Garnier v. Barry

• Decision Date: 31 March 1859
• Citation: 28 Mo. 438
• Parties: GARNIER, Plaintiff in Error, v. BARRY, Defendant in Error.
• Court: Missouri Supreme Court

28 Mo. 438

GARNIER, Plaintiff in Error,

v.BARRY, Defendant in Error.

Supreme Court of Missouri.

March Term, 1859.

1. The proviso of the act of June 22, 1821, (1 Terr. Laws, 756,) to the effect that nothing therein contained should “in anywise authorize husband and wife to convey [any] estate granted to the wife and heirs after intermarriage” does not apply to a confirmation, by the act of Congress of June 13, 1812, of a Spanish concession or claim cast upon the wife by descent previous to her marriage; nor does said proviso apply to the case of an inheritance by a wife during marriage of such a confirmation; husband and wife might, under said act of June 22, 1821, convey land thus confirmed to the wife during marriage, or thus falling to her by inheritance.

2. The second section of the act of December 6, 1821, (1 Terr. Laws, 798,) was applicable to a conveyance by husband and wife of the latter's real estate under the act of June 22, 1821; consequently such a conveyance was not entitled to be admitted to record unless the certificate of acknowledgment contained the requisites prescribed by the said second section of the act of December 6, 1821. It was necessary that the certificate should state that the persons making the acknowledgment were personally known to the person taking the same, or were proved by two credible witnesses, whose names were mentioned therein, to be the proper persons who made and executed the deed.

3. The fifty-eighth section of the act concerning evidence (R. C. 1855, p. 733) is not, it seems, applicable to the case of the record of a deed defectively acknowledged; a certified copy of the record of such a deed and of the time of its record, though accompanied with proof of claim and enjoyment under such deed for ten consecutive years, would not, under said section, be prima facie evidence of its execution and genuineness.

4. A. and B., husband and wife, on the 10th of December, 1823, executed a conveyance of land belonging to the wife. The acknowledgment was taken on the same day before a county court, which was composed of at least three judges, and certificate thereof was in the following form: “Be it remembered, that on, &c., appeared in open court A. and B., his wife, and acknowledged the foregoing deed of conveyance from them to L. A. B. to be their voluntary act and deed for the purposes therein expressed; she, the said B., being privily and apart from her said husband examined, declared that she did freely and willingly seal and deliver the said writing and wished not to retract, and she being previously made acquainted with the contents thereof.” This acknowledgment was attested by the presiding justice under the seal of the court. Held, that this acknowledgment was sufficient to pass the title of the wife under the act of June 22, 1821; (1 Terr. Laws, p. 756;) the certificate of acknowledgment was not, however, sufficiently in conformity to the second section of the act of December 6, 1821, (Id. p. 798,) to authorize its admission to record.

5. The act of February 14, 1825, (R. C. 1825, p. 220, § 12,) regulating conveyances, required a married woman, making an acknowledgment of a deed of conveyance of her estate, to “appear before some court of record.” In a certificate of acknowledgment taken before a judge of a probate court, and certified by him, he having no clerk, it was stated as follows: “At a term of the probate court for, &c., before me, M. P. L., judge of said court, personally appeared M. G., wife, &c., who is personally known,” &c. Held, that the acknowledgment was good.

Error to St. Louis Land Court.

This is an action in the nature of an action of ejectment to recover possession of an undivided interest of a lot of ground embraced in a larger tract of one by forty arpens situate in the St. Louis common field. Said lot was confirmed by act of Congress of June 13, 1812, to the legal representatives of Auguste Condé. The claim of Condé's representatives was proven up before Recorder Hunt in 1825 under the act of 1824. It was duly surveyed by the United States in 1826. Both parties to this suit claim under Condé. Condé died in 1776, leaving two daughters his only surviving issue. In 1779 one of said daughters intermarried with Charles Sanguinette, and in 1797 the other intermarried with Patrick Lee. Charles Sanguinette died in 1818, and Mrs. Sanguinette in 1821, leaving nine children them surviving, of whom were Mary, (the plaintiff in this action,) who was born in 1781, and married in 1812 Joseph V. Garnier, who died in 1851; Caroline, who intermarried in 1818 with Horatio Cozens, and became discovert by his death in 1826; Adelle, who intermarried with John E. Tholozon in 1819, and Charles. Patrick Lee and wife both died in 1825, leaving six children:--Lydia, who intermarried in 1818 with Stephen Rector and became discovert by his death in 1826; Constance A., who intermarried with Zalmon Palmer; Emily Rousseau; Ellen Rappernich; Sophia O'Fallon, and Oscar.

Plaintiff read in evidence a deed dated October 29, 1847, of Charles Sanguinette, Caroline Cozens, John E. Tholozon and Adelle his wife, and Lydia M. Rector, to Marie Garnier, the plaintiff, acknowledged about the same time and recorded in St. Louis county in April, 1850. Plaintiff also read in evidence a deed from Rousseau and Emily, his wife, to herself, dated and acknowledged December 28, 1847, and recorded in March, 1850; also a deed from Constance A. Palmer, Sophia O'Fallon and Ellen Rappernich to herself, dated, acknowledged and recorded in March, 1850.

The defendant offered in evidence a certified copy of the record in the recorder's office in St. Louis county, of a deed of conveyance purporting to be executed by Patrick Lee and Constance, his wife, conveying to Louis A. Benoist an undivided half of a lot of one by forty arpens granted to Auguste Condé. This deed was dated December 10, 1823, and was accompanied by the following certificate of acknowledgment: “State of Missouri, county of St. Charles, ss. County court--December term, 1823. Be it remembered, that on this 10th day of December, 1823, appeared in open court Patrick Lee and Constance Lee, his wife, and acknowledged the foregoing deed of conveyance from them to L. A. Benoist to be their voluntary act and deed for the purposes therein expressed. She, the said Constance, being privily and apart from her said husband examined, declared that she did freely and willingly seal and deliver the said writing and wished not to retract it, and she being previously made acquainted with the contents thereof. In testimony whereof, I, Robert Spencer, presiding justice of said court, have hereunto set my hand and caused the seal of said court to be affixed. [Signed] Robert Spencer, P. J. C. C. C. St. C. [Seal.] In testimony whereof, I, William Christy, jr., clerk of the said court, have hereunto set my hand and affixed my private seal, there being no seal of the court yet provided. William Christy, jr.” From the accompanying certificate of the recorder of St. Louis county, it appeared that this deed was recorded December 11, 1823. This deed was admitted in evidence against the objections of plaintiff.

The defendant also offered in evidence a certified copy of the record of a deed purporting to have been executed by J. V. Garnier and Marie Garnier his wife, in favor of L. A. Benoist. The deed was dated April 28, 1827, and was recorded September 15, 1830. The certificate of acknowledgment on the part of Mrs. Garnier was as follows: “State of Missouri, county of St. Louis, ss. Be it remembered that at a term of the probate court for the county and state aforesaid, begun and held at the city of St. Louis, in said county, the 19th day of March, 1827, before me, Mary P. Leduc, judge of said court, personally appeared Marie Garnier, wife of Joseph V. Garnier, who is personally known to me to be the person whose name is subscribed to the foregoing instrument of writing as having executed the same. The contents of the said instrument of writing was made known and explained to her, and she, the said Marie, was examined separately from her husband whether she executed the same voluntarily, freely and without compulsion or undue influence of her husband; and being so examined, she, the said Marie, acknowledged said instrument to be her act and deed, that she executed the same voluntarily, freely and without compulsion or undue influence, and does not wish to retract. [Seal.] In testimony whereof, I, the said judge, have hereunto set my hand and affixed the seal of said court this 28th day of April, 1827. M. P. Leduc, J. Prob.” This certified copy of the record was also admitted in evidence against the objections of plaintiff.

The defendant also offered in evidence a deed executed by John E. Tholozon and wife to Laveille and Morton conveying the wife's interest in the land in controversy. This deed was dated November 5, 1830, and was recorded July 25, 1855. There was evidence showing that Mrs. Garnier, the plaintiff, had knowledge of this deed at the time it was executed. The deed was admitted in evidence against the objections of plaintiff.

The court gave the following instructions at the instance of the defendant: “1. At the date of the respective deeds given in evidence of Joseph V. Garnier and wife and John E. Tholozon and wife to Louis A. Benoist, the said Garnier and wife and the said Tholozon and wife could, by the respective deeds of said parties acknowledged in conformity with the law then in force, convey any interest in the tract in controversy in this suit which the wife of said party derived by descent from her mother. 2. The acknowledgment of Mary Garnier, in the form such as appears upon the paper given in evidence by defendant purporting to be a copy of the deed of Joseph V. Garnier and wife to Louis A. Benoist, is a sufficient compliance, in point of form, with the law in force at the time said acknowledgment purports to have been taken in order to pass any...