A divorce from the bond of matrimony bars the wife's right of
dower unless preserved by the
lex rei sitae.
Under § 495 of the Oregon Code of Civil Procedure, as amended by
the statute of December 20, 1865, providing that whenever a
marriage shall be declared void or dissolved, the party at whose
prayer the decree shall be made shall be entitled to an undivided
third part in fee of the real property owned by the other party at
the time of the decree, in addition to a decree for maintenance
under § 497, and that it shall be the duty of the court to enter a
decree accordingly, a wife obtaining a decree of divorce in a court
of another state having jurisdiction of the cause and of the
parties acquires no title in the husband's land in Oregon.
This is a bill in equity filed in the Circuit Court of the
United States for the District of Oregon by Mary E. Barrett, a
citizen and resident of the State of California, against Charles D.
Failing and Xarifa J. Failing, his wife, citizens and residents of
the State of Oregon.
The bill alleged that on September 25, 1866, the plaintiff was,
and for more than two years theretofore had been, the wife of
Charles Barrett, and was a citizen and resident of the State of
California; that on that day, she commenced a suit for divorce
against him for his misconduct in a district court of the State of
California for the Fifteenth Judicial District, that court having
jurisdiction thereof and being authorized to grant divorces
according to and by virtue of the laws of that state; that he was
duly served with process, and appeared and made defense, and that
on April 18, 1870, the plaintiff being still a citizen of that
state, that court rendered a decree in her favor, dissolving the
bond of matrimony between him and her. The bill further alleged
that at the time of the commencement of that suit, Charles Barrett
was not the owner of any real estate in the State of California,
but was the owner in fee simple
Page 111 U. S. 524
of certain land (particularly described) in Portland, in the
State of Oregon; that on February 4, 1868, he fraudulently conveyed
this land to his daughter, the female defendant, without
consideration and with intent to defraud the plaintiff of her just
rights in it and for the purpose of preventing her from asserting
her claim thereto or interest therein; that at the time of the
commencement of the suit for divorce, the plaintiff did not know
that he was the owner of this land; that he died in Oregon in July,
1870, and that by the laws of the State of Oregon and under and by
virtue of the decree of divorce, the plaintiff became and was
entitled to one-third of this land.
The bill prayed for a decree that the plaintiff was the owner in
fee simple of one-third of this land, and that the defendants held
it in trust for her, and for a conveyance, a partition, an account
of rents and profits, and further relief. The defendants filed a
general demurrer to the bill, which was sustained by the circuit
court, and the bill dismissed.
See 3 F. 471. The plaintiff
appealed to this Court.
MR. JUSTICE GRAY delivered the opinion of the Court. He stated
the facts in the foregoing language and continued:
It is not doubted that the decree of divorce from the bond of
matrimony, obtained by the plaintiff in California in a court
having jurisdiction to grant it and after the husband had appeared
and made defense, bound both parties and determined their status.
The question considered by the court below and argued in this Court
is whether, by virtue of that decree and under the law of Oregon,
the wife is entitled to one-third of the husband's land in
Oregon.
Unless otherwise provided by local law, a decree of divorce by a
court having jurisdiction of the cause and of the parties,
dissolving the bond of matrimony, puts an end to all obligations of
either party to the other, and to any right which either has
Page 111 U. S. 525
acquired by the marriage in the other's property except so far
as the court granting the divorce, in the exercise of an authority
vested in it by the legislature, orders property to be transferred
or alimony to be paid by one party to the other. In estimating and
awarding the amount of alimony or property to be so paid or
transferred, the court of divorce takes into consideration all the
circumstances of the case, including the property and means of
support of either party, and the order operates
in
personam by compelling the defendant to pay the alimony or to
convey the property accordingly, and does not of itself transfer
any title in real estate unless allowed that effect by the law of
the place in which the real estate is situated.
Accordingly, it has been generally held that a valid divorce
from the bond of matrimony for the fault of either party cuts off
the wife's right of dower, and the husband's tenancy by the curtesy
unless expressly or impliedly preserved by statute.
Barber v.
Root, 10 Mass. 260;
Hood v. Hood, 110 Mass. 463;
Rice v. Lumley, 10 Ohio St. 596;
Lamkin v. Knapp,
20 Ohio St. 454;
Gould v. Crow, 57 Mo. 200; 4 Kent Com.
54; 2 Bishop Marriage & Divorce (6th ed.) §§ 706, 712, and
cases cited. In each of the Massachusetts cases just referred to,
the divorce was obtained in another state. The ground of the
decision of the Court of Appeals of New York in
Wait v.
Wait, 4 N.Y. 95, by which a wife was held not to be deprived
of her right of dower in her husband's real estate by a divorce
from the bond of matrimony for his fault, was that the Legislature
of New York, by expressly enacting that "in case of divorce
dissolving the marriage contract for the misconduct of the wife,
she shall not be endowed," had manifested an intention that she
should retain her right of dower in case of a divorce for the
misconduct of the husband.
See also Reynolds v. Reynolds,
24 Wend. 193. The decisions of the Supreme Court of Pennsylvania in
Colvin v. Reed, 55 Penn.St. 375, and in
Reel v.
Elder, 62 Penn.St. 308, holding that a wife was not barred of
her dower in land in Pennsylvania by a divorce obtained by her
husband in another state, proceeded upon the ground that in the
view of that court, the court which granted the divorce
Page 111 U. S. 526
had no jurisdiction over the wife.
And see Cheely v.
Clayton, 110 U. S. 701.
Whether a statute of one state securing or denying the right of
dower in case of divorce extends to a divorce in a court of another
state having jurisdiction of the cause and of the parties depends
very much upon the terms of the statute, and upon its
interpretation by the courts of the state by the legislature of
which it is passed and in which the land is situated. In
Mansfield v. McIntyre, 10 Ohio 27, it was held that a
statute of Ohio which provided that in case of divorce for the
fault of the wife, she should be barred of her dower, was
inapplicable to a divorce obtained by the husband in another state,
and the wife was allowed to recover dower upon grounds hardly to be
reconciled with the later cases in Ohio and elsewhere, as shown by
the authorities before referred to. In
Harding v. Alden, 9
Greenl. 140, a wife who had obtained a divorce in another state
recovered dower in Maine under a statute which, upon divorce for
adultery of the husband, directed "her dower to be assigned to her
in the lands of her husband in the same manner as if such husband
was actually dead," but the point was not argued, and in the case
stated by the parties, it was conceded that the demandant was
entitled to judgment if she had been legally divorced. The statute
of Missouri, which was said in
Gould v. Crow, 57 Mo. 205,
to extend to divorces obtained in another state, was expressed in
very general terms:
"If any woman be divorced from her husband for the fault or
misconduct of such husband, she shall not thereby lose her dower,
but if the husband be divorced from the wife for her fault or
misconduct, she shall not be endowed."
The Oregon Code of Civil Procedure of 1862 contained the
following section:
"SEC. 495. Whenever a marriage shall be declared void or
dissolved, the real property of the husband or wife shall be
discharged from any claim of the other to any estate therein, or
right to the possession or profits thereof, except as in this
section specially provided. If the marriage is declared dissolved
on account of the adultery or conviction of a felony of either
party,
Page 111 U. S. 527
the adverse party shall be entitled as tenant in dower or by the
curtesy, as the case may be, in the real property of the other, the
same as if the party convicted of felony or committing the adultery
were dead."
But by the statute of Oregon of December 20, 1865, § 11, that
section was repealed, and the following enacted in place
thereof:
"SEC. 495. Whenever a marriage shall be declared void or
dissolved, the party at whose prayer such decree shall be made
shall in all cases be entitled to the one undivided one-third part
in his or her individual right, in fee, of the whole of the real
estate owned by the other at the time of such decree, in addition
to the further decree for maintenance provided for in section 497
of this act, and it shall be the duty of the court in all such
cases to enter a decree in accordance with this provision."
By section 497, thus referred to, the court, upon declaring a
marriage void or dissolved, has power to further decree
"for the recovery of the party in fault such an amount of money,
in gross or in installments, as may be just and proper for such
party to contribute to the maintenance of the other,"
and
"for the delivery to the wife, when she is not the party in
fault, of her personal property in the possession or control of the
husband at the time of giving the decree,"
as well as for the future care and custody, nurture, and
education of the minor children of the marriage and for the
appointment of trustees to collect, receive, expend, manage, or
invest any sum of money decreed for the maintenance of the wife or
for the nurture and education of minor children committed to her
care and custody.
The changes in the provision of section 495 are significant. The
section, in its amended form, substitutes for the former provision
that the innocent party, in the case of a divorce for adultery or
for conviction of felony, should be entitled as tenant in dower or
by the curtesy in the real property of the guilty party as if the
latter were dead, a provision that the party at whose prayer the
decree is made shall in all cases be entitled
Page 111 U. S. 528
to an estate in fee in one-third of the real property owned by
the other party at the time of the decree; it declares that this
shall be "in addition to the further decree for maintenance
provided for in section 497," and it further provides that "it
shall be the duty of the court in all such cases to enter a decree
in accordance with this provision." Considering that this enactment
is contained in a Code of Civil Procedure, and not in a statute
regulating and defining titles in real estate; that the right
conferred is a new title in fee, acquired only by virtue of this
statute, and distinct from a tenancy in dower or curtesy, as at
common law or under the former statute, which was only for life;
that it is declared to be in addition to maintenance or alimony to
be awarded by the court granting the divorce, and that it is made
the duty of that court to enter a decree in accordance with this
provision, we are clearly of opinion that the statute is limited in
intention and effect to divorces granted by the courts of Oregon,
which are the only courts within the control of the legislature
which passed the statute.
To extend the provisions of this statute to the case of a
divorce obtained in another state would be inconsistent with a
series of decisions of the Supreme Court of Oregon, by which it has
been held that even where the wife obtains a decree of divorce in
that state, the title in fee in one-third of the husband's real
property, which the statute declares she shall have, and that the
court shall decree to her, cannot vest in her without a provision
to that effect in the decree of divorce, with this single
exception: that if the husband has made a fraudulent conveyance of
his real estate with intent to defeat the right of his wife
therein, and she does not know of his title or of the fraud until
after the decree of divorce, she may assert her right by a bill in
equity, which, although required by other provisions of the Code to
be in the form of an original suit brought in the county where the
land lies, is in the nature of a bill of review for newly
discovered evidence.
Bamford v. Bamford, 4 Or. 30;
Wetmore v. Wetmore, 5 Or. 469;
Hall v. Hall, 9
Or. 452;
Weiss v. Bethel, 8 Or. 522; Oregon Code Civil
Procedure, §§ 376, 377, 383.
Page 111 U. S. 529
The other cases cited in behalf of the appellant are quite
unlike the case at bar.
In
Barrett v. Barrett, 5 Or. 411, the suit was not to
assert a title in real estate, but to enforce, out of the land
fraudulently conveyed by the husband to his daughter, payment of
the alimony awarded to this appellant by the California decree of
divorce, which was held, in accordance with the decisions of other
courts, to be so far in the nature of a debt that the wife might
sue the husband for it in another state and might contest the
validity of a conveyance of property made by him with the
fraudulent intent of preventing her from recovering the alimony.
Barber v.
Barber, 21 How. 582;
Livermore v.
Boutelle, 11 Gray 217;
Bouslough v. Bouslough, 68
Penn.St. 495.
In
De Godey v. De Godey, 39 Cal. 157, and in
Whetstone v. Coffey, 48 Tex. 269, the point decided was
that land acquired by the husband or the wife during the marriage,
the title in which by the local law vested in neither separately,
but in both in common, continued to belong to both after the
divorce, and that a division thereof between them, if not made by
the decree of divorce, might be obtained by a subsequent suit for
partition in the state in which the divorce was granted and the
land was situated.
Judgment affirmed.