Hallett v. Collins. 10 H. WILLIAM R. HALLETT and ROBERT L. WALKER, Executors of JOSHUA KENNEDY, deceased, JOHN G. AIKIN and CLARISSA his Wife, JOHN H. HASTIE and his Wife SECLUDA, AUGUSTUS R. MESLIER and his Wife, MARY AUGUSTA KENNEDY, JOSHUA KENNEDY, JAMES INERARITY, SAMUEL KITCHEN, WILLIAM KITCHEN, JAMES CAMPBELL, and THE BRANCH BANK OF THE STATE OF ALABAMA AT MOBILE, Appellants, v. SIDNEY E. COLLINS. 10 H. 174. An actual contract of marriage, made, without the presence of a priest, before a civil magistrate of Spain, in the colony of Louisiana, while under the dominion of that power, followed by cohabitation and acknowledgment, was valid, and the offspring legitimate, according to the laws in force in the colonies of Spain. One who went into possession of a lot, under a contract with a person, having an inchoate Spanish title, and agreeing to do what was needful on the part of the grantee, to complete that title, for their joint benefit, could not, while thus in possession, purchase in and set up an outstanding title, to defeat that under which he had entered. What he thus purchased enured to their joint benefit. If one part of an indenture is produced by one party to it, signed by the other party, the presumption is, that the other part, signed by himself, is in the hands of the other party. The rule which protects bonâ fide purchasers does not apply to purchasers of merely equitable titles. A release made by heirs, just come of age, out of possession, ignorant of the value of the land, and of the nature of their title, obtained by one in possession, well acquainted with the facts, who had designedly obscured the title, and who paid only an inadequate consideration, was set aside, as constructively fraudulent. APPEAL from the circuit court of the United States for the southern district of Alabama, in a suit in equity to set aside a conveyance of land. The grounds of the suit and the facts upon which the court proceeded, appear in its opinion. Hopkins and Johnson, for the appellants. J. A. Campbell, contrà. GRIER, J., delivered the opinion of the court. [* 180 ] It will not be necessary, in the consideration of this case, to notice particularly the great mass of documents and testimony spread upon the record, further than to state the results as they affect the several points raised by the pleadings and argued by the counsel. 1. The first of these in order is that which relates to the sufficiency of the probate of the will of Joseph Collins, under whom the complainant claims. But as his claim to two thirds of the property in dispute is through his deceased brothers, he is compelled to remove the objection which has been urged to his and their legitimacy; and if he can succeed in this, and thus establish his right by descent, the Hallett v. Collins. 10 H. decision of the question as to his title by devise will be unnecessary, We shall therefore proceed to examine the second point, as to the legitimacy of the complainant. 2. It is not denied that the complainant and his deceased brothers, Joseph and George, were the children of Joseph Collins by Elizabeth Wilson, but it is contended that the parents were never legally married. The evidence on this subject is as follows. Joseph Collins resided in the country south of the 31st degree of north latitude, between the Iberville and Perdido, and died there about the year 1811 or 1812, while that country was still in the actual possession of the Spanish government. In the year 1805, he resided in Pascagoula. Elizabeth Wilson resided also in the same place, and in the family of Dr. White, who was a syndic or chief public officer in that place. A contract of marriage was entered into by Joseph Collins and Elizabeth Wilson before Dr. White, who performed the marriage ceremony. The parties continued to live together as man and wife, and were so reputed, till the death of Collins. It is true that some persons did not consider their marriage as valid, because it was not celebrated in presence of a priest, while others entertained a contrary opinion. It is in proof also, that Collins himself, when he made his will, entertained doubts on the subject. It is a matter of history that many marriages were contracted in the presence of civil magistrates, and without the sanction of a priest, in the Spanish colonies which have since been ceded to the United States. Whether such marriages are to be treated as valid by courts of law, is a question of some importance, as it may affect [* 181 ] the titles and legitimacy of *many of the descendants of the early settlers. It is not the first time that it has arisen, as may be seen by the cases of Patton v. Philadelphia, 1 Louisiana Annual Reports, 98, and Phillips v. Gregg, 10 Watts, 158. The question, then, will be, whether an actual contract of marriage, made before a civil magistrate, and followed by cohabitation and acknowledginent, but without the presence of a priest, was valid, and the offspring thereof legitimate, according to the laws in force in the Spanish colonies previous to their cession. That marriage might be validly contracted by mutual promises alone, or what were called sponsalia de præsenti, without the presence or benediction of a priest, was an established principle of civil and canon law antecedent to the Council of Trent. See Pothier du Contrat de Mariage, Part II. c. 1; Zouch, Sanchez, &c.; and Dalrymple v. Dalrymple, 2 Haggard's Consistory Reports, 54, where all the learning on this subject is collected. Hallett v. Collins. 10 H. Whether such a marriage was sufficient by the common law in England, previous to the marriage act, has been disputed of late years in that country, though never doubted here. See the case of The Queen v. Millis, 10 Clark & Fin. 534. On the continent, clandestine marriages, although they subjected the parties to the censures of the church, were not only held valid by the civil and canon law, but were pronounced by the Council of Trent to be vera matrimonia. But a different rule was established for the future by that council, in their decree of the 11th of November, 1563. This decree makes null and void every marriage not celebrated before the parish or other priest, or by license of the ordinary, and before two or three witnesses. But it was not within the power of an ecclesiastical decree, proprio vigore, to affect the status or civil relations of persons. This could only be effected by the supreme civil power. The church might punish, by her censures, those who disregarded her ordinances. But until the decree of the council was adopted and confirmed by the civil power, the offspring of a clandestine marriage, which was ecclesiastically void, would be held as canonically legitimate. In France, the decree of the council was not promulgated, but a more stringent system of law was established by the Ordonnance de Blois, and others which followed it. In Spain, it was received and promulgated by Philip the Second in his European dominions. But the laws applicable to the colonies consisted of a code issued by the council of the Indies antecedent to the Council of Trent, and are to be found in the code or treatise called Las Siete Partidas *and [* 182 ] the Laws of Toro. The law of marriage, as contained in the Partidas, is the same as that which we have stated to be the general law of Europe antecedent to the council; namely, "that consent alone, joined with the will to marry, constitutes marriage." We have no evidence, historical or traditional, that any portion of this code was ever authoritatively changed in any of the American colonies; nor has it been shown that, in the Recopilacion de los Indies, digested for the government of the colonies by the order of Philip the Fourth, and published in 1661, nearly a century after the Council of Trent, any change was made in the doctrine of the Partidas on the subject of marriage, in order to accommodate it to that of the council. It may be supposed that, as a matter of conscience and subjection to ecclesiastical superiors, a Catholic population would in general conform to the usages of the church. But such conformity would be no evidence of the change of the law by the civil power. Indeed, the fact that the civil magistrates of Louisiana had always been accustomed to perform marriage ceremonies, where the parties Hallett v. Collins. 10 H. were Protestants, or where no priest was within reach, is conclusive evidence that the law of the Partidas had never been changed, nor the decree of the Council of Trent promulgated, so as to have the effect of law on this subject in the colony. The case of Patton v. Philadelphia, 1 Louisiana Annual Reports, 98, already referred to, shows the opinion of the supreme court of Louisiana on this subject, which, on a question relating to the early history and institutions of that country, should be held conclusive. 3. These preliminary questions being thus disposed of, our next subject of inquiry must be, whether Joseph Collins had any right or title to the land in dispute, which descended to and vested in his heirs. On the 3d of January, 1803, Joseph Collins, who was captain of dragoons and surveyor of the district, made application to Don Joaquim de Osorno, military commandant of Mobile, and obtained a permit, in the usual form, to take possession of a certain lot of marshy ground therein described, near to or in the city of Mobile. The permit was dated on the 26th of April, 1803. This, though merely an inception of a title, was capable of being ripened into a legal title by possession and improvement, which would give him a right to call on the intendant-general to perfect his grant by a complete title. In order to keep up his possession and improvement on this lot, Collins entered into agreement under seal, dated the 21st of November, 1806, with William E. Kennedy, by which Kennedy covenanted to improve the lot," so that, by fencing and ditching, the said lot may not be forfeited, and that he will begin to im[* 183] prove * said lots immediately. By this agreement, Collins was to have the south half of the lot, and the north half was to be conveyed to Kennedy. Whether Kennedy was at this time the owner of the Baudain claim to the same lot, and the compromise of their conflicting claims was in part the consideration of this contract, or whether the Baudain claim was first purchased by Kennedy in 1814, when its transfer bears date, is a question of no importance in the case. For it is clearly proved that Kennedy took and held possession of the lot, and made the improvements in pursuance and under his contract with Collins. And whether we consider him as agent, partner, or tenant of Collins, his purchase of another claim would enure to their joint benefit. He could not use the possession and improvement made for Collins to complete an imperfect and abandoned grant to Baudain as was done, and by such act exclude Collins from his half of the lot. The deed which Kennedy afterwards gave to Inerarity shows clearly that he entertained no such dishonest intention. For, after Hallett v. Collins. 10 H. acknowledging by this deed his contract with Collins, and stating his intention to complete the title under the Baudain permit or grant, he proceeded to substantiate his title before the commissioners by proving the possession and improvements made by him under his contract with Collins as the meritorious foundation of his claim; and thus obtained a favorable report from the commissioners under the Baudain grant, which had been before rejected for want of such proof. By the act of congress of the 8th of May, 1822, § 2, all claims to lots in the town of Mobile, on which favorable reports had been made by the commissioners, "founded on orders of survey, requettes, permissions to settle, or other written evidence of claims, derived from either the French, British, or Spanish authorities, and bearing date before the 20th of December, 1803, and which ought, in the opinion of the commissioners, to be confirmed, were confirmed in the same manner as if the title had been completed." By this act, the legal title to this lot became vested in William E. Kennedy. A patent would be but further evidence of a title which was conferred and vested by force of the act itself. Having thus obtained the legal title in his own name, Kennedy required no deed from Collins or his representatives, but became seised thereof for his own use as to the northern half, and for the use of Collins, or in trust for his heirs, as to the southern. Inerarity might have maintained an action of covenant on his deed, and compelled him to transfer the legal title by a further assurance. There might be some question, perhaps, whether the legal estate did not immediately vest in Inerarity by estoppel. But as the conveyance is a deed [184] poll, in the nature of a quitclaim and release, without a warranty, and with a covenant for further assurance to Inerarity, or the heirs of Collins, it most probably would not. But for the purposes of this case the question is wholly immaterial. Inerarity, as a creditor of the estate of Collins, would have a right to demand the payment of his debt, before he should make a transfer to the heirs. But whether as holder of the legal or equitable estate in trust, his beneficial interest amounted to no more. Some objections have been urged to the view we have taken of this transaction, on the ground that the contract made in 1806 with Collins, was not binding. But, although we cannot perceive the right of persons, who have purchased the legal title from Kennedy, with full notice of the trust, to object to a contract which Kennedy has executed, we shall proceed to notice them. The first objection is, that Collins did not sign the indenture or articles of agreement of 13 Stats. at Large, 700. |