663

proviaions making any such discrimination are annuledand abrogated." Thus this. express provision of the stat,ute, renders void the statute of It isclaim4;1Q, however, that lj.S this vessel sails around California Cape Horn to New York,and may touch at some foreign port on the way, between. the two ports of San Francisco and New .it is. York. if this be sO,the provision of the Revised $tatutescited, does not· say "coasting,"but "vessels sailing" between the ports of the states. This vessel is, clearly, within the terms of the provision. TQe and ,under the clause oithe national constitution authorizing congress to regulate commerce between the !ltates. The,caseo! v. Thompson, 118 U. S. 90, 6 Sup. Ct. ,Rep. 988, is in point, and covers this case. The ship Undaunted, therefore, is not courtw1;1st bealliable for half pilotage, and the decree of. ,the firmed and the libel dismissed,and it is so ordered.
I.

DEGUIRE

et ale

'V.

ST.

JOSEPH LEAD

Co.

(Circuit Couri,

,

Mi88ouri, E. D.

February 9,1889.)

AD'vE:RsE'POSSESIUON-AcTWN ,FOR WIFE'S LAND DURING COVERTURE.

It iii the law in Missouri thai the adverse poi3sesslon for the statutory t'erlod which will defeat the husband's sole right of possession of his wife'8 llmd wilI likewise defeat an, action of ejectment therefor brought by the hU8band and wife jointly.

At Law. EjMtmentby Emily Deguire and Paul W,;'Deguireagainst the St. Joseph Lead Company. , On motion to strikeout part of reply. , ReynoldlJ« Relje,lltndBamuel L. Isbell, for plaintiffs. ' Oa·rter « Weber Charla Nagel, for defendant.
, BREwER, J ..' This is an a:ction of ejectment. The plaintiffs are husband and wife. Their title, as alleged, is by deed tothe wifefrom her father, on March 7, 1848, she being then unmarried. For one defense tl1e. 24 years of limitation. .,As a reply to that defense the plaintiffs allege that they were married in October, 1848, and that ever since that date, and at the date when her right ofactionaccrued, she has been, and is nmv, a married woman, the wife of the other plaintiff, and underthediaability'ofcovertnre. This part of the reply defendant moves to strikeout, and thljl,t motion p'r,esents the questiori. under cqnsideration. In the case of Vallev. 'Obenhause,.62 Mo. 81, the supreme court held in a case like this that seisin of husband and wife was joint,and therefore her aswelI-as his right of action was barred by the 24 years'statute. In Dyer V. Wittler, 89 Mo.'81, the doctrili.e oHhe' former case was overruled,and'it was held that during covertureihe had no right of . of limitation was not running against entry, and, tijererore .herj .t,hat tlle.huspandl;lall. tifEl ,exclusive right. pfpoasession or'

664

FEDERAL REPORTER, vol.

37.

lands, and therefore could alone maintain an action for possession. Applying the doctrine of either case, and the marriage does not obviate the defense of the statute of limitations. If the doctrine of the former case were to be followed, then both his and her rights were barred years ago. If the latter case, then she has now no right of action, never ha.s had one, and his of action was barred by the statute. It is the dtity of this court to follow the rulings of the supreme court of the state in a matter of this kind, and of course the later decision is the law of the state, and must be followed here. This brings about this curious result: The title of the land is in her, yet neither she nor her husband can now recover the possession; yet this is the logical result of the' law as now affirmed by the supreme cOlirt. During coverture the right of possession is in the husband. He could convey away that right. He alone could sue for its recovery; and the statute of lhnitations may run against the enforcement of that right as against any other. That I have not misconstrued the rulings of the supreme court, I note the fact that in the first case Judge HOUGH dissented, and prepared a vigorous dissenting opinion, in which he affirms just the propositions that I have laid down. I quote this language:
"It has been held, too, in this state, and it is the rule generally, in the absence of statutory prOVisions on the subject, that the marital interest of the husband may be sold under execution for the deuts of the husband, and that ,the. purchaser of said interest will be entitled to the possession of the entire ·estate t9 the. exclusion of the wife. Ellenmann v. Thompson, 10 Mo. 587· .Now, I am wholly at a loss to comprehend how it is that a purchaser at an execution sale can acquire an estate which the execution debtor does not possess; and it is equally beyond my compl'ehen;'ion how, under our law, a man can convey that to which he has no right, so as to c9nfer title upon his grantee. For, if the husband has no exclusive right to the possession, he can confer none. It must be that the husband is entitled jltl'e mat'iti to the possession of his wife's fee-simple lands, and it was so held by this court in the case of Bledsoe v. Simms, 53 Mo. 305. SmElly the person who is fol' the time being entitled to the possession is the only person who can be disseised. Such person alone has a right of entry, for a right of entry cannot exist where there is 110 right to the possession. If the wife were entitled jOllltly with her husband to the possession, a sale under execution of the husband's right, or a conveyance by him of such right, would wake the purchaser at· the sale in the one . case, and his grantee in the other, a tenant in common with the wife of the right of possession. But such is not the effect of either. I conclude, therefore, that when it is said that husband and wife are jointly seised in right of the wife, reference is made to the whole estate, as held by them- both, and not. to the interest of the husband 1110ne. HUl:lband and wife are jointly seised in fee in right of the wife. When his interest is said to be in right of his wife, it is intended simply to lDark the derivation, as well as the extent, of his iuterest, but it does not amount to anassertiolJ that such interest is to be shared with anyone, 01' that it is a joi nt interest. It is apparetlt, at all events, from text-books and tlJe adjudged cases, that his interest is separable from hers, both by his own act and by opemtion of law, and that, when so separated, she has no right of ent.ry until its determination. Such being the case, it would seem logically to follow that his is an interest in land which is SUbject to the statute of limitations, and will pass to one who holdS it adversely for the prescribed period as effectually as it would by an execution sale or a quitclaim

UN1TED STATES V.STARNES.

665

deed. Now, his right ·of entry would be barred in 10 years. Being thus barred, and his right of possession having thereby passed to the adverse occupant, how could the wife an action of ejectment during the coverture? If the husband is in her right-that is, through her title and by virtue of the marriage-solely seised of the right to the possession, it is clear that she could not sue; and, if it be true that a disseisin of both, and that a suit for the recovery of the wife's lands from one who holds them in adverse possession. must be'brought in the joint names of husband and wife. and that. neither can sue alone, as is maintained by some authorities, how can an action be maintained by them after the husband has been barred by the ten years' adverse possession?"

And in the later case the supreme court expressly declares that it adopts the views in the dissenting opinion of Judge HOUGH in the earlier case. It is unnecessary to add more. The law of the state of ·Missouri is thus clearly disclosed in the quotation above made. and, being the law of the state conrt, is the law of this. The motion to strike out that part of the reply will be sustained. I deem it unnecessary to consider the other questions presented by counsel in their motions and demurrer, for thli.J is 1atal to plaintiffs' action. .

UNITED STATES

'11.

STARNES.

(District OOU'I't. D. South Oarolina. February 7. 1889.)
1.

INTERnAL REVENUE LAWS-OFFENSES-RETAIL LIQUOR DEALER-MEDICINAL PREPARATIONS.

One who sells a medicinal preparation, knowing that it contains an eating quality, to be used as a beverage, or with the knowledge that it was purchased to be used as a. beverage, is a retail liquor dealer, within the mean· mg of the United States statutes providing for the punishment of persons carryirig oti the business of retail liquor dealers without payment of the special tax;

11.

SAME.

8. SAME.

Where the dealer, after having sold such preparation toa custoI!ler, who, in his presence, or with his knowledge. used it as a beverage, continues to sell it to the customer, the jury may find him guilty of such offense.
.. .

So, als6, if the preparation is but a disguised form of spirituous liquors, intended for use as a

Indictment for Carrying on the Business of a Retail Liquor Dealer Without Having Paid the Special Tax. . L. F. Yowmans, U. S. Dist. Atty. W. J. Oherry and 1. B. Bell, for defendant. SIMONTON, J., (charging jury.) The defendant, a merchant of Lancaster. is indicted for carrying on the business of a retail liquor bottle a dealer witpout having paid the special tax. .He sold by compound known as "Burton's Bitters," not having paid the spe.upst cial tax as a retail liquor. dealer. The jury., from