124 Mo. 178 | Mo. | 1894
Lead Opinion
This record presents this case.^ At the time of the transactions involved, a married woman in Missouri was incompetent to make a valid contract at law. At that time, however, she was authorized by the laws of Dakota to contract as a feme sole, and sue and be sued as such.
Mrs. Buck, the wife of O. W. Buck, became thp purchaser of a city lot in Tarkio, Missouri, and held a bond for title from Perkins the owner, until a balance of the purchase money should be paid.
Under the firm name of O. W. Buck & Company Mrs. Buck and her husband became indebted in Dakota and the interest of herself and her husband in
That a married woman was not subject to a suit by attachment in Missouri prior to 1889 was decided by this court in Gage v. Gates, 62 Mo. 412, and that a judgment obtained against her in such a proceeding was a nullity was repeated in Lincoln v. Rowe, 64 Mo. 138, and that she could not be sued as a member of a mercantile firm at law was also settled in Weil v. Simmons, 66 Mo. 617.
From these and many other decisions, it would appear that no resident creditor could proceed by an attachment at law against a married woman in this state, for a debt contracted in this state, and this record presents the question whether our laws will give nonresident creditors remedies to collect their claims against a married woman in this state which we uniformly deny to our own citizens.
The supreme court of the United States in Scudder v. Bank, 91 U. S. 406, sums up the general principle in / a few words: “Matters bearing upon the execution, the interpretation, and the validity of a contract are determined by the law of the place where the contract is made. Matters connected with its performance are regulated by the law prevailing at the place of performance. Matters respecting the remedy, such as bringing of suits, admissibility of evidence, statutes of „ limitation, depend upon the law of the place where the suit \is brought
So that, while we concede that, by the laws of Dakota, Mrs. Buck could enter into a contract of
This principle has been illustrated in many ways. Thus in Williams v. Haines, 27 Iowa, 251, the supreme court of Iowa, in an opinion of Chief Justice Dillon, held, in an action on a sealed instrument executed in Maryland that, although by the laws of Maryland, the consideration could not be inquired into; yet, as the Iowa statutes provided that “the want or failure in
So in Railroad v. Barron, 83 Ill. 365, a garnishee proceeding was commenced against the company in Illinois to recover wages due Barron. The company answered it owed Barron $40, but set up that Barron was a resident of Wisconsin and. the head of a family and that by the laws of Wisconsin such wages were exempt. It was urged that, as Barron was a resident of Wisconsin and the debt was contracted in that state, the exemption laws of Wisconsin should control; but the supreme court of Illinois held that this law merely affected the remedy when an action should be brought in Winconsin and could not be invoked in Illinois, saying: “The remedy must be governed by the laws of the state where the action is instituted.”
And in Burchard v. Dunbar, 82 Ill. 450, a married woman signed the note of her husband in New York and bound her separate estate by an express agreement to that effect. It had previously been ruled that upon this equitable charge the laws of New York permitted a judgment at law, without indicating any property out of which it was to be satisfied. Ins. Co. v. Babcock, 42 N. Y. 613. An action was brought on this note in Illinois, and the circuit .court held on the authority of the New York decision last cited, that the note was valid, and binding at law in New York and that it could be enforced as such in Illinois, but the' supreme court of Illinois held that it did not follow that, because the remedy was an action at law in New York, it would be the same in Illinois, Judge Scixoleield saying: “But the law of the remedy is no part of the contract. Wood et al. v. Child et al., 20 Ill. 209. ‘When the question is settled that the contract of the parties is legal, and what is the true interpretation of the language employed by the parties in framing it, the lex
“That appellant charged her separate estate with the payment of the amount of the note, by the law of New York, is beyond question. * * * But this is in equity only; and, although by our present statutes * * * married women may sue and be sued, either with or without joining their husbands, and defend without regard to whether the husband shall defend or not, and judgments may be recovered against them, * * * we still preserve the distinction between actions at law and suits in equity; and there is no authority (in Illinois) for suing and obtaining judgments against them in actions at law on purely equitable liabilities.”
It will be observed that, though the wife’s contract was a binding obligation and she could be sued at law by the lex loci, and, although by the laws of the forum she could be sued with or without joining her husband, still the plaintiff was given such remedy only, to wit, a suit in equity, as the law of the forum afforded in such a case, irrespective of the lex loci.
In the case at bar it is argued that, had her undertaking in New York been good, at law, she could have been sued at law in Illinois; so she could, but it would have been so because the law of the forum gave that right; but, as we have seen, the law of Missouri denied the right to attach a married woman prior to the revision of 1889.
In Milliken v. Pratt, 125 Mass. 374, the question was whether a contract made in Maine by a married woman domiciled in Massachusetts, which a married woman was not at the time capable of making under the laws of Massachusetts, tut was then alloioed by the
As the contract was valid by the lex loci and as the lex fori afforded a remedy at the commencement of the suit, there would seem to be no doubt of the soundness of that decision; but if the law of Massachusetts had up to that time regarded the contracts of married women as utterly void at law, and had not permitted them to sue or to be sued, it would seem a different conclusion would have been attained, judging from the intimation of the distinguished jurist, Mr. Justice G-ray, that is was possible “that in a state where a common law prevailed in full force, by which a married woman was deemed incapable of binding herself by any contract whatever, it might be inferred that such an utter incapacity, lasting throughout the joint lives of husband and wife, must be considered as so fixed by the settled policy of the state, for the protection of its own citizens, that it could not be held by the courts of that state to yield to the law of another state in which she might undertake to contract.” The case supposed by Judge G-ray is this case in fact.
By the law of this state, Mrs. Buck’s contract would have been absolutely void at law and no action could have been maintained thereon in our courts, and such was the long established policy of this state, and, unlike Massachusetts, she had not relaxed this rule prior to, and at, the time this attachment was levied.
Is this state required, out of a spirit of comity, to award a nonresident a remedy at war with her own
A case very similar to this arose in Illinois. An action at law was brought against a married woman. She pleaded coverture at the time of making the contract and the commencement of the action. Reply contract good by the laws of Iowa where it was made and a liability to suit as a feme sole in that state. Discussing the sufficiency of this reply, the supreme court of Illinois said, “a party seeking to enforce a contract valid by the laws of another state, must avail of the remedy provided by our laws. * * * That part of the replications which alleges that, by the laws of the state of Iowa, a married woman could be sued alone on contracts concerning her separate property j did present an immaterial issue,” but because by the laws of Illinois she could be sued alone, it was held that enough remained to make a good replication. Halley v. Ball, 66 Ill. 250.
A different conclusion was reached in Robinson v. Queen, 87 Tenn. 445. Although the court recognized the rule already stated in these words: “Under this rule we act in requiring the husband to be a party defendant with the wife, as was done in the ease at bar. While under the laws of Kentucky this married woman has had her disabilities removed, and can contract, sue, and be sued as a feme sole, we recognize and enforce in this state (Tennessee) so much of the foreign law as
In other words, her status as a married woman by the laws of Tennessee still remained, and the remedies there given against a married woman controlled. That was a proceeding in a chancery court, and we are not sufficiently advised of the practice in that state to draw any conclusion as to its persuasiveness as an authority for the practice here invoked. The general principle announced is in harmony with the rule heretofore deduced.
In Gibson v. Sublett, 82 Ky. 596, the supreme court of Kentucky held a married woman personally liable in Kentucky on a note executed in Louisiana, although, if she had made the note in Kentucky her promise would have been void. The reasons for this decision are tersely stated by the court. They say: “And if, by the law of the place of the domicile of the husband, a married woman has a capacity to sue or to make a contract, or to ratify an act, her acts so done will be held valid everywhere. Story’s Conflict of Laws, sec. 66a. If, then, the contract is to be held valid and binding here, because it is so in the state where it was made, it would seem to reasonably follow that her property here should be subject. For, to hold that a valid and binding contract is not enforceable at any time, nor in any manner, is absurd,” and the court consequently held, “that the remedy provided for the satisfaction of judgments (in Kentucky) should be applied as though the judgment was against a feme sole.”
Entertaining, as we do, the highest respect for the court that decided this case, we do not think its reasoning convincing in that case. In our opinion, it has
As already said, when this action was.brought, this court had, by .uniform decisions, held that a married woman could not be sued by attachment in actions at law in Missouri. /No such remedy was available in our courts in favor of resident creditors. Had any citizen of Missouri, on a contract made or to be performed in this state, proceeded by attachment at law against this real estate, no lien would have been created and no valid judgment could have been rendered against Mrs. Buck and no purchaser for value would have been affected, but if plaintiff’s contention is true, the fact that this claim originated in Dakota has changed all this and his attachment is as valid as if Mrs. Buck was a single woman. But Mrs. Buck is still a married woman and there was no such exception, in our code of procedure, in favor of contracts executed beyond our borders when this suit w^s brought, and an attempt to enforce such a distinction out of a spirit of comity would create endless confusion. A purchaser’s rights ought not to depend upon the accidental circumstance of the place of the execution of the contract upon which the judgment is based.
/ Our courts administer justice without distinction, according to the modes prescribed by the state, and those who seek them must take such remedies as are prescribed.
It follows that the circuit court properly held that the proceedings by attachment against Mrs. Buck were void, and hence presented no obstacle to the purchase by Trout and Thompson, and its judgment is affirmed.
Dissenting Opinion
STATEMENT.
(dissenting).—Lot number 16 in block number 9, in the town of Tarkio furnishes the subject-matter for this litigation which takes the form of an equitable proceeding to divest the title out of certain of the defendants who had bought the equitable interest in the lot of Buck and wife after the levy of the writ of attachment on the lot, plaintiff being the purchaser under such attachment proceedings, which were instituted in March, 1887, amended in June, 1889, so as to include two personal judgments rendered against Buck and wife then residents of Dakota, and ■judgment duly rendered thereon after publication against the Bucks as nonresidents, who were husband and wife and sued as copartners in the original suit by attachment.
Thompson and Trout, two of the defendants herein, purchased the interest of Buck on the twenty-seventh of July, 1889, abstracts of the attachment suit then being on file in the proper office.
In June, 1890, Perkins, the holder of the legal title to the lot, made deed to Trout and Thompson, the previous purchasers of the equitable title of Julia E. Buck, the wife and her husband, O. W. Buck.
The lower court found in favor of defendants, and plaintiff appeals. Other facts as necessary will be hereafter adverted to.
OPINION.
1. This record discloses the fact that the predominant question herein presented is, whether a married woman, resident in Dakota, capable by the laws of that state of contracting as a feme sole in every particular, and of suing and being sued like any other person, can be sued in this state as a nonresident and her lands attached to satisfy a debt.
Haying elaborately considered the authorities, Mb. Justice Stoby reaches the conclusion that: “Generally speaking, the validity of a contract is to be decided by the law of the place where it is made. * * * If valid there, it is by the general law of nations, jure gentium, held valid everywhere, by the tacit or implied consent of the parties. The rule is founded, not merely in'the convenience, but in the necessities of nations; for, otherwise, it would be impracticable for them to carry on an extensive intercourse and commerce with each other. The whole system of agencies, of purchases and sales, of mutual credits, and of transfers of negotiable instruments, rests on this foundation.” Story on Conflict of Laws, sec. 242.
Elsewhere, the same eminent author says: “In regard to questions of minority or majority, compe
“Although foreign jurists generally hold that the law of the domicil ought to govern in regard to the capacity of persons to contract, yet that the common law holds a different doctrine, namely, that the lex loci contractus is to govern.”
“If by the law of the place of the domicil of the husband a married woman has a capacity to sue, or to make a contract, or to ratify an act, her acts so done will be held valid everywhere.” Story on Conflict of ' Laws, secs. 103, 241, 66a.
From these premises, supported, as is needless to say, by abundant authority, let us deduce and apply the principles they enunciate to the facts heretofore set forth.
This case must then be dominated by the law of Dakota; that law made Mrs. Buck as to the contracts' which resulted in the judgments obtained, a feme sole to all intents and purposes.
By that law the feme defendant made contracts which being valid where made, became eo instanti valid everywhere, and capable of being enforced in like manner as in the state of their origin. Those contracts thus made and judgments obtained in Dakota, bore with them wherever taken the stamp of the status, capacity and condition of the feme defendant conferred by the laws of that state, hence she is to be regarded in reference to such contracts and judgments, as a feme sole in this state, with full capabilities and liabilities as such, and with none of the disabilities incident to
We hold, then, that Mrs. Buck, as to such contracts, etc., already mentioned, occupies the attitude before this court of a feme sole, suable as such in every point and particular as if she were discovert. • For this reason our laws which do not admit a recovery of a personal judgment, against a feme covert in an action at law, do not apply, and were not intended to apply, to such a case, as will be more fully seen later on.
A number of well considered cases support the views here expressed. Thus in Kentucky, a married woman is incapable of binding herself by contract except in a limited way as to necessaries, but yet in that state a married woman and her husband being domiciled in the state of Louisiana, where such contracts were valid, having executed with her husband a promissory note, it was ruled that the payee of such instrument could maintain an action on such note in the state of Kentucky against the feme covert, recover a judgment against her as a feme sole and subject her general property in that state to the payment of such judgment. Gibson v. Sublett, 82 Ky. 596.
In that case the principles announced by Story were referred to and followed, and it was there aptly and forcibly said: “If, then, the contract is to be held valid and binding here, because it is so in the state where it was made, it would seem to reasonably follow that her property here should be subject. For, to hold that a valid and binding contract is not enforceable at any
The point that no personal judgment was rendered against the married woman was not passed upon in that case, because not assigned for error; but the evident drift and intimation of the opinion sanction the rendition of such judgment, and the quotation there made from Hart v. Grigsby, 14 Bush, 544, and the reference thereto sets this point .forth in a very clear light. In that case it appears that by a statute of Kentucky, a decree of chancery in certain circumstances might be obtained conferring on a married woman the power to make contracts, sue and be sued as a feme sole, and it was there said in reference to an instance where such power had been conferred: “Power to make a contract necessarily subjects the person possessing the-power to the obligations legally incident to the contract made in the exercise of the power; and a married woman authorized by statute to contract as a feme sole is bound as a feme sole upon any contract she may make under the power, and is subject to all the remedies to whi^h she would have been subject if unmarried.” In that case it is worthy of remark, no change had occurred in the general laws of Kentucky respecting the method of procedure against married women.
7 In North Carolina, a married woman (with one exception not necessary to be here adverted to) is incapable of binding herself by contract, nor is there
In a later instance in that state, where the note was executed by the feme covert, in South Carolina, and being there valid, it was ruled that a personal judgment could be rendered against her. Wood v. Wheeler, 111 N. C. 231.
Both of these cases proceed upon the theory that, the contract being valid where made, that validity attends it and determines the status, condition and capacity of the maker in the forum of another state whose laws do not Recognize the validity of such contracts, when made within the jurisdiction of such forum.
A married woman resident in Kentucky, and emancipated from the disabilities of coverture by a decree to that effect in a court of that state, executed as surety of a firm of which her husband was a member, a promissory note, and it was held in a suit instituted in Tennessee that a judgment could be recovered against her on such note, and her property in that state sold for the satisfaction of the judgment thus rendered, though by the lexjori there no suits could ordinarily be maintained ' against a married woman there resident. Robinson v. Queen, 87 Tenn. 445.
In Illinois the same principle has been enforced. Thus a feme covert resident in that state, executed a promissory note in the state of New York, whereby by the statutes and adjudications of that state she only
The clear corollary from this case is that, had the feme by the statutes of New York bound herself by the execution as a feme sole, a legal judgment might have been recovered against her in the state of her residence. In other words, her status toward the note and her capacity respecting the same, as well as the obligation of the contract, were determined by the lex loci contractus.
In Massachusetts, a married woman resided. By the statutes of that state, at that time, she was incapable of contracting. She made, however, a written guaranty of her husband’s debt and the instrument was forwarded and delivered in Maine, where such contracts were valid and binding and where they could be enforced in the same manner “as if she were sole.” Subsequently, the statutes of Massachusetts were so amended that a married woman could contract and could be sued, and,in the particular instance referred to, the feme covert who gave the guaranty, was sued in Massachusetts and it was held after an elaborate and learned discussion, in which the principles heretofore quoted from Story as to the force and effect of the law of the place of contract were distinctly recognized that
In Spearman v. Ward, 114 Pa. St. 634 (8 Atl. Rep. 430) a married woman residing in’Ohio executed certain promissory notes there, and was afterwards sued upon them in Pennsylvania, where she was incapable of contracting. In that case the action failed because it did not appear that the feme defendant was capable of making the notes under the laws of Ohio, the court in that case saying: “It was conceded upon the argument that, if by the law of the state of Ohio the common law disabilities of married women have been removed, and the defendant is clothed with a general power of contracting, the same as a feme sole, the plaintiff would be entitled to obtain a judgment against here, which could be enforced by execution as in other cases. It is very certain that if the defendant had carried on business in this state, and had given the notes here, there could be no recovery. The reason is that the note or other obligation of a married woman here is void, as at common law. * * * The statutes of the state of Ohio attached to the special verdict do not confer upon a married woman a general power of contracting. They do not authorize married women to enter into general business, and bind themselves personally for notes given.”
This language bears with it the clear recognition of the doctrine that, had the feme defendant'been able in Ohio to bind herself generally by the notes sued, this would have been a sufficient basis in Pennsylvania for a general judgment and general execution against her, though not allowable against women resident in that state. This view of that case is taken in the subse
Subsequently a suit was begun in Pennsylvania on the judgment obtained against both the husband and the wife; dismissed as to the former and judgment as to the latter. This judgment was affirmed, the supreme court holding, that being individually liable where the contract was made and the judgment recovered, her status remained unchanged in the state where the suit was brought, and that joinder of the husband was unnecessary.
In a subsequent case in the same state, an action was brought on a bond executed by a married woman in the state of Delaware where she was liable personally on her contract, she being then resident in Pennsylvania. She resisted the action, one ground being that, owing to her disability, the contract could not be enforced against her personally. But thereupon it was held that judgment was properly recoverable against her in the state of Pennsylvania, the supreme court remarking: “The remedy and the effect to be given to any existing disability in the maker of the instrument are also to be determined by the law of the place of payment. Hill v. Chase, 143 Mass. 129. * * '* The courts of this state will administer in such case the lex loci contractus as against one under disability. Evans v. Clearly, 125 Pa. St. 204. * * * We have, therefore a contract made and, in legal effect, delivered in Delaware, for the puchase of real property in that state, upon which, according to
In Wright v. Remington, 41 N. J. L. 48; it was hold that an ordinary action might be maintained against a married woman alone on a contract made by her in Illinois, where she was capable of contracting as if unmarried, notwithstanding there were' no such statute in New Jersey and that the enforcement of such a contract in New Jersey was not repugnant to the general interests of the citizens or of the policy of that state.
Prom these authorities, the rule is readily deducible that, although the lex fori must apply as to the remedy, yet that it belongs to the lex loci contractus to interpret the contract; ascertain its validity; the nature of its obligations; the capacity and status of the contracting party, and, having done this, the lex fori applies the remedy in accordance with the legal status of the party sued as previously determined by the law of the place of the contract.
Thus, if a feme covert is sued in a jurisdiction where she is incapable of contracting, on a contract executed in a country where she is capable, by the form of the action brought against her, she will be treated and dealt with as a feme sole. In no other way, indeed, could validity, force or effect be given to contracts made in another jurisdiction, unless the courts, when appealed to to enforce such contracts, aimed to do so in such a manner as to give effect to them according to the law which gave them validity. Camfranque v. Burnell, 1 Wash. C. C. 340.
2. If the foregoing observations be taken as correct, no difficulty is encountered in holding that the feme in this case was properly proceeded against by attachment. If her status by the law of Dakota was, respecting the contracts in question, that of a feme sole, attachment would necessarily run against her as well as against any other nondisabled person. In two of the cases already cited, Robinson v. Queen and Evans v. Cleary, supra, the proceedings were instituted by attachment.
A different conclusion as to the right to sue a married woman by attachment has been reached in Rhode Island. Hayden v. Stone, 13 R. I. 106. But that ease is entirely consistent with itself, for there it is declared that no suit at all could be there maintained against a married woman, even on a promissory note executed by her in Massachusetts and conceded to be valid by the laws of that state.
3. Taking it, then, for granted that the feme defendant could be sued by attachment, and the writ of attachment being levied on the interest of herself and husband in the litigated lot, and, due notice of the pendency of the attachment having been filed in the proper office prior to the purchase by Trout and Thompson, it follows that plaintiff’s title to the lot purchased at the attachment judgment sale, will prevail over that of
The only difference in legal effect between the two methods of service, so far as necessary to mention them here, would be, in the former, a bill of statutory review would be allowable, and in the second, no such bill would lie.
It does not appear that the sheriff notified the actual tenants of the property, but this, under the ruling in Durossett’s Adm’r v. Hale, 38 Mo. 346, would not invalidate the levy.
For these reasons there was error in dismissing plaintiff’s petition. The foregoing was tendered as the opinion of the court, but as my associates entertain and express different views, I file this as my dissent.
