Barnett v. Barnett
|02 October 1897
|50 P. 337,9 N.M. 205,1897 -NMSC- 022
|BARNETT v. BARNETT.
|New Mexico Supreme Court
Appeal from district court, Bernalillo county; before Justice N. C Collier.
Bill by Bessie Barnett against Joseph Barnett. From a decree in favor of plaintiff, defendant appeals. Reversed.
This is a suit brought by Bessie Barnett against Joseph Barnett for a partition or division of all real and personal property standing in the name of or owned by appellant, and alleged to be community property, and acquired during the marriage relation formerly existing between the said parties. The said appellant procured a divorce from appellate on the 5th day of November, 1894, and this suit was brought on the 13th day of January, 1896. Said bill of complaint alleges that appellant and appellate were married on or about the 10th day of August, 1891; that, at the time they were married, the appellant possessed and owned no property by inheritance donation, or legacy during the existence of the marriage community, but that they did acquire a large amount of property, both real and personal, by their joint and separate efforts and labors, as set forth and described in the bill of complaint, and alleges that all said property is acquest and community property, and that appellee is entitled to one-half interest in and to the same. Appellant filed a demurrer to the said bill, which was overruled, and thereafter appellant filed an answer, and referred to and made the pleadings in the divorce suit a part thereof, and denied that the appellee was entitled to any interest in either the real or personal property. Issue was joined, and Ad. H. Wycoff was appointed special master to take the testimony therein, and report the same to the court, with his opinion thereon. Thereafter appellee asked leave to amend her bill of complaint, alleging the date of her marriage to appellant in 1887, instead of 1891, which leave was granted, and thereafter defendant and appellant filed an amended answer. After the evidence was taken, the master made his report, sustaining the allegations in the bill of complaint, finding in favor of complainant and appellee, and that the property, real and personal, owned and possessed by appellant, was acquest and community property and found the value of the real estate to be $13,250, and the personal property of the value of $7,500, and that appellee was entitled to one-half of the same, together with the further sum of $175, for money borrowed by appellant from appellee. Exceptions to said master's report were filed and by the court overruled, to the overruling of which defendant excepted, and still excepts. Final decree was rendered, and appellant prayed an appeal, and gave a supersedeas bond to stay execution of said decree.
Assignments of error:
Childers & Dobson, for appellant.
Johnston & Finical, for appellee.
SMITH C.J. (after stating the facts).
It will not be contended that the appellee became vested with any separate interest under the common law in the property of the appellant acquired during their coverture, and it is not less assured that there is no provision made for her during his life as to such property by any statute of the territory. Chapter 90 of the Acts of 1889 is "An act to amend the laws relative to the estates of deceased persons," and directs that "one half of the acquest property which remains after the payment of the common debt shall be set apart to the surviving husband or wife absolutely." It is manifest that this distribution is derived from the Spanish law, and it may be that the limitation as to the time of the operation was suggested by the same code. It is consequential, therefore, that, if any laws have obtained here disposing (during the life of husband and wife) of the property accumulated by them during the continuance of their marriage relation, they are those of Spain and Mexico, as they existed, concerning descents, distributions, wills, and testaments, when this territory became a part of the United States. In 1846 the following announcements were promulgated by Kearney in his Code: Kearney's Code, p. 82, § 1 (September 22, 1846): "All laws heretofore in force in this territory, which are not repugnant to or inconsistent with the constitution of the United States, and the laws thereof, or the statute laws in force for the time being, shall be the rule of action and decision in this territory." Kearney's Code, Pamph. p. 35, § 1 (September 22, 1846): "The laws heretofore in force concerning descents, distributions, wills and testaments, as contained in the treatises on these subjects written by Pedro Murillo De Lorde (Velarde), shall remain in force so far as they are in conformity with the constitution of the United States and the state laws in force for the time being." The following, as to the foregoing, was duly enacted and incorporated in the Compiled Laws of 1865 (Act July 14, 1851, Pamph. p. 176, § 6): "That all laws that have previously been in force in this territory that are not repugnant to, or inconsistent with the constitution of the United States, the organic law of this territory, or any act passed at the present session of the legislative assembly, shall be and continue in force, excepting in Kearney's Code the law concerning registers of land." Section 1, as above, of the Compiled Laws of 1865, is repeated in the Compiled Laws of 1884, as section 1365, as below: This sequence of proceeding, and the absence of other legislation on the subject until 1887, establish that the civil law as to descents, distributions, wills, and testaments obtained here in 1846, and prevailed continuously unmodified to the time of the passage of the approved February 24, 1887, and in force from its passage. This statute expressly repealed all laws in force contravening its provisions, but it does not positively or by implication affect during the lives of husband and wife the acquest property, or direct its disposition until the death of either. An act that became a law February 26, 1889, supersedes the statute of 1887, above cited, but is likewise silent as to acquest property as long as the members of the marital partnership are both alive, though divorced. In 1891, section 1365 of the Compiled Laws of 1884 was repealed as follows: Notwithstanding the inaptness of the phraseology of the above act, we will presume that its object was to repeal section 1365, and will consider it as though such effect were indisputable. If the laws concerning descents, distributions, wills, and testaments contained in the treatises on these subjects written by Pedro Murillo Velarde are not now in force, to the extent that they are not positively supplanted, the conclusion that there is not extant in the territory any provision as to the rights of husband and wife, while both are alive, to acquest property, is irresistible. The common law recognizes no interest in the wife during coverture because of separation. Our statutes are equally deficient as to such status, and inevitably the defendant in error is remanded to the civil law for protection, if she is worthy of it.
We will now inquire whether the civil law as to acquest property during the lives of the parties who have contracted marriage and been divorced, has been abolished in New Mexico. It is a recognized tenet of international law that, in the annexation of new territory, its jurisprudence as to rights--not political in character--of its people are acquired with it, and remain in force until substituted by action of the new sovereignty. Says Chief Justice Marshall, in Insurance Co. v. Canter, 1 Pet. 544: ...
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