not, therefore, in right of their legal office of executors that {fie possession was then held, but by the appointment of the wfil only. The husband, therefore, had all the possession of this vested legacy at the time of his marriage of whieh the legacy was capable; and the law required nothing more of him.to perfect his . title-jure mariti. 3 flow. Miss. Rep, 313.
    Two months, after Egbert J. Sessions’ marriage this judgment was obtained against him, which j by the statute of Mississippi, binds property j personal as well'as real, from its date. Rev. Co.-, How. Sr Hutch, p, 621; 6 How. Rep. 562, 567.
    But if we are mistaken iii all the. preceding, still the charge of the court and the verdict of the jury would be wrong; because, if the title to the property was in'the wife, the usufruct for life is, by the. statute of 1839, reserved to the husband, and that his life-estate . would be subject to execution for his debts. 6 How. Miss. Rep. 562 ; 2 Mjjnf. Rep. 501; 4 How. Miss. Rep. 230; 2 How. Miss. . Rep. 39.
    Crittenden, for the defendant in error, insisted—
    1, That the property devised was not fully vested in her till she arrived at the age of eighteen years.
    2. That whatever right or interest might have been previously Vested in. her by the will, she had not, por was. she entitled to, seisin or. possession of the land or slaves before she attained that age. '
    ' And therefore, as she did not attain it until after her marriage, and after the passage of said act, the provisions of that act apply to and protect the land ..and slaves devised to her from the debts of her husband and from the execution in question'; and, consequently, that said verdict and judgment are correct, and ought to be affirmed.
    Mr. Crittenden'- said that this case'strikingly illustrated the wisdom of the law of Mississippi, which was emphatically called “ a woman’s law.” The executor married the daughter at the age of sixteen, and the honey moon was: scarcely over when an execution came to sweep .away all that had been provided for her future comfort The only inquiry is, whether .the legacy was vested or not. ^Suppose she had.died,;{Vould the husband have had it? ' Not so, because it was to be applied to charitable purposes. If payment was only . postponed, the law would consider it. as a vested legacy, but-the consequences of a vested- legacy do not folloVv .here; therefore it cannot be so. . The devise over shows.that it was not. the intention of the testator-that the legacy, should vest immediately, and his intention must, be .the.-guide to the construction.of his will. It' is true that.chancery inclines to consider legacies as vested, when it is doubtful,, but all agree that every thing must give way. to- the' intention of the testator, to ascertain which is the object of ¿11 rules.. In this case,-the. intention is .clear. ' There .is ,a present -gift, .but. the legatee is not to come into possession till the age of eighteen,’and in the 'inéan' timé the executor-is .to'have it, who is directed how to apply-it.- Again, if the legacy vested and she-Bad died'before reaching, the age of eighteen, it wóüíd have gone to her personal representatives, but the will gives it another direction. 1 Roper on Legacies, 378, et seq.; 3 Vesey, 236, 536 ; 1 Merival'e, 422, 428';, 8 Vesey, 547; 2 Meriv-ale, 363, 384.
    The rule is* that where interest'on a legacy is given to a legatee, courts aré inclined to consider it ás a vested- legacy, although the payment may be postponed to a future time; but here the profits were to go to the executor,' and, in case of the death of. the legatee, the property was to go in another direction than to her naturál heirs. "Was it.within the protection of the law of'Mississippi ? The law may be. inartificially drawn, but its object is apparent. When it ■allows a woman to acquire'and -hold separate-property,' it -is equivalent to .saying that it shall not be responsible for th¿ debts of the husband. But it is said by the other side that' the husband had at least an estate for life in the slaves, and that this estate was properly liable to execution for his debts. But the act says that hé is to have the .direction and control of them during coverture, and how.can this be complied with if they are removed out of it by being sold? If this were so, the intentions of the legislature could always be defeated. There are no restrictions as to time or. place, and they might be sold fot twenty or thirty years if .the husband continued to live so long and be removed to some distant place from which the woman, when a widow, would find it impossible to reclaim them. Was this what the legislature meant.? All-that'-they intended .to provide for was that tire husbánd should have a control over them for safe keeping. They intended ..to carry out their, -idea plainly, •without,reference to technical rales or contingent legacies. It has ■been said that the husban.d became vested with the property'before the passage .of' the act; but the counsel confounds his possession as executor with that as husband. A case has béen cited from Virginia, saying that where a remainder in slavés belongs to a wife, the-husband hás a vested right. But this is peculiar to' that state .and-arises from her local laws.. In Kentucky, slaves are' real.property for some purposes, and personal for othérs. The common'law has not-been the woman’s friend. Society has placed her in a .higher position than the law. Under a flattering pretence of unity'between husband and wife, the woman has been considered as annihilated, stripped of her property, and in widowhood, allowed only a scanty pittance of -the very property which she may have brought. This law of Mississippi is a wise and just law, and-we hope it will re-' ceive such a construction as will carry out the benign intentions of the legislature. Sessions was not married when the debts were contracted, and no injustice is done to his creditors by refusing to apply his wife’s'property to the payment of these debts.
    ' Henderson^ in reply and conclusion, referred to Roper on Legacies, 403, to show -that a devise -over upon a contingency does not prevent a. legacy from vesting. The husband here-claims to hold as executor after his functions a's executor have ceased. The distinction between the choses in action and property of -a wife, is clearly pointed out in 3 Howard’s Miss. Rep. 395. ' The-courts in Mississippi say that the right of the ¿husband is perfect without reducing them into possession. How - can' property in possession be a chose in action? Sessions had these slaves in possession j and has them now. He undoubtedly had a life-est&te in them. -The case ■is badly brought tip, because the verdict of the- jury includes both land and slaves. ■ In Mississippi property taken in execution may be replevied^ but this will- not apply to land. The statute only meant to put a wife’s personal próperty in the same condition where the common law places her real estate. But the life-estate of a husband in lands may. be sold. The statute gives to the husband the use and control of the'wife’s slaves as long as he lives, and consequently she .can have -no benefit from them- under any-construction of it.
   Mr. Justice CATRON

delivered the opinion of the court.

The question arising on'the charge of-the Circuit'Court is, What interest had the husband, Sessions, in the property in controversy at the time it was levied on for his debts.' If he had any subject to' execution, it was acquired- by the marriage with his wife as owner. Her right, depended on the will of. her father.

Russell Smith died in 1836, in.the state of Mississippi, leaving a last will and testament, duly proved in Warren county, (27th July, . 1836,) leaving E. J., Sessions, P. W.JDefranee, John Lane, and George Selser his executors; and also leaving John Lane-testamentary guardian to the testator’s only child, Martha Ann Smith. Sessions, Lane, and Selser qualified, as executors,

'The testator first provided, that his debts should be paid by the .proceeds of crops from his plantation,' and that the force should be kept together, until the crops paid the same, not exceeding two, however.

He next gave to his step-son, William D. Griffin, a section of land, and various slaves, to be delivered to this devisee, wfien he arrived atthe age of twenty-one years: ■ But should he die before, ■then, and in that event, the property, real and personal was to be divided between E. J. Sessions, P.-W. Defiance, W.- Le Defiance and Charles A. Defiance, provided they should be' living — if not, the property to revert to the estate to be disposed of as thereinafter provided. . .

2. All the remaining balance of the estate real and personal is devised to tire daughter, Martha Ann Smith — and should all of the devisees mentioned .in the first clause be dead before William D. Griffin attained twenty-one years of age, then the whole estate was to be inherited by said Martha Ann. “But at all events (says the will) the property is to be kept together and the force worked on the plantation until my said daughter Martha Ann arrives at the age of Eighteen years; at which time my executors are to deliver over to her all of the property .first set apart for her, and still retain the possession of the legacy to W. D. Griffin, and not deliver it to her if he lives until he is twenty-one years of age.” The proceeds of the erops to be vested in young slaves, in the mean time.

If the daughter should die before she arrive at the age .of eighteen, or had an heir of her body, then the legacy left her, (and that left to Griffin also, if vested in ner,) are directed to be disposed of otherwise — in charities, &c.

At about sixteen years of age Martha Ann married Egbert J. Sessions, one of the executors, who had the principal management of the estate, and possession of the property. For the additional facts we refer to the statement of the reporter. On this -proof the court instructed the jury, that the property devised and bequeathed by the will of- Russell Smith to- the claimant, Martha A., did not vest in her, nor was she entitled to the possession of it until she, the claimant, arrived at the age of eighteen years; and although she married the defendant in the execution before that- time, the title of the property could not be vested in him, until the claimant attained-eighteen years of age, at which time, under the will, she became entitled to the possession of it; that the property in controversy is a chose in action, and could not vest in her husband until she or he had' reduced it to possession, which could not bé done, -by the terms. of the will; before she was eighteen years of age. If, therefore, when the act of the Mississippi legislature, securing to married women their property, free from the debts of their husbands, (which went into effect in April, 1839,) the claimant had not'attained the age of eighteen years, the husband had no legal estate in it, and it could not be subject to this execution; ¡and if they believe from the evidence, that the possession held by Egbert J. Sessions, one.'of the defendants in the execution, was held as executor up to that time jointly with the other executors,-such -possession vested in him no legal'interest by his marriage with the claimant, either to. the land or slaves, or other personal property.”

As the legacy "was outstanding at the time of the marriage, the title was in the executors, subject, first, to the payment of debts; and then the claim of the devisee: but on the contingency, that until the daughter arrive at eighteen, or had an heir of her body, she should in the mean time take nothing more than a support; and this whether she married or not, for a marriage was contemplated as possible before the age of eighteen, as the becoming a mother before was provided for, so that the child might take through the mother.

We think it is free from doubt that the executors had no power to deliver possession of the property devised to the daughter before either of the contingencies above occurred; and that an attempt to do so, either to the guardian,.or to the husband, would'have been void, because in violation of tbe manifest intention of tbe testator: It follows, that until the wife arrived at the age of eighteen, or had an heir of her body, the-husband could only hold possession as executor. Had he died before, then w;e think it clear, the wife would have taken, and not the personal representative of tihe husband, as the executors could not assent in his behalf to the vestiture of thé legacy in possession. Provisions in wills, that the executors shall retain the property devised until the devisee is of lawful age, and postponements to later periods, are of common occurrence; the executors having assumed the ¿rust, are held to its execution — on their responsibility and prudence the testator relied, and not on future husbands that young and orphan daughters might marry; nor on guardians selected by indiscreet and incompetent minors. These evils are too prominent, and have • too long employed the anxious cares of prudent .testators, for this court to lend its sanction in any degree to impair the -guards interposed by wills, whereby the rights of possession and enjoyment are withheld from devisees. As the testator could have .cut them off altogether if he would, there is no ground for complaint recognised in courts of justice: And yet less ground for complaint is there in a case like the present, where an individual creditor- of the husband seeks to defeat the plain provisions of the will, by an assumption that the marital rights superseded the executorial duties, and conferred a power to deliver possession, which the will expressly prohibited.

Mrs. Sessions attained the age of eighteen in June, 1840. In April, 1839 the act of Mississippi took effect, by which it is provided — that when.any woman possessed of property in slaves shall marry, her property in such slaves, and their natural increase, shall continue to her, notwithstanding her coverture; and she shall have, hold,' and possess the same, as her separate property,- exempt from any liability for the debts or contracts of' the husband: And when any woman during coverture shall become entitled to, or possessed of, sláves by conveyance, gift, inheritance, distribution, or otherwise, such slaves shall inure and belong to the wife in like manner, as is above provided as to slaves which she may possess at the time of marriage.

As -the right of distribution in this case was postponed until after the act of 1839 took effect, the wife could- only take 'the slaves exempt from the husband’s debts; — we say, could, because it.does not appear that the executors-o-f Russell Smith have assented to the legacy and. delivered possession'to the legatee, Martha Ann-.

Without saying more, we are of opinion the charge of the Circuit Court to the jury was proper, and that the judgment must be affirmed.


author: Mr. Justice McLEAN

text:
    W. and D. H. Daviess et al., Plaintiffs in error, v. John H. Fairbairn et al., Heirs of Mary E. Fairbairn, deceased, Defendants in error.
    In affirmative statutes, ?uch parts of the prior as may he incorporated into the subsequent statute, as consistent with'-it.musi be Considered in force. '
    If a subsequent statute be not repugnant fn all its provisions to a-prior one, yet if the later statute, clearly intended to prescribe the ohly 'rules which should . govern, it repeals the pripr one., .
    Under the 'application of these rules, the law of Virginia, passed in. 1776, ■ authorizing the mayor of a city to take the acknowledgment of a feme covert 'to a deed, is'not repealed by the act of 1785, or that of 179t>.
    This .case was brought up by writ of error from.the Circuit Court of the United States for.the district of Kentucky.
    It'was-an ejectment brought, by the. heirs-of Mary E. Fairbairn, to recover a 'hajf-acre lot in the city of Louisville, designated on the old plan as number 22, and on the néw plan as number 31.
    There were many questions in the case,- but as the opinion of the court turned upon a single - point, it is not necessary to state any except that one.
    On the 12th of Marc i, 1811, Mary E. Fairbairn,' being the wife of Thomas H. Fairbairn, and .the owner of the lot in controversy* subject to the dower interest of her mother,. united withher husband and mother in executing a deed for. the premises. She then resided in the city of Baltimore. It was alleged by her children and heirs that this deed was incompetent to pass her interest, being improperly executed,.
    They therefore brought an ejectment to recover it.
    The deed was as follows;
    “This indenture, made this 12th .day of March, intheyearof our Lord' 1811, between" 'Elizabeth Henry, Thomas H. Fairb'airn and Maria his wife, (daughter and heiress of Daniel Henry, deceased,) of' the city of Baltimore, in the state of-Maryland, of the one part; and Dr. Richard Ferguson, of the town of Louisville, in the county of Jefferson and state of Kentucky, of the other part, witnesseth: that the said'Elizabeth Henry, and Thomas H. Fairbairn and Mania fiis wife, for and in consideration of the sum of eight hundred- dollars, .current money of the United- States of America, to the said Thomas H. Fairbairn'.in hand paid, at and before the execution of these -presents, the receipt whereof is hereby acknowledged, the said Elizabeth Henry, as tenant in dower, hath aliened, released* and cbiJirmed, and by these presents dpth alien,-release, and confirm-; and the said ThomasH. Fairbairn-as ténant by the curtesy, and the said Maria'his wife, as tenant in fee-simple, have granted, bargained, sold, conveyed, released, and confirmed, and by these presents doth grant, bargain, sell, release, convey, and confirm, unto the said Richard Ferguson, his heirs and assigns, for ever, a certain lot of land, with all tfie appurtenances, situate, lying., and being, in the town of Louisville aforesaid, and known on the plan or map thereof by.the number ninety-one^ (93,).containing half an acre, be the same more or less, on Main street, adjoining the north-wardly side of -.the half-acre lot whereon the said Ferguson now lives, and between the same and Main street: to have and to hold the said half-acre lot number ninéty-one, with all the appurtenances, unto the said'Richard Ferguson, his heirs and assigns, to his' and their only proper.use and behoof for ever. And the said Thomas. H. Fairbairn and Maria his wife do covenant and agree, to and with the said Richard Ferguson, and his heirs and assigns, that they, the said Thomas arid Maria, will, and their heirs, executors, and administrators, shall, warrant and for ever defend the said lot of land num-. bered nirfety-one, with al the appurténances, unto the said Richard Ferguson,-, his heirs. and. assigns, against all and every person or persons whatsoever lawfully claiming or to claim the same.
    “ In witness whereof, the said Elizabeth Henry, Thomas H. Fair-bairn, and Maria his wife, have hereto set their hands', and seals, on the day and yfear first written.
    Elizabeth Henry, [l. s.'
    Thomas H. Fairbairn, [l. s.
    Maria Eliza Fairbairn. "l. s.

      u ¡Signed, sealed, and delivéred, in presence of—
    Edw’d Johnston,
    Jno.' Hargrove,
    Henry Payson,
    Cuth. Bullitt,
    Thomas Lester.”
    “Baltim .e county, state of Maryland, set.:
    “ Be it known and remembered, that on this 12th day of March, 1811, Elizabeth Henry, and Thomas H. Fairbairn and Maria his wife, parties to the within and foregoing deed óf conveyance to Dr. Richard Ferguson, come in their proper person before me, Edward Johnston, mayor of the city of Baltimore, in the state aforesaid, and signed, sealed and delivered said deed of conveyance; as and for their voluntary act and deed; and the said Maria,.being privately examined by me out of the presence and-hearing of her said husband; did, of-her own free will arid consent j again consent to and acknowledge the said deed of conveyance as and for her, act and deed, the same being shown and explained to her; and also relinquished and released all her right, title, .interest, and estate, and fee. of, in, and to the lot of land.number 91, with ajl.the appurtenances by the sáid deéd conveyed, or intended to'he conveyed, j- , “ In testimony whdfeof, I have hereto set my hand, and L1, caused the corporate seal of the city of Baltimore to be hereunto affixed, the; dáy and year above written.
    “ Edw’d Johnston; mayor of the city of Baltimore.”' -

      Upon the trial in the court below, the following instructions were given with reference to this deed.
    “ And in substitution of a number of instructions moved by the plaintiff, the court gave tb the jury these instructions.

      “ Instead of the plaintiff’s;instruction No. 1, the court instructed the jury, that the deed of conveyance by'Thomas H. Fairbaim, &c., of 12th March, 1811, to tire defendant Dr. Richard Ferguson, whereof, a copy was read in evidence by the plaintiff, was' not in law the deed of the feme covert Maria E. Fairbairn, is not her deed of conveyance' for any purpose whatever, and passed from her to Dr.. Ferguson no estate whatever in the lot of land in controversy.”
    The bill of exceptions brought up this instruction, amongst others.
    The question was, whether ■ the mayor of the city of Baltimore had a right to take' the' acknowledgment.
    The act of Virginia, passed in 1776, which had been adopted by Kentucky, (4 Littell’s Laws of Kentucky, 432,) allowed the mayor of a city to take an acknowledgment, where the grantor-resided out of Virginia.
    Two acts were afterwards passed by Virginia, one in 1785 and the other in 1796, prescribing other modes of taking acknowledgments in such cases, and the question- was, whether 'these acts repealed that of 1776. The provisions of these acts are quoted in the opinion of the court, and need not be repeated.
    Crittenden, for the plaintiffs in error.
    Loughborough, for the defendants in error.
    • Crittenden, for the plaintiffs in error, referred first to the act of Virginia passed in 1748, (4 Littell, 423; 1 Statute Laws of Kentucky, 42.9,) and then to the súccéeding acts.' The act df 1785 was thought to repeal that of 1776, but there was no repealing clause in it, and the courts of Kentucky construe them'to be in pari materia» The laws of Virginia successively enlarged the means of conveyance. The title of the act of T796 was “ to enable,” &c. The rule is, that repugnancy, in statutes -must be clear and undeniable, .before courts will assume it to éxist. Dwarris on Staff 638, .699, 717,718, 726,734. ' . •
    And again, where a statute is remedial and enlarging,, it will not be held to control the operation of a previous one. The general character of these statutes is enabling. The act of. 1776 allows femes covert to go before a mayor; that of' 1785 to appear in court and acknowledge a deed. ■ Where is the inconsistency hetween the. two? If the latter is a repeal of the former, we "have never found it out in. Kentucky; There are more conveyances of land there than in any other state, and much land is owned by non-residents. Up to 1827, the doctrine now contended for was never heard of. The first time that the question was raised was in the case of Hynes and Campbell, 6 Monroe, 286, much relied on by the other side. But there was no question in that -case about a feme covert. A deed was set aside because justices, did not certify that it was subscribed before them. The court say that the act of 1785 repeals that, of 1776 as to justices. But then the. provisions of the two laws are inconsistent with each other in this respect. In Miller v. Hehshaw, 4 Dana; 327, the point is not décided. There are some loose-dicta, but although- the decisions of state courts upon state laws are binding upon ibis court, dicta of judges are Hot. In Taylor-®. Shields, 5 Littell, 295, the'court held that a subsequent statute -requiring deeds to be recorded in eight months, did not repeal a prior one allowing eighteen months.' 6 Monroe, 186, refers to the preceding case. ■ The act of 1796 contains a general repealing clause, (1 Littell, 508, 509,) repealing all that is inconsistent with the acts therein recited and' continued. But affirmative subsequent statutes are not held to.be inconsistent with prior ones. 6 Co. Rep..part 11, p. 54.
    The Digest sanctioned by the judges of the court , of appeals contains this act of 1776.
    Loughborough, for defendants-in error.
    The first opinion of the court pronounced on -the trial was, that the .deed-of March 12, 1811, was-ineffectual as to the wife of T. H. Fairbairn, and that her title to the lot did not pass thereby.
    The act of Virginia of 1748 respecting conveyances provided for cases of conveyances by^persons residing in the state. It will be found in 4 Littell, 423, (l'Statute Law's of Kentucky, 429.)
    . By the act'of 1785, (1 .-Statute Laws,-432,) husband and wife residing in another state were enabled to'convey, the dower or inheritance. of the wife within the commonwealth by the acknowledgment of the deed, and. the privy examination of the wife before two justices of peace of the, county of the-wife’s residence,-to be empowered by a 'commission for that púrpose from the' court in which the deed should be recorded.
    By an a t of 1792, (1 Littell, .152,1 Statute Laws, 434,) the acknowledgment and subscriptidh of the deed before.two justices of-the peace, though not empowered by commission, and their certificate of the privy examination of the wife, upon being recorded in diie time, shall be effectual to pass the wife’s right of dower. '
    - ^ In T795, shortly after Kentucky .became á state, its legislature considering the .complexity and uncertainty of the- statute laws in force, provided .by.act of December 17, (1 Littell, 293,) for a revision thereof,, fcr a .selection of such as ought to be ..continued in force, - and for a reduction of all of those relating to the same subject into one act.
    Revisors were accordingly, appointed, and discharged their duty. ■ The results of their labours may be seen in various important acts passed in 1796, in ihe first volume of Littell’s Laws. • Having enacted them, the legislature, by an act of the' 19th December, 1796, provided that they should take éffect on the 1st day of January, 1797, and that so much of any act or .acts as came within the purview of the said acts should be repealed from and after that day. 1 Littell’s Laws, 508, 509.
    One of these revised ¡statutes was the act to reduce into one the several acts for regulating conveyances, 1 Littell', 567, (1 Statute ■ Law, 437.) It provides specially (section 4) fon the conveyance by husband and wife, living in another state-, of the wife’s land in Kentucky. The .mode prescribed is the acknowledgment of the deed, and the privy examination .of th.e wife before two justices .of the peace of the county of her residence, to ,be commissioned for that purpose. This act also embraces the provisions of the act of 1792, respecting the transfer of the wife’s dower, in its 6th, 7th, and 8th sections.
    It was the law in force at the date of the deed to Ferguson.
    In Elliott- v. Piersoll, 1 Petérs, 338, this court held that in Kentucky the capacity of a feme covert to convey her land, is the creature of the statute law, and that to make her deed effectual, the forms and solemnities provided by that law must be observed. This is the received doctrine, in the courts of Kentucky. It is_ held, there, that the deed of a. feme co.vert to convey her inheritance, or even her dower, must not only be executed in the mode, and with the solemnities required by th.e statute laws, Phillips et ux. 'v. Green, 3 Marshall, 12; Steele v. Lewisj 1 Monroe, 49; Roberts’ heirs v. Elliott’s heirs, 3 Monroe, 397; Smith v. White, 1 B. Monroe,. 19: but it miist be actually recorded, together with the certificate of her privy examination, not merely lodged in the proper office for record, Whitaker v. Blair, 3 J. J. Marshall, 241; Tomlin v. McChord’s Reps., 5 J. J. Marshall, 336; and that, too, within the time fixed by the statute, .otherwise it is vo“id. Prewitt v. Graves, 5 J. J. Marshall, 124; Applegate i). Gr’acey, 9 Dana, -215. And to authorize, its recordation it must be authenticated in the mode proscribed, and by the officer^ appointed, for that purpose. Hunt v. O'wings, &c., 4 Monroe, 21 -; McConnell v. Brown, Litt. Sel. Cases, 464; Wo-mack v. Hughes, Ibid: 292. And if, in fact, placed on the record without being so authenticated, it is still regarded as an unrecorded instrument — cases last cited.
    ’ These cases show the strictness with which the statutes of Kentucky, authorizing married women to part with their titles, have been construed by its courts; and the care they have exhibited in the protection, of the rights of such persons and their heirs.
    In this case, though the deed to Ferguson was in fact recorded, it was not upon, its authentication, as regarded the feme covert, properly admitted upon the records. As to her it is an unrecorded deed.
    The Mayor of Baltimore -was not' authorized to take her acknowledgment, and to make and certify á privy examination.
    . it was contended, in the Circuit Court that he derived authority to perform these acts from a statute of Virginia of 1776, (4 Littell, 432.)

    The' answer to this is, 1st. That this act was impliedly repealed by the act of 1785. .
    This act of 1785 occupied the same ground, and so far as' regards conveyances of real estate, contemplates and provides for the same case. It was decided by the Court'of Appeals of Kentucky, in the case of Hynes v. Campbell, 6 Monroe, .289, that this act virtually, yet effectually, repealed that of 1776.
    ■ 2d. When the legislature passed the act of 1796, it was obvious- . ly intended that all the provisions of existing statutes on the subject of conveyances should be thereby superseded. Its history and title make this manifest. It was a codification of all the laws which it was. intended should remain in force. Its first sections are the same as those of the act of-1785. Those succeeding, are the provisions of . the act of 1792. The old act of 1776 was wholly dropped. Other modes than those of that act being adopted for the conveyance of land by non-residents.
    Without a clause of repeal, it would seem that after the act of 1796, that of 1776 was not in force. To hold otherwise would imply the folly on the part of the legislature in the effort to. render simple and condense into one law all acts on the subject, to have retained two acts on the same subject by which the same tiling could be done in different modes — or would be to deny 16 the legislature the .power to simplify and reduce into one the laws of conveyances, since there can be no' doubt that was its intention. -
    But having adopted the codes, so to call them, of the revisors, the legislature, by a separate act, passed .on thé saíne d&y, (1 Littell, 508,) as if to leave no doubt upon this subject, expressly repealed all former acts coming within the purview of these statutes.
    Can it be said that the act of 1776, so far as it regarded conveyances of real, estates, by non-resident husbands and wives, is not within the nurview of the act of 1796 ?
    As to what subsequent statutes annul prior- ones, see 1 Pickering, 45; 12 Mass. Rep. 563; 5 Pickering, 169. The case of Taylor «, Shields ought to have no weight upon this point. There must have been an error in copying the word “ eight” instead of “ eighteen.”. The last' syllable must have béen left out by 'mistake, for rio good reason can be given" for allowing the people of the state eighteen months to record their deeds, and restricting non-residents to eight.
    It is admitted by the other side that the act of 1796 -repeals the prior statute' as to" justices of the peace, because it makes provision for them; but it is argued that the authority of a mayor was permit-ted to remain, because no n ice is taken of him in the -.ict. But both laws'are equally .applicable to justices. What good reason, then, can- be given for the distinction ?
    This case does not rest on an implied repeal only; we say that 'there was an express repeal. The revisors were .to collect what was proper to be 'retained, and omit What ought to be left out. ' The title of the act of. 1796 was “ to reduce into one,” &c. One branch of the laws reported on by the revisors related to county courts, and upon this subject they made an entirely new code. We say that the same purpose was intended with regard .to the deeds of femes covert. Additional guards were thrown around them for protection. They were required to go into a court, or beforé ¡commissioners. If the legislature had repealed the whole act of 1776, by name, they would have gone further than they wished, because they intended all such parts of it as related to personal property to -remain in force. We must find out the intention of the legislature by looking at the evils which existed before the passage of the law, tiie circumstances of the case, &c. 6 Dane’s Abr. 595; 9 Peters, 317’; 3 Wheaton, 610.
    It is said, in 6 Dáñe, 595, that where the legislature intends a revision, it amounts to a repeal of prior laws.
    In 1he act of 1796, clerks are directed to record papers “ acknow- ■ ledged as before prescribed,” which shows that the legislature intended to make a new rule.

      Crittenden, in reply and conclusion.
    The deed is admitted1 by the other side to be good, if the statute of 1776 is. not repealed. The burden of proof is on him, therefore, to show that it has been, so; and it has been attempted to be shown,
    1. From its being inconsistent with the act of 1785.
    2. From its inconsistency with 1796
    3. From an express repeal by 1796.
    The fact that the act of 1796 is the-work of revisors, cannot affect the construction of iti • There is no rule like this laid down by the elementary writers. It is only, after all, a revised statute. Every act of a legislature implies á revision of all former laws; and is the construction of it to be varied, because A. B. prepared it? A part of the duty of revisors is to say: what statutes shall be repealed. If they thought that the act of 1776 ought to have been repealed, why did they not say so? ‘ A revised act is-cumulative, 11 Leigh, first’ case in the volume; What part of the act of 17.85 repeals that of 17.76? By-174 8 deeds must be acknowledged before the General Court, or a,County Court, in Virginia. ■ By,1776 a feme co.vert may. go before a mayor, and by. 1785 she may go before any court of record, or two justice's appointed by a commission. But these might all be put into one statute, and not be inconsistent with each ■ other. How can the circumstance’that-they are in different statutes vary the result? Statutes in pari materia must be construed together. _
    _ In 5 Pickering, a higher penalty was imposed than had’ been imposed by a preceding law. Here there was a direct conflict. But in the case in'Foster, where <£20^ per month, and 12d. per Sunday, were inflicted for not going to chQrch, both penalties could be levied. The multiplication of the means of acknowledging deeds was 'only a facility afforded to women.
    If the act of 1785 did not repeat that of 1776, the act.of 1796 did not, because it is almost an exact transcript of former laws. The designation of one person to do any given thing, does not exclude the right of another to do the same thing. It is said that the legislature intended to protect women, but Mrs. Fairbairn never denied or questioned the validity of her deed, as long as shé lived,
   Mr. Justice McLEAN

delivered the opinion ot the court.

This case is brought here by a writ of error to the Circuit Court for the district of Kentucky.

The lessors of the plaintiff brought an action of .ejectment, to recover a half-acre lot in the city of Louisville, numbered on the new plan of the city ninety-one. Richard Ferguson, Daviess, and others, were made defendants. The jury found the defendants guilty, and a judgment was entered against them. - On the trial, exceptions were taken to various rulings of the court, only one of which it is material to consider.

The court instructed the jury, “ that the deed of. conveyance, by Thomas H. Fairbairn and wife, of the 12th of March, 1811, to the-defendant, Dr. Richard Fergusbn, whereof a copy was read in evidence by the plaintiffs, was not, in law, the deed.of the feme covert-, Maria E; Fairbairn; is not her deed of conveyance for any purpose whatever; and passed from her to Dr. Ferguson no estate whatever in the lot of land in controversy.”

The plaintiffs below claimed as heirs at law of Maria E. Fairbairn: The fairness of the purchase of the lot by Ferguson was not controverted, nor that he paid for it an adequate consideration. The lot having descended to Maria E. Fairbairn, and' her husband being dead, her heirs claim the property, on the ground that the acknowledgment of the deed by their mother, she being a feme covert, was defective. -And so the court ruled in the above instruction.

The deed was acknowledged on the 12th of March, 1811; the day it bears date, by Elizabeth Henry, who signed it, and who had a dower interest in the lot, and.by Fairbairn and wife; the latter being examined separate and apart from her husband, in due form, before ■the mayor of Baltimore, who. affixed his certificate and the seal of the corporation to the acknowledgment. ■

On the 20th of May, 1811, Warden Pope, .clerk of the County Court of Je'fferson, in which Louisville is situated, certified that the '.deed_was received in his office; and it being duly certified and authenticated;' he recorded the same.

By the Virginia act of 1776, adopted by Kentucky, 4 Litt. Laws of Kentucky, 432, entitled “ An act to enable persons living in other countries to dispose of foeirestates in this commonwealth, with more ease and convenience,” it was provided “ that a person residing in any other county, for passing any lands and tenements in this commonwealth, by deed, shall acknowledge or prove the same before” the mayor or: other chief magistrate of the city, town, or corporation, wherein or near to which he resides. But where there was' no mayor or other chief magistrate within the county, then a certificate, under the hands and seals of two justices or magistrates of the county, that such-proof or acknowledgment.has been made before them,is sufficient. ''Without an acknowledgment, the fee did not pas§ under this statute. And “where any person making such conveyance shall be a feme covert, her interest in any lands or tenements shall not pass thereby, unless she shall personally acknowledge the same before such mayor or other chief magistrate, or before two justices or magistrates, as aforesaid.” A privy examination is required, and the same being certified, the deed may be recorded in the county where the land lies. And such deed shall be effectual to pass all the interest of the feme covert.

The acknowledgment of the deed under consideration, in all re— 'spects, conforms to the requirements of the above act; and the important question is, whether, at the time of the acknowledgment, the act was in force ? If the act had not been repealed, the deed is unquestionably valid.

The plaintiffs in error contend that the above statute was repealed by the act of 1785, and also of 1796. The act of 1785 is entitled “An act for regulating conveyances,” in the 1st section of which it is provided, “that no estate of inheritance, or freehold, or for a term of more than five years, in lands or tenements, shall be conveyed from one-bo another, unless, the conveyance be declared by writing, sealed and delivered; nor shall such conveyance be good against a purchaser for valuable consideration, not having-notice thereof, unless acknowledged or proved before the General -Court, or before the court of the- county, city, or corporation, in which foe land is conveyed, or in the manner hereinafter directed,” &c.

“When husband and wife-shall have sealed and delivered a waiting, purporting to be a conveyance of any estate or interest, if she appear in court, and being .examined privily and apart' from her . husband, by one of foe judges thereof, &e.; or. if beforé two justices of foe peace, of that county in which she dwells, who may be em-. powered by commission, to be issued by the ‘ clerk of the court. wherein the writing ought to be recorded,” &c., shall be sufficient to convey her éstate.

In this act there is no express repeal of the-act of 1776, consequently that act can only be-repealed in so far as it may be repugnant to the subsequent act. They are both affirmative statutes, and such parts of the prior statute.'as may be. incorporated into foe subsequent one, as consistent with it, must be considered in force. This is a settled rule of construction, and applies, with peculiar force,.to these statutes. Their object was to prescribe certain modes by which real property within the commonwealth should be conveyed, by residents' and non-residents, and also by femes covert, and it must be admitted,' that no other modes of conveyance than those which are so-prescribed will be valid.. • These forms have been adopted for' the security of real property, and the convenience of individuals; hence we find in the statute books of all the states, numerous acts regulating.the signing, acknowledging, and recording of deeds.

If the act of 1785 be not repugnant in all its provisions to the act of 1776, yet if the former clearly intended to prescribe the only modes .by which real estate should be conveyed, it repeals the prior act. And this intention, it is said, is found in the act of 1785. To some extent, this may be correct. In, the first section of that act, it ■is provided, that “ no estate of inheritance in lands or tenements shall be conveyed from One to another, unless the conveyance be declared by writing,'sealed and delivered.” Now a deed, to be valid as a conveyance, under'this statute, must be in writing, sealed and delivered. This is the common law definition of a deed. But there are other requisites to make this conveyance valid against a purchaser for a valuable consideration, without notice. The deed must be. acknowledged as the statute requires, and lodged with the clerk for record. The conveyance as between the parties would be valid, under this statute, without acknowledgment, but unless acknowledged and recorded, or lodged for record, would not be notice to subsequent and innocent purchasers.

The acts under consideration provide specially the mode by which the estate of a feme covert shall be conveyed. In the act of 1785, her privy examination may be made in court, or by one of the judges thereof, or she may be examined by two justices of the peace, of the' county where she' resides, “who maybe empowered to do so- by commission,” &e.

By the act of 1776, the acknowledgment and priv.y examination of a feme covert, were-required to be made before the mayor or other chief magistrate, or before two justices gr magistrates of the town or place wherein she shall reside. The acknowledgment before'two justices is retained in the act of 1785, with this additional requisite, that the justices shall be commissioned, as provided, to perform this duly. This necessarily repeals that part of the prior - act" which authorized the acknowledgment to be taken before two justices, without being commissioned. The latter act is, in' this regard, repugnant to the former. The provisions cannot'stand together, as the latter .act superadds an essential qualification of the justices not required by the former. But the important question is, whether, as the act of 1785 made no provision authorizing a mayor of a city to take the acknowledgment of a feme covert, that provision in the act of 1776 is repealed by it. In this respect it is clear there is no repugnancy between the two acts... The- two provisions may, well stand together, the latter as cumulative to the former.

Does a fair interpretation of the act of 1785 authorize the inference, that the legislature intended no conveyance by a feme-.covert should be valid, unless acknowledged in the form prescribed by that' act? We think no such inference can be’drawn. In-the first section of that act, in reference to ordinary acknowledgments of conveyances, in order,- when recorded, that they might operate as notice to - subsequent purchasers, it is required that -the acknowledgment should be made as provided, “or in the manner hereinafter directed.” The words here cited can have no bearing oh the ' execution of a conveyance by a feme covert. In a subsequent part of the -same section, provision is made for the execution-of-such-an instrument, which is complete, without reference to any other part of the statute. The above words, therefore, could only refer to the conveyances spoken of in the first part of the section, and in- order that they might operate, when,recorded, as notice.

■Upon a careful comparison of these statutes, as regards the point in controversy, we think there is no repeal of the act of-1776, by the-act of 1785. There is no express repeal; no repugnancy, as •regards the power of-the mayor of a city'to'take the acknowledgment of a feme covert; nor- on this point are there any words of-the - latter act which show an intention to make its provisions exclusive. We- are therefore brought to the. conclusion, looking only at these statutes, that the latter -act, in this regard, may be considered as cumulative.

As having a strong and decided bearing on this view, we refer to Wood v. The United States, 16 Peters, 362. In that case, the court say, “ the question then arises whether the:66th section of the- act of 1799, chap. 128, has been repealed,-or whethe'r it remains in full force. . That it has not been expressly, or by direct terms, repealed, is admittedand the question resolves itsehf into the more narrow, inquiry, whether it has been repealed by necessary implication. We -ay by necessary implication, for-it is not sufficient to establish that subsequent laws cover some or even all the cases'provided for by it; for they may be merely affirmative, or-cumulative, or auxiliary. But there must be a positive repugnancy between the .provisions of the new laws and those of the old; and even then the old law is repéaled ' by implication only pro tanto, to the extent of the repugnancy/’

We come now-to consider the act of 1796. The act of the 20th of December, 1792, concerning, the relinquishment of .dower, in the- 2d section, provides that dower may be relinquished before two justices of the peace, where the parties- reside out of the commonwealth, and the clerk of the county is required, to'certify that the persons taking the acknowledgment were justices, &c. This .provision is repugnant to that of the act of 1785, which requires a commission to be issued to such justices.-

By the act of the 17th .of December, 1795, two persons were authorized to be appointed by joint ballot of the legislature, to revise the laws in force, &c. These persons, having been so appointed, reported the act of 1796, which is entitled “An act to reduce into one the several acts, or parts of acts, for regulating conveyances.” In this act are included' parts of the act of 1776, and nearly the whole of the. act of 1785. It was passed the 19th of December, 1796, and, with all other acts reported at the same time, was- adopted .by a general act, referring to the various acts, and providing that “ so much of every act or acts before recited, as comes within the purview of this act, shall be and the same is hereby repealed from and after the 1st day of January, 1797,” on which, day the above act took effect.

That part of the act of 1776, authorizing the mayor of a city to take the acknowledgment of a feme covert, is not included in the act of 1796; nor were certain-provisions of the act of 1748, “for settling the titles and bounds of lands,” &c., included, some parts of which have since been recognised by the Court of Appeals of Kentucky, as in force. —

Great reliance is placed by the counsel for the defendants in error, in the case of Hynes’s Representatives v. Campbell, 6 Monr. 286. In that case, the complainants prayed a rescisión of the contract for the conveyance .of a certáin tract of land, on the ground of a defect of title-; and the court held, that they were not bound to accept the deed for the land, tendered by the defendant, as some of the conveyances under which he claimed were not acknowledged and recorded, as the law required. The deeds thus objected to “ wére acknowledged before two justices of the peace of Dunwiddie county; Virginia, who certified simply that the grantor acknowledged the-same before them, as the law required,” without adding that the grantor “ also subscribed the same in their presence.” This proceeding was under the act of 1792, which had been construed to require a certificate of the justices that the deed had been subscribed in their presence, in regard to deeds executed within the state. And the court say, they turned their, attention to the act of 1776, “ and they find that it regulates only conveyances made out of the state, and that it provides for acknowledgment alone, before two justices of the peace, and says not a word about subscribing, and if that act is in force in this respect, it will exactly embrace the case in question.” And they held that the above act was virtually repealed by the act of 1785, which requires that the two justices taking the acknowledgment should be commissioned to do so. This view of the court, as regards the acknowledgments of the deeds then before them, was undoubtedly correct. It is the construction which we have before ■ given to this part of the act of 1785. The attention of the court was not drawn to any other point than the one before them. They did not say that that part of the act of 1776 which regulates the aclmowledgment by a feme covert, which is wholly different from the above, ■ was' repealed.- lit is"ixue .their language is general, but their meaning must be limited to the point under consideration. . This decision, therefore, cannot be considered as having a bearing on the- point now before us. ■

In the case of Prewet v. Graves et al., 5 J. J. Marshall, 120, the court say, that the 5th section of Hie act of 1748 had been repealed by subsequent and repugnant enactments. In Miller et al. v. Hen-shaw & Co., 4 Dana, 323, they say, in reference to the act of 1776, and to the decision of Hynes’s Representatives v. Campbéll, above cited, that the act ofT776 “is nowhere repealed by express words, but only by construction, in consequence of the inconsistency of its provisions with those of subsequent statutes; and as none of the subsequent statutes relate to the authentication of deeds of personalty, out of the state, except those which reduce the number of witnesses from three to two, there can be no inconsistency, and therefore no constructive repeal of so much of this statute as related to deeds of personalty, except as to the number of witnesses.”

' In McGowen v. Hay, 5 Litt. 244, the court held the act of 1748 was in force in Kentucky, in regard to the acknowledgment and recording of mortgages and deeds of trust. By the act of 1796, a deed, executed out of the commonwealth for lands-within it, was required to be recorded in eight months.' ’T.he act oí 1785, which preceded it, required such deed to be recorded in eighteen months; and in Taylor v. Shields, 5 Litt. 297, the question was, whether the latter of these acts, in this respect, had repealed the former; and the court say, “we should hesitate much to give such effect to the latter statute,” “Virtual repeals are not favoured by courts. A body of acts ought to be held as one act, so far as they do not conflict with each other. Here the same restriction to the ‘ manner prescribed by law,’ existed before the passage of oür act, as well as afterwards; and if, in transcribing the Virginia Code into ours, any part shall be adjudged to be repealed, barely by putting in the date of transcribing as the date of the law, and because the provision, so transcribed, shall apparently coriflict with any former part not so transcribed, it maybe of serious-consequence to the community.” “We incline,” the court say, to the opinion; “ that the clause in our statute, (of 1796,) 4 in the manner prescribed bylaw,’ meant to retain, and was intended to retain, former provisions, with regard to deeds entire;” and they held, that the recording of the deed within eighteen months, under the act of 1785, was sufficient.

That part of the act of 1785,-which regulated the time of recording deeds, executed without the commonwealth, was not copied into the act of 1796, -and yet the court held that the latter act, in this respect, did not repeal the former;

In Elliott et al. v. Piersoll et al., 1 Peters, 339, .this court say, the Virginia statute of 1748 “was adopted in Kentucky, at her separation from Virginia, and is understood never to have been repealed'.”

It does not appear that the question, as to the validity of the acknowledgment of a deed before, the mayor of a city, by a: feme covert, under the act of 1776, since that of 1785 has been enacted, has ever been decided. Some general expressions, as above stated, have-been used by the Court pf Appeals, in regard to the repeal of the former act by the latter, but those expressions - did not relate to the above question. And it may be again observed, that those remarks by the. Court of Appeals can only be held to apply to the • matter then before them; and that a more extended application of 'them would be inconsistent with the views-taken by the same court,in the other cases cited. If the provision in the act of 1785, requiring a deed -executed' out of the state to be recorded in eighteen months, is not repealed by the act of 1796, requiring such deed to be recorded in eight months, is the act of 1776, authorizing the acknowledgment of a deed before a mayor, by a feme cdvert, repealed by subsequent acts ? • None of «those acts repeal, in terms, the above provision in the act of.1776, and they contain no repugnant provision. Consequently, the first act stands unrepealed. The different-acts on the same subject, in the language of the Court of Appeals, must be “considered as one act.” In this view, the provision in question stands consistently with all the subsequent statutes; and on this ground we feel authorized to say, that the acknowledgment of the deed before us is valid, under the act of 1776, and that it conveyed to Ferguson, the grantee, a good title in fee-simple. . The clause of the act of 1796, “repealing so much of the acts referred to as come within the purview of that act,” extends no further than the repug-nancy of the act of 1796 to the provisions of the acts named. .

Upon the whole, the judgment of the Circuit Court is reversed, at the costs of the defendants, and the cause be remanded, &c.