42 W. Va. 43 | W. Va. | 1896
On appeal from final decree of the Circuit Court of Jefferson county, dismissing plaintiffs’ bill on demurrer, and refusing to permit a third amended bill to be filed.
The bill seeks to subject certain real estate situate in this state, in the county of Jefferson, as the separate property of Ida W. Dawson, the wife of defendant Charles L. Dawson, to the payment of the damages resulting from the breach of the following contract which she had executed
Plaintiffs claim that upon the case as made by this bill as amended, and by the third amended bill which the court refused to permit them to file, they were entitled to relief upon three distinct grounds: (1) A decree against Ida W. Dawson, it being an Ohio contract, which authorizes such a decree. (2) To set aside as voluntary the conveyance of the land to her husband and conveyance by Dawson to the pendente lite purchaser. (3) To a discovery of the personal estate of Mrs. Ida W. Dawson. (4) It is also contended that, conceding this contract to bind defendant Charles L. Dawson as his personal contract, it is joint, and, one of the parties executing it being a married woman, and it being necessary in this state, at the time this suit was brought, to sue in equity as to the separate estate of such married woman, the court, in order to avoid needless multiplicity of suits, will go on to a complete adjudication, giving relief against both. 1 Pom. Eq. Jur. §
It is contended on the part of defendants that this contract, made by a married woman in the. state of Ohio, will not bind, and can not be enforced against her separate real estate in West Virginia. So far as the law of this state bears on the case, it makes no such limiting distinctions. Chapter 66 of the Code (1887) determines what shall be the sole and separate property of a married woman; that she shall have the ownership as if she were a single woman, and the jas disponendi and the liability of her separate estate to the payment of her debts incurred during coverture are incidents of such ownership. Hughes v. Hamilton, 19 W. Va. 366; Radford v. Carwile, 13 W. Va. 572. No authority has been cited in support of such contention, and I take it for granted that none can be found denying any one the equal protection of the laws of this state solely because the contract sued on happened to be made in some other state. See Bank v. Williams, 46 Miss. 618. This is an Ohio contract, executed in that state, and to be performed there, and therefore the law of that state determines its validity. Case v. Dodge, 18 R. 1. 661 (29 Atl. 785); Milliken v. Pratt, 125 Mass. 374. And by the law of Ohio it is conceded to be valid. On this subject see Hefflebower v. Detrick, 27 W. Va 16; Baum v. Birchall, 150 Pa. St. 164 (24 Atl. 620); Taylor v. Sharp, 108 N. C. 377 (13 S. E. 138).
The law of the place where the suit is brought governs the remedy. This includes the mode of proceeding, the form of the judgment or decree, and the methods of carrying them into execution (Dulin v. McCaw, 39 W. Va. 721 [20 S. E. 681]) and the law of the state where the land, the separate property of the married woman, is situated, must determine the question of its liability to be subjected to the payment of claims against her. Story, Confl. Laws (8th Ed.) § 590; 3 Am. & Eng. Enc. Law, 576. No real estate can be acquired by operation of law in any other manner, or to any other extent, or by any other means than those prescribed by the lex loci rei sitæ. 3 Am. & Eng. Enc.' Law, 566. The contract being valid by the law of Ohio, the place where made, a suit on it in this state will be sus
Again, it is urged by the parties w'ho procured this contract to be made that it is a fraud upon the administration of justice; that Charles L. Dawson was but a sham bidder, whose purpose was not to buy, but by such secret machinery to screw up the price, which was a fraud on the public, as common honesty requires that all should be fair and above board. See Pennock’s Appeal, 14 Pa. St. 449; Bexwell v. Christie, 1 Cowp. 395; Peck v. List, 23 W. Va. 338, 392. Why did not this party defendant put in his answer pleading, and then proving in bar and defeasance of this contract its procurement by himself in fraud of the due administration of justice ? No such fact appears on the face of the bill, nor is it a necessary inference from the contract itself, nor that the plaintiffs were particeps criminis. Other motives consistent with plaintiffs’ honesty and with the honesty of defendants are at least open to plausible Conjecture in the present attitude of the case. The wife desired to withdraw from so large and dangerous liability before
Plaintiffs, in their amended bills No. 1 and No. 2, allege that Charles L. Dawson is insolvent; that when said agreement was signed and delivered by defendant Ida W. Dawson she was the owner in fee simple of valuable real estate in Jefferson county, consisting of about one hundred and fifty acres, handsomely improved, which was her separate estate, having been conveyed to her by deed dated the-day of 18 — , which plaintiffs had the right to subject to the payment of the debt due from her to them; but that the said Ida, with the view to defeat them in any recovery, and with the idea that Charles L. Dawson was not individually bound under the agreement, on the 24th day of December, 1889, conveyed this estate to George Baylor without consideration, that he might convey the same to said Charles L. Dawson, her husband, which the said Baylor did on the same date; that said conveyances were voluntary, and fraudulent in law; that they had a lis pendens duly docketed, but thereafter Charles L. Dawson, who is now insolvent, conveyed the property to said ‘pendente lite purchasers; and they pray that the deed to Baylor and the deed to Charles L. Dawson may be set aside as fraudulent, and that said separate estate of defendant Ida W. Dawson may be subjected to payment of their debt if other sufficient property can not be found; that she is entitled to considerable personal property under the will of A. M. Harman, deceased, which- is
Bills for relief may also contain prayers for the discovery of facts which are essential to the relief prayed in the bill. 2 Bart. Ch. Prac. 306. As to bills of discovery see 2 Am. & Eng. Enc. Law, 198.
Aud although a bill be taken for confessed as to any defendant, the plaintiff may have an attachment against him, or an order for him to be brought in to answer interrogatories. No plea or demurrer shall be received after such attachment, unless by order of court upon motion. Code, c. 125, ss. 38, 48. She admits by her demurrer that she is guilty as charged of the fraud in law of being generous to her husband before being just to her creditors, but in argument points out how much better it is for plaintiffs to go against the land as the property of her husband. But plaintiffs claim the choice of ways, and, as under the statute of this state her indirect, voluntary conveyance to her husband is taken and held to be conclusively fraudulent as to this debt, they prefer to take the safe and sure, rather than the better way pointed out by her, for fear that it may be beset with the dauger and delay of his denying all personal liability, and of the land, as his, being taken by older and paramount liens; whereas against the wife they have a lien from the time of filing their bill. Hughes v. Hamilton, 19 W. Va. 366; Howe v. Stortz, 27 W. Va. 555.
And if she is entitled to the personal property which it is charged she conceals, I fail to see why she may not be compelled to discover the same. Amended bill No. 3, which was rejected, alleges that the agreement sued on purports upon its face to have been executed in the city of Cleveland, in the state of Ohio; that by an act of the legislature of Ohio, passed in the year 1884, the separate estate of the wife shall be under her sole control, and that she
There are perhaps some other points of practice that might be noticed, but they have no special bearing, are not raised or discussed, and are therefore passed over.
We are of opinion that the bill as amended is sufficient in law, and that defendants’ demurrer ought to have been overruled, and the defendants ruled to answer. Reversed and remanded.