104 Ky. 48 | Ky. Ct. App. | 1898
Lead Opinion
delivered the opinion op the court.
It appears from the petition, to which the court sustained a demurrer, that the appellant is the wife of appellee J. A. Rose; that they were married in the year 1890; that a separation has taken place, which is permanent; that they will never live together as husband and wife. It also appears from the petition that' after the marriage took place, and before the passage of the act of 1894 (sections 2127, 2128, Ky. Stat.), defining the rights of married women, the appellant by gift acquired title-to a tract of land containing 308 acres, and by purchase another tract of 120 acres. It is alleged that the husband is in possession of the land, and refuses to surrender it to the appellant. She therefore prays that the possession of it be adjudged to her. The question involved is whether under the act referred to, the rights of the husband — as. they existed at the time of its passage — to the use of the land have been destroyed; that is to say, did the legislature intend to deprive husbands of their interests in the lands of their wives, or, if it so intended, did it have the power to do so?
At common law the husband became the owner of the personal property of the wife. He likewise became seised of an estate for their joint lives of her freehold lands and chattels real. He could sell the personal property thus acquired, and vest the vendee with a title thereto. He could sell the interest which he acquired in the real estate,. and vest the purchaser with the title to the interest which became vested in him by operation of law. 2 Dembitz,. Land Titles, 788; 2 (Kent, Comm., 130; 2 Bl. Comm., 126..
The only case to which the court’s attention has been called which militates against the conclusion we have reached, as to the incompetency of the Legislature to take from a husband his vested rights, is the case of Rugh v. Ottenlieimer, 6 Or. 231. To sustain its conclusion in that case, the court cited Maguire v. Maguire, 7 Dana, 183. A similar question to the one involved in this case was not before the court in the Maguire case; neither did the court express an opinion on a question like the one involved in this case. The part of the opinion which the Oregon court relied upon to sustain its conclusion was dictum, and that does not even sustain the conclusion of the court. The court in Gaines v. Gaines, 9 B. Mon. 308, did not ad
Dissenting Opinion
dissenting.
The question presented in this case is- whether the statutory right given to the husband by'the act of 1846 (2 Rev. Stat. 8) to the use of the wife’s land, with power in him to
“The word 'marriage’ is used in two senses. It may mean the solemnity by which two persons are joined together in wedlock, or it may mean their status when they have been so joined. Cotton, L. J., in Harvey v. Farnie, 6 Prob. Div. 35, 47. In like manner the expression 'agreement of marriage’ denotes either a contract between parties to solemnize together a marriage at a future time, or the solemnization itself. The term 'contract to marry’ never points to an actual, executed marriage, but 'contract of marriage’ often does. We have, therefore, three things: First, an agreement to enter into a marriage;*57 ■secondly, an agreement of present marriage; and, thirdly, the status of marriage, imposed on the parties by the law as the consequence of their agreement of present marriage, oftener expressed by the single substantive word, 'marriage.’ A failure to keep in mind these distinctions has led to not a little confusion in our law books.” Bish. Mar., Div. & Sep., section 9. “Marriage, as distinguished from the agreement to marry and from the act of becoming married, is the civil status of one man and one woman legally united for life, with the rights and duties which, for the establishment of families and the multiplication and education of the species, are, or from time to time may thereafter be, assigned by the law to matrimony.” Id., section 11. “That marriage, executed, is not a contract, we know, because the parties can not mutually dissolve it, * * * because legislation may annul it at' pleasure, and because none of its other elements ar,e those of contract, but all are of status.” Id., section 13. “The mere agreement to marry is not essentially different from other executory civil contracts. It does not superinduce the status, and, on its violation, the injured party may recover his damages of the other. But when it 4s executed, in what the law accepts as a valid marriage, its nature as a contract is merged in the higher nature of the status. And though the new relation — that is, the status —retains some similitude reminding us of its origin, the ■contract does in truth no longer exist, but the parties are governed by the law of husband and wife. In other words, their prior mutual promise to marry was simply an undertaking to assume the marital status; and, on its assumption, the agreement, being fully performed according to' its terms, bound them no longer.” Id., section 14. “There may be, and sometimes is, an antenuptial bargaining be*58 tween the parties, to survive the assumption of the status, more or less regulating their property relations, yet in no degree qualifying the status itself.-"’ Id., section 15. “Lord Robertson, a Scotch judge, in a passage approvingly quoted by Judge Story and by Mr. Fraser, said: 'Marriage is a contract sui generis, and differing in some respects from all other contracts, so that the rules of law which are applicable in expounding and enforcing other contracts may not apply to this. The contract of marriage is the most important of all human transactions. It is the very basis of the whole fabric of civilized society. The status of marriage is juris gentium, and the foundation of it, like that of all other contracts, rests on the consent of parties; but it differs from other contracts in this; that the rights, obligations, or duties arising from it are not left entirely to be regulated by the agreements of parties, but are, to a certain extent, matters of municipal regulation, over which the parties have no control by any declaration of their will. * * * ’ ” Id., section 24. Lord Bannatyne said: “The rights arising from the relation of husband and wife, though taking their origin in contract, have yet, in all countries, a legal character, determined by their particular laws and usages, altogether independent of the terms of the contract, or the will of the parties at the time of entering into it.” Id., section 25. “Robertson, C. J., said in a Kentucky case: 'Marriage, though in one sense a contract — because, being both stipulatory and consensual, it can not 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*59 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 can not, like mere contracts, be dissolved by the mutual consent only of the contracting parties, but may be abrogated 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 be thereby subserved. Such a remedial and conservative power is inherent in every independent nation, and can not be surrendered, or subjected to political restraint or foreign control, consistently with the public welfare. And therefore marriage, being much more than a contract, and depending essentially on the sovereign 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.’ ” Id., section 30. Said Story in his Conflict of Laws: “It is rather to be deemed an institution of society, founded upon the consent and contract of the parties; and, in this view, it has some peculiarities, in its nature, character, operation and extent of obligation, different from what belong to ordinary contracts.” Again: “Marriage is not a mere contract between the parties, subject, as to its continuance, dissolution, and effects, to their mere pleasure and intentions. But it is treated as a civil institution, the most interesting and important in its nature of any in society.” Id., section 33. “Thus, to say that marriage is a contract, when speaking of the marital condition, not of the agreement to assume it, is, as we have seen, according even to the former utterances of most legal persons, inaccurate; since they further declare*60 that it differs in many particulars from other contracts. And, when the differences are pointed out, we see that they have covered every quality of the marriage, and left nothing of contract. All is submerged in the status.” Id., section 36. Said Chief Justice Ames in Ditson v. Ditson, 4 R. I. 87: “It [the State] may, except so far as checked by Constitution or treaty, create by law new rights in, or impose new duties upon, the parties to these relations, or lessen both rights and duties, or abrogate them, and so-the legal obligation of the relation which involves them, altogether. This it may do, with the exception above stated, as to some relations, by law, when it wills, declaring that the legal relation of master and slave, for instance, shall cease to exist within its jurisdiction, or for what' causes or breaches of duty in the relation this, or the legal relation of husband and wife or of parent and child, may be restricted in their rights and duties, or altogether dissolved, through the- judicial intervention of its courts.”
Sufficient quotations have been given — and they might be .multiplied — to make plain the general underlying doctrine upon this subject. The Kentucky cases bearing upon this question will next be considered.
The case of Maguire v. Maguire, 7 Dana, 184, has been already quoted from. In that case the question was as to the power of the Circuit Court, under the statute of 1800, to decree a divorce in invitum against a husband who was never domiciled in Kentucky. In his argument of the question, Chief Justice Robertson was of opinion that, “so far as a dissolution of. a marriage by public authority may be for the public good, it may be the exercise of a legislative function; but so far as it may be for the benefit of one of the parties, in consequence of a breach of
In Berthelemy v. Johnson, 3 B. Mon. 90, Chief Justice Robertson emphasized the distinction referred to in the Maguire case between the functions delegated by the Constitution to the judiciary and prohibited to the Legislature, and held that the Legislature might constitutionally authorize the courts to grant divorces, on the ascertainment by them that the marriage obligations had been violated. This was under a special act of the Legislature enacted subsequently to the violation for which the divorce was authorized to be granted — a mode of procedure which has frequently been held constitutional by the courts of other States.
In Gaines v. Gaines, 9 B. Mon. 295, it appeared that Gaines and his wife had separated, with an agreement between Gaines and certain trustees for his wife, to which she was not a party, whereby certain provision was made for her. Some five years afterwards she instituted' a suit for divorce, to which he filed a cross bill alleging five years’ abandonment. By supplementary answer to the bill he pleaded that since the filing of his original answer the Legislature, by an act regularly and legally passed, after due notice to the wife, had divorced him, and she was no longer his wife. Nothing further was done m the suit until after his death, when the wife filed a bill of revivor, claiming arrearages of alimony, as well as dower
The doctrine to be deduced from these cases is that
There are, it is true, a large number of cases, and numberless dicta, which either state or imply a distinction between the marriage status and the rights of property which accrue under it. These may be found collated in 2 Bish. Mar. Worn., sections 38-51, and in the note to McNeer v. McNeer (Ill. Sup.) 19 Lawy. Rep. Ann. 256 (s. c. 32 N. E. 681.) It may be remarked that the New York decisions ■upon the subject of marriage are not in accord with those of most civilized countries; it being there held that a
In Rugh v. Ottenheimer, 6 Or. 231 [25 Am. R., 513], the plaintiff (appellant) was a married woman at the time of the adoption of the State Constitution. Judge Boise, delivering the opinion, states the question as follows: “The deed from Sebastion to plaintiff did not limit the land to her use, and
We have seen that the Legislature of Kentucky has twice modified the life estate by the marital right — once by direct statutory action, and once by statute to be made effectual through the medium of the courts, by authorizing them to enter decrees clothing married women with the powers of a feme sole. No question has ever been made
Dissenting Opinion
dissenting.
■ Our statutes conferred on the husband, during the wife’s life, no estate or interest in her lands, except an uncertain and contingent use thereof, with power to rent them for not more than three years at a time; and even this rent went to the wife if the husband died during the term. If the wife happened not to avail herself of her statutory right to incumber her estate for debts created for necessaries for herself or for any member of her family, including her husband, and also happened not to avail herself (as she might, even in opposition to the husband’s will) of the sweeping rights with' which she may invest herself