Wilkinson v. Rozier

• Decision Date: 31 March 1854
• Parties: WILKINSON et al., Appellants, v. ROZIER, Respondent.
• Court: Missouri Supreme Court

19 Mo. 443

WILKINSON et al., Appellants,

v.ROZIER, Respondent.

Supreme Court of Missouri.

March Term, 1854.

1. Spanish marriage contracts are within the meaning of the act of December 22, 1824, requiring all marriage contracts to be recorded within six months from the taking effect of the act, in order to affect titles, except as between parties thereto and persons having actual notice.

Appeal from Perry Circuit Court.

Noell & Frissell, for appellants.

1. On the death of Marie Pratte, the community created by the marriage contract was dissolved, and one-half of the community property became, by title absolute and irrevocable, the property of her heirs, subject only to the payment of the community debts. 2. During the existence of the community, the husband was the agent through whom the property was to be applied to the payment of the community debts; but after its dissolution by the death of the wife, the application could not be made by the husband, but must be made by the intervention of the law. Brousard v. Bernard, 7 Lou. Rep. 222; Hart v. Foley, 1 Lou. Rep. 378; German v. Guy, 9 Lou. 583; Moreau v. Detchemendy, 18 Mo. 522.

G. E. Young, for respondent.

1. The property in controversy did not enter into the community, because it was acquired by Pratte after the act of 1824, requiring all marriage contracts to be recorded, and was transferred by him while the contract was yet unrecorded. R. C. 1825, p. 526; Lafarge v. Morgan, 11 Martin, 527; Ib. 554. 2. By the Spanish law, the community property was subject to the payment of the community debts, and in the absence of any law in force at the time of the dissolution of the community, prescribing the mode in which the application was to be made, the husband, who held the legal estate, might make the application and a conveyance by him in payment of the community debts, when shown, is a bar to the claim of the wife's heirs.SCOTT, Judge, delivered the opinion of the court.

This was an action in the nature of an ejectment, to recover possession of lands to which the plaintiffs allege they are entitled. The defendant denies the right of the plaintiffs, and derives title to the premises through the father of the plaintiffs. The claim of the plaintiffs rests on a marriage contract entered into between Joseph Pratte and Marie Valle, their ancestors, on the 4th February, 1797, at the village of Ste. Genevieve. By this contract, it was stipulated that all acquisitions made during the marriage should enter into and become a part of the community property, and on the dissolution of the community by the death of either party, his or her share of the community should go to his or her heirs. By two deeds, dated respectively in 1830 and 1837, Joseph Pratte acquired the legal title to the lands in controversy; consequently, they were community property, as Mrs. Pratte did not die until the year 1841, leaving the plaintiffs, her children, as her heirs at law. After her decease, in 1842, Joseph Pratte, by deed, mortgaged one of the tracts of land in dispute under which it was passed to the defendant. The other tract was conveyed by Joseph Pratte in 1842, in trust to secure the payment of a debt due by him, and the defendant derives title under this deed of trust. The plaintiffs, who are seven of the eleven children of Joseph Pratte and Marie Valle, their parents, claim seven-elevenths in one-half of each of the two tracts, as heirs of their mother, who, by the marriage contract, was entitled to one-half of all the estate acquired during the marriage.

1. The marriage contract between Joseph Pratte and Marie Valle was never recorded in pursuance to the fifth section of the act of 22d December, 1824, entitled “an act concerning marriage contracts,” which enacted that all marriage contracts, heretofore entered into, may be recorded in the like manner as such contracts hereafter entered into; and from the time of recording the same shall, (as to all property affected thereby, within the county in which it is recorded), impart full and perfect notice to all persons of the contents thereof, and no such marriage contract which shall not be recorded within six months after the taking effect of this act, shall be valid or binding, or in anywise affect any property, real or personal, (except between the parties thereto, and such as have actual notice thereof,)until the same shall be deposited with the recorder of the county wherein such property is situate, for record.

In the case of McNair v. Dodge, 7 Mo. 404, it was held, that Spanish marriage...