
60 U.S. 130 (____)
19 How. 130
JAMES MEEGAN, PLAINTIFF IN ERROR,
v.
JEREMIAH T. BOYLE.
Supreme Court of United States.

*134 The case was argued in this court by Mr. Geyer for the plaintiff in error, and Mr. Williams and Mr. Crittenden for the defendant.
*143 Mr. Justice McLEAN delivered the opinion of the court.
This writ of error brings before us the judgment of the Circuit Court for the district of Missouri.
*144 Boyle brought an action of trespass and ejectment in the Circuit Court for a common-field lot, in what was formerly known as the Big Prairie, of St. Louis, containing one arpent in front, on Broadway, in the city aforesaid, by the depth of forty arpens, running westwardly, being the same lot of land granted by the Spanish Government to Moreau, and confirmed to his representatives by the United States, and known as survey 1,480.
The defendant pleaded not guilty. A verdict of guilty was found against him for an undivided two-fifths of the land described.
A grant of the land claimed under the Spanish Government was proved to have been made to Francis Moreau, who occupied the land some time before his death, which took place in 1802. He left seven children surviving him  three sons and four daughters. His sons were named Joseph, Alexis, and Louis; his daughters, Manette, widow of one Cadeau, and afterwards wife of Louis Collin; Marie Louise, wife of Joseph Menard; Helen, who afterwards intermarried with Pierre Cerré and Angelique, who intermarried with Notaine Mallette.
The plaintiff gave in evidence a sheriff's deed, dated the 24th of February, 1853, which recites a judgment in favor of David Clary and William Waddingham, against Angelique Mallette, Pierre Willemin, and Melanie Cerré, his wife, Felix Pingal and Josephine Cerré, his wife, by her guardian, for $455.31, on which an execution was issued, and levied on the defendant's land, designated as survey 1,480, and the same was sold the 19th of February, 1853, to the plaintiff Boyle, to whom the above deed was given, which purports to convey all the right and interest of the defendants.
The plaintiff proved that defendant had been in possession of the premises since 1839.
On the part of the defendant it was proved that, in the summer of 1820, John Mullanphy built a small brick house, which stands partly on the premises sued for, and partly on one of the common-field lots confirmed to Vien. Soon after the house was built, Mullanphy fenced three or four acres of ground, including the house. In 1822 or 1823, he enclosed fifteen or twenty acres, and in 1835 or 1836, John O'Fallon, the executor of Mullanphy, induced Waddingham to enclose all the land claimed by the estate of Mullanphy in that neighborhood, which included the land sued for. The house and enclosures were rented to different persons from time to time, and were occupied with occasional intervals, sometimes of several months. In 1846 or 1847, Waddingham's fence fell down, and the tract *145 lay vacant and unenclosed for a year or two, when portions of it were enclosed by the heirs of Mullanphy.
At the trial, a paper was offered in evidence, purporting to be the deed of Joseph Moreau and others, heirs of Francis Moreau, deceased, dated the 3d of September, 1818, conveying to Pierre Chouteau all their estate and interest in the tract of land in the declaration described. A certificate of Thomas R. Musick, a justice of the peace, certifying that Joseph Menard and wife, Joseph Ortiz and his wife, signed the instrument, and acknowledged it to be their deed. There was also offered an instrument purporting to be a deed of Pierre Reaume and Marceline, his wife, and of Joseph Menard and Marie Louise Moreau, dated 6th November, 1819, conveying to Pierre Chouteau their interest in the land conveyed by their co-heirs, by the foregoing deed. Also, there was offered a certificate of Raphael Widen, notary public, of the acknowledgment of this instrument, the 6th November, 1819; and also a certificate that both the instruments were recorded 6th June, 1822.
It was proved that the above papers, after the death of John Mullanphy, came into the possession of John O'Fallon, having been found among the papers of the deceased.
The signatures to the first instrument were affixed by marks, the names being in the handwriting of F.M. Guyol and others.
Certain persons swore that they heard several of the heirs say they had sold their land to Pierre Chouteau. That Joseph Moreau lived in Louisiana in a destitute condition, where he died; and that he was never heard to claim any land in St. Louis, and, in fact, that he said he had sold his land in Missouri.
Pierre Chouteau and wife, on the 30th October, 1819, conveyed the tract in controversy to John Mullanphy by deed, which was duly acknowledged and recorded.
On the above evidence, the two deeds in 1818 and 1819 were offered in evidence, to which the plaintiff objected, "because the first deed was not signed or acknowledged by Marie Collin, Angelique Mallette, and Helen Cerré, under whom he claims, and that it did not convey any title of the femes covert."
The defendant then offered in evidence a copy of the will of François Moreau, certified by S.D. Barlow, recorder, to have been taken from among the archives of the French and Spanish Governments, deposited in his office, and filed for record on the 17th August, 1846, being archive 2,257. If the recorder had power to certify as to the deposit of the will, it does not appear by whom it was made, nor at what time.
*146 This instrument states that in the year 1798, on the 2d August, we, Louis Collin, in default of a notary, went to the home of St. Francis Dunegant, captain commandant of St. Ferdinand, of Florisant, assisted by Antoine Rivierre and five others named; where St. François Moreau went with Joseph Moreau at my residence; the said Francis Dunegant and the said François Moreau declared and requested to make his last will, which he pronounced to us in a loud and intelligible voice, as follows, &c.: "Among other provisions, the testator names his son Joseph universal legatee, and afterwards declares it is with the reserve, that he shall reimburse to each of his brothers and sisters $27 silver out of the estate of their deceased mother, and it is declared that Joseph Moreau obliges himself to furnish certain articles annually to his father during his life." The testimoneum is as follows: Done and passed at St. Ferdinand, in Florisant, the day and year aforesaid, and signed (after being read) before Don Francis Dunegant, captain commanding, and the aforesaid witnesses; the said Francis Moreau made his ordinary mark, &c.
At the time of offering the will, the following deeds and documents were read in evidence, as bearing upon said will, and its admissibility in evidence: a deed dated 2d April, 1818, from Joseph Moreau and others, for a lot on Third street, town of St. Louis. In the deed it is stated that Joseph Menard, Aurora, the wife of Joseph Hortiz, are children of ____ Moreau, alias Menard, deceased. Also, the inventory and account of sales of the estate of Francis Moreau, the inventory of the community property of Francis Moreau and wife, under the direction of Francis Dunegant, commandant, &c.
On the foregoing testimony the defendant moved the court to instruct the jury as follows:
1. If the jury find that Francis Moreau, in his lifetime, was the owner of the lot in controversy; that he died prior to 1804, and that his two daughters, Mrs. Mallette and Mrs. Cerré, took their husbands prior to 1804, then the several interests of said daughters in said lot became upon their marriage, and was their paraphernal property.
2. If the jury find, as mentioned in instruction No. 1, and further find, that in the year 1818, Mallette and Pierre Cerré, husbands of said daughters, made the deed read in evidence by the defendants, then, under the evidence in this cause, the jury may presume that said daughters gave the administration of said paraphernal property to their husbands, and that the same was alienated with their consent.
3. If the jury find, as mentioned in instruction No. 1, and further find, that defendants, and those under whom they *147 claim, have had open and continued possession of the lot in question for thirty years and more, before the beginning of this suit, claiming to own the same, then the plaintiff cannot recover any interest in said lot, derived by Mrs. Mallette or Mrs. Cerré from their said father.
4. If Mrs. Pingal was dead, leaving a child, at the time of the sheriff's sale, under which plaintiff claims, and during all the time of the coverture of said Mrs. Pingal the lot in controversy was in possession of defendants, and those under whom they claim, holding the same adversely to Mrs. Pingal and her husband, and there never was any entry upon the part of the wife or husband, then the plaintiff derived no title to the lot in controversy under Mrs. Pingal or her husband.
The court gave the first instruction, and refused the others, to which refusal exception was taken.
It is argued that the deed of the heirs of Moreau to Chouteau, dated September 3, 1818, and that offered as the act of Pierre Reaume and wife, dated 6th November, 1819, ought to have been admitted in evidence; that the execution of the last-mentioned deed was fully proved by proof of the death of the subscribing witnesses and their handwriting.
Some of the grantors in this deed acknowledged the execution of it before Thomas R. Musick, a justice of the peace, but there was no proof that Angelique or Helen Cerré, or Marie Collin, had signed or acknowledged the deed, and these were the heirs under which the plaintiff claims. It was proved by Colonel O'Fallon, that he was the executor of John Mullanphy, and that in 1833 he received from the son of the deceased the title-papers of the estate, among which was the above original deed, with certain endorsements. And it was proved that the deed was in the handwriting of Guyol, a justice of the peace, with whose handwriting he was well acquainted. It was also proved that the signatures, Antoine Mallette, Pierre Cerré, and Joseph Moreau, were in the handwriting of Guyol, and that of Marie Collin in the handwriting of her husband, Louis Collin; the signature, Ellen Moreau, the wife of Pierre Cerré, is in the handwriting of Hawley. Guyol, the witness states, was a man of good character. There was some proof that Pierre Cerré and Antoine Mallette, after the date of said paper, stated often that they had sold their land to Pierre Chouteau, sen.; but there appears to be no proof that Angelique Mallette, or Helen Cerré, or Marie Collin, had ever stated or admitted that they had parted with their interest in the land.
One of the defendant's witnesses stated that Joseph Moreau said, that, after the decease of his father, he set up a claim to *148 the succession, and that he was imprisoned for doing so, and that Pierre Chouteau had him released. Some evidence was given as to the deed having been deposited in the recorder's office for record, and an endorsement that it was to be handed to Mullanphy.
The common law was adopted in the Missouri Territory in 1816, and consequently it governs all subsequent legal transactions.
The children of Moreau, being seven at the time of his decease, were reduced, by the death of Louis, intestate, and Marie, who also died intestate, to five. And it seems that the plaintiff derived his title from two of the surviving daughters, Angelique and Helen, and their heirs; he therefore claims under Louis, Marie, Helen, and Angelique. It seems not to be contested that the property vested in the daughters, under the civil law, was paraphernal. A succession accruing to the wife during marriage is her paraphernal property, which she may administer without the consent or control of her husband. (O'Conner v. Barre, 3 Martin Lou. Rep., 455.) The wife may give the control of this property, in writing, to her husband. (1 White's New Recopilacion, 56, note 33.)
The Circuit Court committed no error in excluding from the jury the above deed. The execution of it, by the parties under whom the plaintiff claims, is not proved, nor do the facts relied on, from which a presumption is attempted to be drawn in favor of its validity, authorize such presumption. The femes covert were under disabilities. They could only divest themselves of their rights in the mode specially authorized. Their husbands had no power, without their concurrence and action, to convey their real estate.
The defendant offered to read a certified copy of the deed, to show its condition at the time it was recorded, but the court refused to permit such copy to be read. If the original deed was not evidence, it is difficult to perceive for what legal purpose a recorded copy of it could be read. There was no error in this ruling by the court.
There was no evidence that the will had been proved, or that the conditions stated in it had been complied with.
A deed dated 2d April, 1813, from Joseph Moreau and his brothers and sisters, conveying to Hempstead and Farrar a lot which would have passed by the supposed will to Joseph Moreau, had it been operative. Also, there was shown a sale bill of the personal property of the estate on the 19th of April, 1803, Joseph Moreau being present, and that he purchased a part of the property devised to him by the will.
Also, it was shown that an administrator was duly appointed *149 on the estate of Francis Moreau, and his estate was administered in the same manner as if he had died intestate.
By the Spanish law, a will was required to be proved by the attesting witnesses within one month after the decease of the testator; and, when proved, it is required to be recorded. (1 White's Recopilacion, 111; 2 Moreau and Carleton's Partidas, 975-'6-'7.) The testator cannot disinherit a child without naming the child, and the reasons for doing so. (1 White's Re., 107.) No heir can claim a devise, without performing the condition annexed to it. (1 White's Re., 103.) It is required that he shall appear before the judge, and either accept or reject the devise. (1 White's Re., 111, 127.) None of these requisites were performed by Joseph Moreau, who was made, by the will, universal heir.
If the will was a genuine instrument, and Joseph was the universal heir, it could not have remained dormant, it would seem, for fifty years, or in the archives, without being brought to the light, and having on it some judicial action. But whether it be a genuine instrument or not, it has not been treated as valid, as no claim has been set up under it, and all the heirs have acted, in regard to the estate of their father, as though he had died intestate.
Neither the deed to Chouteau, nor the will, can be admitted in evidence, without proof, as an ancient instrument. The rule embraces no instrument which is not valid upon its face, and which does not contain every essential requirement of the law under which it was made. Neither the deed nor the will comes within the rule, and we think the court very properly excluded them both from the jury.
In regard to the second, third, and fourth instructions, which the court refused to give to the jury, there was no error.
As early as December 17, 1818, the Territorial Legislature passed an act limiting real actions, which remains in force. The act abolished all the rules of prescription under the Spanish law, and substituted a limitation of twenty years after action accrued, and, in case of disability by coverture, twenty years after it ceased. In 1820, it appears Mullanphy took possession of a part of the premises in controversy, and from that time retained possession. Some of the husbands had a life estate in the lands; but whether this was so or not is immaterial, as there is no bar to the claim of the plaintiff by the statute of limitations.
By an act "prescribing the time for commencing actions," approved March 10, 1835, (Revised Code, 396,) it is declared, in the 11th section, that "the provisions of this act shall not apply to any action commenced, nor to any cause where the *150 right of action or entry shall have accrued, before the time when this act takes effect, but the same shall remain subject to the laws now in force."
It will be observed, that the limitation act of 1818, being still in force, cannot operate on any of the femes covert of whom the plaintiff claims. It did not begin to run against them until they became discovert, from which time it required twenty years to bar their right. Under such circumstances, no presumption can arise against them, as they had no power to prosecute any one who entered upon their land. No laches can be charged against them until discoverture; and there is no ground to say that either the statute or lapse of time, since that period, can affect the rights of the plaintiff, or of those under whom he claims. The court, therefore, did not err in refusing to give to the jury the instructions requested.
Upon the whole, the judgment of the Circuit Court is affirmed, with costs.
