Lindell v. McNair

• Decision Date: 30 June 1836
• Citation: 4 Mo. 380
• Parties: LINDELL v. MCNAIR.
• Court: Missouri Supreme Court

4 Mo. 380

LINDELL

v.MCNAIR.

Supreme Court of Missouri.

June Term, 1836.

APPEAL FROM THE CIRCUIT COURT OF ST. LOUIS COUNTY.

Marguerite S. McNair, brought her action of ejectment in the Circuit Court, against Peter Lindell, and obtained a judgment there, to reverse which Lindell appeals to this court. The jury find specially that the land for which this action was brought, descended to her from her grandmother, who died in the year 1803; that in the year 1805, she intermarried with Alexander McNair, and lived with him as his wife till his death took place in 1826; that the said Alexander McNair and the plaintiff, then being his wife, on the 22nd day of March, in the year 1820, made and delivered their deed, sealed with their seals, by which they conveyed to William Stokes the tract of land in the declaration mentioned, &c. That the said deed was acknowledged by the said McNair and wife, before the clerk of the Circuit Court of St. Louis county and by him recorded; and that all the title of Stokes was, before the commencement of this suit, vested in Lindell the defendant. The only point made is whether a woman could in the year 1820, during coverture, by joining in a deed with her husband, convey land that descended to her in 1803.

H. R. GAMBLE, for Plaintiff in Error. The statute introducing common law, introduces so much “as is not contrary to the laws of this territory.” Now by the statute law of the territory, a conveyance of the wife's property was to be executed and acknowledged in the form prescribed by the statute, 1st October, 1814. Hempstead's Digest, 10. The introduction of the common law then, would only change the form of the conveyance, if the positions of the appellee are correct, because under the common law, the real estate of the wife could be conveyed by fine; so here are two systems--the Spanish and the common law, by both of which the wife's real estate may be conveyed; and the only question is, whether the form of exercising this right as directed by the statute of October, 1804, is changed by introducing the common law? I say it is not, but is excepted by the very terms of the statute introducing the common law. Therefore, I say that property acquired and held as this was, could be sold in the form here used. 2. I say the common law of fines was not introduced at all, even if the exceptions in the statute had not been made. 2 Kent's Com. 127-8-9; 7 Mass. Rep. 14, 20; 8 Peters Rep. 658, 687, 739; 15 Johns. R. 108-9. 3. It may well be questioned whether a right to convey by the wife can be cut off by legislation.

G. A. BIRD, for Defendant in Error. 1. The defendant insists that a deed of bargain and sale of lands held in right of the wife, by husband and wife made after we adopted the common law in 1816, and before the act of 1821, authorizing husband and wife to convey lands held in the right of the wife, is absolutely void. So it has been decided by those States that have adopted the common law of England by legislative provision, Virginia, Vermont, Kentucky, and Maryland. 1 Tyler's Rep. 42, Sumner v. Wentworth; 3 Harris and McHenry's Rep. 433, Lewis' Lessee v. Waters; 1 Peters Rep. 338; 8 do. 88, 90, Watson v. Mercer. In Pennsylvania there were the same decisions, until Pennsylvania passed a retrospective law, curing defects in acknowledgments, & c.--see the case last cited.

TOMPKINS, J.

In the year 1816, the Territorial Assembly adopted the common law of England and all the statutes of the British Parliament in aid of, or to supply the defects of the said common law, made prior to the fourth year of James I., and of a general nature and not local to that Kingdom; which said common law and statutes, not contrary to the laws of this Territory, nor repugnant to, nor inconsistent with the Constitution or the laws of the United States, it is declared shall be the rule of decision in this Territory, till altered, &c. The laws of Spain, which prevailed here when the transfer from France to the Uninited States was made, allowed a woman and her husband to alienate her paraphernal property, &c.--3 Febrero, 134, where he says the husband is not prohibited from alienating the paraphernal effects of the wife with her consent,...