Moreau v. Detchemendy

• Decision Date: 31 October 1853
• Citation: 18 Mo. 522
• Parties: MOREAU et al., Appellants, v. DETCHEMENDY, et al., Respondents.
• Court: Missouri Supreme Court

18 Mo. 522

MOREAU et al., Appellants,

v.DETCHEMENDY, et al., Respondents.

Supreme Court of Missouri.

October Term, 1853.

1. By the Spanish law, which formerly prevailed here, property owned by husband and wife in community might, during the existence of the community, be conveyed by the husband without the consent of his wife. The introduction of the common law, and of laws prescribing the mode in which a married woman might convey her separte property, did not abrogate this right of the husband to dispose of the community property.

2. A mortgage more than twenty years old is not such an outstanding title as will defeat an action of ejectment, no evidence been given in relation to the possession of the mortgaged premises, nor any evidence of the present existence of the mortgage debt.

3. Where a sheriff's deed is not sealed, a court of equity cannot by its decree aid the imperfect execution. Courts of equity cannot carry into effect by their decrees the incomplete execution of statutory powers.

Appeal from Ste. Genevieve Circuit Court.

This was an action of ejectment and partition, brought by Joseph Moreau and others, heirs of Pascal Detchemendy and Therese, his wife, to recover an interest in a tract of land containing 10,256 arpens, embraced in three adjoining concessions and confirmations. The cause was tried by the court without a jury, and the following facts were found:

On the 30th of November, 1797, Zenon Trudeau conceded to Pascal Detchemendy 1,600 arpents of land which was confirmed by the board of commissioners in 1810 and surveyed. The survey was numbered 2,059.

On the 28th of April, 1802, Pascal Detchemendy purchased of Francis Moreau a concession for a league square of land, or 7,056 arpents, which was also confirmed in 1810, and the number of the survey was 884.

On a date which is not disclosed by the record, Pascal Detchemendy became the owner of another tract of 1,600 arpents, which was confirmed to him under Poilivre in 1810, and the survey of which was numbered 2,060.

On the 11th February, 1798, Pascal Detchemendy and Therese St. Gemme entered into a marriage contract at Ste. Genevieve, which contained the following provision: “The said future husband and wife shall be common in all movable and immovable goods and acquisitions, according to the customs and usages of this place, upon which their community shall be regulated.”

On the 20th of July, 1821, Pascal Detchemendy and his wife conveyed to Clement Detchemendy, their eldest son, 2,000 arpents of the tracts above mentioned, and on the 21st of September following they conveyed to him another 2,000 arpents. These deeds were signed by both husband and wife, but were acknowledged before a justice of the peace.

On the 27th of June, 1822, Pascal Detchemendy executed to Pierre Chouteau and other creditors a mortgage, by which he conveyed to them all his remaining interest in the tracts to secure certain specified debts.

On the 17th of July, 1823, Francis Valle, sheriff of Ste. Genevieve county, executed to Berthelemy St. Gemme a sheriff's deed for an interest of Pascal Detchemendy in the land, the extent of which was a matter of dispute. This deed was not sealed. Berthelemy St. Gemme afterwards conveyed all the interest acquired by this deed to Clement Detchemendy. All the interest acquired by Clement Detchemendy by the deeds of July 20th, and September 21st, 1821, as well as under the sheriff's deed, is vested in the defendants.

There was no evidence in relation to the possession under the mortgage, nor in relation either to the extinguishment or present existence of the mortgage debt.

Upon these facts, the Circuit Court declared the law to be that Pascal Detchemendy, as the head of the community, had power to convey the community property, and that the two deeds from him and his wife to Clement Detchemendy operated to convey 4,000 arpents; that the mortgage was a valid outstanding title; and that the sheriff's deed, although not sealed, might be reformed in that particular, as the omission was a mere mistake of the officer. The court accordingly gave judgment for the defendants, and made a decree reforming the sheriff's deed. The plaintiffs appealed.

Frissell, Perryman and Detchemendy, for appellants.

I. The two deeds from Pascal Detchemendy and wife to Clement Detchemendy only conveyed the husband's moiety of the 4,000 arpents not being properly acknowledged to operate on the wife's moiety. The act of June 22, 1821, prescribing the form in which a married woman might convey her real estate, took away the husband's power to dispose of the community property under the Spanish law.

II. The court below erred in presuming that the sheriff's deed had been sealed, and in undertaking to reform it. It was a void instrument. (4 Kent's Comm. 450; 7 Mo. 357; Ib. 534; 8 Mo. 184.)

III. The mortgage was not a bar as an outstanding title. Pascal Detchemendy lived more than twenty years after it was executed, and the plaintiffs offered to show that the administration on his estate had been closed. The debts secured by the mortgage, if not actually paid, are presumed to be paid and barred by the lapse of time. A title to be a bar must be such an one as can be enforced. No possession was ever had by the mortgagees under the mortgage. (10 J. R. 381; 7 J. R. 277 3 J. R. 386.)

J. W. Noell and Scott & Young, for respondents.

I. The deeds from Pascal Detchemendy and wife conveyed the entire 4,000 arpents and not merely the husband's moiety. 1. The right of the husband to dispose of the community property, under the Spanish law, was a vested right, and could not be affected by the introduction of the common law or statutes in relation to a married woman's conveyances. 2. If this were otherwise, still the deed passed four thousand arpents, as the husband's moiety of the land was over five thousand arpents. “If divers persons join in a deed, and some are able to make such a deed, and some are not able, this shall be said to be his deed alone that is able.” (Shep. Touch. 81.)

II. The mortgage was a good bar. 1. It was a good subsisting outstanding title. (Meyer v. Campbell, McNiff & Barnes, 12 Mo. 603; 10 Mo. 229.) 2. The defendants having become the owners of the equity of redemption by the sheriff's deed, were entitled to set it up in their defense. 3. The statute of limitations does not apply here. The estate of the mortgagees is a legal estate in the realty; the debts are merged in the security and the statute does not bar them. If, however, the debts are to be presumed paid, then the defendants, who hold the equity of redemption, are to receive the benefit of that presumption, and not the plaintiffs.

III. The sheriff's deed was properly admitted and the proper effect was given to it. 1. The wife's community property was subject to sale under execution against the husband alone. (Schmidt's Civil Law, chap. 4, § 1, p. 12, second part; Ib. chap. 3, art. 40; 1 White's Recop. 63.) 2. Where a seal is omitted by mistake it will be supplied. (Mitford's Pl. 116, side page; Ib. 128, note 1.) Again, courts of equity may correct defective executions of powers, and the authority of the sheriff to make a deed is a power conferred by statute. (2 Sug. on Powers, 136, side page and cases cited; 2 P. Wms. 490; 2 ib. 624.) Again, the fact that the deed was upwards of thirty years old authorized the court to presume that it had been sealed. (1 Sug. on Powers, 300; Taylor on Ev. § 104; 1 Greenleaf's Ev. § 144, note 1, last ed.; Mathews on Presumptions, §§ 35, 36, p. 39.)

GAMBLE, Judge, delivered the opinion of the court.

There are three points in this case which deserve consideration 1. Whether the deeds made by Pascal Detchemendy and wife to their son, Clement Detchemendy, conveyed the title to the whole of the land therein described or only an undivided moiety. 2. Whether the mortgage to Chouteau and others, made by Pascal Detchemendy, presents any obstacle to the proceeding instituted in this case by the plaintiffs. 3. Whether the sheriffs' deed for the title of Pascal Detchemendy in the whole tract can be made operative, when it appears by the finding of the court never to have been sealed.

1. The two deeds made to Clement Detchemendy were made on the 20th of July and the 21st September, 1821, and were acknowledged by Pascal Detchemendy and his wife, but the acknowledgment of the wife was not certified in conformity to the act of 22d June, 1821, directing the mode of acknowledgment of conveyances by which the property of married women might be affected. Pascal Detchemendy and his wife were married in 1798, having entered into a marriage contract which, it is said, established a community that included the property claimed by the plaintiffs. The particular provisions of the marriage contract need not be stated, nor the language which relates to the community criticised, for the result at which we arrive will be the same in relation to the effect of the conveyances, whether the land was included in the community or not. It will be taken then, that this property was part of the property included in the community established by the marriage contract, that the marriage was under the Spanish law, and that the inchoate titles which were acquired under that law were afterwards confirmed by the...