(Merrick, C. J., recused himself.) This case was before us last year, and was remanded for the admission of a certain marriage settlement, which had been rejected by the District Court. See 10 Annual, p. 218.
The plaintiff had judgment in the court below, for the slaves mentioned in her marriage settlement and their increase. There was judgment against her on her money claim. Defendant appealed, and plaintiff has joined in the appeal, claiming that the judgment be amended, so as to conform to the .prayer of the petition.
We were of opinion, when the case was previously considered by us, that the proceedings and decrees in Mississippi, do not on their face show that the marriage settlement has ever been adjudged in Mississippi fraudulent and void. After the full argument that this point has received upon the present trial, we adhere to our opinion as then expressed.
The law of Mississippi is admitted to be, that a settlement, bona fide, made before and in contemplation of marriage, is good, not only against the husband, but against his creditors and subsequent purchasers, and that this rule which applies to cases where property is settled on the intended wife by the intended husband, is yet more inflexible in cases where the intended wife, with the knowledge of her intended husband, secures her own property to her own use and that of her children.
But it is contended that the plaintiff cannot claim the benefit of this rule of law, because, 1st. This was not a settlement, bona fide, in contemplation of marriage : inasmuch as the parties were man and wife at the time of the settlement, and for years before — and 2d. Because the property conveyed was not, in truth, the property of plaintiff, as alleged in the settlement, but was really the property of defendant, having been paid for by him.
The evidence shows that the first marriage of these parties (in 1829,) was null by the laws of Mississippi — Shropshire being, at the time of such marriage, already married to a woman who was still living in Tennessee, from whom he was not divorced. Hutchinson’s Miss. Code, 495, sect. 4. — 6 Sm. *560and Marsh. Rep. 308. But a divorce had taken place between Shropshire and his first wife, previous to the contract of marriage with plaintiff, of October 2, 1882. The second marriage was therefore binding.
It seems probable, from the evidence, that the greater part of the shares mentioned in the deed of trust, or marriage settlement, although charged to Mrs. Spear by previous deeds from Wren and_ from Gay sien and Wren, had been paid for in reality by Shropshire. If so, the settlement, instead of being made by the plaintiff, must be viewed as made by the defendant Shropshire, who was a party to the deed; and such a settlement appears to be valid, by the law of Mississippi, against subsequent creditors. See case of Wells v. Treadwell, decided by the High Court of Errors and Appeals of Mississippi, at the April term, 1855, referring to 24 Mi. Rep. 181 and 25 Mi. Rep. 66. — Armfield v. Armfield, 1 Ch. Rep. Miss. 316.
The contract in question was executed in Mississippi, where all the parties resided, and was intended to have effect there. Its effect must, therefore, be governed by the law of Mississippi. C. C. Art. 10.
We find no error in the judgment of the District Court, rejecting the claim of plaintiff on account of money received by her husband, for land sold in Mississippi.
Judgment affirmed, with costs.
Mebbiok, C. J.I have recused myself in this case and take no part in the decision.