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Perkins v. Fourniquet et al.

same parties, at January term, 1818, is reported in 6 Howard, 206. It came up again at January term, 1819, and is reported in 7 Howard, 160. Again, at December term, 1851, a dispute, growing out of the same matters, was before this court, and the judgment of the court below affirmed by a divided court. Consequently, it was not reported; but the mandate, which was issued therein, gave rise to a difficulty, which will be the subject of the succeeding case in this volume. Ewing and wife were parties, together with Fourniquet and wife, to the present suit, but the controversy cannot be distinctly understood, without a reference to the case in 7 Howard, 160. The family connection of the parties is there explained.

The present claim of Fourniquet and wife, and Ewing and wife, against Perkins, was founded on the alleged rights of the marital community of Mrs. Perkins (the mother of Harriet and Anne) with Mr. Perkins, according to the laws of Louisiana.

The bill alleges the marriage was consummated in Louisiana, where both the widow Bynum and the defendant Perkins were then citizens; and that the defendant always retained his legal and political domicil in Louisiana, though some time after the marriage, for the ostensible purpose of health, established a family residence near Natchez, in the State of Mississippi. The bill charges, that defendant, during the marriage, expended of community funds, in the State of Mississippi, in permanent investments of real estate, an amount of about $39,600, which remained in kind at the dissolution of the marriage by the deat' of his wife in 1824, but which he has since sold and disposed of to his own use. That defendant had no revenues or resources in Mississippi from which these investments were made; but it was all derived from the revenues of his and his wife's property and cotton estates in Louisiana, and were partnership funds, in which complainants, as heirs of their mother's community, had rights of partnership, and now have right to hold defendant to account therefor. They charge, that if defendant intended and expected to get an advantage to himself, by investing the community funds in the State of Mississippi, rather than in Louisiana, then it was a fraud on his part, for which he is liable; or, if intended in good faith, yet such investment charged defendant with a trust, for which they pray he may be held responsible.

But complainants aver, that as defendant has heretofore kept back and concealed from settlement this investment and never accounted for the same, but in settlement with them obtained their receipts and release in full, in which this matter was not included, that said releases, so far as they inay be invoked to

Perkins o. Fuurniquet et al.

bar this claim, were obtained by fraud and circumvention. And they declare the matters of this bill were kept back by defend. ant, and never accounted for. And they call on defendant to produce the account and items rendered by him when he obtained these releases, and show for what they were given.

They aver, too, that Harriet's release was given while she was yet a minor.

They pray for an account of proceeds, or amount of said investment, with eight per cent interest, and for general relief.

Answer.

Defendant, in his answer, admits the marriage in Louisiana, admits the parties, and admits substantially the investments made in the State of Mississippi. But qualifying and explaining, says: That same year of the marriage he and his wife removed to the State of Mississippi, and continued their domicil there during all the time of their married life, which terminated by the death of his wife on the 12th August, 1824. That this removal was in pursuance of an understanding had between them before marriage with a view to bealth, and facilities of educating the children. Admits he retained some political rights in Louisiana after his removal till 8th of June, 1821 ; but says his civil domicil was changed as aforesaid, and on this allegation predicates his first and principal ground of defence, viz., that by reason of this domicil “respondent has always acted under the belief that there was no community of acquets and gains of property, lying iò Louisiana, between respondent and his said wife under the laws of Louisiana."

As a second ground of defence, he submits, also, that if, as alleged in said bill, the domicil was not changed, yet, as head of the community, he was entitled to the absolute disposal of the acquets and gains, without accountability to his wife, or her legal representatives.

As a third ground of defence, denies that the investments in Mississippi were made with money to which his wife had any legal or equitable title whatever. And denies they were made to gain any unjust advantage over his wife or her heirs.

Fourth point of defence is matter in abatement, in which defendant assumes, that if liable to the demand made in said bill, it is only to an administrator of his wife's estate, and not to the complainants.

Fifth ground of defence is, that he has obtained the releases of complainants for all claims on account of the estate of their father and mother, and relies upon them as if formally plead in bar, denying they were obtained by fraud or concealment.

Perkins v. Fourniquet et al.

Sixth ground of defence submits that if said investments were made with money in which his wife had an interest, yet that defendant is entitled to the property, as tenant by curtesy during his natural life; and he interposes this right as if plead in bar.

Upon the final hearing, the Circuit Court passed the following decree :

In Chancery. Final Decree. The report of William H. Brown, Master in Chancery, made in the above-stated case, and filed herein on the 3d day of April A. D. 1850, having been confirmed on a former day of this term; and the report of said Master made herein and filed on the first day of October, A. D. 1850, having also been confirmed on a former day of this term, except as to the said sum of five hundred dollars therein stated as having been paid by defendant subsequent to the death of Mrs. Perkins, wife of said defendant: It is now thereupon further ordered, adjudged, and decreed, that the said complainants, the said Harriet J. Fourniquet, together with the said Edward P. Fourniquet, in right of his said wife, but to her solę and separate use; and the said Ann S. Ewing, together with the said Martin W. Ewing, in right of his said wife, but to her sole and separate use, do have and recover of the said defendant, John Perkins, the amount stated in said first named report, to wit, the sum of sixteen thousand nine hundred and sixty-eight dollars and seventy-six cents ($16,968.76,) to be paid to the said complainants by the said defendant within thirty days hereafter, together with interest thereon at the rate of eight per cent. per annum, from the first day of April, 1850, or in default thereof that said complainants have execution therefor. It is further ordered, adjudged, and decreed, that said complainants do recover of the defendant all their costs hereby in this suit incurred and herein taxed. November 20, 1850.

S. J. GHOLSON. From this decree Perkins appealed to this court.

It was argued by Mr. Johnson and Mr. Soule, for the appellant, and Mr. Henderson, for the appellees.

It is not necessary to state the points and arguments of the counsel relative to the community of acquets and gains under the law of Louisiana, and how far that law would reach investments in Mississippi; but as the decision of the court turned entirely upon the validity of the releases (one of which is inserted in 7 Howard, and both in the present opinion, the notice of the argument will be confined entirely to that subject.

Perking v. Fourniquet.et al.

The counsel for the appellant considered the releases in the following point of view:

The bill charges that these releases were obtained by concealment, fraud, &c. The answer denies the charge in the most positive terms, and not a shadow of proof has been given of its truth.

The releases themselves are as full and thorough acquittances of all responsibility on the part of the respondent, as could have been drafted, as will be seen by reference thereto.

To the release of E. P. Fourniquet and wife to J. Perkins, dated Natchez, May 27, 1834.

To the release from M. W. Ewing and wife, dated April 11, 1829.

To the release of Benjamin S. and Mary C. Bynum, (heirs, but not parties to this suit,) April 10, 1829.

Act of confirmation by Mary C. and Thomas P. Eskridge, dated April 9, 1832.

For what were these releases made? Surely not to cover the land and slaves in Louisiana of the deceased parents of the releasors, because there had been previously (in 1827) a judicial partition and distribution of their patrimonial estate, which had been homologated, and had all the force of “the thing adjudged;” and Perkins had been fully discharged before any of these releases were executed. Then, these releases must have been wholly supererogatory in reference to the land and slaves in Louisiana ; and the question arises, what could they have been designed to cover and include, unless it were such personal effects as may have remained, after all the debts and expenses of the marriage and the education and maintenance of the Bynum heirs had been defrayed?

As to the validity and effect of these releases, one of them has been attested and adjudicated, not only in the Ninth Judicial District of Louisiana, and before a jury, but in the Supreme Court of the United States.

Howard's Reports, vol. 7, contains the recitals, in Mr. Justice Daniel's opinion, showing that Fourniquet and wife sued Perkins for large amounts of property, spoliations, &c., in Concordia, Louisiana, in December, 1838, and that judgment was rendered against them in December, 1840; and that, having brought suit against him in 1844, in the United States Circuit Court for Lonisiana, Perkins pleaded that judgment in bar, and prevailed both in the Circuit and Supreme Courts of the United States.

True, the opinion of Judge Daniel was rejected, as evidence, in the United States Circuit Court for Mississippi; but whether the objection was well taken or not, the weight of it, as an argument and an authority direcily in point, could not be destroyed,

Perkins v. Fourniquet et al.

m

and it applies with equal force to the release of Ewing and wife. See the case at large in 7 How. 160.

“ The gratuitous remission of a debt, is as valuable as a release for a valuable consideration, and may be express or implied.” Civil Code, Art. 2195.

“ The pactum remissorium, pactum de non petendo, was binding under the Roman law; and all that was required to give it validity, was a simple convention. Mouton v. Noble, 1 Annual Reports, 191.

See also the case of Morgan v. Morgan, 5 Annual Rep. 230. [An authentic MS. copy of the record in this case, is on file at the Supreme Court of the United States, showing remarkable coincidences between the release in that case and the case at bar.]

The law presumes the acceptance of the remission of a debt, and it cannot be revoked by creditors. Civil Code, 21, 97; Lee v. Ferguson, 5 Annual Rep. 533.

For the force, as testimony, of sworn answers in chancery, see 2 Story's Equity Jurisprudence, $$ 1528, 9, 30.

m Mr. Henderson, for the appellees.

We come next to consider the question of the receipts and releases, interposed in bar.

The bill charges fraud and concealment in obtaining from complainants these receipts, and declares the matters sought to be recovered in this suit, were not, at the time of these receipts, or at any other time, ever accounted for, but by defendants were concealed and kept back; and they require and demand of defendant, should he offer said receipts in bar, that he produce the account, and the items thereof rendered, for which said receipts were given.

The defendant tenders the releases as exhibits, with his answer, and states that he “relies upon said releases as if formally pleaded in bar," and denies, generally, they were obtained by fraud or concealment. They are found in the record, but in no form of plea. Now, while rule 39 permits a defendant to avail himself in his answer of miatters in bar, if the matter be such as could be plead in bar, yet the rule does not allow that to subserve as a bar in an answer, which could not have been plead in bar. The alleged release of Harriet Fourniquet is not good in bar, because the deed of a married woman, not proven or acknowledged on privy examination, and therefore void. Agricultural Bank v. Rice, 4 How. 241, 242; 12 Pet. 375; 10 Pet. 20 and 22.

This release is void, also, because executed by her while a minor, as charged in her bill, and admitted by defendant's

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