This is an appeal from a decree of the Supreme Court of Hawaii, affirming a dismissal hy the circuit court of the appellant’s bill of 'complaint, by which she sought to establish an interest in property held by the appellee. In the opinion below (
Both parties are of Chinese blood and nativity. In 1884 plaintiff, a girl 17 years old, came to Hawaii, where defendant was then residing, and after some negotiations a marriage was agreed upon and a wedding ceremony was held, all in accordance with Chinese customs, but without a license, as required by the laws of Hawaii. They immediately assumed, and thereafter for 35 years maintained, the relations of husband and wife. In the course of time the plaintiff bore to defendant 13 children, and, besides performing the domestic duties of a housewife, assisted him in carrying on his mercantile business. Success attended their joint efforts, with the result that at the time of the trial there was an accumulation of several hundred thousand dollars’ worth of property. Following a decision of the Supreme Court of Hawaii in 1920 (Parke v. Parke,
Conceding that, “there is great inherent justice in the complainant’s claim,” the Supreme Court was nevertheless of the opinion that the legal obstacles to its recognition are insurmountable. Under the civil law it was thought little difficulty would be encountered, but under the common law, which prevails in Hawaii, no basis for relief was found. There are but few reported decisions involving questions of the property rights of a putative wife, where for one reason or another the supposed marriage turns out to be void, but in the majority of .those which have come to our attention relief of some character has been granted. Buckley v. Buckley,
In these cases the principles invoked are not always the same, and, it may be conceded, in finding a basis for relief, some of them have put a strain upon statutory provisions the relevancy of which is not entirely obvious. But in all of them there is evinced a purpose to prevent a result so inherently wrong as to shock our common conception of fundamental justice.'
Directly to the contrary is Schmitt v. Schneider,
The conclusion of the court below is made to rest upon a statutory provision prescribing as a rule of decision the common law of England, and the assumption that, however harsh and unjust the result, the plaintiff is without remedy under that law. This statute, first enacted in 1892 (section 5, c. 47, Session Laws of 1892), and, with slight amendment, now section 1, Rev. Laws of Hawaii 1925, provides that “the common law of England, as ascertained by English and American decisions, is declared to be the common law of the territory of Hawaii in all eases, except as otherwise expressly provided by the Constitution or laws of the United States, or by the laws of the territory, or fixed by Hawaiian judicial precedent, or established by Hawaiian usage,” etc.
It is noteworthy that in its discussion the lower court cites no English decisions declaring the common law of England on the subject, and in the elaborate brief for defendant it is said: “A careful search of the English reports fails to disclose any ease where the exact point has been in issue and decided.” We may therefore assume that there is no English decision expressly “ascertaining^’ the common law upon the exact point, and the American decisions are mainly as above noted.'
Of the statutory provision the court below said: “This section makes the principles of the common law just as binding on this court as if they were embodied in legislative enactments. We have no more power to change them than we have to change a statute.” And it is true, “we lean toward the interpretation adopted by the Supreme Court of the territory,- and will not disturb its decision unless there is clear error.” Ewa Plantation v. Wilder,
“The common law consists of principles, and not of set rules. It therefore admits of different applications under different conditions. Moreover, by the terms of our statute it is to be ascertained by American as well as by English decisions. In Morgan v. King, 30 Barb. [N. Y.] 9, the court, in construing a somewhat similar statute, said- (at page 13): ‘The adoption of the common law, in the most general terms, hy the government of any country, would not necessarily require or admit of an unqualified application *584 of all its rules, without regard to loeal circumstances, however well settled and generally received those rules might be. Its rules are modified upon its own principles, not in violation of them.’ And (at page 14): 'When it is said that we have in this country adopted the common law of England, it is not meant that we have adopted any mere formal rules, or any written code, or the mere verbiage in which the common law is expressed. It is aptly termed the unwritten law of England; and we have adopted it as a constantly improving science, rather than as an art; as a system of legal logic, rather than as a code of rules. In short, in adopting the common law, we have adopted its fundamental principles and modes of reasoning, and the substance of its rules as illustrated by the reasons on which they are based, rather than by the mere words in which they are expressed.’ * * * The common law has been adopted by constitutional or statutory provision or judicial decision in nearly all of the United States. It has been expressly adopted by Constitution or statute in many of the states in which the eourts hold that equity has jurisdiction in cases- of this kind independently of statute, before such decisions were made, and yet, although the statute does not appear to have been expressly referred to in such decisions, the courts were undoubtedly aware of it, and recognized their general duty to follow the common law, and justified their departure from the English rule in this particular class of cases because of a change of circumstances'. We need not consider at length all the changes in circumstances that have been considered as warranting a change in the Implication of principles of law in such cases. Considerable stress has been laid on the change in the status of married women, and on the fact that we have no ecclesiastical eourts which formerly in England had jurisdiction of questions of divorce and most other. matrimonial matters. The reasoning that has been advanced in respect to these two changes in conditions, if viewed from the standpoint of strict logic, is not altogether satisfactory on either side of the controversy. * * * At any rate, in view of the American decisions as a whole, as they have been made, we are not required, if we are permitted, by our statute in regard to the common law to follow the old rule.”
See, also, Dunnell’s Minn. Dig. § 1502; Holmes’ Common Law; Cardozo’s Growth of the Law, p. 105; Rosen v. United States,
The precise case we have here could never have arisen under the common law of England, for under- that law the parties would be husband and wife. Besides, plaintiff is seeking relief in a court of equity, and in parity with section 1 above quoted we are to read sections 2462 and 2463 of the Hawaiian Revised Laws of 1925 (which also were considered in Dole v. Gear, supra), where it is declared that the eourts of Hawaii “shall have full equity jurisdiction, according to the usage and practice of courts of equity, in all other eases where there is not a plain, adequate, and complete remedy at law.” If, then, there is “great inherent justice in plaintiff’s claim,” for what reason shall a court of equity, invested with this broad power, hold itself incompetent to grant her a measure of relief ? The parties were qualified to contract marriage; they agreed upon it, and actually established and for 35 years maintained the marital status. The plaintiff fully performed her agreement of marriage up to the point where, because of the law as then interpreted and the acts of defendant, it became impossible for her to go further. The contract of marriage turns out to be invalid only because of a failure to comply with a formality which at the time was not thought to be requisite. Had the parties entered into an understanding by which orally the plaintiff agreed to purchase and pay for, and defendant agreed to sell, a town lot, such an agreement might be invalid under the statute of frauds, for want of the requisite writing. But if, pursuant to the agreement, plaintiff went into possession, improved the lot, and made the stipulated payments, a court of equity would afford her relief.
True, for reasons of public policy, as well as because of defendant’s voluntary present disqualification, a court cannot compel performance to the extent of establishing the personal status' originally contemplated; but because plaintiff is remediless in that respect, shall the court also deny her a measure of the pecuniary relief she here seeks? In decrees for separate support and maintenance, we have examples of relief respecting the economic side of the marital relation, without destroying the personal status established thereby. The common-law conception *585 of marital unity by which the identity of the wife was merged into that of the husband has undergone a great change, in some jurisdictions recognized by statutory law, and almost universally by common understanding and assent. If we assume that, as defendant. contends, under the common law, in case of a void marriage, the putative wife was without remedy, we should not feel it incumbent to extend such a rule, the reasons for which no longer exist, to a specific ease like this, which could never have arisen under the common law.
In common usage, equity protects relationships and vindicates rights not recognized in a court of law, and we are of the opinion that there is here substantial ground for the exercise of its jurisdiction. It may he that plaintiff cannot refer her right to any contractual or trust relation, within the strict legal definition of these terms; but that consideration is not conclusive, for otherwise there would be no place for the growing law of quasi contracts. Technically speaking, there was no partnership, no agreement of trust to cover the plaintiff’s money contribution to the business enterprise, and no contract, express or implied, for compensation for her labor and service. But there was the underlying understanding, and the expectation, that she would receive a pecuniary benefit. She looked forward to support and maintenance in the years of her declining capacity to care for herself, which now have come upon her, and in certain contingencies to alimony, or dower. Owing to a mutual mistake of both parties respecting the fact of the existence of a valid marital status, the agreement cannot be fully executed, and plaintiff’s expectations cannot be fully realized. We are inclined to think that this is such a mistake as warrants the inter-position of a court of equity to grant appropriate relief. Pom. Eq. Juris. (4th Ed.) vol. 11, p. 1704 et seq., particularly pages 1731-1734, 1782; Moore v. Shook,
Quasi contractual obligations have been defined as “legal obligations arising without reference to the assent of the obligor, from the receipt of a benefit the retention of which is unjust, and requiring the obligor to make restitution.” Woodward’s Law of Quasi Contracts, p. 4; Maine’s Ancient Law (4th Ed.) p. 344. The action upon such an obligation “lies for money paid by mistake, or upon a consideration which happens to fail, or for money got through imposition (express or implied). * * * In one word, the gist of this kind of action is that the defendant, upon the circumstances of the case, is obliged by the ties of natural justice and equity to refund the money.” Woodward, supra, p. 4; and see, also, pages 295, 296; also Moses v. McFarlen, 2 Burr. 1005.
In commenting on Cooper v. Cooper,
As we have seen, by express statute the courts of Hawaii are clothed with wide equity jurisdiction, and more recently the court, from which comes Cooper v. Cooper, has said: “If our statutes had given jurisdiction of libels for nullity of marriage to courts having full equity powers, there might be some reason for holding that such courts could, as a condition of granting the relief prayed for, require that property brought by the defendant to the plaintiff should be restored to the former, or that an equitable division of any accumulated property should be made” — citing Fuller v. Fuller and Werner v. Werner, supra. Adams v. Holt,
We conclude that plaintiff is entitled to a measure of relief. Upon the question of what standard should be applied in determining the amount and character thereof, the decided cases, as already indicated, are not in harmony, and perhaps no specific gem eral rule can be formulated. Each ease must be adjudged in the light of its own peculiar facts and the local laws. Here, we think, it
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will be proper for tbe court in further proceedings to take into consideration tbe relative contributions of property, and of personal service in point of value, made by tbe two parties in tbe accumulation of tbe property standing in tbe defendant’s name, tbe amount and value of sucb property at tbe time their de facto marital relations ceased, the amount of property accumulated by plaintiff- during tbe same period and standing in her name, tbe local statutes affecting tbe marital relation and divorce, and alimony and dower, ,or other pecuniary interests of the wife, whether absolute or contingent, present or in expectancy. Rev. Laws Haw. 1925, § 3017; Nobrega v. Nobrega,
By suggesting certain considerations, it is not to be inferred that upon further proceedings they should be deemed exclusive. The fact that during the period of cohabitation between the parties hereto the defendant entered into what now turns out to be a legal marriage with another woman may have some bearing upon the question, and other material circumstances may develop» at the hearing affecting the equities.
Reversed, with directions for further proceedings not inconsistent herewith.