Lecompte v. Wash

• Citation: 9 Mo. 551
• Parties: LECOMPTE v. WASH ET AL.
• Decision Date: 31 October 1845
• Court: United States State Supreme Court of Missouri

9 Mo. 551

LECOMPTE

v.WASH ET AL.

Supreme Court of Missouri.

October Term, 1845.

ERROR TO ST. LOUIS COURT OF COMMON PLEAS

LAWLESS, HILL & HAMILTON, for Plaintiff.

SPALDING, for Defendants. 1. The question of the sufficiency of the first additional plea does not arise in this case; and, even if it did, the plea embraces a good defense. 2 Bac. Abr. 384; Rev. Code, 1825, p. 334, § 7, p. 500, § 13. And, by the Spanish laws, the widow forfeited her right, to the acquisitions made by the husband during marriage by elopement and adultery. See Dupondan's opinion. 2. The motion of Wash was rightly sustained, as the success of his co-defendant on the issue enures to his benefit. 3. Under the third error assigned, nothing can be taken advantage of but error in the record proper. The ailure by the court to sustain a motion, or any error committed by it on the trial, cannot be noticed under this assignment of errors.

NAPTON, J.

Hyacinth Lecompte, and his wife, Cecile, filed their petition in the Circuit Court of St. Louis, for an assignment of dower to said Cecile, in the lands of her first husband, Antoine Bisette. The petition stated that the maiden name of the defendant was Cecile Compare; that in the year 1806, she married Antoine Bisette; that said Bisette was seized of an estate of inheritance in the undivided third part of a lot of ground near St. Louis, two and a half by forty arpents, in the Big Prairie, bounded by lands of the widow Dodier, and of the widow Hebat; that said Bisette, as the demandant was informed, had sold said land in his life-time, but the demandant, Cecile, had never relinquished her dower; that the said Antoine died in May, 1825, leaving one child, Victoria Bisette; that his widow, the demandant, married Hyacinth Lecompte, in March, 1829; that defendants, Robert Wash, Brown Cozzens, and Benj. Ames, have entered on said lands, and deforced said Cecile, out of her dower, &c., &c. To this petition. Cozzens and Ames pleaded separately four pleas, and at the same term a judgment by default was entered against Wash. Replications were filed to the first and second pleas, and motions to strike out the third and fourth.

At the November term, 1835, motion was made by Wash to set aside the the judgment by default, and it was set aside accordingly. At the February term, 1836, Wash filed several pleas, and Cozzens and Ames filed four additional pleas, their former pleas having been stricken out or withdrawn. The additional pleas were: 1. That after the marriage, said Cecile had voluntarily left the said Bisette, and went away, and continued to live in adultery with the said Hyacinth Lecompte. 2. That during said marriage, said Cecile and said Lecompte compelled the said Antoine to leave the house, and from that time until the death of said Antoine, she, the said Cecile, voluntarily lived in adultery with the said Hyacinth Lecompte. 3. That after the marriage, and during the life of said Antoine, and after the fifth day of February, in the year 1825, she, the said Cecile, voluntarily left the said Antoine, and went away, and continued to live in adultery with the said Lecompte. 4. That after the marriage, &c., she, the said Cecile, voluntarily left the said Antoine, and went away, and continued with Hyacinth Lecompte, an adulteret, until the deatn of said Antoine, and until after the fifth day of February, 1825. The first, third and fourth of these additional pleas were traversed and issues taken thereon. A demurrer was filed to the second; which demurrer being overruled, a replication was then filed to that plea, traversing it and taking issue. No replications being filed to the pleas of Wash, judgment was given, and the case taken by appeal to the Supreme Court, where the judgment by default against Wash was re-instated.

At this stage of the proceedings the case was sent to the Court of Common Pleas. On the 29th November, 1842, a jury was called to inquire whether the demandant was entitled to dower in the premises in possession of Wash, who found she was entitled to one-ninth of 53 11-100 acres. On the succeeding day a trial was had on the issues made by the pleas of Cozzens and Ames, and the defendants had a verdict on the first, and the demandant on the second, third and fourth pleas. The demandant thereupon moved for a judgment, non obstante veredicto, upon the ground that the first issue was immaterial, and the verdict for her on the last issues authorized a judgment. This motion was overruled. The demandant then moved for a new trial, which was also overfuled. The demandant then moved in arrest of judgment, which motion was also overruled. Wash moved in arrest of judgment, because the petition of the plaintiff was insufficient, and because there was upon the record a bar to dower in any lands of the deceased, found by the verdict of the jury on the trial of the issues between the plaintiff and the other defendants. This motion was sustained.

The principal question involving the merits of this case is, whether the statute of Westminster II, 13 ed. 1 ch., 34, was introduced into the territory of Missouri by the passage of the act of the 19th January, 1816. The 34th chapter of the statute Westminister II, provided that, if a woman voluntarily leave her husband, and go away, and continue with an adulterer, she shall forever lose her action to demand her dower that she ought to have of her husband's lands, if she be convicted thereof, unless her husband willingly, and without the coercion of the church, be reconciled to her, and permit her to live with him; in which event she shall be restored to her action. 2 Co. Inst. 435. This was not the common law. 2 Inst. 435. The act of January 19, 1816, enacted that the common law of England, which is of a general nature, and all statutes made by the British Parliament in aid of, or to supply the defects of, the said common law, made prior to the 4th year of James I, and of a general nature, and not local to that kingdom, which said, common law and statutes are not contrary to the laws of this territory, and not repugnant to or inconsistent with the Constitution and laws of the United States, should be in force in this territory.

Was the statute of Westminster II made in aid of or to supply the defects of the common law? Whether a statute has, in the opinion of the court, attained its avowed purpose, or whether its avowed purpose be beneficial or not, are not the questions which determine whether the statute is embraced by the provisions of this act of 1816. The Legislature did not design that the courts should decide between the relative merits of the common law and the statutory amendments thereof, but doubtless designed to put into operation all such statutes of the British Parliament as purported or professed to be in aid of the common law. The statute of Westminster II was doubtless of this character, and the objection founded on this point is not tenable.

But the “common law and statutes” must not be “contrary to the laws of this territory.” It is necessary, then, to inquire what were the laws of this territory on this subject when this statute of 1816 was enacted. In 1807 the first provisions were made on the subject of dower, under the head of Wills, Descents and Distributions. By the 6th section of that law it is provided that, after the payment of debts the widow of a man who leaves issue shall have a third of the real estate and slaves of decedent for her life, and a third of the personalty absolutely. Where the decedent left no issue, she was entitled to one-half of his lands and slaves during life, and, upon a certain contingency, one-half of the personalty absolutely. And this was declared to be in lieu of dower at common law. By the act of July 7, 1807, a mode was provided by which the wife could release her dower; and by an act, which passed 18th June, 1808, a provision was made for the widow's quarantine, and a mode pointed out by which an assignment of her dower...