McNair v. Dodge

• Decision Date: 31 May 1842
• Citation: 7 Mo. 404
• Parties: McNAIR v. DODGE, SURVIVING ADM'R OF DODGE, DEC'D.
• Court: Missouri Supreme Court

7 Mo. 404

McNAIR

v.DODGE, SURVIVING ADM'R OF DODGE, DEC'D.

Supreme Court of Missouri.

May Term, 1842.

APPEAL FROM ST. LOUIS CIRCUIT COURT.

GEYER, for Appellant.

SPALDING & RISQUE, for Appellee.

NAPTON, J.

Henry Dodge, surviving administrator of Israel Dodge, deceased, brought an action of detinue against Margaret S. McNair, to recover the possession of three slaves, named in the declaration. The defendant pleaded, first, non detinet; second, limitation of five years; third, ne unques administrator; and fourth, that the plaintiff was not lawfully possessed of said slaves, or either, as alleged in declaration. The fourth plea was demurred to, and the demurrer sustained; issues were taken upon the other pleas, and were all found for plaintiff, and judgment rendered accordingly. On the trial, the plaintiff gave in evidence letters of administration, granted the 26th September, 1806, by John Bte. Valle, judge of probate for the district of Ste. Genevieve. These letters purported to issue to Harry Dodge and George Bullitt, and to be under the seal of the probate court of said district, though only a scrawl, with the word seal written within it, was annexed. A deposition of said Valle accompanied the letters, stating that the letters were issued by him as judge of probate; that Harry Dodge is the same Henry Dodge who is now Governor of Wisconsin; that George Bullitt is dead; and that the seal attached to the letters was his private seal, no seal of office having been provided. The plaintiff then gave in evidence a marriage contract between Israel Dodge and Catharine Camp, widow of Jean Bte. Guion, acknowledged before Ch. D. Delassus, the Lieut.-Governor of Upper Louisiana, on the 17th January, 1804; and proved by John Ruland, the recorder of St. Louis county, that the paper was among the Spanish archives deposited in his office; that it was indexed as such by his predecessor in said office, and had been among said archives ever since he, the witness, had been recorder, until it was brought into court upon the trial. Indorsed on the back of said paper is a certificate of said recorder, that the same was filed for record on the 5th September, 1837. By the provisions of this contract, the slave Violette, the mother of the slaves sued for, was given to the wife during her life, and if she died without children, to revert to the husband, Israel Dodge, and his heirs. It was further proved, that the marriage was afterwards consummated; that said Israel Dodge and his wife resided at Ste. Genevieve, in the district of Ste. Genevieve, until the death of said Dodge in 1806; that no child was born of said marriage, but that Dodge had several children by a former marriage, among whom was Henry Dodge, the plaintiff. It was proved that Mrs. Dodge claimed the negro women, Violette, after the death of her husband, and continued in possession of her and her children for several years, until, in the year 1830, she sold and delivered the slaves to the plaintiff in error. There appears to be no dispute about the bona fide character of the sale, and that it was made for a valuable consideration; it is therefore unnecessary to set out the testimony offered on that point. The judgment of the Circuit Court is sought to be reversed, because of the admission of illegal testimony; and because, admitting the facts to be as found, the law arising on them is for the plaintiff in error.

The act of October 1, 1804, was in force in the territory when these letters were granted. That act provided for the appointment of a judge of probate in each district, whose duty it was to take proof of last wills and testaments, and to grant letters testamentary, and letters of administration. The 4th section provided, that the judge should record last wills and testaments, and make entries of the granting of letters testamentary and letters of administration; but no provision is made for recording letters of administration or letters testamentary, nor is any particular form prescribed, in which such letters were to be issued. See Hempstead's Digest, 125. The act of January 20, 1816, provided, that “all letters of administration and letters testamentary, heretofore granted in pursuance of any law in force in the territory, shall be recorded in the clerk's office of the Circuit Court of such county,” and the clerks are directed to certify on said letters that the same have been recorded according to law. It was further provided by this act, that no letters of administration, made before its passage, should be admitted in evidence in any court of law or equity, unless they were recorded in the manner directed by that act. The 13th section of the act of 1822 merely provides that all letters testamentary and of administration, before they are delivered to the executor or administrator, shall be recorded, and the clerk shall certify on the letters, that they have been so recorded. It further declares that letters, unless so recorded and certified, shall not be received in evidence. This provision is substantially the same with that which was adopted in the revision of 1825, and in the subsequent revision of 1835.

The act of 1816 is the only one containing any retrospective provision, and the section containing that provision was not re-enacted in the act of 1822, nor in any subsequent law. The act of 1816 is not now in force. That act was not intended to extinguish any right which had accrued under the act of 1804, but merely to furnish a rule of evidence. The repeal of that law is therefore a repeal of the rule, and there is nothing in the present...