1. The conclusion to which the ' court has arrived in this cause, will render it unimportant to consider any but one of the positions assumed by the complainants. We think the deed executed by Mrs. McVoy, in 1810, is sufficient to transfer her estate in the land to Kennedy. It is conceded by the counsel on each side, that this was paraphernal property, as distinguished from dotal. It is said by Domat, that property is paraphernal which the wife gives not to the dotal estate — whether she expresses what she reserves, or specifies that to which she directs this title to be given. All that remains is paraphernal. [Domat des dots Tit. 9, § 4.] And it is the same when there is no constitution of any dower estate. [Hannie v. Browdon, 6 Martin, 14.] It is also said by Domat, that the difference between dotal and paraphernal estates consists in this — that whilst the revenues of that which is dotal go to the husband, those of the paraphernal remain with the wife, and she can dispose of them as well as of the principal estate itself, without authority from her husband. This we apprehend, continued to be the law of Louisiana until changed by the adoption of their civil code, which it seems prohibits an alienation by the wife of her paraphernal estate, without the husband’s consent. [12 Martin, 242.] We need not however advert to this matter, as here the consent of the husband is certainly given — if the deed is to be considered as the act of the wife; and it seems equally certain, the consent of the wife is to be *870inferred from her joining in the conveyance, if the deed should be taken as the act of the husband. The questions to be considered are, whether the husband alone, or jointly with his wife, has legally conveyed her title by the deed exhibited, and if so, whether the deed itself is properly established by the proof.
In questions of this nature, although the decisions of our sister State of Louisiana, may not be conclusive authority of what the laws of Spain were at the date of the deed, yet they certainly are entitled to the utmost respect, and would incline a scale otherwise doubtful. We may concede that the citations from the Partidas and other works, leave it doubtful if effect would be given to the mere act of the wife, in executing a deed, or act of sale, deficient in the legal formalities, but the case at bar is not of that nature. It is the private act of the husband and wife together, and in this view seems precisely the same as one sustained under very similar circumstances in O’Conner v. Bane, 3 Martin, 446. There the title to the land in controversy, by the death of its former owner, vested in his widow, and four children, in 1782. The widow having-intermarried agaih, joined her husband in the execution of an informal act of sale. The children brought suit for the land in 1814, and the presumption arising from its being for the whole of the land, is, their mother was then dead, though this fact does not appear in the statement of the case. The court held, that one half of the land was paraphernal estate of the wife, and that its alienation by the husband, with the consent of the wife, was a lawful act, and the instrument of sale, though defective in form as a public act, was good as a private one, and binding on the parties and their heirs. This case is conclusive as to the effect of the deed, and it only requires to be ascertained if that is sufficiently’proved.
2. We are not informed what the Spanish law is with reference to the proof of a private act, verified by a mark only, instead of the written name of the grantor, nor is it in this case material that we should be. It is obvious the effect, or validity of a deed is quite different from the proof by which its execution may be made manifest. It must be valid or in*871valid when it passes from the hand of its grantor, but that it did so pass, may be established by such evidence as the law making power shall from time to time direct, whenever the mode of attestation, or proof, does not of itself enter into the validity of the act. Thus it may be possible, though .we should greatly incline to'doubt it, the signature of a marks-woman, or man, may not by the Spanish law be proveable, after her or his death, except by living witnesses, but if this be so, it does not derogate from the authority of our legislature, in assuming the jurisdiction over whatever was Spanish domain, to provide a remedy for so apparent an evil. This was done, in effect, by our common, as well as our statute law. The first permits the proof of the signatures of subscribing witnesses, when they are dead, as the only mode at the command of those on whom it devolves. The last provides that deeds may be admitted to registration when proved in a particular form by the witnesses or any one of them, and that the probate thus authorized, shall establish the deed at any future period. It appears the defendants were prepared with both these modes of proof, and we are entirely satisfied either was sufficient as one of the consequences of extending the laws of the territory of Mississippi, over the then recently acquired territory, was to introduce the common law mode of proving deeds, as well as to warrant their probate and registration, independent of any actual litigation.
The result of our judgment is, the affirmance of that of the chancellor.
Decree affirmed.