Childress v. Cutter

• Decision Date: 31 March 1852
• Citation: 16 Mo. 24
• Court: Missouri Supreme Court
• Parties: CHILDRESS & MULLANPHY, Plaintiffs in Error, v. CUTTER, Defendant in Error.

16 Mo. 24

CHILDRESS & MULLANPHY, Plaintiffs in Error,

v.CUTTER, Defendant in Error.

Supreme Court of Missouri.

March Term, 1852.

1. By the custom of Paris, or French law, real estate owned by either party at the time of marriage did not enter into the community.

2. A marriage contract, purporting to create a community according to the custom of Paris, contained this clause: “The said future spouses take each other, with their property and all the rights now actually belonging to them, and also those which may fall toor appertain to them, etc., which property shall wholly enter into the community,” etc. Held, the words “which property, etc.,” must be understood as applicable only to that which came to them during marriage.

3. By the Spanish law, which formerly prevailed in this state, if a husband or wife married a second time, the property which he or she acquired from a former spouse, either directly or by inheritance from any of the children of the first marriage, became the property of the surviving children of the first marriage, and the spouse who married again only had the usufruct of it during life.

4. There was an exception to this general rule, in favor of women becoming widows before the age of twenty-five years. But a widow who claims the benefit of this exception, must prove herself within it; otherwise, the case will be determined according to the general rule.

5. Under the twelfth section of the territorial act of July 4th, 1807, upon the death of a person who had acquired an estate of one of his parents, the estate descended exclusively to his blood, on the part of the parent from whom it came to him.

6. A certified copy of any record or public paper, by the officer intrusted with its custody, is evidence, if the original would be; but such documents are not evidence of matters stated in them, which do not belong to the transaction which the officer was required to record.

7. Church registers are not admissible in evidence, except by special statute, unless they are, by the civil law of the country or state where kept, recognized as documents of an authentic and public nature.

8. Recitals in such registers are not admissible as evidence of pedigree.

Appeal from St. Louis Circuit Court.

This was ejectment, in the St. Louis Circuit Court, brought by Cutter, on the 1st of November, 1845, for a tract of one by forty arpens of land in the Common Fields adjacent to St. Louis, stating it to be the same tract formerly conceded to Louis Lirette and by him sold to Jno. B. Vifvarenne, being U. S. survey number 1479 in said Common Fields. Childress was the tenant of Bryan Mullanphy, of a lot of twenty-five by one hundred feet. Mullanphy caused himself to be a codefendant, and on the 10th of January, 1850, a verdict was rendered against the defendants for two-fifteenths of said lot of twenty-five by one hundred feet. A motion was made for new trial, and overruled; and defendants appealed.

The plaintiff gave in evidence documents as follows:

1st. A concession on 17th July, 1769, of St. Ange to Louis Lirette, of a tract of one by forty arpens of land, situated in the prairie opposite the mound; bounded on one side by widow Mareschal, and on the other by Condè.

2d. A survey by Duralde, taken from Livre Terrien No. 2, of one by forty arpens, for Louis Lirette, in the prairie that touches the village (St. Louis); bounded on one side by the domain of the king, and on the other by Moreau. This was made between 1770 and 1772.

3d. A conveyance by Louis Lirette before the lieutenantgovernor, Piernas, to John Baptiste Vifvarenne, dated 20th August, 1774, of one by forty arpens; bounded on one side by the widow Mareschal, and on the other by the domain of the king or the land of Condè.

4th. A confirmation by the recorder, being the usual tabular statement in his report. The quantity is one by forty arpens, and it states that notice to the recorder was by Lirette's representatives. The decision is in these words, “Confirmed forty arpens to be surveyed.”

5th. United States survey No. 1479 of the tract conveyed to Lirette, and confirmed as above; bounded north by Moreau, and south by Mullanphy, under Provenchère, executed on 19th October, 1826.

6th. Certificate of marriage of John Baptiste Vifvarenne and Genevieve Cardinal, on the 6th August, 1777.

7th. Certificate of burial of said Genevieve, on the 2d of November, 1792.

8th. Certificate of baptism of Louis Vifvarenne, son of J. B. Vifvarenne (spelled Wivaren) and Genevieve, on 15th August, 1780.

9th. Certificate of burial of an infant of “Wivaren,” aged fourteen months, on 1st January, 1781.

The plaintiff claimed under sundry deeds from persons representing themselves heirs of J. B. Vifvarenne, and proved that J. B. Vifvarenne died many years before his wife died. He also gave evidence tending to prove that Louis Vifvarenne, son of J. B. Vifvarenne, left St. Louis about the year 1800, and went to the lower country. He then gave depositions of sundry witnesses, stating that, at about that time, a person answering the description of Louis Vifvarenne, son of J. B. Vifvarenne, came to the parish of St. Landry, near Opelousas, in Louisiana, and remained there till he died, in 1813; that he went by the name of Louis Cardinal, and was generally known only by that name; said he was from St. Louis, and mentioned to a person, on one occasion, that his name was Vifvarenne. Other circumstances were given in evidence, tending to show that he was Louis Vifvarenne, son of J. B. Vifvarenne.

1. The defendants gave in evidence the marriage contract between John Baptiste Vifvarenne and Genevieve Cardinal, dated the 5th August, 1777. It provides, that they will perform the ceremony of marriage, as soon as either requires it of the other: “That the said future husband and wife may be one and common in all property movable and acquisitions immovable, according and in conformity to the ancient custom established in this colony, to which they subject themselves in respect to this contract; the said future husband and wife shall not be bound for the debts of each other, accrued before the celebration of said marriage; and should there be any, they shall be paid by him or her who contracted them, out of his or her property, without the other being responsible, or his or her property.

The said future husband and wife take each other, with their property and rights actually belonging to them, and that which shall come, descend, or belong to them hereafter, whether by inheritance, donation, legacy, or otherwise; which property, from whatever source it may come to them, shall enter wholly ( par le tout) into the community, without any reservation.”

The contract provides, that said Vifvarenne endows her with the sum of six hundred livres, to be a charge on all his property. It then further provides, that the survivor of them shall be entitled to four hundred livres out of the property of the community.

Defendants also gave in evidence the following:

2. Certificate of baptism of John Baptiste Vifvarenne, son of said J. B. Vifvarenne and Genevieve Cardinal, showing that the ceremony was performed on the 3d of May, 1779.

3. Certificate of baptism of Francis Vifvarenne, also a son of J. B. Vifvarenne and Genevieve, showing that he was born on the 6th of April, 1782.

4. The deed of Toussaint Mareschal and Charles Mareschal (sons of said Genevieve, by Jacques Mareschal, by second marriage) to Pierre Chouteau, conveying, as heirs of Genevieve Vifvarenne, their mother, the said one by forty arpens of land, dated 11th October, 1817.

5. The deed of said Chouteau and wife to John Mullanphy, dated 30th October, 1819, conveying to him, in fee, one hundred and twenty arpens, composed of the Lirette field lot, in question in this suit, and the two adjoining on the north; towit: one in the name of Moreau, and the other in the name of Vien, the original claimants. This deed was acknowledged and recorded 1st November, 1819.

6. Inventory and appraisement of the property of Genevieve Cardinal, widow of John B. Vifvarenne, and her two minor children. This document is dated 19th August, 1782. It sets forth that it was done by the lieutenant-governor, Cruzat, and in consequence of said Genevieve's having left the place. (Plaintiff objected to the admission.)

7. Sale of the property, real and personal, of said Genevieve and her two children, contained in said inventory and appraisement, on the 6th of October, 1782, by the same lieutenant-governor, to pay the creditors of said Genevieve.

8. An extract from the parish register of St. Landry, in Louisiana, as follows: “In the year 1813, and the 24th of the month of August, I, the undersigned, Michael Bernard Barriere, priest, officiating in this parish of St. Landry of Opelousas, buried in the cemetery of this parish the body of Louis Vifvarenne, an adult of about thirty-three years, native of St. Louis, of Illinois, and natural son of Louis Vifvarenne and Margaret Metive. He died from sickness, and at the house of Pierre Bellevue, in the Grand Prairie. He was not married, died poor, and did not receive the sacraments, not being aware that he was going to be sick. He lived in this parish about twelve years.”

The present priest of that parish, and keeper of its records, swears to the above copy, and the custom of the church to keep such registers, etc. In the margin of the above entry on the parish record is a memorandum, as follows, in the same handwriting: “Louis Vifvarenne. He was better known under the name of Louis Cardinal.”

It was proved that the whole entry was in the handwriting of Barriere, then the parish priest, who has since died.

The defendants gave evidence tending to prove that Genevieve, widow of J. B. Vifvarenne, married Jacques Mareschal soon after the death of Vifvarenne; that the two Mareschals, who made the deed to Mullanphy, were her only heirs; that as early as 1820, at least, Mullanphy built a brick house on the south line of the Vien field lot and...