THIS was an appeal from the Circuit Court of the United States for the Southern District of Mississippi.
The case, in some of its branches, had been before the court three times before. A motion to dismiss a case between the same parties, at January term, 1848, is reported in 6 Howard, 206. It came up again at January term, 1849, and is reported in 7 Howard, 160. Again, at December term, 1851, a dispute, growing out of the same matters, was before this court, and the judgment of the court below affirmed by a divided court. Consequently, it was not reported; but the mandate, which was issued therein, gave rise to a difficulty, which will be the subject of the succeeding case in this volume. Ewing and wife were parties, together with Fourniquet and wife, to the present suit, but the controversy cannot be distinctly understood, without a reference to the case in 7 Howard, 160. The family connection of the parties is there explained.
The present claim of Fourniquet and wife, and Ewing and wife, against Perkins, was founded on the alleged rights of the marital community of Mrs. Perkins (the mother of Harriet and Anne) with Mr. Perkins, according to the laws of Louisiana.
The bill alleges the marriage was consummated in Louisiana, where both the widow Bynum and the defendant Perkins were then citizens; and that the defendant always retained his legal and political domicil in Louisiana, though some time after the marriage, for the ostensible purpose of health, established a family residence near Natchez, in the State of Mississippi. The bill charges, that defendant, during the marriage, expended of community funds, in the State of Mississippi, in permanent investments of real estate, an amount of about $39,600, which remained in kind at the dissolution of the marriage by the deat of his wife in 1824, but which he has since sold and disposed of to his own use. That defendant had no revenues or resources in Mississippi from which these investments were made; but it was all derived from the revenues of his and his wife's property and cotton estates in Louisiana, and were partnership funds, in which complainants, as heirs of their mother's community, had rights of partnership, and now have right to hold defendant to account therefor. They charge, that if defendant intended and expected to get an advantage to himself, by investing the community funds in the State of Mississippi, rather than in Louisiana, then it was a fraud on his part, for which he is liable; or, if intended in good faith, yet such investment charged defendant with a trust, for which they pray he may be held responsible.
But complainants aver, that as defendant has heretofore kept back and concealed from settlement this investment and never accounted for the same, but in settlement with them obtained their receipts and release in full, in which this matter was not included, that said releases, so far as they may be invoked to bar this claim, were obtained by fraud and circumvention. And they declare the matters of this bill were kept back by defendant, and never accounted for. And they call on defendant to produce the account and items rendered by him when he obtained these releases, and show for what they were given.
They aver, too, that Harriet's release was given while she was yet a minor.
They pray for an account of proceeds, or amount of said investment, with eight per cent. interest, and for general relief.
Defendant, in his answer, admits the marriage in Louisiana, admits the parties, and admits substantially the investments made in the State of Mississippi. But qualifying and explaining, says: That same year of the marriage he and his wife removed to the State of Mississippi, and continued their domicil there during all the time of their married life, which terminated by the death of his wife on the 12th August, 1824. That this removal was in pursuance of an understanding had between them before marriage with a view to health, and facilities of educating the children. Admits he retained some political rights in Louisiana after his removal till 8th of June, 1821; but says his civil domicil was changed as aforesaid, and on this allegation predicates his first and principal ground of defence, viz., that by reason of this domicil 'respondent has always acted under the belief that there was no community of acquets and gains of property, lying in Louisiana, between respondent and his said wife under the laws of Louisiana.'
As a second ground of defence, he submits, also, that if, as alleged in said bill, the domicil was not changed, yet, as head of the community, he was entitled to the absolute disposal of the acquets and gains, without accountability to his wife, or her legal representatives.