
    JOSEPH YOUSE vs. FREDERICK NORCOMS.
    A deed of bargain and sale executed by husband and wife on the-4th November, 1816, purporting to convey the wife’s real estate, the wife being at- that date an infant, may be avoided by their deed- executed to another person on the 5th February, 1846,
    APPEAL FROM ST. LOUIS COURT OF COMMON PLEAS.
    STATEMENT OE THE CASE..
    This was an action, of ejectment for a lot of ground in.the city of St. Louis, fronting on the river, brought in the common, pleas, on the day of August, 1848. A judgment was rendered for Norcum, plaintiff below:, in December- last, from which Youse took an appeah The recovery was for a lot of 18 feet inches in front, running back some 137 feet 11 inches. This lot was part of a square or block of ground lying between Cherry street on the north,, and Oak street on the south, Main street on the west, and Frontstreet on the east, separating it from the river. The plaintiff below, as well as defendant, claimed under one Nicholas Hebert dit Lecompte. No documentary evidence of title in said Nicholas Lecompte, was given by plaintiff below, but he proved by oral testimony that said Lecompte lived on that square as far back as 1787, and continued to reside there till his death on the 27th April, 1815. That block was under the Spanish government, the last block in the town towards the north reaching up to near the half moon fortification. It appeared that Lecompte had his ground entirely enclosed by fences, the front fence running along on Main street, the south, along the cross street towards the river, since called Oak street, and the fence on the river side was some distance back from the river, supposed to be about 40 yards distant from low water, by the Witness Pascal L. Cerre. The same witness testified that Lecompte did not occupy the whole block or square in fronton Main street, but that one Chs. Buisson, son in law of Lecompte, occupied the northern part of the square next to what is now Cherry street,, and lived on it, having his lot enclosed, and there being between his fence and the northern fence of Lecompte, a passage left which ran the whole depth of Buisson’s fence. He further stated that Lecompt’s house was necr his ( Lecompt’s ) northern fence, and that Lecompt’s, front on Main street extended from Oak street on the south, more than half the square, but did not comprehend the whole square, and did not embrace Buisson’s lot; that he could nob tell the size of Buisson’s lot, whether more or less than 50 feet; that Buisson lived there about the time of the change of government, but whether before or not he could not say, The plaintiff below gave in evidence a deed from said Lecompte to Julie Bissonet, bis daughter, dated 2d July, 1812, conveying to her the southern portion of said block, to wit: 45 feet French measure on Main street, running to. the river, bounded south by cross street, (afterwards Oak) also a second deed from Lecompte Julie Bissonet, dated 27th July, 1814, conveying to her 25.. feet, French measure, bounded south by the other lot conveyed to her,'and north by land reserved by the grantor, thus giving to that daughter 70- feet, French, off from the south side of the block. The plaintiff read in evidence also a deed from Joseph Bissonet and Julie, his wife, dated 6th September, 1815, to McKnight & Brady, conveying to them the lot last above mentioned of 25 feetin width, bounded north by the property of Nicholas Lecompte, deceased ; also a deed dated the 9th September, 1815, purporting to have been executed by the heirs of said Nicolas Lecompte, to wit; Nicolas Hebert Lecompte, Guillaum Hebert Lecompte, Hyacinth Hebert Lecompte, Charles Buisson, Joseph Bissonet and Julie, bis wife, Marie Hebert dit Lecompte, and Pierre Choteau, jr., acting for Peter Hebert dit Lecompte. This deed, after reciting that they are the heirs of Nicolas Lecompte, sets forth that they are desirous of regulating and disposing of the property and effects of his estate, with the intervention of a court of justipe, and provides that Charles Buisson shall make an inventory of the moveables,, and a sale an5 division of the proceeds, said moveables c omprehending certain slaves ; that Nicolas Hebert Lecompte and Guillaum Hebert Lecompte, transfer and convey to the estate 200 arpens of land, situate at the point of the Missouri, which had been sold to them by the-said Nicolas Heberl dit Lecompte, by deed dated 17th March, 1815, “reserving to.themseives only the town lot mentioned in said deed, which contains 85.feet front on Main street, by 150 feet more or less in depth, bounded west by Main street, east by Mississippi river, north by the lot of Charles Buisson, and south by the lot of Marie Hebert dit Lecompte; the deed then ■proceeds as follows : Fourthly, that by these presents, for the considerations known and re-cognised between the undersigned'heirs, they, the said undersigned heirs, sell, assign, transfer,, quit claim and convey to the said Marie Hebert dit Lecompte, a town lot situate in this city-of St. Louis, containing thirty-five feet in front, and 150 feet more or less in depth, bounded in front on the first principal street that separates it from the lot of Jacques Lajeunisse, east by the river Mississippi, north by the lot of Nicolas § Guillaum Hebert dit Lecompte, and south, by the lot of McKnight & Brady, heretofore of Joseph Bissonet, for her, her heirs and assigns. to enjoy and dispose of,” &.C. Said deed then states that tiie reserve by Nicolas & Guillaum above stated, is ratified ; and that Buisson is authorised to sell a tract of 400 arpens of land lying in the point of the Missouri, and to divide the proceeds thereof, and of the personalty equally among said heirs. This deed was acknowledged by the parties, and recorded on the 28th September, 1815. The lot sued for in this action is part of the one described as conveyed to Marie Hebert Lecompte. She was born on the 2d May, 1798, and was married the 4th September, 1810, to Joseph Yasquez. Ün the 4th November, 1816, Joseph Vasquez and Marie, his wife, conveyed the said lot of 35 feet, in fee, to Thomas Hanley. Hanley and wife mortgaged the same, in fee. to John Mullanphy; on the 27th March, 1818, that mortgage was foreclosed, and a sale made of the lot to John Mullanphy, and a sheriff’s deed executed therefor to him, dated 6th November, 1824, which several deeds were duly recorded at •or near their respective dates. It was proved that Mullanphy took possession of said lot in 2824 or 1825, and he and his representatives have held continued possession thereof ever since; and that in 1826 or 1827, he built ware houses on the front of it, and that the defendant is tenant of the heirs of said John Mullanphy. Marie Hebert was a little over 18J years of age at the time she and her husband, Vasquez, made the deed to Hanley. She and her husband lived in and near St. Louis always, till his death in June, 1848; at the time of his marriage he lived with his mother, about 300 feet from the lot in question, and continued to reside at the same place for many years, and then removed to Viede Posche, and never lived out of the county of St. Louis.
    On the 5th February, 1846, Joseph Vasquez and wife made their deed to Louis A. Labeaume of that date, conveying their right, title and interest in said lot, without any covenants for the title, and by deed dated 29th May, 1846, Labeaume and wife convey to the plaintiff’s below the same lot,
    Nicolas Hebert Lecompte, the elder, left at his death children and heirs, to wit:
    NICOLAS HEBERT DIT LECOMPTE,
    PIERRE HEBERT DIT LECOMPTE,
    GUILLA.UM HEBERT DIT LECOMPTE,
    HYACINTH HEBERT DIT LECOMPTE,
    JULIE BISSONET,
    MARIE LOUISE, afterwards married to Vasquez.
    All these are dead except this Vasquez; and none left children ekcept Peter, Hyacinth and Julie.
    A deed was read in evidence by defendant below, dated 4th September, 1815, from Pierrie Hebert dit Lecompte to Charles Buisson, which set forth that his father, Nicholas Hebert Lecompte, and his mother in their life time had often told him that the;' had given to Buisson a lot of 50 feot French measure, part on Main street, bounded north by cross street or Madame Laquaisse, south by lot of said Nicholas, and east by the bank of the river ; and that he knew 'that Buisson had advanced them money or other effects to more than the value of the lot; that therefore he the said Pierre quit claimed and conveyed said lot to Buisson in fee. This deed was acknowledged on the 4tii Sept. 1815. Below it, on the same sheet, is the deed of Nicholas, Guillaum, Hyacinth, Bissonet and wife Julie, and Marie Hebert Lecompte, dated the 9th of September, 1815.
    The defendant also gave in evidence the deed of Joseph Vasquez and wife Mario, to Robert N. Moore, dated the 10th April 1845, conveying to Moore her interest in Buisson’s 50 feet lot. This deed recorded in October 1848.
    The defendant asked tile following instructions :
    1st. If the court, setting as a jury, find from the evidence that the title of the land in controversy in this action, was conveyed in fee to Marie Louise Lecompte, in the year 1815, and that afterwards, in September of that year, she was married to Joseph Vasquez ; that on the 4th November, 1816, the said Vasquez and wife executed and delivered to Hanley the deed given in evidence in in this case of that date, and that that deed described and purported to convey the same land ; that the said Marie Louise was born on the 2d of Mh^, in the year 1798, and that neither site or 'her husband, at any time within four years after she married, at the age of twenty-óne years, rescinded, or attempted to rescind their said conveyance to Hanley, nor within th’at time brought any suit for, or set up any claim to said land inconsistent with their said deed, then they will find for the defendant.
    2d. If the court, setting as a jury, find from the evidence that Joseph Vasquez and wife executed to Hanley the deed given in evidence of 4th September, 1816; that it embraces tli'e land in controversy, and was duly acknowledged and recorded in a year from its date ; that the same land has been ever since claimed and held under that deed by Hanley, and those claiming under him ; that said Vasquez and wife have Jived in St. Louis county eversince, till June 1848, when said Vasques died ; that said land was occupied by buildings and improvements made by Mullanphy, claiming under Hanley in 1824 or 1825, and from that time over since openly and notoriously ; that Vasques and wife have ever since said deed to Haniey, known of Hanley’s claim,- and of those claiming under him, and of their possession, and have never, till 1846, by any act, disaffirmed said deed to' Hanly, or notified the owners oroccupants of said land that they, or either of them,' set up any claim to it—suck acquiescence is a ratification of their deed to Hanley, and said deed is not re-scinded by their deed to Labaume.
    3d. That if the deed of Vasques andjwife to Hanley, given in evidence in this case, was executed while the said wife Marie Louise was under :he age of 21 years, on the 4th September, 1816, but was at least of the age of eighteen years and upwards, then said deed was operative to pass t'htí title to the land embraced in it, and that such title could he defeated only by an entry upon' the land for that purpose, after her arrival at the age of 21 years.
    4th. That the deed given in evidence by the plaintiff, from Vasquez and wife to Lebaume, isnot operative to rescind the conveyance, and divest the title made by them by their deed to Hanley | if the jury find each of those deeds to have been made respectively at their dates, and that the said wife was a minor between 18 and 19 years of age at tlie date of the conveyance to Hanley.
    5th. That coverture is a disability which renders it impossible while it exists for the wife to rescind a conveyance made while she was a minor.
    6th. The defendant moves the court to decide that if the deed dated the 9th day of Septembef in the year 1815, under which the plaintiff claims, conveying the property in question to Marie Louise Lecompte, and the deed of the same date executed by her and others, heirs of Nicholas Lecompte deceased, to Charles Buisson, conveying a lot to him which had belohged to the said ancestor Nicholas Lecompte, formed parts of a family arrangment then made in relation to the division of the estate in which they were interested as heirs of said Nicholas, and were mutual considerations each for the execution of the other, and if before any conveyance by the said Marie Louise, and her husband, Joseph Vasquez, to Louis A. Labaume,'she and her said husbaiid had disaffirmed the conveyance made to said Buissonas aforesaid, such act of disaffirmance operated to annul the other conveyance made to her as a pa.tt of the salte family arrangement, and division of the said property of her deceased father, Nicholas Lecompte.
    7th. Jf the jury believe from the evidence that more than twenty-four yeais elapsed between the time that Maria Louisc'Lccompte, wife of Joseph Vasquez, arrived at the ago of twenty-one yeais, and the date of the deed from said Vasquez and wife to Louis A. Labeaum, read in evidence on the part of the plaintiff, then they ought to find for the defendant.
    All which said instructions were refused, to which refusal, to give them and each of them, the defendant by his counsel excepted. The court then, of its own motion, gave the following instruction:
    It being admitted by the parties that both claim title under Marie Louise Lecompte, the court decides, that if the court, setting as a jury, find from the evidence that Marie Louise Lecompte was born on the 2d of May 1798 ; that the lot in controversy was conveyed in fee to said Mary Louise in the year 1815, that afterwards, in that year, she was married to Joseph Vasquez, and that on the 4th of November, 1816, the said Vasquez and wife executed and delivered to Thomas Hanley the deed given in evidence, under which the defendant claims, such deed was a voidable conveyance by reason of the infancy of'said Marie Louise, at the date of its execution and delivery. And if 'tile court find also from the evidence that subsequently, on the 5th day of February, 1846, the «aid Joseph Vasquez and wife executed and delivered the deed to Lábaume, which was redd in evidence, and that the samo was recorded in the recorders office of St. Lonis county, on the Gtli day of February, 184Gj the execution, delivery and record of such deed to Lábaume will operate to annul and void the said deed to Hanley ; and if the court do further find from the evidence that the deed from said Labaume to the plaintiff was duly executed and delivered, and that said Joseph died in the month of June, 1848, and that the defendant was m possession of part of said premises atthe commencement of this action, the verdict ought to be for the plaintiff.
    To the giving this instruction the defendant below excepted. A motion for a new trial Was made and overruled, and án exceptancc was taken to that decision of ¿he court.
    •Spalding & Shsfley, for appellant;
    1st. The Spanish statutes govern the rights of partios to the conveyance of 4tii Nov. Í8Í6, of Joseph Vasquez and wife to Thomas Hahley. 1 Edwards Com. 6 sec. 13 and page 13. See. Í6-, congress expressly declares the existing laws of Louisiana to be in force, which were tile body of ihe Spanish laws. So that after these acts of congress^ the mass of Spanish law, which WaS in force here, had the validity of a statute.
    
    Those laws were not repealed by the introduction of the common law, by act of the general assembly of ¿he territory of Missouri, passed January 19th, 1816. 1. Edwards Com. 436, which act introduced the common law only, so far as it is not repugnant to, hor inconsistent With the Constitution and laws of tlié U, Stated, '* and not contrary to the laws of this territory. ’’
    4 Mis. Rep. 380 Landell vs. McNair. That the Spanish law was in' force on 22d March 1820, and not the common law as to the effect of a conveyance of land. The case in 7 Mis. Rep. 339 Mass vs. Anderson, does not militate against it. The court there say that since the introduction of common law and statute of fraud, a deed is necessary to convey land. This was certainly not necessary by the common law alone, for by common law a deed was not nfecessary to convey land Cruise digest, title XXXII Ch. 1 sec. 20, 21, 22.
    At any rate, where the common law was silent, and made no provisioii, positive, Spanish law was not repealed.
    There was no statute here, or subject 6f disability of infants, and rescinding and affirming their contracts, and the common law contained no affirmative provision limiting the period for disaffirming. 1 ÍSíis. Rep, 576, Carter et al. vs. Souland et al. ; Devarris on statutes 703 (7 Law Lib.;) also, at pages707, 708, and 710, 711.
    II. The age of majority was made twenty-one years by statute, so that Madam Vasquez was of age at 21 instead of 25 years. 1 Edwards Com. page 10 sec. 6—lp. 12 sec. 11 show that twenty-one was ¿he age of majority as to all political rights.
    1 Edwards page 118 sec. 36; p. 144 sec, 2; p. 417 see 67; p. 598 sec. 2; show that the age of 12 was the age of majority for suing, and as to rights of property. 3 Mis. Rep. 40 Dougai vs. Fryer; 5 Mis. Rep. 310, 306 McNair vs. Hunt; 6 Mis. Rep. 169 Collins vs. Glamorgan’s adm’r.
    Mrs. Vasquez was 21 years old on the 2d May 1819.
    III. By the Spanish law, the title passed by the deed made by husband and wife, she being over 14 years of age, and the property being paraphernal; and she was bound to rescind in four years after coming of age, by instituting proper proceedings, or she was bound forever, and this portion of the Spanish law had never been repealed. 2 Moreau’s Partidas 1152-3; 3 Laws 1 & 2. That restitution is the demand made by a minor, to be restored to his former condition, &c.; and that if he is injured he can be relieved, by making proof: otherwise, whatever he, or his guardian had done shall be binding.
    
      2 Moreau’s Part. 1155 Law 6, that-he who-clainisrestitution-mustprove two tilings: 1st. Tha he was a minor, or under 25 -years old when he made the contract. 2d. And that he made it to his own damage.
    2 Moreau’s Part. 1157 Law 8, that minor can demand restitution while underage, and within f our years after; and whether contract made by himself or by-his guardian; and it must be by suit &o.
    2 Moreau’s Part. 1158'Law 9, as to prescription, or limitation as to -minors four.years allowed after they come of age.
    2 Moreau’s Part. -788 Law 4, contract of minor over 14 binding if advantageous to him ; that is, it is voidable, not void.
    Ibid page 788 Law 5, promise of minor 14 years old, who has no guardian, is valid: bu he can apply to judge for restitution-, and -on showing he was a minor, and is inj ured, judge can rescind contract.
    Ibid page 895 Law 47, same is true of a pledge by minor &'c.
    2 Febrero p. 137 No. 24, that a bridegroom can give real estate to his betrothed with judicial license ; but should he give it without, he must reclaim it in four years after he domes of age, or he is barred.
    5 Febrero p 91 No, 54 privilege of minor under 7 years, and under 14 years, and between 14 and 25 years old. The contracts of this last voidable only,
    5 Febrero 101 No. 75. “This benefit (of restitution) is not available to the minor when ho approves expressly the -contract celebrated in his minority, nor when he does it 'tacitly, which is, when knowing the injury (“lesion”) he suffers the time prescribed by law'to elapse, or being of age, does acts inconsistent with the nullity or lesion, or which cannot but infer a ratification for the will deduced from acts, is more authoritative than that which consists in words.”
    5 Febrero 101, No. 76. That ratification, as aforesaid, may be of act of third person acting in name of the one who ratifies, or of the act of the party-himself, and causes two defects, nullity and leison; and ratification needs none of the solemnities requisite in -minors contracts.
    3 Mo, Rep. (O. S.) 446. If tutor alienate properly of minor, against law, the minor may in 4 years after he comes of age claim it; but his suffering 4 years to elapse, is ratification.
    8 Mart. Rep. 630, Fraucain vs. Delarand. A sale made by a minor over 14 years of age, in propria persona, is a good foundation for prescription, and the forms observed in this case were sufficient, if the minor had acted propria persona. Note, there was no 'oath.
    10 Mart, Rep. 732, Cheneau’s heirs vs. Sadler. A minor above 14 couli contract in his own name, according to Spanish law. (Part 3, Tit. 18,1 59.) And if he does not act in 4 years it is ratification, even -in case of absolute nullity.
    
    6 Louisiana Rep. 604. Express or tacit approval by minor of sale after they are of age, bears them, whether the conveyance be null for want of solebmities or due forms or not. 6 Louisiana Rep. 601.
    2 Yol. Frebreo, 238, No. 37, that the oath makes the contract more binding, but is not necessary to make it valid ; and to the same effect is 1Ó Mart. Rep. 732, where the court say that the form of an oath is prescribed. Part 3 Tit. 18, 1 59, to make the contract mire binding.
    
    Partida, 3 Tit. 18,1 59, prescribes the form of conveyance, saying if minor above 14, under 25 years, the conveyance should be as in other cases, and that in order vendee might be safe and certain, conveyance should state that the minor made oath, &c.
    Part 3, Tit. 11, law, 16, shows the effect of the oath, which is'to prevent the party from proceeding against what he has sworn, and he could not rescind.
    But he could after getting absolution, &e. See note 4 to law 59.
    In regard to married women, they were under no disability as to paraphernal property, which was the character of that in controversy in this suit.
    Asto what is paraphernal property, 3 Frebrero, 133 and 134, Nos. 32 and 33, p. 136, No. 40 andp. 158, No. 19; 2 Febrero 129, No. 8; 1 Moreau’s Partidas, p. 523, law 17.
    3 Febrero, 134, No. 34,husband with wife’s consent can alienate pharaphernal property.
    
      3 Martin Rep., 453, O. S , as.to what is pharaphernal, and that, husband can convey with wife’s consent, &c.
    4 Mis. Rep. 380, Lindell vs. McNair, as to what is paraphernal, and that it could be sold by husband with consent of wife.
    4 Febrero, 471, No. 218. That prescription will-run as to-married women in regard to paraphernal property.
    
    This portion of Spanish law was not repealed in 1816, even if the body of the common law was then introduced, for the common law was silent as to any limitation on the right of rescinding a contract by an infant.
    The limitation of 4 years applied to the age of majority, and that when that was altered from 25 to 21 years, (which was the case before the introduction of the common law) that 4 years began at that age. It was the same as if the Spaniards had altered the age of majority.
    IV. If the Spanish law did not govern; then the common law did; and the case is not altered thereby.
    1. By that law- the title passed. 4 Mis. Rep. 480, Lindel! vs. McNair, 17 Wend. 119. See page 131, that all deeds voidable not void. 2-Kent’s Com. 234,( 3 A. H. Marshall, 935, 938, that-title passed at common law,)- 5 Ohio, 251; 23- Shepley, 523, 524; 1. Edwards Chy. Rep. 301.
    2. Being under disability, she could not-rescind. If she could rescind, she could ratify; 30 years-acquiescence with knowledge.
    3. If- she could rescind, she has never done it. 17 Wend. 119; 13 Mass. Rep. 375; 1 New Hamp. 73.
    These go to the point, that rescinding can be by entry only. See especially 17 Wend, at pages 132, 133, 134,135.
    In the case of 10 Peters, 58, see page 73, the infant was and had been in possession, which is equivalent to an entry. In l b John, 539, it was wildland, and entry absurd and impracticable.fSee page 539,540, showing it to be wild land. 14 John 124. This case was also for wild land. These three cases are commented on in 17. Wend.
    And if the rescinding could be by an act of as high a nature as that which created the estate, or by something similar to such act, has never been performed, inasmuch as the deed of Vasquez and wife to Labaume does not purport to rescind, and is not inconsistent with the former conveyance to Hanley. It merely passes their interest in.the land. 1 Law Lib., Platt on Covenants, page 47, and 48.
    V. If she has rescinded at all, she has reseinded as to all- the family arrangement; and our instruction on that subject ought to have been given. 1- N. H. 73.
    There was evidence tending to prove such a family arrangement; and in if Mrs. Vasquez broke it up by revoking her conveyance, then the conveyance to her, which was the consideration should be considered as nullified by the same act.
    VI. She has affirmed the sale to Hanley. 6 Conn. Rep. 494,8 Tann. 35; 2 Kent’s Com. 195, Lecture 31, p. 233, 236,238, 239; 5 Yerger 41.
    Thirty years continuous possession.undpr tfie deed to Hanley, with the knowledge of. Vasquez and w.ife, ought to bar them.
    W. Lf. Williams, for appellee.,
    1. The deed from Vasquez and wife to Hanley, on-account of her infancy at the date of its execution, was either void or voidable.
    
    2. If it were merely voidable, the deed-to Labaume avoided it.
    3. No laches could be imputed to Mrs. Vasquez while she remains feme covert.
    
    4. No statute of limitations commenced running against her till the death of her husband In.support of my first and second propositions, I refer to the following authorities: Thomas’ Coke, Vol. 1, pp. 177, 178, 179, note (IC;) 2 Vol. p. 219; 4 Ba. Ab. 354; 4 Cruise 17; Bingham on Infancy, title “Law of Coverture;” Watkins on Conveyancing, (by Preston) p. 285, and Library Vol.; .McPherson on Infants, pp; 298, 465; Vouch vs. Parsons, 3 Bur. p. 1794, (1806) Hoyle vs. Sto.w, 2 Dpv’x. and Battle’s law R. p. 320; Bool vs. Mix, 17 Wendell, p. 120; Jackson & Burchin 14 Johns. R. 123; Zlime vs. Beebe, 1 Com. R. (2 series) p.494; Sanford vs. McLean, 3 Paige, p. 117; Jackson vs. Carpenter, 11 Johns. R. p. 539; leading Am. cases, 1 Vol. p. 114, note and cases cited, p. 107, 109; Lessee of Drake and wife vs. Ramsay et al., 5 Ohio R. 251; Phillips and wife vs. Green, 3 A. IC. Marshall, 7, (935 ;) Dear-born & Eastman, 4 N. H- R. p. 441; Roberts vs. Niggin, 4 N. H. R. p. 73; McGill vs. Woodward, 3 Brevard, 401; Supt. to. Am. Digest, 2 Ifol. p, 161; Tucker vs. Moreland; 10 Peters, p. 70.
    In Wheaton vs. East., 5 Merger, 41, 62, it is held- that a deed of bargain and sale, acknowledging a pecuniary consideration, is not on its face prejudicial.
    The rule of the civil law is most reasonable. 1 Domat. 512, sec. 24.
    My third proposition is fully adjudged in the following cases: Tucker vs. Moreland, Lessee-of Drake vs. Ramsay; Boody vs. McBenna, 23 Maine Rv (10 Ship.) 523; Clamorgan vs. Lane, 9 Mo, R. 472. Deed passed life estate, &c., as against feme covert incapable of conveying.without assent o.f husband, no, laches can be imputed until disability is removed.
    Spanish law had provided for every imaginable case—marital, parental, and all social rights— mode of acquiring property, and its transmission by descent, purchase or devise, were all provided, for. The ago of majority was fixed—which governed Spanish or common law ? If the former, all the statutes and common law introduced by this act., amounted to nothing. McNair vs. Lindel!, 4 Mo. Rep. 380; McCabe vs. Heirs of Hunter, 5 Mo. R. 357: Picottc vs. Cooley, 10 Mo. Rep. 312.
    The common law, as matter of fact and history, existed, and was the generally received system, long prior to 1816. This is evident from the territorial laws. Ter. laws 1 vol. p. 178; “Dower’’ p. 61 90.
    Proscription of four years does not apply where the deed is a millity. Francois vs. Dslavan 8 Martin 6(9 ; O’Conner vs. Barrí 3 Martin 446; Chaud’s heirs vs. Saddle 10 Martin 726; Gayoso do Denas vs. Garcia 2 Com. L. R. 474 ; 4 L. R. 870.
    The wife could not,.by the Spanish law, appear in suit without the consent of her husband and in that, respect, the disabilities by both codes were the same, and neither could require her to. do impossibilities. 1 White Comp.; 1 Donet 505.
    By Louisiana code, prescription is suspended in every case, where the action of the wife may be prejudicial to the husband. 2-Vol. 528 art. 3494.
    But if the Spanish law did prevail, and the age of majority was by our statute fixed at 21. The act of limitations of 1818, abolished all prescriptions. The four years invoked by plaintiff in error was a prescription, and was abolished. Landes vs. Perkins, called the Clamorgan case.
    See judge Ryland’s decision this term, wherein the common law is said to have been introduced by act of 1816.
    Haight for appellee.
    In the exposition of a statute, the leading clue to the construction to be ipade, is the intention of the legislature, and that may be discovered from different signs. As a primary rule, it is to be collected from the words: when the words are not explicit, it is to be gathered from the necessity and occasion of the law, being the causes which moved the legislature to enact it. Duanis on-statutes 694; 7th Vol. Law Library as there published-page 42.
    A remedial act shall be so construed as most effectually to meet the beneficial end in view, and to prevent a failure of the remedy. Ibid.
    A statute made pro bono publico, shall be construed in such manner that it may as far as possible attain the end proposed. The construction contended for defeats the end proposed. On this construction the second section was useless, and unnecessary. 1st Ten. laws page 440 sec. 6—titles— this was unnecessary also. Statutes in pari materia explain each other. McNair vs. Lindell 4th Mo. 380; McCabe vs. heirs of Hunter 7th Mo. 355; Ibid Moss vs. Anderson.
    The deed from Joseph Va&quez and wife, so far as the wife was concerned, was void by reason of. her infancy at its date. Thomas Coke Vol. 1 177, 178, 179, note 41; Vol. 2,219; 4th Cruise Dig. 17; Watson on conveyancing, by Preston 285; McPherson on infants 465,. 298; 2 Dob. and B. 320 (N. Carolina;) 1 Preston on abstracts 323; Jackson vs. Buntene 14th John Rep. 324;
    In anote to leading American cases, vol. 1 page 103, the American law is discussed.
    In Wheaton vs. East, 5 Yerger 41, 62, it was held that a deed of bargain and sale acknowledging a pecuniary consideration, is not on its face prejudicial. The rule of the civil law from whence the middle ground principle was borrowed, is more reasonable. It adjudges all conveyances by an infant of his unavailable property prejudicial. 1st Strachans Domat 512 sec 24.
    If the deed to Hanley was not void, but merely voidable, tile general proposition that a conveyance by an infant may be avoided by any act of equal solemnity with the original conveyance is undeniable. Cases before cited and Tucker vs Moreland, 10th Peters 7,0; Jackson vs. Carpenter 11 John Rep. 539; 14th ibid Sapra leading American cases, vol. 1 114, note and cases cited; Lessee of Drake and wife vs. Ramsey and others 5lh Ohio Rep. 251; Philips and.wife vs. Green 3d A. K. Marshall 7, 935; Dearborn vs. Eastmon 4th N. Hampshire 443; Roberts vs. Wiggin 1st do 71; 5th Monroe.
    McGill vs. Woodward 3d Brevard’s 401 Supt. to American Digest, Vol. 2, 161. The case of Bole vs. Mix 17th Wendell 120, does not sustain any different principle.
    No lapse of time in asserting the right of disaffirmance or avoidance of a deed made during infancy will amount to a ratification. Tucker vs. Moreland supra; Lesse of Drake vs. Ramsly supra; Boody vs. McKinney, 23d Maine 517, 523 ; 10th Sopley is the same report; Clamorgan vs. Lane 9th Mo. 472.
    By the civil law and Spanish law the deed of a minor is void when it wants the forms of law and a j ust causo and the prescription or 4 years does not apply to cases where the deed is a nullity. 8 Martin 630, 3d do. 446, 10 do. 726; Gayoso de Lewas vs. Garcia, 2nd Vol. Con. Rep. 474 ; 4 Louisiana 370.
    The statute of limitation passed in 1818 put an end to proscription of all kinds. Of this there cannot be any doubt. After 1818 there were no bars by lapse of time except suclt as that statute created. The limitation to this action is called prescription. 1 Domat 504; see also cases cited from Louisiana Repts, as to resissions and restitutions; Domat 502, Vol 1 and the following pager.
    As to jointures, gift of husbands, &c., being dote arras and Puraphernalia, 1 Vol. White’s N. Recopi; Prescription ibid 95 ; Promise by a minor is void unless to-his advantage. Ibid 151 compe ndium of the Royal laws of Spain from the institutes of Alvarez, being a history of the various Spanish codes ; 1 Vol. White’s Com. 352.
    As to the form by which a feme covert must convey her estate see translation from Partidas, 3d Part Tit. 18 Law 58, page 269. The deed in this ease to Henly is void under the Spanish law for want of form. See also 1 Martin, 611
    That no contract deed or obligation by a minor shall be valid nor any oath be made according to lib. 10 Tit. law 17 page 5 ; see translation from the Nooissima Reeopelacion.
    A conveyance by a minor being one over 14, must be for a just cause, and that must appear on the deed.
   Judge Napton

delivered the opinion of the court..

For- the purposes of this case, it does not seem to be material to determine, whether the territorial legislature in 1816 succeeded in introducing-the common law, to the exclusion of the Spanish law or not. In the: case of Lindell vs. McNair, (4 Mo. Rep. 380) this court held, that a deed of' bargain and sale, executed in 1810 by a husband and wife, and' acknowledged according to the forms prescribed for such deeds, when, designed to convey the husband’s land and the wife’s dower, would' convey the wife’s land, although previous to the act of Jtme 22d 1821, there was no statute of this State or territory, expressly authorizing such a conveyance. The court considered the Spanish law to be still in force after-the passage of the act of 1816, and as that law authorized a a husband, to convey his wife’s paraphernal property with her consent, the deed executed in. 1820 was upheld. It was also asserted that the deed was- good at common law. As this decision was made as early as-: 1836, and may have formed the basis of many titles acquired upon the faith of it. This court in a late case (Picott vs- Cooley 10 M. R. 312) intimated that it ought, not to be disturbed.

If the grounds upon which the decision of the case of Lindell vs. McNair was placed are to be adhered to, as well as the decision itself, it would appear that the act of 1816, which purported to introduce the common- law to some extent, was a signal failure. To introduce a system of unwritten law for the purpose of supplying the deficiencies of another system of a similar character, supposed to be equally perfect and comprehensive as the first, making both systems subordinate to the written or statute law, was certainly an act of legislation either entirely nugatory, or if not nugatory, singularly calculated to produce confusion and uncertainty. The Spanish law, supposed to be in force here previous to lSIGjwas a system, complete in itself, embracing.all the subjects usually regulated by a municipal code, and providing for all the rights and remedies incident to every relation of life. If that code was left in operation by the act of 1816, except where the statute laws of the territory had altered it, the common law could only be applied to supply the defects of that system. Under this construction of the act, the operation of the common law must have been extremely, limited, if indeed there was any ground at all for it to rest upon.

It is probable that the sudden introduction of the common law in 1816 might have been repugnant to the feelings and interests of the old inhabitants who had been familiar with another code. But the emigrants from the olden states, who regarded the common law as their heritage, and who in 1816 already constituted much the larger portion of our population, were doubtless anxious for the immediate acquisition of this system, and had practically regarded it, as the law longbefore its formalintroduction by the legislature. A reference to our territorial laws from 'the first acquisition of the country down to 1816, will show that the common law furnished our law givers all their notions of law and equity, •as well as all the terms used to express them. The deed from which this controversy has sprung, is a conveyance by bargain and sale, and it would seem that, at the date of its execution, the forms of conveyancing derived from the common law were practically in vogue, -even among the ancient inhabitants.

Assuming the law to be as-declared in the case of Lindell vs. McNair, that in November, 1816, a husband and wife could convey by deed of •bargain and sale the wife’s land, the question is still to be determined whether the infancy of the wife, at the time of such conveyance, will avoid the deed or render it voidable, and-if so, in what mode, or at what 'length of time it may be avoided.

At the common law, a married woman could alienate her land by fine andrecovery; but such alienation might be avoided on account of the infancy of the wife. If, however, it was not avoided during infancy, it ■could not be afterwards avoided, for this conveyance, being by matter of record, must be tried by inspection upon writ of error. 3 Bac. Abi. Infant Ch. 1, sec. -7. A feoffment or other alienation in pais, might be -avoided by an infant or his heir, at any time by entry, whether during his nonage or after his full age. Co. Litt. 380, b. So if the husband and wife aliened the land of the wife, both being infants, the wife after the •death of her husband, was entitled to her writ of dum, fuit infra actatem. And if they joined in an alienation where the wife only was an infant, after the death of her husband, she was entitled to her writ of dum fuit •infra actatem, as well as her cui in vita. Fiti N. B. 192, K. Co. Litt., 237, a, Com. Dig. infant, c, 4 Bac. Abi.; Infancy i, 7. But these writs must be understood as only applicable to alienation by feoffments, or ■other conveyances in pais, and could be brought only after full age, unless brought by an heir of the person entitled. Fiti N. B. 192, g.

This distinction between conveyances by matter of record, and those made in pais as feoffments, bargain and sale, are important in determining the force of a conveyance by husband and wife, made in 1816, after the passage of the act of the 19th January, upon the supposition that the common law was then in force. As our law now stands, it may be still more important, should a question arise as to the proper construction of a deed purporting to convey the wife’s land. Our statute now reads : that “a married woman may convey any of her real estate by any conveyance thereof executed by her herself and husband, and acknowledged by such married woman, and certified in the manner hereinafter described, by some court having seal, or some judge, justice or clerk thereof.” It is not provided what effect such a conveyance shall have, whether that of fine and recovery, or of a feoffement or bargain and sale. If, however-, we recur to the first act passed on this subject, that of June 22,1821, the question is readily solved. That act provided that “such deed shall be as effectual in law to pass all the right, title and interest of the wife, as if she had been an unmarried woman.” As the' deed of bargain and sale made by an unmarried infant was avoidable, it followed that a conveyance by a husband and wife of the wife’s land, during the minority of the wife, was also voidable. Our law remained in this condition until the revision of 1835, when this statute, like many others, was greatly changed in phraseology and put into a condensed form. The effect of deeds of this character was entirely omitted. I mention this, not with any view to enquire what is the proper construction of the present law. I shall assume that in 1816, before the common law had been changed by any special enactment, no greater effect could with propriety be given to a deed conveying the lands of a married woman, than was subsequently given to it by the act of 1821. In Lin-dell vs. McNair, the court do not intimate whether the conveyance was equivalent to a feoffment or a fine and recovery. As there was no statute on the subject, and the form of the conveyance was a bargain and sale, it could hardly have been understood to have the force of a fine and recovery. If the deed, therefore, of Yasquez and wife in 1816, is to be construed by the common law, it was at least a conveyance which could be avoided by reason of the infancy of the Mad. Yasquez.

By the Spanish law, a husband could convey his wife’s paraphernal property, with her consent. There is no doubt the land owned by Mad. Vasquez was paraphernal. It has not been questioned, in the argument <of this case, but that the husband’s conveyance of his wife’s land, she being an infant, could be avoided by the wife, at the Spanish law, as well as by the common law. It is laid down in Frebero, (3 Feb. sec. :36,) “If the husband sell paraphernal property, without the consent of ■the wife, for a full price, she can recover it from the purchaser, for she does not lose its dominion, inasmuch as one man’s property is not to be transferred to another without the owners consent.” Now by the Spanish law a minor, above the age of fourteen but under twenty-five, might sell his property, and the sale was translative of title sub modo, but he had the privilege of subsequently rescinding and suing for the property. So a married woman, under age, although her consent to the transfer of her property might be sufficient to pass the title for the time, could dis. sent after arriving of age. She had the same action for restitution which the Spanish law gave to minors generally. As this action was limited to four years after attaining majority, the question is whether this limitation affected a minor married woman.

In Chesman’s heirs vs. Saddler, (10 Marten L. R. 735) judge Porter said : “ The law on this point I understand to be, that if the minor, after he comes to the age of majority, expressly ratifies the alienation, or tacitly approves of it, either by suffering the time prescribed for him to commence his action to expire, or by doing acts in conformity with the transfer of his property, that he cannot afterwards claim it. Because, in the language of the law, the intention which is inferred from the act is more powerful than that which cab be ascertained from words. ”

This action for restitution is given when the minor’s estate has been sold according to the forms of law; by. it, he was enabled to redeem the property, by re-paying the price. As the laws of Spain did not permit a minor’s estate to be sold except under special circumstances, and then under the direction of a judicial officer. The minor was allowed four years after coming of age to have his action for recovering back the property, where the law was not strictly complied with. In O’Conner vs. Bane, (3 Marten 453) it is said : “A tutor has not the power of alienating the real estate of his pupil, except in the cases provided by law, and then only with permission of the judge. If contrary to this provision, he alienates it, the minor may within four years after he comes of age, obtain restitution of his property, on proving that the álienation has been injurious to him. (Partidas 6, 1 lib. 2.) But when he has suffered the four years to elapse, without claiming any restitution, his silence is considered as an approbation of the act of his tutor, and the purchaser of his property is quieted in his possession. ” This writ or action for restitution was also given where the minor himself had made the alienation.

It might be a question, whether this limitation of four years would •run against a married woman, whose lands had been sold during her minority, but the very limited examination which I have been enabled to bestow on this subject, has led me to the conclusion that it does. It is certain, that the prescription of ten years originating in a just title and good faith will run against a disposition by the husband of his wife’s paraphernal property—(3 Feb. lib. 3 ; Ch. 2, 3, 4,) and I see no reasons why a similar limitation should not attach to the wife, after the removal of her disability of infancy. In the case of O’Conner vs. Bane (3 Marten) the point was made, but as the prescription of ten years was proved, the court did not examine the other question, and Would not permit the ten years prescription to apply, because the land of the minor had been 'Sold by the mother, after she had married a second time, and by such marriage forfeited her rights as tutrix.

Admitting that the married woman, where paraphernal property have been conveyed by her husband during her infancy, must under the Spanish law bring her action for restitution within four years after she comes of age, notwithstanding she continues married. Let us examine the facts of the present case, and see how this limitation will affect the result.

The conveyance of Vasquez and wife to Hanley, was executed on the 4th November, 1816. Mad. Vasquez was born on the 2d May, 1798, and was consequently twenty-one years old on the 2d May 1819.

The act “ for the limitation of actions to be brought for the inheritance or possession of real property, ” was passed on the 17th Dec. 1818. That act, provided, that “ no person should have any writ of right, or any other real or possessory writ or action,” except where the session or possession upon which the action was to be maintained, had been within twenty years before the suit; and further, that “ any person or persons now having right or title of entry as aforesaid, and the heir or heirs of such persons may within twenty years from this time enter or commence any such action or suit as he, she or they, or his or her or their ancestors might have done before the passing of this act.” This act undoubtedly abolished the prescription of ten years, which prevailed under the Spanish law, and such was held to he the law in Landes vs. Perkins (12 Mo. R. 238.) Did it not also abolish the limitation upon the action for a restitution of lands sold by a minor ? If the Spanish law was in force in 1818, and by virtue of that code an action could have been maintained at that period for the restitution of lands sold during plaintiff’s minority, that action, by whatever name it may have been called, was in substance and effect, a real action. It was an action to recover the possession of lands, and therefore came within the letter and spirit of the act of limitations. It will not do to say that the act was intended to apply only to common law actions ; for if the admission be made, that such was probably the intention, it only proves that the legislature acted on the presumption that no other kind of actions were known to our courts, or recognized by our laws. The argument would therefore prove too much : it would show that the logislature did not intend to limit the period of commencing a proceeding under the Spanish law, only because they believed the common law to have been introduced two years before, and the Spanish law abolished. But if the Spanish law and common law were both in force in 1818, Madam Vasquez had a right to this action of restitution before some tribunal of the territory, and the action was strictly a possessory action. It cannot be supposed for a moment, that a party who had a claim for land, designated by a name known only to the Spanish law, was intended to be barred, and was barred, whilst at the same time he could give his claim another name, and bring his suit in a common law tribunal.

It surely cannot be denied, that in 1818, Madam Vasquez could have maintained a common law action for the recovery of her land; for those who maintain the continued existence of the Spanish law in this territory after 1816, seem to concede that it existed only for the protection of rights, not to control the remedies, or dictate the forms of action in our judicial tribunals. Our legislative and judicial history conclusively establishes, that no tribunals were constituted here for administering the Spanish law, in its forms, and no suits were over maintained in any other mode than that known to the common law. Our judges and lawyers were educated in this system, and our legislature was- thoroughly imbued with its spirit. If, then, Madam Vasquez could have maintained a common law action for the restitution of her land in 1818, that right of action, by whatever name it was called, was protected by the act of limitations—that protection extended to 1825, when the common law was beyond all question fully introduced.

We must therefore conclude that the principles of the common law must settle the right involved in this suit.

The deed under which the plaintiff claims, was executed by Vasquez and wife in 1846, and the only question is, whether this deed, made thirty years after the first, was effectual to rescind the forms and pass the estate to the plaintiff.

It would be useless, at this day, to examine the much discussed distinction between the void and voidable acts of an,.infant. The modern doctrine, which originated in the case of Louch vs. Parsons, and which hold the deed of an infant to be merely voidable, is certainly more consonant to natural justice, than the harsher rule which was thought to have prevailed previous to that case. The deed of Madam Vasquez in 1816, was then voidable only. Is her silence, her acquiescence during thirty years a bar ? Can the mere inaction of a feme covert, however long continued, amount to an affirmance of a voidable contract ? Such. would have been the Spanish law, as we have seen ; but under our system, the disabilities of a feme covert are greater than that under the-civil or Spanish code, and as a consequence, her responsibility is diminished, and her privileges are more extensive and better protected. No. statute of limitation barred Madam Vasquez, and no act was done by her to affirm or ratify the deed of 1816. She was merely passive. The fact that she lived in the city where the lot in controversy lies— that she was probably aware of the improvements going up : that she made no objections, and put in no claims;—these circumstances, whilst they might affect the equitable character of' the transaction, canhardly be regarded as. an affirmance. The case of Wheaton vs. East. (5 Yerger 59) is a very strong case upon this point-; but it was essentially different from the present. A confirmation was deduced from the conduct of the plaintiff in that case, scarcely warranted- by the general current of authorities. The plaintiff lived in the neighborhood of the lot he had sold during his infancy—saw the defendant making large expenditures in valuable improvements—said- he had sold' the lot, had been honorably paid for it, and-was satisfied, and make a proposition for its purchase to. the defendant. These circumstances were held to preclude him from subsequently setting up title. But Madam Vasquez has been merely inactive, and during thé entire period of her silence has been a feme covert. The generally received doctrine undoubtedly is, that mere words, much less mere silence or inaction, will not amount to a ratification of- a voidable deed. Clamorgan vs. Lane, 9 Mo. R. 473.

It seems to be well, settled; that an entry upon the land is not necessary to avoid a deed made during infancy, but it may be avoided by a deed executed to another for the same land after arriving at full age. '

The other judges concurring, the judgment of the court of common pleas is affirmed..  