McNair, Appellant, v. Dodge, surviving administrator of Dodge, dec., Appellee, 7 Mo. 404

Opinion of the Court, delivered by Napton, Judge. 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 de-tinet; 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 p'ea was demurred to, and' the demurrer sustained; issues were taken upon the other pleas, and were all found for plain tiff, and judgment rendered accordingly. On the trial, the plaintiff gave in evidence letters of administration, granted the 26th September, 1806, by John Bte. Yalle, judge of probate for the district of Ste. Genevieve. These letters purpoited to issue to Harry Dodge and George Bullitt, and to be under the sea! of the piobate court of said district, though only a scrawl, with the word seal written within it, was annexed.

A deposition of said Yalle accompanied 1 he 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 Y/isconsin ; 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. Guión, acknowledged before Cb. D. Delassus, the lieut.. governor of Upper Louisiana, on the 17th January, ISO! ; and proved by John Rulaml, the recorder of St.

Louis county; that the pager was among lite Span sh 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 w ¡tress, had been recorder, until it was brought into court upon the trial. End rsed 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, thy slave Yiolette, 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.

The actofthe flyoftheTS-ritory ary 20, *1816, (l Territorial providingthat administra3 tion, hereto-jovc granted,. &c. shall be anTthatthe^’ same shall not ed* was intend" ed merely to ofwidencef0 aid,,tll,<\repea! of that law was a repeal The'actofJan L. p. 9,2, sec 13,) as well a-la^roiTthe11* tended to have a retrospective operation. subject of administration, were not in- It was further proved, that the marriage was afterwards consummated; that said Israel Dodge and his wife resided at Ste. Genevieve, in the district ofSte.

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 woman, 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 Iona 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 Oct. 1, 1804, was in force in the territory, w^en these letters were granted.

That act provided for the of a judge of probate in each district, whose duty it was to take proof of last wills and testaments, and to m-ant letters testamentary, and letters of administration, The 4th

section provided, that the judge should record last and testaments, and make entries of the granting of letters testamentary and letters of administration; but no «,♦»• provision is made for recoiding letters of administration or ^eUers testamentary, nor is any particular form prescribed, in which such letters were to be issued. See Hempstead’s Dip. 125.

The act of January 20, 1816, provided, that *'a ^ letters of administration and letters testamentary, heretofore granted in pursuance of any law in force in the territory, shall be recorded in the cíerk’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 ^aw< ^ was funher 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 clerk shall certify on the letters, that they have been declares that letters, unless so re-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 th so recorded. It further corded 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 1S35. Possessions of ad-^“the person wl10® t^ey granted,at least prima fa-evidence of delivery. 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 do furnish a rule of evidence. The repeal of that law is therefore a repeal of the rule, and there is nothing in the present administration law which appears to be designed to operate on proceedings had under former laws, with a view to affect their admissibility in evidence.

The act of 1S22, as well at the subsequent laws on the subject of administration, are merely directory of the forms to be observed under them, and they must be construed like other laws, not to intend a retrospective operation. The letters of administration granted by John Bte. Yalle, in 1806, must then be regulated by the act of 1804, which was in force when these letters issued.

It has been seen that the law of 1804 did not require the letters to be in any particular form, nor did it require them to be under seal, or to be recorded ; nor was there any thing in the unwritten law then in force in the territory, which required such letters to be under seal. tii .

It has been objected by counsel, that there is no proof any delivery of these letters to Dodge, the administrator; but the court are of opinion, that his possession of letters is at least prima facie evidence of that fact, and no Pro°f Peing oiTercd to rebut that presumption, it must bs held conclusive. „ . . an nottoured'hv the statute of limitations. I am not aware of any statute of limitation- which bars the right of action by an administrator, or renders null his letters.

In this case it is clear there could have been no settlement of all the estate and interest of Israel Dodge lintl'l Mter the death of his widow, when certain reversion-ary interests for the first time became available to his ad* . . ministrator. The admissibility of the marriage contract in evidence, is a point that was not much insisted on in the argument.

This contract was what has'been termed by the supreme court of the United States an authentic act; it is a solemn agree ment entered into by the parties, before the lieu, governor of the province, in the presence of the relatives and friends of both parties, by all of whom, together with the public officer, it is attested.

I am satisfied, without reference to our act of assembly of February Í, 1839, concerning evidence; some of the provisions of which may provide for this case, that upon general principles, such an instrument must be admissible in evidence,'whenever accompanied with satisfactory proof of its genuine character.

The certificate of the recorder, that it has been duly recorded in his office, is prima facie proof that the original produced, with such certificate endorsed, came from the archives of the Spanish government, because the recorder is only authorised to record such documents as are found in the archives, and to give out the original to any party interested.

But in this case we have the additional testimony of the recorder, that the paper offered in evidence was found in the Spanish archives, and so marked and filed by his predecessor in office, and that the same had never left the archives until it was brought into court on the trial. A more serious question is raised upon the effect of this document in relation to notice.

The act of December 22, 1824, declares, “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 record, ing the same, shall (as to all property affected thereby, with ia the county in which it is recorded) impart full and perfect notice to all persons, of the contents thereof; and no shall not be recorded within six marriage contract, which 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 situated, for record.” If this provision was intended to embrace marriage contracts made before the change of government, it is clear that the plaintiff below was not entitled to recover, without the proof of actual notice.

But I am led to the belief that this was not the design of the act, for several reasons. The 5th sec. of the act of 22 1824 concerning ^marriage contracts,’ (E. S.

P- 5?6>) tended to em-a^conüacts before the change of government, In the first place, the marriage contract before the 10th March, IS04, was a solemn public act, attended with all forms prescribed by the laws and usases of Spain, and im- . i i, i i i T ■ ^ i ii parted notice to ail the world, it is not very clear, that the legislature of this State would impair, or anywise alter modify the rights which have accrued under such a contract, •Whether the legislature had any power to pass a law of this character., however, is a question upon which I mean to . . . * , , ,. , , tímate no opinion oí my own, much less ot the court; but it is sufficient that sucha question would arise.

The bability of raising a question oí this kind presents a strong ground for believing that if the legislature in passing the act of 1S24, had in view marriage contracts entered into -under the former government, they would have embraced such contracts in express terms. But the 'language of the act may be entirely operative, without affecting these contracts under the Spanish government; it will embrace all ■contracts made since the 10th March, 1834, up to the passage of the act.

Moreover, a vast deal of property, both personal and real, as is well known, is secured by these Spanish documents, deposited in the Spanish archives. Yet the legislature, in all their acts relating to these papers, appear to have aimed merely to facilitate their introduction as evidence into our -courts, but have in no instance (unless this clause in the act of 1824 be one) attempted to modify or restrict the rights acquired under them, or to impose new terms upon the parties interested.

They appear to have been viewed as at least quasi records; and it is difficult to see how any transfer of them to books of records, kept and made up in the American style, would give them any additional validity. Hence, the acts of assembly authorising, not requiring, their rpco'rd, appear to have been designed solely to make them more accessible and more easy of proof.

If the act of 1824, concerning marriage contracts, was designed to embrace such as were made prior to the change of government, it is an entire anomaly in the history of our legislature, and for that reason I cannot give it such a construction, when its terms are completely carried out by a more limited construction. Entertaining this view of the effect of the marriage contract between Israel Dodge and his wife Catharine, it is unnecessary particularly to review the instructions of the court.

The instructions given embodied the correct principles of law, applicable to the facts of the case, and there was no error in refusing those asked by the defendant. Some stress has been laid on the long possession of Catha-rine Dodge, which was upwards of thirty years; but upon the construction which the court is disposed to give to the marriage contract, it is clear, that her possession is not adverse; no rights accrued to the representatives of Israel Dodge until the death of his widow, which was less than five years before the institution of this suit.

Another fact may be considered a fair argument in favor of this construction. It is known that these marriage contracts are chiefly,in a foreign language, and when the act of 1824 was passed, there existed perhaps twenty counties in this State, nine-tenths of the population of which were totally unaquainted with their language. The recording of these Spanish contracts would therefore have been a solemn mockery of notice, unless the legislature had also provided for their translation. Judgment affirmed.