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Perkins vi Fourniquet et al.

answer to interrogatory 4. Her subsequent recognition of it, before a Judge in Louisiana, (not 'on private examination,) gave it no additional validity. Void as the deed of a married woman in its execution, it could not be validated by her subsequent recognition of it.

The receipt of Ewing and wife is not under seal, and therefore not good in plea of bar as a release. Story, Eq. Pl. § 796; Mit. Pl. marg. 263.

But complainants have impeached, by their bill, the integrity of these receipts, so far as offered by defendant to evidence a release, or settlement, of the community sued for, and call upon defendant for a disclosure of the consideration on which they were executed.

The defendant denies fraud generally in their procurement, but makes no disclosure of the matters or accounts settled by the receipts. Nor does he venture to affirm they were given on settlement of the cornmunity; yet tenders them as “releases, as if formally pleaded in bar," notwithstanding.

Such form of pleading and issue make no ground of defence, and must be overruled and disregarded, as if not in the record. Story, Eq. Pl. § 796, 797 ; Mit. Pl. marg. 261, 262, 263.

If it be said, however, that these receipts were executed for the meridian of Louisiana, and not intended for common-law instruments, (though both made in Mississippi,) their deficiency in this aspect is still more palpable. For, professing to evidence the settlement of Perkins's account as tutor or guardian of the Bynum heirs, they are “null and void,” because they do not show, on their face, that a full account and a delivery of vouchers was rendered the wards, ten days previous to signing the receipts. 0. C. 72, art. 76; 4 How. U. s. R. 561; C. Č. art. 355; 4 Rob. 296, 297.

And the civil-law doctrine of "transactions" and "remission" of debts, was never extended, and will not be in equity, to settlements of guardians with their wards.

And the defendant's answer in this case is quite demonstrative, that he never settled in any way with complainants for their mother's community. He says, " By reason of their domicil being in the State of Mississippi, respondent has always acted under the belief, and now submits to the court, by way of defence to the claim of complainants, that there was no community of acquets and gains of property lying in Louisiana, between respondent and his said wife Mary, under the laws of Louisiana."

If there be any meaning in language, this surrenders the fact, and adniits the community not settled for.

For, if Perkins “always acted under this belief,” he so acted

Perkins v. Fourniquet et al.

when he obtained these receipts. It is conclusive, therefore, he did not settle with or compensate complainants for the community. And he waives such defence in this part of his answer, by submitting the question of community or no community to the court, and to abide that issue. If he has bought out this claim, why not show the evidence of his purchase, rather than submit the issue to the court that it never existed ?

But the receipt of Ewing and wife is also express and conclusive, against this pretence of defendant. It particularly and exactly enumerates what things were settled for, and what he received. And by reference to the inventories returned by Pér. kins himself, the eighteen slaves, specified in the receipt, are found in inventories. The cattle, mules, and tools, all are there shown, and all of the Bynum estate. There can be no mistake in this proof. And it was no such grace on Perkins's part, that he relaxed his hold on this fraction of their father's estate, as thereby to absolve himself from community.

But the record, elsewhere, abounds with evidence on this point. On pages 71 to 76, defendant sets forth the several parcels of land purchased by him chiefly in Louisiana, during the coverture; and all such are community lands, if a marital partnership existed. And Mrs. Perkins's children were jointly seised of the title with him, at the instant of her death. Now can such receipts as here exhibited, by any stretch of presumption, be regarded as transmissive of their joint title, with Perkins, to these lands ? Even if intended as such, they obviously fail as relinquishments of title to real estate.

But had this been the purpose, it is incredible of belief they would have been so executed. For the title which the heirs of Mrs. Perkins have in her community, would sustain an ejectment against Perkins, or even against a third possessor under Perkins without notice. See 5 An. Rep. 389; 2 Id. 261.

Now these Mississippi investments of $29,000, were but part of the whole, and with like certainty were not accounted for in these receipts.

They do not show they included or comprehended the community, but we think on their face they reasonably show the contrary, and the defendant shrinks from the averment that they did or do include it. He offers no proof that they did, and he evades reply, when called on to show the matters and things on which they rested, and says he always acted under the belief there was no community, and submits that issue to the court. Aside from their defective execution to make them releases, and apart from the mispleading them in bar, we think it impossible to believe they did settle for community, or were intended, by those who gave them, to comprehend that subject.

Perkins v. Fourniquet et al.

The rule in equity, and of the most common justice, then applies, that these receipts shall be held valid only for the matters and things on which they computed. And this, with such legal distrust as the relations of the parties imply. 10 How. 185, 186; 8 How. 158; 4 How. 561; 16 Pet. 276, 7, 8, 9; 2 Sum. 11; 3 Stóry, R. 268, 9; 1 Ed. Ch. R. 38, 39; 1 Ch. & Lef. 226.

The case of Fourniquet and wife v. Perkins, (7 How. 160,) is referred to and relied on as deciding these receipts valid against us. But the case quoted decides no such principle. It sustained a plea of res judicata. And the case plead in bar, did interpose these receipts, among other matters of defence, in a suit brought exclusively to obtain against Perkins a new account of his administration of the Bynum estates, but not for community. We were defeated in that case. And Judge Daniel said, from inspection of the record, that it did not appear we were defeated merely on the receipts, but on the merits. We admitted then, and admit now, these receipts were given to close Perkins's ad ministration of the Bynum estate, but not community in the Perkins estate. The decision of that case does not therefore touch these receipts. They have only been decided in this case below, and in the case of Perkins v. Fourniquet et al. (6 How. 206); and in both decisions it has been held that these receipts did noť bar this action for comununity.

One other, and the last point, on this subject. Both these receipts recite and count on administrative settlements, by Perkins, of Benjamin Bynum's estate, or of Mrs. Perkins's separate estate, in his capacity of guardian, curator, or executor.

Now it is familiar to the jurisprudence of Louisiana, as shown in the decisions herein quoted, that the formal and official ad. ministration of the wife's estate extends only to her separate estate, and not to her community. Perkins, in this case, as surviving partner, would, and did, have the settlement of community, and not as curator of the Bynum estate, or as administrator or executor of his wife's estate. His right, power, and duty to settle the community, resulted wholly and exclusively from his being the surviving partner in community. And his accountability for the wise's share in community was directed with her heirs, and not her administrator. And this is manifest from the right of the heirs to renounce community. 0. C. 338, arts. 72, 75, 82, 84.

And there is no fact or circumstance in this case that points, in the remotest degree, to any settlement made by Perkins as surviving partner of the community. No partition with the heirs is shown; no purchase from them of their undivided portion is shown; and, upon all known principles of human action, it is impossible to believe that either of these things was done,

Perkins v. Fourniquet et al.

and being done, that the evidence of it was incorporated in these receipts.

Mr. Justice WAYNE delivered the opinion of the court.

This is an appeal from the Circuit Court of the United States for the District of Mississippi, the District Judge presiding

The suit was brought in the Vice-Chancery Court of Mississippi, and was transferred to the Circuit Court, upon the application of the respondent, under the 12th section of the act of September 24th, 1789, to establish the judicial courts of the United States.

Harriet J. Fourniquet and Anne M. Ewing are the stepdaughters of the respondent, from his intermarriage with their mother, Mary Bynum. She was the widow of their father, Benjarnin Bynum.

The object of the suit was to recover their portion of $39,600, alleged by them to be marital community gains of the respondent and their mother, which they charge he invested in Mississippi, and was in hand at the death of their mother. The respondent is charged with having had no means of his own to inake such investments; that the money was derived from the cotton estate in Louisiana ; that the same, by the laws of that State, became a community of acquets and gains, one half of which, upon the death of their mother, became theirs and her other heirs; and they charge him, further, with having fraudulently taken the money derived from the Louisiana property, into Mississippi, to invest it there, in order to give him undue advantages over his wife's and their interest in the fund. It is said, that at the death of their mother there were then living four child. ren of the first husband, and three by the respondent. Three of the four and two of the three are still living. Mary B. Eskridge, one of the survivors of the Bynum children, and John Perkins and William Perkins, adults and heirs of the complainant, do not concur with them in their suit, and for that reason are not made parties. The respondent, besides being charged generally with fraud, is especially so in reference to certain receipts and releases, which these complainants gave to him, which they now say were obtained by concealment and circuinvention.

The respondent, in his answer to the bill, admits his marriage in Louisiana, at the time and place stated. That he removed to Mississippi with his wife in 1818; that their domicil was there continued to be kept during the coverture, and that their removal was not only with the consent of the wife, but in pursuance of an understanding between thein before their marriage

Perkins v. Fourniquet et al.

took place. He denies that any community of gains was established conventionally, or that it legally could occur under the law of Louisiana, on account of the residence of himself and wife in that State when they were married, because it was their intention, before the marriage took place, to remove into Mississippi. He denies that any money, invested by him in lands in Mississippi, belonged, either legally or equitably, to his wife in either State ; and asserts, even if there was a marital community between them, he was entitled to dispose of the gains as he pleased, without any liability, under the law of Louisiana, to account for the samne to his wife or her representatives. He denies the charge, that he was without productive property or available means to purchase the property in Mississippi. That property consists of several tracts of land and the improvements put upon thein, as is said, by community funds. The tract upon which the improvements were put contained one hundred acres. It was bought from Arthur Mahan, on the 30th October, 1818, for $9,926. It was improved for a residence for the respondent with his family, including the children of the wife by the first husband. There was another tract, containing 2,100 acres, bought by the respondent from Elihu Hall Bay, in January, 1819, for $5,000. There were two other purchases, one of them, a lot in Natchez, bought from Walter S. Parker, in March, 1823, for $600; and the other is a purchase from Sugar Zenor, in March, 1824, for $1,000. The aggregate sum given for these lands, and the improvements upon the first, amount to $39,600. The complainants allege, that they have a right to elect to take their interest in them in money, with interest upon the amount from the time of their mother's death.

To this answer, the complainants filed the general replication.

The case was tried, and the court below gave an interlocutory decree against the respondent. It declares that a community of gains had existed between the respondent and his wife during the marriage. That its resources were altogether in Louisiana, and that the respondent had invested from the gains large sums in the purchase and improvement of real estate in Mississippi, and that it was held by him, in 1824, when the marriage was dissolved by the death of Mrs. Perkins. The court also referred the matter to a master, to take an account conformably to its decree. In the course of the reference, the master sustained an objection to an allowance for which the complainants contended. It was submitted to the court, whether he had properly refused it. He was instructed, that it was only necessary for him to ascertain the amount of the funds vested by the respondent in Mississippi during the cominunity; and that, as to the source

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