132 N.Y.S. 1107 | N.Y. App. Div. | 1911
Lead Opinion
The defendant demurred to the second cause of action set up in what is called the amended and supplemental complaint, which seems to be the only complaint in the action and on which plaintiff seeks to recover. The ground of demurrer is stated to be that the second alleged cause of action contained in the amended and supplemental complaint herein does not state facts sufficient to constitute a cause of action. It is in this second cause of action that the plaintiff, who was a resident and citizen'of the State of New York, was married at the city of Paris in the republic of France to the defendant, where he then resided, on the 17th of April, 1901; that on October 30, 1903, after her marriage, plaintiff purchased certain real property situated in the city and county of New York, which is specifically described in the complaint; that subsequently the plaintiff executed and delivered to the defendant a conveyance of an undivided one-half interest in said premises, which conveyance bears date November é, 1903, and was duly recorded in the office of the register of New York county; that said conveyance was absolute in form, and purports to convey to the defendant, the grantee therein mentioned, an undivided one-half interest in said property in absolute ownership,, but was executed and delivered by plaintiff without consideration; that in the. year 1908, the defendant, who was then residing in the canton of- Geneva, in the republic of Switzerland, brought an action in the Court of First Instance in and for said republic and canton, being a court having jurisdiction in the premises, against the plaintiff
Q~.t1aese~acts the plaintiff demands a judgment that the
Under the allegations of this cause of action, the plaintiff, who was a citizen of this State, married with the defendant, who was a subject of the republic of Switzerland, this marriage having been consummated in the city of Paris, in the republic of France. The question as to whether the law of Switzerland or the law of France controlled as to the rights acquired by the parties to that marriage is not material at this time. It is not alleged whether the parties subsequent to the marriage did or did not reside in France or acquire there a matrimonial domicile. What the plaintiff seeks to do is to import into the rights "of these parties as affecting real property the law either of France or of Switzerland, so as to affect or qualify the title to real property within this State, or impose upon the grantee of real property within this State an obligation to- transfer or convey it, by reason of the rights acquired by the parties to a matrimonial alliance entered into in a foreign country. Nor is the question presented as to the rights of the parties in relation to personalty, whether located in this State, of which the plaintiff was at the time of her marriage a citizen, or in either the republic of France or the republic of Switzerland.
The plaintiff, having been married in France to a citizen of Switzerland, with her own money subsequently acquired real property within this State. Under the law of this State, she
In 1861 there was presented to the Court of Appeals of this State (Bonati v. Welsch, 24 N. Y. 157) the question as to the rights of a wife, who was a citizen of France and who had married a citizen of Germany, and who were domiciled in and who resided in France at the time of the marriage. The parties to that marriage continued to live together in France until 1837,
An entirely different rule, however, applies as to real property. Because of its nature and characteristics, the title to it and the rules regulating its conveyance or transfer by deed or will necessarily must be controlled by the law of the place in which the property is situated, and the right either to it or to receive a conveyance of it" must necessarily depend upon such law. If an oral contract to convey real property in this. State were made in a foreign country where such a contract was valid, I assume that the courts of this State would refuse to enforce it where such a contract, to be enforced, must be in writing. If by a marriage contract the law of the foreign State gave to a husband a life estate in the wife’s real property, or the right to manage and control the wife’s real property during coverture, I assume that that right would not be enforced in this State, where the law vests absolutely in the wife the entire control and the right to receive the rents of her real property. As I understand it, neither by contract nofr enforcible in this State, nor by the law of a foreign State, can the law of this State as to a wife’s absolute control of her property be affected. To affect it in any way the right of the husband must be secured .to him by the law of this State. And this general rule of law is clearly recognized in Matter of Majot (199 N. Y. 29).
In that case the court, after a careful examination of the authorities, again cites with approval Judge Story on Conflict of Laws (8th ed. p. 267), stating generally the rule that “where there is no express contract, the law of the matrimonial domicile will govern as to all the rights of the parties to their present property in that place, and as to all personal property everywhere, upon the principle that movables have no situs, or rather that they accompany the person everywhere. As to immovable property the law rei sitas will prevail. ” In discussing the question the court say: “ Under our statute every agreement made in consideration of marriage is void unless it be in writing, except a mutual promise to marry. * * * It
By the law of this State the title to an undivided half of this real property vested absolutely in the defendant. The title was unaffected by the fact that the grantor was his wife. There was no implied or express contract that could be enforced in this State which, under any conditions, would entitle the plaintiff to a reconveyance of the property. No . contract existed between the parties that could be enforced in this State which affected in any way the title conveyed to the defendant and which be acquired by the conveyance.
What the plaintiff seeks to obtain is an adjudication that, notwithstanding the absolute character of the conveyance, it was not what it purported to be upon its face, but was governed by the law of Switzerland or France, which imposed an obligation upon the defendant to: reconvey the property upon severance of "the marriage relation existing between himself and the plaintiff; and this is to be accomplished by the adjudication that the conveyance of the fee was not a conveyance of the fee, but was only to continue during the existence of the rñarriage relation, or by decreeing a reconveyance, because by the law of his domicile or his marriage the husband was obliged to reconvey. Whatever effect this condition would have upon personalty in this State, certainly, as I view it, it cannot affect the title in real property acquired by the defendant, or impose upon him any obligation which would by its enforcement substantially change the title acquired by him the law of this State by reason of the conveyance.
My conclusion, therefore, is that the title to and right to possession of this property depends entirely upon the effect which the law of this State gives to the conveyance of one-half interest in it to the defendant, and that this State will neither by decree adjudge that the defendant had a different title to this property than that which he acquired by the conveyance, nor compel him to reconvey to the plaintiff upon the ground that any tacit or legal obligation imposed by the law of another State required such reconveyance.
The judgment, therefore, must be reversed, with costs, and the demurrer to the second cause of action sustained, with
La tight in and Clarke, JJ., concurred; Scott and Miller, JJ., dissented.
Dissenting Opinion
It is well at the outset to define the precise theory upon which the plaintiff sues, and upon which she must succeed, if she can succeed at all. She does not claim any right to a reconveyance under her marriage contract, nor under the laws of France where her marriage took place. This seems-to differentiate the present case from Matter of Majot (199 N. Y. 29) upon which defendant much relies. In that case the parties having been married in France, without written contract, removed to this State where the husband acquired real and personal property. The question arose as to the imposition of the transfer tax, after his death. His widow claimed that one-half of the property did not pass under the intestate laws of this State, but belonged to her by virtue of the community or partnership existing between herself and her husband by the law of France, the matrimonial domicile, and had been, hers from the date of marriage, or the date of acquisition subsequent to.the marriage. Her claim thus was that the law of France operated directly upon the property, so as to Vest title to one-half of it in her. Ho such claim is made by the plaintiff in the present case. She -does not claim that the laws of Switzerland, or the divorce itself ■ operated directly upon the real estate in the State so as to revest the title to her.. Her' claim is that, under the laws cited in the complaint, the divorce granted in Geneva by a court, the jurisdiction of which is admitted, is a judgment in personam which, among other things, imposed upon the husband an obligation, sometimes called a quasi contract, to reconvey to her what she had given to him during the existence of the marriage. We see no reason why such an obligation may not be enforced by the courts of this State by means of a divorce for specific perform
The order appealed from should be affirmed, with costs.
Miller, J., concurred.
Judgment reversed, with costs, and demurrer sustained, with costs, with leave to plaintiff to amend on payment of costs.