51 Me. 480 | Me. | 1863
The opinion of the Court was drawn up by
On the 31st July, 1846, by an Act of the Legislature of this State, Franklin Adams was divorced from Mary Adams, then his wife. On the 18th Aug., 1846, he was married to the demandant. The validity of this marriage depends on the constitutional authority of the Legislature to grant a divorce.
(1.) The power of the British Parliament to grant divorces is unquestioned. The Legislature of this, and of most other States of the Union, have granted divorces in numerous instances, — and, unless there are found express constitutional prohibitions, the exercise of this' power for a series of years would seem to be no insignificant argument in favor of the rightfulness of such exercise. But when, as in this State, it has the- weight of long continued legislative
Notwithstanding a practice, continuing since, the origin of the government, and its sanction t>y the opinion of this Court, in 16 Maine, 479, it is urged that the Legislature have no constitutional authority to grant divorces; that marriage is a contract like other contracts, that its obligation cannot be impaired without violating the clause in the Constitution of the United States prohibiting the passage of any " law impairing the obligation of* contracts that a divorce .does impair their obligation; that the dissolution of the marriage contract is a judicial and not a legislative act; and that, consequently, the divorce of Eranldin Adams from his then wife, by the act of the Legislature, before referred to, was void, and his subsequent marriage to the demandant null.
The argument of the • learned counsel for the tenant assumes that marriage is a contract, like other contracts, and within the protection of the constitutional provision just referred to, as such, for if not, this branch of the argument has no foundation upon which to rest.
Upon examination, it will be found that there are grave and important differences between marriage and other contracts. All contracts, as such, depend upon the mutual and concurring assent of the parties thereto. They agree upon the terms. They define the l’espective rights, duties and obligations of each to the other. The contract may be for a longer or shorter period of time. Its terms may be changed, modified or dissolved, as the parties may determine. If the contract be violated by the one, damages may be recovered by the other for such violation. While the contract remains in its original vigor, the rights of the parties are
The contact to marry is like other contracts and subject to the same law. It is a contract to enter into a given relation— a peculiar status. But, when once the contract to marry has been performed, the original contract, antecedent to such marriage, is at an end. The parties, having complied with its terms, they cease to have rights under or by virtue of it. A new relation has been entered into, and the mere assent of the parties to enter into such relation does not thereby make such relation a contract.
When the contracting parties have entered into the married state, they have not so much entered into a contract as into a new relation, the rights, duties and obligations of which rest, not upon their agreement, but upon the general law of the State, statutory or common, which defines and proscribes those rights, duties and obligations. They are of law, not of contract. It was of contract that the relation should be established, but, being established, the power of the parties, as to their extent or duration, is at an end. Their rights under it are determined by the will of the sovereign as evidenced by law. They can neither bo modified nor changed by any agreement of parties. It is a relation for life ; and the parties cannot terminate it at any shorter period by virtue of any contract they may make. The reciprocal rights arising from this relation, as long as it continues, are such as the law determines from time to time, and none other.
The rights, duties and obligations arising under contracts are every where the same. Those of the marriage relation change with the change of domicil, and are dependent upon its laws. Foreigners do not bring with their families the laws relating to marriage of the place where they entered
So, too, the law of divorce depends not upon that of the place, where the relation of marriage is entered into, but upon that of the place where the dissolution is sought to be obtained. The law of France would determine the causes of divorce, if sought for, while the parties were there domiciled. If they should change their domicil to America, the lex loci, where they should establish their residence, would prescribe the causes for and on account of which a dissolution of marital relations would be decreed. Nor is this all. The causes of divorce maybe changed by the Legislature after marriage. They may be increased or diminished, and a divorce will be granted according to the law on that subject, when the libel is filed or the decree made, and not as it was when the ceremony of marriage was performed. New causes for divorce may be enacted, and the antecedent marriage will be dissolved for grounds subsequently deemed sufficient for its dissolution. Each State for itself is the exclusive judge of what shall be a valid cause for dissolving this relation, no matter when or where it was entered into.
Marriage, though in some of its aspects resembling a contract, is rather to be regarded as a social relation; a status with duties, rights and obligations established by the law of the State where the parties have their domicil, not by that of the State where the relation is formed; much less by that of their own will and pleasure. It is not then a contract within the meaning of the clause of the constitution, which prohibits the impairing the obligation of contracts. It is
" Tunc genus humanum primum molleseere coepii.”
That marriage is not to be regarded as a mere contract seems to be a view in accordance with the almost universal concurrence of authorities. " Marriage,” observes Robertson, C. J., in Maguire v. Maguire, 7 Dana, 181, "though in one sense a contract, — because, being both stipulatory and consensual, it cannot be valid without the spontaneous concurrence of two competent minds, is nevertheless sui generis, and, unlike ordinary or commercial contracts, is publici juris, because it establishes fundamental and most important domestic relations. And therefore, as every well organized society is essentially interested in the existence and harmony and decorum of all its social relations, marriage, the most elementary and useful of them all, is regulated and controlled by the sovereign power of the State, and cannot, like mere contracts, be dissolved by the mutual consent of contracting parties, but may be abx-ogated by the sovereign will, either with or without the consent of both parties, whenever the public good or justice to both or either of the parties will thereby be subserved. Such a remedial and conservative power is inherent in every independent nation. * * And, thex-efore, mamage, being much more than a contract, aixd depending essentially xxpoix the sovei’eign will, is not, as we presume, embraced by the constitutional interdiction of legislative acts impairing the obligation of contracts. " The obligation is created by the public law, subject to the public will, and not to that of the parties.” "Marriage,” observes Mr..Justice Story, in/his Conflict of Laws, § 108, "is xxot treated as a mere contract between the parties, subject, as to its continuaxxoe, dissolution and
Not being a contract within the meaning of that term, as used in the constitution, legislative divorces are not invalid, as impairing the obligation of contracts. Starr v. Pease, 8 Conn., 541; 16 Maine, 480; Bishop on Marriage and Divorce, § 775; White v. White, 5 Barb., 474.
Neither is a divorce to be regarded as strictly a judicial and not a legislative act. " There would, therefore, upon principle, seem to be no reason why the granting of a divorce should not be either a legislative or a judicial act; legislative, when it is performed as a mere exercise of sound discretion, for the good of the parties and of the public, in which case vested rights could not be divested, but only their social relation or status for the future ascertained and established; judicial, when the divorce is demanded as a right under established laws, in consequence of some breach of duty committed by the offending party.” Bishop on Mar. and Div., § 787. Thus, in England, although divorces may be granted by the courts, still the power of Parliament to grant them none the less exists.
But, if this were more questionable than we deem it to be, it
The result is, that .the divorce of Franklin Adams from his former wife was legal, and his marriage with the demandant valid.
(2.) The demandant, while yet a minor, on 1st Dec., 1849, released her right of dower, by joining with her husband in a deed of the demanded premises of that date, to Amos M. Roberts, through whom the tenant derives his title.
The marriage between the demandant and Franklin Adams was, then, legal. During their intermarriage, he was seized in fee of the premises in which dower is demanded. He has deceased, and, since his death, his widow has demanded dower therein, which being refused, she has commenced this suit.
Upon these facts, she has a right to have dower assigned her by the common law. So, the statute then in force gave her dower "unless lawfully barred thereof.” R. S., 1841, c. 95, § 1.
The mode by which dower could be " lawfully barred ” is provided by § 9: — "A married woman may bar her right of dower, in any estate conveyed by her husband, by joining with him as a party in the deed of conveyance, and thereby releasing her claim of dower, or by a subsequent deed executed jointly with her husband, or legally authoriz
The statute in question manifestly refers -only to the disa- , bility arising from the marriage relation. But at this time the wife was laboring under another and distinct disability— that arising from her infancy.
The disability from marriage arises from the presumed influence or possible coercion of the husband. That of the minor, from the want of sufficient business capacity to act understandingly in the affairs of life. These are separate and distinct disabilities. They may exist separately or they may coexist. When coexisting, the removal of one is in no way the removal of the other. If the wife had been insane, she might have avoided her deed. So it is with infancy. 1 Washburn on Real Property, 199. Priest v. Cummings, 16 Wend., 617; S. C. 20 Wend., 338. Sandford v. McLean, 3 Paige, 117; Webb v. Hall, 35 Maine, 336. The case of Sherman v. Garfield, 1 Denio, 329, is directly in point. The Supreme Court of New York there held, that a prior wife surviving her husband could maintain ejectment for dower notwithstanding her conveyance while a minor, although she had done nothing to disaffirm it. That this is the right construction is established as well by the authorities cited, as by the Act of 1863, c. 215, by which the release of do'wer by a married woman of any age, &c., is made valid. The insertion of the words " of any age” clearly enlarge the meaning of the section and were so intended, else there would have been no necessity for their insertion.
(3.) The demandant not being bound by the then existent law might; avoid her deed and recover dower. This she has undertaken to do. She has demanded dower, commenced her suit for its recovery; and is entitled to recover her rights, as- existing when her suit was brought, unless they have been divested by the Act of 1863, c. 215, § 1,
This section is undoubtedly effective as to the future. The material question is whether, as to the past, it establishes a new rule by which courts are to be governed.
The release of the demandant was voidable. It has been avoided. Having been avoided, it is as if it had never been made. The demandant, therefore, is in the same position as any other demandant in dower. But the right of a widow to recover dower differs not from that of a demandant in ejectment, seeking to recover premises of which he has been disseized. Both are mere rights — both property. The •right to recover an estate in dower and to recover one in fee, rest alike upon the same law. The same reasoning which would authorize the Legislature to transfer, by Act, the estate of the widow to the reversioner, would equally authorize the transfer of the fee to the demandant in dower. The demandant in dower and the demandant in ejectment, are both seeking to obtain possession. Their rights rest alike in action. That one is more valuable than the other in no way a fleets the question. The sanctity, the law throws around the one, is not greater than the protection, it affords the other.
If dower had been assigned, could the Legislature, by a change of law affecting the past, declaring that to be law which was not then law, take the estate in dower, thus legally assigned, and transfer it to another? If it could do this as to a doweress, what safety would the owner in fee have, that his estate might not be liable to a similar exercise of legislative power ? The difference between the case supposed and the one at bar, consists only in this — that, in the former, dower has been assigned and the doweress is in possession, while, in the latter, she is seeking to recover that possession. In the one case it is the right of possession ; in the other, the right to be in possession.
It is provided by the constitution of this State, art. 1, § 6, that no one shall "be deprived of his life, liberty, property, or pi’ivileges, but by the judgment of his peers or the laws of the land.”
A widow to whom dower has been assigned is thereby seized of a freehold estate. Before its assignment, it is a vested right to recover a freehold; differing from a vested right to x'ecover an estate in fee, of which one has been dis-seized, mainly ixx the lesser interest at stake. One is as mxxch property as the other. Both.are alike exxtitled to the protectioxx which the coxxstitution guaraxxties to the prqperty of the citizen.
"The law of the land,” remarks Tenney, J., in Saco v. Wentworth, 37 Maine, 171, "does xxot mean axx Act of the Legislature; if such was the true constructioxx, this branch of the government could at axxy time take away life, liberty, property and privilege, without a trial by jury.” " The words 'by the law of the land,’ as here used,” remarks Bronson, J., in Taylor v. Porter, 4 Hill, 140, referring to the constitution of New York, " do xxot mean a statute passed for the purpose of working the wrong. That construction would render the restriction absolutely nugatory,
Acts similar to the one under examination have not unfrequently received the consideration of Courts and with an almost uniform result. An Act of the assembly legitimating the children of a bastard cannot divest an estate which had previously passed, by the death of the mother of the bastard, to her heirs at law. Norman v. Heist, 5 W. & S., 371. "The right of property,” observes Gibson, C. J., in delivering .the opinion of the Court in the case just cited, "has no foundation or security but the law; and when the Legislature shall successfully attempt to overturn it, even in a single instance, the liberty of the citizen will be no more. The estate was lawfully vested in the .plaintiffs, who were the next heirs to their intestate sister, at her death; it was guaranteed to them by the constitution and the laws; and to
In Westerveldt v. Gregg, 2 Kernan, 203, it was held that the husband had a vested interest in a legacy, which was bequeathed to his wife, before the passage of the Act
The cases cited by the counsel for the tenant will mainly
In Watson v. Mercer, 8 How., U. S., 88, an Act of the State of Pennsylvania, providing that no deed, &c., should be " deemed, held and adjudged invalid, or defective, or insufficient in law, or avoided; or prejudiced, by reason of any informality or omission in setting forth the particulars of the acknowledgement, &c., in the certificate thereof,” was held constitutional. " The Act,” observes Story, J., iii delivering the opinion of the Court, " supposes the titles of ike* femes covert to be good, however acquired; and only provides that deeds of conveyance, made by them, shall not be void, ^because there is a defective acknowledgement of the deeds by which they have sought to transfer their title. So far, then, as it has any legal operation, it goes to confirm and not to impair the contract of the feme covert." In Satterlee v. Matthewson, 2 Pet., 380, the decree of the Court is best sustained by the opinion of Mr. Justice Johnson,
So, too, where a legal right to property exists in persons incapable, by reason of some disability, as insanity, infancy, &c., of exercising the ordinary functions of ownership, statutes have been enacted authorizing the sale or pledge of their property to raise money for their necessities — and their validity has been sustained, when the. application of the money thus produced would not alter the rights of the parties. But this is merely the removal of a temporary bar to the complete enjoyment of property — the mere modification of previous legislation.
But the cases to which we have been referred differ entirely from the one at bar. The Act in question is not a confirmatory Act. The release of the demandant was voidable and was avoided before its passage. It was as though it had never been. There was no release to confirm, because it had previously been avoided. An insane person may execute a deed, and when sane, may avoid it. So may a minor avoid his conveyances when he arrives at full age.
The avoidance of a deed is as much an act as its execution; The rescission of a contract is as much an act as the making of one. Now the statute in question, if valid, does not so much confirm a deed, by retrospectively removing the then existing disability of infancy, as it imposes a disability upon the demandant by annulling her act of avoidance done when by the law she was perfectly competent to act. The confirming a voidable deed before its avoidance is one thing; to confirm it after it has been avoided is another and different thing, and that is precisely what the statute does, if effectual. "Whether the statute under consideration be regarded as an attempt to render valid a voidable deed after its avoidance, or as annulling a valid act after its execution, or as an union of both, is immaterial. Both are alike beyond the legitimate functions of legislation.
• The result is, that the Act of 1863, c. 215, so far as it is prospective in its operation, is valid and binding, but it cannot divest the demandant of rights vested in her before its passage under and by virtue of preexistent law.
The cases to stand for trial.