
    Charleston,
    
      January Term, 1814,
    William Alston ads. Benjamin Alston, Executor; Benjamin Alston, Trustee of Harvey and Wife.
    
    The months mentioned in the act of 1785, forrecord-ing marriage contracts on calander months j such contracts, executed in Georgetown,must be recorded in the; office of the secretary of state, not-withstanding the act of 1791.
    Trover,
    At the trial of the above case, it was admitted that Benjamin B. Harvey and Charlotte Villepon-teux (in consideration of an intended intermarriage) together with Benjamin Alston, deceased, entéred into a marriage contract; by which the property in. question was conveyed to Benjamin Alston, in trust for the joint benefit of Harvey and Miss Ponteux; and after the death of either, to the use of the survivor for life, and after the death of the survivor to the issue of that marriage. The marriage was solemnized. Harvey died, leaving issue, an infant, which is alive, and for whom the executor of the trustee brought the action, to recover the negroes, May, Celia, Flora, Mary, Nancy and'a boy. It was admitted for the defendant below, that the wife of Harvey, after his death, married James Lesesne, and that she joined with her husband in a bill of sale, for a valuable consideration, in conveying the negroes, May, Celia, and Marys and that James. Lesesne, by a subsequent bill of sale, conveyed Flora, for a valuable consideration to William Alston t and that these bills of sale were regularly proved, and recorded with the register of mesne conveyances for Georgetown district, in his office. Nancy and a boy have been born since.
    Tor the plaintiff below, it was insisted that Charlotte Vitteponteux, now Mrs. Lesesne, could not join in the sale of the property, nor could James Lesesne sell the same, as he had no right in it; therefore, under the marriage settlement, the executor of the trustee should recover it back, for the said Mrs. Lesesne, and the issue of her marriage with Harvey.
    
    For the defendant below, it was insisted that, as the marriage settlement was not recorded within three months, agreeably to the acts of Assembly, in that case made and provided, the said settlement was void as it respected creditors, and bona fide purchasers, and also fraudulent. It was also urged, that the said marriage settlement should have been recorded with the register of mesne conveyances in Georgetown district, agreeably to the provisions of a public act; and, not being so recorded, the second conveyance of the property, if first recorded, must be deemed and adjudged the first conveyance. It was also urged, that the party had a title by possession ; and could give the statute of limitations in evidence, under the general issue. All of which objections and grounds were overruled by the court; and the present appeal is taken upon the misdirection of the judge presiding.
   -, J. COKCOCK,

The grounds which I deem it ne-eessary to consider are, 1st. Whether it was essential to the validity of the marriage settlement, that it should be recorded in the register’s office at Georgetown. 2ndly, Whether if that were not essential, it was recorded within the time prescribed by law; and lastly, whether, if the marriage settlement be valid, Lesesne and his wife could convey any right to the defendant.

. The act which is called the Georgetown act, was introduced to relieve the inhabitants of that town from an inconvenience resulting from the county court act, which was of force at that time; and which obliged all persons to record their deeds with the clerk of that court, who was not required by that act to record marriage settlements; it, ¡therefore, can only be considered as applying to direct conveyances of property. This further appears from the language of the act itself, which does not speak of marriage settlements; for it will be observed that there is a uniform phraseology in all our acts which relate to marriage settlements. They are never included under any general term, but are always called marriage settlements or marriage contracts.

Again; there are laws which require all marriage settlements to be recorded with the secretary of state, in order that as little trouble and as great cer-. tainty as possible, as to the interest which the citizens had in the property in their possession.

As to the second ground, I am of opinion that the ¿marriage settlement is to be considered as duly recorded; It was dated on the 20th of September, 1797, and recorded on the 19th of December, 1797. Whenever an act speaks of months, it means lunar months, unless the contrary be expressed; 2nd Blacks, p. 141 ; but on this point it seems to be conceded, that the defendant knew of the marriage settlement, so that, if there was any difficulty about the time of recording, he ought not to be permitted to take advantage of it; for the object of recording being to give notice to the community of the existence of these trusts, and the defendant having that knowledge, there Was no necessity as to time, that the settlement should be recorded.

It was contended, that, admitting the validity of the marriage settlement, yet Mr. Lesesne and his wife had a life estate in the negroes, and could, therefore, convey for that period $ that the deed ought to stand for as great an interest as the grantors possessed. But the legal estate is in the trustee, and could not be alienated except by him, unless-through the interference of a court of equity. I am for these reasons against a new trial.

Nott, J.

The plaintiff in this case claims the property in question under a marriage settlement, recorded in the office of the secretary of state within three calendar months after its execution, but after a lapse of three lunar months. The defendant has taken two objections to this deed: 1st, That it ought to have been recorded within three lunar months: And 2ndly, That it ought to have been recorded in the office of the register of mesne con- ° , veyances of Georgetown^ and not m the office of secretary 0j* S(-ate> jf ¿he court should be with him oii either of these points, he will be entitled to a new trial; if not, the motion must be refused.

On the first point, I entertain no doubt. Words in a statute, not of technical import, must be understood according to their common acceptation. In common parlance, <( month” means calendar month. In some of the law books, to be sure, we find it laid down that month, without any qualification, means lunar month; but the universal method of computing time in this state, is by calendar months, and the members of the Legislature must be presumed to have used the word in the act, in the same manner as they would have used it on any other occasion. The deed in this case having been recorded within three calendar months, the law in that respect has been satisfied.

The second point, perhaps, is more doubtful. The act of the 8th of March, 1785, P. L. 357. requires that all and every marriage contract, deed or settlement shall be lodged in the office of the secretary of state, to be recorded within three months after the execution thereof. By an act of February, 1791, it is enacted, “ That all deeds and other writings relative to any future conveyance, sale, or mortgage, of personal property, which shall be in /the district of Georgetown at the time of such con- ° veyanee, sale or mortgage, and which shall be first recorded in the office of register of mesne convevan- . ° " ces m Georgetown, shall take a preference to any conveyance, sale or mortgage not recorded in said office. The defendant now contends that marriage settlements are embraced under the words of this act, and that the plaintiff’s deed ought to have been recorded in Georgetown; but I think otherwise. The act of 1785, specifies marriage settlements, eo nomine ; and it is not to be presumed, that the Legislature intended to repeal that act, by the general words used in the act of 1791. There is another circumstance which points to this construction; in the latter act, the word mortgage is specifically mentioned. A mortgage is as much a conveyance or sale, as a marriage settlement, and indeed more so, for the object of a marriage settlement generally is, (as in this case,) to secure one’s own property; a mortgage, therefore, would as well have been included under the general words of this act, as a marriage settlement. The inference to be drawn then, is, that the Legislature did not intend to include any kind of instruments, except those specifically mentioned. This construction is still further strengthened by the act of 1792, extending the time for recording marriage settlements, and still requiring them to be recorded in the secretary of state’s office. I am, therefore, of opinion that this deed was recorded in due time, and in the proper office, and that the motion ought to be refused.

Smith, J.

In contemplation of an intended mar*-riage between Benjamin B. Harvey, and Charlotte W. Villeponteux, a deed of marriage settlement was executed between them on the 20th September, gy t]Tjs settlement, the property in dispute in this action, consisting of certain negroes, was conveyed to Benjamin Alston, in trust for the joint benefit of the said B. B. Harvey and Charlotte W. Villeponteux ; and, after the death of either, to the use of the survivor for life, and after the death of the survivor, to the issue of that marriage. The marriage was solemnized and they had issue one child, and Harvey died; Mrs. Harvey then inter-• married with James Lesesne, and they jointly, by bill of sale, conveyed Celia and Mary, two of the negroes in question, to William Alston, the defendant. James Lesesne, by a subsequent hill of sale, conveyed to him Flora, another of the negroes in question. These were the negroes seeured by the marriage settlement deed, and they, together with their offspring, aré the negroes sued for in the action. These bills of sale, Mr. Alston had proved and recorded in the office of register of mesne conveyances for Georgetown district. The marriage settlement deed never was recorded in that office,, hut was recorded in the secretary of state’s office in. Charleston district, within three calendar months after its execution, hut not within three lunar months.

The defendants counsel took several grounds :— Eirst, that this deed of marriage settlement was not recorded, as it ought to have been ; and as required by the fifth section of An Act for establishing certain regulations in Georgetown,” in the register’s office of mesne conveyances in Georgetown district; and was, therefore, void as to creditors and subsequent purchasers. This clause of the act says, All deeds and other writings relative to any future conveyance, sale or mortgage of personal property, which shall be in the district of Georgetown:” here it is to be observed, no word or expression, designating a marriage contract, or marriage settlement,. is used at all in this act; but all the other acts which relate to the recording of marriage settlements, use words particularly expressive of that sort of deed; and it is no where denominated a' conveyance or sale.

In the act of March 8th, 1785, P. b. 357. which is the first act that requires this species of deed to be recorded, it is emphatically called a marriage contract, deed or settlement; and another act, passed the same session, 47th section, directing memorials to be transmitted to the secretary’s office, appears to keep up this technical distinction, by using the following words : that all memorials of sales and conveyances, moitgages, marriage settlements, deeds of trust,” &c. And this distinction in several other parts of the same section, seems to be carefully preserved. Also, by an act passed subsequently to the Georgetown act in 1792; 1st Faust’s Collection, 209. this species of deed is mentioned ten times, and not mentioned once without prefixing the word? marriage to it; which shows most forcibly the strong technical distinction which the Legislature have constantly attached to this sort of deed, and leaves no sort of doubt on my mind that the Legislature never intended to include deeds of marriage settlement in the Georgetown act; but left them as before to be recorded in the secretary’s office, or memorials thereof registered in that office, where the originals were recorded in any clerk’s office in any* county or district other than Charleston.

Defendant’s counsel also urged as an exception to this deed, that it had not been recorded in the secretary’s office in due time, even if the law had intended it should be recorded in that office, as it had not been recorded there within three lunar months after its execution. Judge Blackstone says in his 2nd volume, 141. “ a month in law is a lunar month, or twenty-eight days, unless otherwise expressed,” &c. therefore, a lease for twelve months is only for forty-eight weeks; but he allows, if the words twelve month be used, it means the whole year; and explains it by saying that space of time is generally understood to mean a whole year, when expressed in the singular number. Thus that great lawyer allows the law to recede from its usual calculation to conform to, and adopt, the popular meaning. Then ought we not to follow so reasonable an example? Can we suppose that a single member of the Legislature, which limited the time for recording marriage settlements, had any other months in view but calendar mouth s ? This class of months iS1 •well known to every body. Children not five years old can tell you that there are twelve months in the year, and tell you the names of those months. Not one man in five hundred can tell you any thing about a lunar month, unless he has read the second volume of Blackstone’s Commentaries. Our almanacks, which are in every'man’s hands, give you no instructions concerning lunar months, but they tell you all about the calendar months. All our calculations, all our reckonings, all our popular divisions of time, are solely governed by the calendar month and not the lunar. So little are lunar months attended to in our rural economy, and even in our legal proceedings, that Judge Blackstone’s lunar month is as little known, or as little understood as his trial by battle; and, I believe, the latter will be as soon revived as the former. Then, I think, we are author-ised by Judge Blackstone himself, to adopt the ppp-, ular meaning, and say that the act means calendar months. But we are further justified in adopting this meaning from the case of 4 Dallas, 143.

The defendant’s counsel alleged that the statute of limitations would bar the plaintiff’s recovery, and that he ought to be allowed by the judge who presided at the trial, to give it in evidence under the general issue. It has been the constant practice of our own courts to require the statute of limitations to be pleaded, when the party would take advantage of it. Then it gives the plaintiff an opportunity to reply a new promise, or any other matter or •thing that he may think fit, which will save him from t^e effects of this statute: otherwise, he must y y come constantly prepared to reply in evidence, without knowing that the statute will be relied on by defendant. It is also long settled by the English authorities. 4th Bacon, 484. Letter F. 2 Salk. 422. 3 Blacks. Comm. 306. 5 Burr. 2630. Cro. Charles, 404. All these are concurring authorities, that the statute of limitations cannot be given in evidence. Also 1st Chitty, 173. and 2 Saunders, 63. By these two authorities, it is expressly settled, that no advantage can be taken of the statute unless it be pleaded. I am, therefore, against a new trial..

Gkimice, J. concurred.  