Chouteau v. Magenis

• Decision Date: 31 March 1859
• Citation: 28 Mo. 187
• Parties: CHOUTEAU, Plaintiff in Error, v. MAGENIS et al., Defendants in Error.
• Court: Missouri Supreme Court

28 Mo. 187

CHOUTEAU, Plaintiff in Error,

v.MAGENIS et al., Defendants in Error.

Supreme Court of Missouri.

March Term, 1859.

1. The legislature of the former territory of Missouri had no power by legislative act to grant divorces. (Per NAPTON, Judge; SCOTT, Judge, not concurring, holding that the territorial legislature had such power.)

Error to St. Louis Court of Common Pleas.

This was an action instituted to recover possession of an undivided interest in a certain lot in the city of St. Louis. Pelagie Labadie, at the time of her death prior to the year 1814, owned a lot on Main street in St. Louis. At her death said lot descended to her children, Sylvestre Labadie, Emilie Pratte, Pelagie Sarpy, Sophie Chouteau, (the plaintiff in the present suit and at that time wife of August P. Chouteau,) and Marie Antoinette Honey (at that time wife of John W. Honey.) In 1814, the said heirs of Madame Labadie (except Mrs. Honey) conveyed their interest in said lot to said John W. Honey. On the 22d of January, 1816, the legislature of the territory of Missouri passed an act to divorce said Honey and wife.^a1 (See Sess. Acts, 1816, p. 80.) On the 23d of January, 1816, said John W. Honey conveyed his interest in said lot to said Marie Antoinette Honey. This deed was a direct conveyance in the ordinary form. Said Marie afterwards married John Little and died in the year 1818, without issue, leaving her surviving the said John Little and her three sisters (including plaintiff) and one brother mentioned above. John Little died in 1832, and his interest was sold, under judgment against his administrator, to John P. Schatzell. On the 13th of June, 1827, the four heirs of said Marie Antoinette Little, including plaintiff and her husband, conveyed the north half of said lot to Robert Rankin, bounding it south by the “lot of John P. Schatzell.” This deed was defectively acknowledged. In partition proceedings between Rankin and Schatzell, in 1828, the entire lot was sold to Rankin. In 1828 said Rankin conveyed the south half of said lot to Arthur L. Magenis. On the 20th of January, 1848, Sophie Chouteau sold and quitclaimed to Rankin the north half of the entire lot. In this deed the deed of 1827 is referred to. Auguste P. Chouteau died in 1838. Arthur L. Magenis went into possession in 1828, and possession under him has continued uninterruptedly until the present time. He made valuable improvements. The plaintiff claimed to recover one-eighth of that portion of the lot which was conveyed to Magenis. The court, by its instructions to the jury, ruled that the divorce of Honey and wife was void; that the deed from Honey to his wife Marie Antoinette Honey was inoperative as a conveyance to the wife.

The plaintiff recovered one-fortieth of the lot sought to be recovered. Writs of error were sued out by both plaintiff and defendants.

E. Bates, for Sophie Chouteau.

I. Admitting for the purposes of this case that the territorial legislature had no power to grant a divorce, still the deed from Honey to his wife was a good and valid conveyance of the land even though the marriage remained undissolved. It was good according to the common law as introduced into the territory in a modified form by the act of Jan. 19, 1816. The common law thus introduced is not identical with the English common law. (See 2 Louis. 521, 556.) By the English common law such a conveyance would be void. (1 Bl. Com. 442; Co. Lit. § 168.) This rule is arbitrary and technical in its character, and is habitually evaded in practice. A wife may take an estate from her husband through the medium of the statute of uses. (See 1 Mo. 553.) It is practically adjudged that man and wife are two. The husband may convey and she may take. If the land did not pass to Mrs. Honey, what became of it? It was no longer the grantor's. It is like the case of an alien. The deed was good under the common law at the day of its date.

II. But supposing it bad at common law, still it is good under the territorial act divorcing Honey and wife. The second section of said act is distinct from the first, and grants to the woman personal independence, proprietary rights and legal protection apart from her husband. Supposing the first section void, the second is an independent grant of rights and powers to the married persons notwithstanding the marriage while it existed. The power of the legislature to pass said section is not disputed. It is a power strictly within the terms of the organic law of June 4, 1812.

III. The defendants are estopped to deny the legal validity of the deed, for they are privies to it and claim even on this record under that deed.

F. A. Dick, for Magenis and others.

I. The court committed no error in instructing the jury that the deed from John W. Honey to his wife was inoperative (See Frissell v. Rozier, 19 Mo. 448; 1 Co. Litt. 130; Reeves, Dom. Rel. 90.) As Mrs. Honey could take nothing by this deed, she never had more than one-fifth of the property, one-eighth of which vested in Mrs. Chouteau.

II. The court committed error against the defendants. The deed of 1827 was well executed by Mrs. Chouteau. (Lindell v. McNair, 4 Mo. 380; 10 Mo. 320; 5 Mass. 454.) The act of 1825 in relation to conveyances should be held to apply to rights acquired after the law went into effect. (See 20 Mo. 170, 227, 269.) The deed of 1848 ratifies and confirms the deed of 1827. If the deed of 1827 be held valid, it operates as an estoppel against plaintiff. It calls for the lot on the south as Schatzell's. The marriage contract of 1809 established a community between Auguste P. Chouteau and the plaintiff. He as head of the community could sell the property that entered into it. The court erred in refusing to give the instruction authorizing the jury to find the plaintiff estopped.

NAPTON, Judge.

If the legislative divorce in 1816 be treated as a nullity and John W. Honey survived his wife, the interest of the plaintiff in the premises is one-fortieth; and if that interest has not been disposed of or in any manner barred, the judgment of the court of common pleas was of course correct. If the legislative divorce and subsequent deed and marriage be upheld, Mrs. Chouteau's interest in the primises is one-eighth upon the supposition that the deed of June, 1827, was inoperative, and that no subsequent act of hers operated to convey her interest.

We have been unable to perceive any principle which would authorize this court to give efficacy to the second section of the divorce act of 1816, disregarding the first. Whatever construction the language of that section might admit of if it were an independent enactment, it is plain that its provisions were made...