Moreau et al., Appellants, vs. Detchemendy et al., Respondents, 18 Mo. 522

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 wdiole 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 sheriff’s 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 government of the United States. If that law had continued in force, the husband, as the head of the community, might have sold the land and conveyed it in his own name, without the consent of the wife. Smallwood v. Pratte, 3 Robinson, 132. Preston v. Humphreys, 5 La. R. 299. Sprigg v. Boisier, 5 Mar. N. S. 54. Guice v. Lawrence, 2 An. L.

R. 226. Glenn v. Elam, 3. An. La. R. 611. Did the change in our system, by the introduction of the common law, affect the relations subsisting between the husband and wife, and the control over, and mode of disposing of the property of the community, so that the husband was no longer able to sell the property, and so that it could not be conveyed even with the consent of the wife?

The question may as well be put in this form, because if the interest of the wiPe in the property o£ the community was any such absolute, separate interest as could, with propriety, be called her estate, then the common law recognized no conveyance of such estate by the husband, even with the consent of the wife, even if she should join in the deed of conveyance. The only mode of alienation of such property was by fine, a species of assurance never used or known in this country.

It is undoubtedly true, that the Spanish law was a system, capable of application to all cases that could arise between subjects of the government professing to regulate their rights and duties, and to afford redress for wrongs sustained. When such a system is by a short act of the legislature displaced, and another system adopted which regulates and protects the rights and duties of citizens, it is but natural that many perplexing questions should arise in reference to relations established and rights acquired under the former system.

In considering such questions, the numerous cases which have been decided upon the conflict between the laws of different states and nations have no application, for here the systems are both domestic laws, which have been in force, at different periods, within the same country. We are not at liberty to impute to the legislature a design to abrogate or interfere with the rights which parties may have acquired under the Spanish law, nor would they have possessed the power, in relation to any vested rights of property, if they had intended any such interference.

The two systems differ very materially in the rights which they respectively recognize, as resulting from the act of marriage, although those rights may be, under both systems, regulated by the contract of the parties. Where there is no stipulation between them, each law declares the consequences, in relation to property, which shall follow from the marriage.

In the present case-we have an express contract by which the parties bring their present property and future acquisitions into a community, “ according to the customs and usages of this place, upon which their community shall be regulated.” Assuming, then, that this property was either brought into the community by the husband, or was acquired by the joint industry of the parties after the marriage, the husband might, at the time it was acquired, have lawfully sold it without the consent of the wife. Was this power of the husband abrogated by the introduction of the common law ?

It is to be observed that all the property of the community was'to be applied to the payment of the debts of the community, and the proper application of it was made by the husband, who was at the head. This was done by the intervention of the law, upon the dissolution of the community by death, but during its continuance by the husband. The right which the wife had in the property of the community, acquired during the marriage, was not the estate of a joint owner, entitled to claim it» administration or to call the other owner to account.

It is said by Febrero that the ownership of the wife is revocable and fictitious during marriage. As long as the husband lives and the marriage is not dissolved, the wife cannot say that she has acquisitions, nor is she to prevent her husband from using them, under the pretext that the law gives her one half. But the marriage being dissolved, she becomes irrevocably the owner-of one undivided half, in the manner provided by law for joint ownership. The husband is, during the marriage, the actual and true owner of all. Febrero, book 1, ch. 4, paragraph 1, Nos. 29 and 30.

The community established by the contract between Detche-mendy and his wife, was to be regulated by the usages and customs of the province, and in the absence of any peculiar usage or custom, the Spanish law will be understood to be the rule for its administration.

The parties have stipulated about the extent of the community, and when, according to the stipulations, the acquisitions made after the marriage have been brought in, their administration is provided for. 'The husband, as the head, is invested with rights in the property, to control and dispose of it for the benefit of the fund in which both are interested. It is essential to the preservation of the interest which is created by the contract, that the property in the community shall be administered by the husband.

It is certainly true that, when parties, before marriage under the Spanish law, have stipulated for a community, it would not be understood to^ be within the meaning of

an act introducing the common law, that the community should be abolished. If it remains in force for the purpose of keeping the spouses common in their acquisitions, it must continue in force for the purpose of appropriating the property of the community to the payment of the debts, ar.d for the purpose of authorizing the making of contracts by which such debts may be created.

The mode of-disposing of the property for the benefit of the community may, as to the forms, be changed by law, but in adopting the common law as a system, the interests of the wi!e are not so changed as to vest her with a separate estate or interest in the property of the community, nor is the property of the community or any part of, or any interest in it, inalienable by the husband, because of any interest the wife has m the property.

While he still remains the head of the community, charged with the duty of administering its effects, any conveyance made by him which, under the law then in existence, would be effectual in form to convey his own estate, will be effectual to convey the property of the community. This is but a natural consequence of continuing in the husband the power to dispose of the community property, and holding that the wife has not, during the community, any separate interest, in the property.

It follows, from these positions, that the deeds of Pascal Detchemendy and wife to Clement Detchemendy were effectual to convey the property, admitting it to form part of the community, and that it was not necessary for the wife of Pascal to make any form of acknowledgment of the deeds as of deeds conveying a wife’s separate estate under the statute in force at the time. 2. The second question is, whether the mortgage made by Pascal Detchemendy to Chouteau and others can be regarded as an outstanding title, defeating the present proceeding of the plaintiffs.

That mortgage was made, acknowledged and recorded on the 27th June, 1822, and there is no fact found by the court, nor any evidence given by either party, in relation to the possession of the property under it, nor /the payment of interest on the debts. It is used in evidence at the trial in November, 1852, more than thirty years from its date.

When a mortgagor remains in possession of the property mortgaged for more than twenty years, without evidence of the acknowledged subsistence of the debt, the debt is presumed to be satisfied; when the mortgagee is in possession, claiming as owner for more than twenty years, the equity of redemption is presumed to be extinguished.

In the present case, when the parties are contending in a civil action, which blends law and equity, when both parties claim under Pascal Detchemendy, and neither under the mortgagees, when the mere instrument of mortgage is set up to defeat the plaintiffs’ action, without any evidence in relation to the possession, or the present existence of the debts, the mortgage is entitled to no consideration as a bar. 3. The third question to be considered is, the value of the conveyance by the sheriff of the right of Pascal Detchemendy to St. Gernme. This title the defendants claim.

The instrument produced in evidence appears to be in the ordinary form of a sheriff’s deed. The language of the instrument purports that it was signed and sealed by Francis Yalle, the sheriff, but there does not appear to be any scrawl attached to the name of Yalle. The conveyance itself was made in July, 1823, and it is acknowledged as a deed. Although the statutes of this state have always permitted the use of a scrawl by way of seal, yet this has not superceded the use of the actual seal, which is an impression upon wax or other tenacious substance.

If, in the present case, the court, under the law authorizing presumptions to be made, had found the instrument to be the deed of the sheriff, the question which has been made by the counsel would have been considered in this court, whether the case made by the evidence justified such presumption; but the court has plainly found that the instrument was not sealed by the sheriff. We have, then, to deal with a case in which the fact is found, that a conveyance made by a sheriff for land sold on execu-tioii, was not sealed.

The statutes have always required such conveyances to be by deed, that is, under the seal of the officer. The Circuit Court, treating the case as one of the class where parties have made an agreement for the conveyance of land and ineffectually executed it, courts of equity exercise their power to aid the incomplete or imperfect execution, has made a decree passing the title of the complainants to the defendants.

The statutes, since 1807, have contained provisions for the completion of sales and the execution of conveyances by sheriffs, where there has been a change in the officer, and these statutes furnish the remedy to be applied in such cases and not the power of a court of equity. Courts of equity do not carry into effect, by their decrees, the incomplete execution of statutory powers. Bright v. Boyd, 1 Story’s R. 488. 1 Story’s Eq. see. 97, 177. The judgment is, with the concurrence of the other judges, reversed, and the cause remanded for further proceedings.