
    Doe ex dem. Louis A. Caillaret vs. Arni Bernard et uxor.
    It is a principle of evidence that when two writings refer to each other, with a view to the construction of either, being cotemporaneous and kindred in respect to subject-matter, they are deemed one instrument, when the controversy is between the original parties and their representatives; where,I therefore, a deed, conveying the absolute fee in real estate, was executed, | and at the same time the grantee executed a paper, reciting that he received | the property charged with the settlement of the just debts of the grantor ; | held, that the latter paper was correctly admitted in evidence, in an action | of ejectment by the grantee in the deed, on the part of the defendant, to 1 show that the grantee had but a trust in the property; and that therefore t the widow of the grantor, who had intermarried with him since the deed, 5 was entitled to dower in the property.
    Where the record does not purport to set out all the testimony, this court will presume that all written evidence spread out in the record, was properly proved in the court below, to render it competent testimony.
    Where a grantor, in a deed which conveyed the fee-simple in land to the grantee, took from the grantee an acknowledgment that he held the land subject to the just debts of the grantor, and charged with' their settlement, and the grantor subsequently marries and dies, his widow will be entitled to dower in such realty; and if the property thus conveyed be the mansion-house of her husband, in which he was residing at the time of his death, she may, even though her dower has not been formally allotted to her, set up her possession as widow and dowress of the mansion-house, in bar of an action of ejectment by such grantee ; and even though it appear in proof on the trial that the premises are held in possession by a tenant of the widow, yet if it do not appear that she has given a lease or actual transfer of her privilege of possession, and she be let in to defend in the action, it is competent for her to rely on her right of possession under the statute, (How. & Hutch. 353, § 47.)
    It is no ground of objection to a verdict and judgment in ejectment, that the record does not show a plea of not guilty, where the parties appeared and tried the cause upon its merits.
    In error, from the circuit court of Harrison county; Hon. V. T. Crawford, judge.
    John Doe, on the demise of Louis A. Caillaret, brought an action of ejectment, and served the notice on William Jourdan, the tenant in possession of the premises. At the March term, 1844, of the court, it was ordered, by consent of both parties, that Arni Bernard and Adelle Bernard should be made defendants, and the ordinary consent-rule was entered into, agreeing, among other things, to plead not guilty, but the plea was not filed.
    At the April term, 1845, the jury found for the defendants. The plaintiff below filed a bill of exceptions, from which the following facts appear. He read a deed from John Delaney and Adelle Delaney his wife, to Adolphe Caillaret, of the premises in controversy, and a deed from Adolphe Caillaret to himself, both deeds conveying the property in fee-simple. The defendants admitted the identity of the premises; when the plaintiff proved by William Jourdan that he was then in possession of the property, as tenant of the defendants, and had been in possession of it ever since about three months prior to ithe commencement of the action ; that the defendants did not reside upon the premises, and had no other possession of it than what they held through him as their tenant. It was admitted that Adelle Bernard, the defendant, was the wife of John Delaney, at the time of the execution of the deed from him to Cail-laret, and the widow of the said Caillaret by intermarriage with him, subsequent to the execution of the deed from Adolphe Caillaret to Louis Caillaret, and that Adolphe Caillaret died in possession of the premises in controversy.
    The defendant then offered in evidence “ an instrument, purporting to have been made by Louis A. to Adolphe Caillaret.” This instrument was in the French language; the following translation of it was admitted to be correct, viz. :
    “ I, the undersigned, declare, that on the 30th day of September, 1839, my brother, Adolphe Caillaret, has made to me a sale of all his property, not for the purpose of defeating his legitimate creditors, with whom he charges me to settle, but to render unavailable all unjust demands against him during his voyage to France, which he is obliged to take in haste.
    (Signed,) L. A. Caillaeet.”
    
      The plaintiff objected to the admission of this instrument, but his objection was overruled, and he excepted, and embodied the foregoing evidence in the bill of exceptions.
    Various instructions were asked which, and the action of the court upon them, it is not deemed necessary to set out, as they are not noticed in the opinion of the court.
    On the rendition of the verdict for the defendants, the plaintiff prosecuted this writ of error.
    ChampUn, for appellant,
    Cited the following authorities: Brown v. Weast, 7 How. 181; 2 Esp. Nisi Prius, 36; 2 Johns. 84; Ibid. 221; 3 Ibid. 422 ; 8 Ibid. 488; 1 Kent. Com. 61, 304, and note, also note at 310; 2 Story’s Eq. 275; 1 Chit. PI. 219; 11 Johns. 487; 3 Burr. 1901; 1 Term R. 758; Weakely v. Bucknell, Cowper, 473; Lowther v. Andover, Brown’s C. C. 396; 7 Term R. 247; 8 Ibid. 2, 122, 123 ; 5 East. 138; Wallis v. Smith's Heirs, 2 S. & M.; Wooldridge v. Wilkins, 3 How. 370, 371; Beall v. Campbell, 1 Ibid. 24; Wilkinson v. Patterson, 6 Ibid. 193.
    
      John Henderson, for defendant in error.
    
      E. Fourniquet, on the same side.
    1. The defendants, Arni Bernard, and Adelle Bernard, his wife, resisted the plaintiff’s title, upon the ground that the deed from Adolphe Caillaret to Louis A. Caillaret, although absolute on its face, was, nevertheless, held under a secret trust; and that the property in question was held by Louis A. Caillaret as trust property only. And as trust property, Adelle Bernard, widow Caillaret, (there having been no children by the marriage,) was entitled to a dower interest of one half of all the said property. How. & Hutch. 351, sect. 41. And was also entitled to hold possession of the premises, until her dower had been duly set apart to her. How. & Hutch. 353, sect. 45-47.
    2. The existence of a trust may even be established by parol, and thus against the answer of a defendant. 1 Johns. Ch. R. 582, 594. Certainly, then, the court below did not err in allowing the trust in question to be established, and the absolute deed qualified, by an instrument in "writing, or defeasance, bearing even date with the deed, and purporting to have been executed by the grantee, Louis A. Caillaret.
    The genuineness of the defeasance having been questioned, the court properly referred the question to the jury; it was their province to decide thereupon. 1 Greenl. Ev. 197; 2 Stark. Ev. 263.
    3. When the judgment of the court below is assailed, as in this case, and it is charged with the admission of the defeasance, “ without the necessary preliminary steps having been taken for its introduction, viz, proof of its genuineness, or that it was signed by Louis A. Caillaret,” all proper evidence to support such a charge must be embodied in the bill of exceptions. The appellate court will consider, unless such evidence is duly-embodied in the bill of exceptions, that there were facts before the court below which justified the admittance of the instrument of defeasance.
    4. So also with regard to the alleged want of a plea. The record shows that the case was submitted to a jury, and a judgment rendered in favor of the defendants, Bernard and wife. The appellate court will presume that a plea was duly filed, and the pleadings below regularly made up. The want of a plea should have been taken advantage of in the court below; having submitted this case to a jury, the error is cured by the statute of jeofails. How. & Hutch. 591, sec. 11. “No judgment, after the verdict of twelve men, shall be stayed, or reversed for any mispleading, insufficient pleading, misjoinder of issue,” &c. &c. 7 Yerg. R. 452.
   Mr. Justice ThacheR

delivered the opinion of the court.

The plaintiff instituted his action of ejectment, to recover certain premises in the town of Biloxi, in Harrison county. He claimed under a deed in fee simple from his brother, Adolphe Caillaret, since deceased, who was a former husband of Adelle Bernard, one of the defendants. This deed was executed prior to the intermarriage of the grantor, Adolphe Caillaret, with the defendant, Adelle Bernard, but the said Adolphe occupied the premises thereby conveyed, as his dwelling-place, at the time of his decease. The defendants, one of whom, as aforesaid, was the widow of the'plaintiff’s grantor, set up the defence that the conveyance of the premises to the plaintiff was intended only as a trust estate in him for certain purposes. This was not an attempt to set up an equitable title or interest against a legal title, but merely to show that the conveyance to the plaintiff was in fact a trust estate, and not absolute.

The proof that the property in question was conveyed to the plaintiff in trust, is contained in an acknowledgment, signed by the plaintiff, in which he avers that the property was conveyed to him by his brother, without any view to defeat the claims of his just creditors, but the reverse, since he, the grantee, was charged to settle with all such creditors.

It is a principle of evidence, that where two writings refer to each other, with a view to the construction of either, being contemporaneous and kindred in respect to subject-matter, they are deemed one instrument. This is the case where the controversy is between the original parties and their representatives. Phil. Ev. Cow. & Hill’s notes, 3, 1420, note 547; 1 Green!. Ev. 334.

It being considered correct upon principles of evidence to have permitted the introduction of the instrument, showing the creation of a trust, the objection that the instrument by which this proof was sought to be substantiated was not fully proved, cannot avail, because there is nothing in the record that purports to set out the whole evidence upon the trial, and we must therefore presume that the court admitted it to the jury only upon the production of sufficient verification.

The deed of Adolphe Caillaret, having been qualified as conveying a trust estate, and not being absolute, although executed anterior to his marriage with the defendant, Adelle Bernard, continued the_property, subject to the widow’s dower. How. & Hutch. 353, sect. 47. It does not appear by the record that dower had been assigned to the widow of the plaintiff’s grantor, and she was therefore entitled to the full possession of the dwelling-house and appurtenances in which her husband most usually dwelt, next before his death. H. & H. 353, sect. 45.

Upon the trial there was evidence to show that the premises were held in possession by a tenant of the widow, but there was no evidence of any lease or actual transfer of her privilege of possession. Inasmuch, also, as she was let in to defend in the action, it was competent for her to defend upon her own right of possession. The circumstances of this case differ from those of Willis v. Doe ex dem. Smith’s Heirs, 2 S. & M. 220.

The objection that the record does not show a plea of “not guilty,” is not a ground of error, the parties having appeared and tried the cause upon its merits. Huddleston v. Garrot, 3 Humph. 629.

Judgment affirmed.  