Since the passage of the Act of March 3, 1875, 18 Stat. 470, if
it appear from the pleadings and proofs, taken together, that the
defendants are citizens of the United States, and reside, in the
sense of having their permanent domicil, in the state of which the
complainants are citizens (or that each of the indispensable
adverse parties is not competent to sue or liable to be sued
therein), the circuit court cannot maintain cognizance of the suit,
and the inquiry is determined by the condition of the parties at
the commencement of the suit.
The husband of a married woman is a necessary party in Florida
to a suit in equity to foreclose a mortgage upon real estate owned
by her there, and although he be not named in the bill as defendant
he may appear at the hearing with the consent of all parties, and
in this case the objection of want of consent cannot be taken.
Page 138 U. S. 695
The place where a person lives is taken to be his domicil until
facts adduced establish the contrary.
A domicil, once acquired, is presumed to continue until it is
shown to have been changed.
The domicil of the husband is the domicil of his wife, although
she may be residing in another place, and even when she may be
living apart from her husband without sufficient cause.
This was a bill filed on the 25th day of August, 1885, by
Gustavus W. Faber and James S. Watt, describing themselves as "both
of the City and New York and citizens of the State of New York,
executors of the last will of James Symington, deceased, late of
the New York," as such executors, against
"J. C. Anderson, of Orlando, Orange County, Florida, a citizen
of the State of Florida, as the administrator of Edward J. Wilson,
deceased, and Thomas Emmett Wilson and Sarah J. Davis, both of
Sylvan Lake, Orange County, Florida, citizens of the State of
Florida,"
for the foreclosure, by sale of the property, of a mortgage
given by Edward J. Wilson to James Symington, August 28, 1875, and
recorded May 3, 1876, on certain real estate in Orange County,
Florida.
Anderson and Wilson demurred to the bill, and assigned as one of
the causes of demurrer that the bill did not "sufficiently show the
authority of complainants to bring this suit as the executors of
James Symington, deceased." Mrs. Davis filed a verified plea
averring that the executors had been discharged, and also that she,
"before and at the time of the filing of the said bill, was, and
now is, under the coverture of one George W. Davis, who is still
living, to-wit, in the City and New York," and praying judgment,
and to be hence dismissed.
December 26, the plea and demurrer were severally set down for
hearing by the solicitors for the complainants. Copies of
Symington's will, the proofs on its presentation for probate, the
order admitting to probate, and the letters testamentary, duly
exemplified, were subsequently filed, and the demurrer overruled.
Defendants Anderson and Wilson answered March 15, 1886, setting up
a homestead entry of the
Page 138 U. S. 696
land, possession, improvement, commutation, and payment by one
Earnest; the conveyance by him to E. J. Wilson by deed dated March
15, 1871, and recorded November 28, 1876; deed of E. J. Wilson of
one-half, for a valuable consideration, to Thomas E. Wilson, May
22, 1871, recorded September 11, 1875; actual possession by Thomas
E. and his grantee from May 22, 1871, to the present time; issue of
the patent April 10, 1875, to E. J. Wilson, recorded November 24,
1879; large advances by Thomas E. prior to the Symington mortgage,
for the benefit of the land, in excess of his share, and valuable
improvements made thereon by himself and his grantee.
The answer further averred that E. J. Wilson, who resided in New
York, died there in April, 1876; that the taxes upon the undivided
half interest belonging to E. J. Wilson's estate were not paid for
the years 1876 and 1877; that the heirs and devisees would have
nothing to do with the affairs of the estate, and Symington took no
steps and made no sign; that the undivided half was sold January 8,
1878, for the taxes, and defendant Thomas E. became the purchaser,
and received a deed January 16, 1879, as by statute prescribed,
which was duly recorded that day; that he and his grantee had
remained in full, quiet, and peaceable possession of said undivided
half from thence hitherto, and no suit had been commenced to set
aside said tax deed or recover possession, and that the statutory
bar was complete.
It was further alleged that on the 13th of October, 1879,
defendant Wilson sold the land to Sarah J. Davis, wife of George W.
Davis, of the City of New York, for $8,000 -- $2,000 cash, and
$6,000 on time, secured by a mortgage back -- and conveyed it to
her by warranty deed in fee simple, which deed was recorded
November 24, 1879. Defendant Wilson further answered that Mrs.
Davis immediately went into the actual possession of the land, and
has continued in such possession from thence hitherto, and made
improvements upon the property to the amount of over $20,000.
Certain assignments of the purchase money mortgage to Mary F.
Wilson, of New York, in January and June, 1884, and duly then
recorded, were set forth, as well as a mortgage
Page 138 U. S. 697
by Mr. and Mrs. Davis, to Appleton & Co., made and recorded
in 1884.
May 3, 1886, an answer, sworn to by defendant Sarah J. Davis,
entitled as "the answer of Sarah J. Davis and George W. Davis, her
husband, two of the defendants above named, to the bill of
complaint exhibited against them by the complainants," signed by
"def'ts' sol's" and purporting throughout to be by "these
defendants," was filed in the case. This set out the circumstances
under which the purchase from Thomas E. Wilson was made, the
consideration, the possession and improvement of the land, and that
by virtue of the conveyance to her and her adverse possession, she
had acquired absolute title.
Replications were filed and proofs taken, and on December 20,
1886, the court ordered that the bill be amended by striking out
from the address the words, "Gustavus W. Faber and James S. Watt,
both of the city and State of New York and citizens of the State of
New York," and inserting therein as follows:
"Gustavus W Faber, of the City and State of New York and a
citizen of the State of New York, and James S. Watt, a subject of
the Kingdom of Great Britain, temporarily residing in the City of
New York."
It was further ordered that
"it appearing to the court that letters testamentary on the
estate of James Symington, deceased, heretofore issued to Gustavus
W. Faber, deceased, one of the complainants herein, suing as one of
the executors of James Symington, deceased, have been revoked, as
is shown by a duly exemplified copy of the records of the Surrogate
Court of the County of New York, State of New York, filed herein,
it is therefore ordered, adjudged, and decreed, on motion of
complainants herein, that this cause proceed in the name of the
said James S. Watt, sole surviving executor of James Symington,
deceased, and that it be discontinued as to said Gustavus W. Faber,
suing as co-executor."
The exemplified copy of the record referred to was filed in the
court, with the amendment, December 21, and showed that on the 4th
of May, 1886, Faber filed a petition in the office of the Surrogate
for the County of New York for a decree revoking the letters
testamentary issued to him, and that the order of revocation was
thereupon entered thereon.
Page 138 U. S. 698
The cause was heard upon the pleadings and proofs, and at the
hearing the respondent introduced an exemplified copy of the will
of Edward J. Wilson, deceased, the proceedings on its admission to
probate, and the letters testamentary issued to his executors, May
19, 1876.
January 19, 1887, a decree was entered (by the district judge
holding the circuit court) finding
"that the defendant, J. C. Anderson, as the administrator of the
estate of Edward J. Wilson, deceased, and in his capacity as such
administrator, is justly indebted to the complainant as the sole
acting executor of the last will and testament of James Symington,
deceased, in the sum of thirteen thousand ($13,000.00) dollars
principal, and ten thousand eight hundred and eighty-seven 13-100
($10,887.13) dollars interest, making in all twenty-three thousand
eight hundred eighty-seven 13-100 ($23,887.13) dollars, and that
said complainant holds a mortgage lien to secure the said principal
and interest hereby adjudicated and declared in his favor upon an
undivided one-half interest in and to the following lands
[describing them],"
and decreeing a sale in default of payment. Sale having been
made and reported, exceptions were filed to its confirmation, and
overruled. Thereupon an appeal was perfected from the main decree
and the order confirming the sale.
Page 138 U. S. 701
MR. CHIEF JUSTICE FULLER, after stating the facts as above,
delivered the opinion of the Court.
Under the Act of March 3, 1875, determining the jurisdiction of
circuit courts of the United states, 18 Stat. 472, the objection to
the jurisdiction upon a denial of the averment of citizenship is
not confined to a plea in abatement or a demurrer, but may be taken
in the answer, and the time at which it may be raised is not
restricted. Although the averment as to citizenship may be
sufficient, yet if it appear that that averment is untrue, it is
the duty of the circuit court to dismiss the suit, and this Court,
on appeal or writ of error, must see to it that the jurisdiction of
the circuit court has in no respect been imposed upon.
Morris
v. Gilmer, 129 U. S. 315,
129 U. S. 325;
Nashua Railroad v. Lowell Railroad, 136 U.
S. 356,
136 U. S. 374;
Cameron v. Hodges, 127 U. S. 322,
127 U. S.
325.
As remarked in
Bernards Township v. Stebbins,
109 U. S. 341,
109 U. S. 353,
it has been the constant effort of Congress and of this Court to
prevent the discrimination in respect to suits between citizens of
the same state and suits between citizens
Page 138 U. S. 702
of different states, established by the Constitution and laws of
the United States, from being evaded by bringing into the federal
courts controversies between citizens of the same state.
Shreveport v. Cole, 129 U. S. 36,
129 U. S. 44.
Although the Fourteenth Amendment declares all citizens of the
United States to be citizens "of the state where they reside," yet
as the jurisdiction of the circuit court is limited in the sense
that it has none except that conferred by the Constitution and laws
of the United States, and the presumption is that a cause is
without its jurisdiction unless the contrary affirmatively appears,
it is essential that, in cases where jurisdiction depends upon the
citizenship of the parties, such citizenship, or the facts which in
legal intendment constitute it, should be distinctively and
positively averred in the pleadings or should appear affirmatively
with equal distinctness in other parts of the record. It is not
sufficient that jurisdiction may be inferred argumentatively from
the averments.
Robertson v. Cease, 97 U. S.
646,
97 U. S. 649;
Brown v.
Keene, 8 Pet. 112,
33 U. S. 115.
It was therefore held in
Robertson v. Cease, supra; Continental
Insurance Co. v. Rhoads, 119 U. S. 237;
Menard v. Goggan, 121 U. S. 253, and
other cases, that the averment that the parties to a cause were
"residents" in different states, respectively, was not enough. And
in
Brown v. Keene, supra, which was an action in the
United States Circuit Court for the Eastern District of Louisiana,
where the plaintiff was a citizen of the State of Maryland, that
the averment that the defendant was a citizen or resident, "holding
his fixed and permanent domicile in the parish of St. Charles,"
there being no allegation that he was a citizen of the United
States, was insufficient.
Since the act of 1875, if it appears from the pleadings and
proofs, taken together, that the defendants are citizens of the
United States and reside, in the sense of having their permanent
domicile, in the state of which the complainants are citizens, or
that each of the indispensable adverse parties is not competent to
sue, or liable to be sued, therein, the circuit court cannot
maintain cognizance of the suit. And the inquiry is determined by
the condition of the parties at the
Page 138 U. S. 703
commencement of the suit.
Mullan v.
Torrance, 9 Wheat. 537;
Conolly v.
Taylor, 2 Pet. 556;
Crehore v. Ohio &
Mississippi Railway, 131 U. S. 240;
Jackson v. Allen, 132 U. S. 27.
The bill in this case was properly filed in the name of the two
executors under the will of Symington, the mortgagee, to whom
letters testamentary had issued. McClellan's Dig. Laws Florida, c.
2, § 73, p. 97; 3 Williams on Executors (6th Amer. ed. bottom
paging) 1867; 1 Williams on Executors 267, 687, and notes; 1
Daniell Ch.Pr. (4th Amer. ed.) 226;
Rubber Co.
v. Goodyear, 9 Wall. 788;
Hill v.
Tucker, 13 How. 458. Both qualified and acted, and
the question of their authority to bring the suit as executors of
Symington, raised by the demurrer, was determined in their
favor.
Hugh C. Wilson and Edward C. Wilson were appointed executors of
and trustees under the will of Edward J. Wilson, the mortgagor, and
letters testamentary issued to them, describing them as "both of
Peekskill, Westchester County, New York." By the will, certain
legacies were bequeathed, and all the rest, residue, and remainder
of the estate, both real and personal, of whatsoever nature or
kind, and wherever situated, was directed to be divided into five
equal shares, one of which was bequeathed and devised to Edward C.
Wilson and the other four shares to Hugh C. and Edward C. Wilson,
to hold upon certain trusts therein described. Neither the
executors and trustees nor the devisees nor the heirs at law were
made parties defendant to this bill.
Under the statutes of Florida, it was provided that
"When any person shall die leaving property in this state and
for the space of six months thereafter no person shall be appointed
administrator on the estate of such deceased person, it shall be
the duty of the sheriff of the county,
ex officio, to take
charge of such estate and to administer on and settle said estate
in the same manner as directed for other administrators."
McClellan's Dig. c. 2, sec. 15, p. 81.
It is indicated by the record that J. C. Anderson was Sheriff of
Orange County, and it was admitted that he was duly appointed by
the county court of that county administrator of the estate of
Edward J. Wilson, deceased, July 20, 1885, but
Page 138 U. S. 704
not with the will annexed, although Edward J. Wilson died
testate in New York, where he resided and where his will was
admitted to probate, which will conformed to the laws of Florida in
the form and manner of its execution, and might have been admitted
to record in the county court. McClellan's Dig. c. 200, §§ 1, 8,
pp. 985, 987;
Crolly v. Clark, 20 Fla. 849. Thomas E.
Wilson was a citizen of Orange County, Florida, and he and
Anderson, as administrator, were made defendants, together with
Sarah J. Davis, to whom the property had been conveyed by Thomas
E., and who had occupied it from October, 1879, to September, 1885,
when the process in this case was served upon her, and had paid all
taxes and made large and valuable improvements thereon. George W.
Davis, her husband, was not made a party, but on the 3d of May,
1886, an answer was filed in the case entitled "The answer of Sarah
J. Davis and George W. Davis, her husband, two of the defendants
above named, to the bill of complaint exhibited against them by the
complainants," signed by solicitors for defendants and answering
for those defendants. To this answer the complainants filed their
replication entitled "Replication of said complainants to the
answer of Sarah J. Davis and George W. Davis, defendants," and
describing the answer as that of those two defendants. The names of
all the parties defendant were not set forth in the titles of the
decrees. The bond on appeal was signed by Anderson, administrator,
Thomas E. Wilson, Sarah J. Davis, and George W. Davis, as
principals, recited that the appeal had been taken by them all, and
was conditioned for the prosecution of the appeal by all.
Mr. Davis appears to have been a necessary party. McClellan's
Dig. c. 150, p. 754; 1 Daniell, Ch. Pr. (4 Am. ed.) 178;
Lignoski v. Bruce, 8 Fla. 269;
Smith v. Smith, 18
Fla. 789;
Dzialynski v. Bank of Jacksonville, 23 Fla. 346;
McGill v. McGill, 19 Fla. 341;
Staley v.
Hamilton, 19 Fla. 275;
Carn v. Haisley, 22 Fla. 317.
And although plaintiffs did not originally, or by amendment after
answer, make him in terms a party to their bill, which would have
disclosed that he was a citizen of New York, yet the effect of
Page 138 U. S. 705
what was done was such as bound him by the decree, and we think,
upon this record, he must be held to have become such.
A person who has not been named as defendant to a bill may
appear at the hearing, with the consent of all the parties to the
cause,
Dyson v. Morris, 1 Hare 413, 419;
Bozon v.
Bolland, 1 Russ.& Myl. 69, and in this instance the
objection of want of consent cannot be taken.
The plea which Mrs. Davis interposed, under oath, December 7,
1885, stated that
"before and at the time of the filing of the bill she was, and
now is, under the coverture of one George W. Davis, who is still
living, to-wit, in the City and State of New York."
No replication was filed to the plea, but notice given by the
plaintiffs setting it down for hearing. No further action upon it
is disclosed by the record. The answer of Mrs. Davis and her
husband set forth
"that in the winter of 1878 and spring of 1879 these defendants
were residing in the City of New York, where they had been residing
for some years; that, the health of the defendant Sarah J. Davis
not being good, she thought residing in Florida would benefit her,
and that in the summer of 1879 she and her husband investigated the
subject as well as they could be reading and talking with people
from Florida, and from such investigation they concluded that if
the climate should prove beneficial to the said Sarah J. Davis,
they would find it profitable to purchase an orange grove in south
Florida, which the said Sarah J. Davis could take care of and
manage, except in the summer months, while the said George W. Davis
remained at his business in New York, the said Sarah J. Davis
spending the summer with him there,"
and that after the purchase was consummated, with the approval
of Mr. Davis, in New York, in September, 1879, Mrs. Davis went to
Florida in October, and took actual possession of the property
herself. The proofs showed that she continued personally in
occupation of it from that time forward, and improved and
cultivated it. Mrs. Davis was examined as a witness, and testified
that her husband was living in New York, and was a party to the
suit, and that she resided on the property, and had occupied it
ever
Page 138 U. S. 706
since she purchased it, except when she went "north in the
summer for a few months."
The deed of Thomas E. Wilson to her of October 13, 1879,
recorded November 24, 1879, described her as "Sarah J. Davis, wife
of George W. Davis, of the City of New York," and the mortgage back
was given by "Sarah J. Davis and George W. Davis, her husband, of
the City of New York." On the 30th of March, 1884, Mr. and Mrs.
Davis gave a mortgage to D. Appleton & Co., which was recorded
in Orange County, Florida, February 12, 1884, and described the
mortgagors as "George W. Davis, of the City of New York, and Sarah
J. Davis, his wife."
We are satisfied the pleadings and proofs in the record, taken
together, negative the averment of the bill as to the citizenship
of Sarah J. Davis, and show that she and her husband were not
citizens of Florida when the suit was commenced, and that it is
fairly to be presumed that they were citizens of the State of New
York.
The place where a person lives is taken to be his domicile until
facts adduced establish the contrary, and a domicile, when
acquired, is presumed to continue until it is shown to have been
changed.
Mitchell v. United
States, 21 Wall. 350,
88 U. S. 352;
Desmare v. United States, 93 U. S.
605,
93 U. S. 609;
Shelton v.
Tiffin, 6 How. 163;
Ennis v.
Smith, 14 How. 400. And although the wife may be
residing in another place, the domicile of the husband is her
domicile. Story, Confl.Laws § 46; Wharton Confl.Laws § 43, and
cases cited. Even where a wife is living apart from her husband
without sufficient cause, his domicile is in law her domicile.
Cheely v. Clayton, 110 U. S. 701.
The rule is, said Chief Justice Shaw in
Harteau v.
Harteau, 14 Pick. 181,
"founded upon the theoretic identity of person and of interest
between husband and wife, as established by law, and the
presumption, that from the nature of that relation the home of the
one is that of the other, and intended to promote, strengthen, and
secure their interests in this relation, as it ordinarily exists,
where union and harmony prevail. But the law,"
he continued,
"will recognize a wife as having a separate existence and
separate interests and separate
Page 138 U. S. 707
rights in those cases where the express object of all
proceedings is to show that the relation itself ought to be
dissolved, or so modified as to establish separate interests."
Mrs. Davis was not separated from her husband, and no element of
separate domicile in any legal sense existed.
It is clear that the circuit court, upon the development of the
facts, should have proceeded no further, and dismissed the
case.
But it is contended that the supposed defect was curable by
amendment, and that this was actually done, and the court thereby
justified in retaining jurisdiction.
Conolly v.
Taylor, 2 Pet. 556, is relied on. In that case, a
bill was filed in the United States court in Kentucky by aliens and
a citizen of Pennsylvania. The defendants were citizens of
Kentucky, except one who was a citizen of Ohio, on whom process was
served in Ohio. The jurisdiction of the court was not questioned so
far as respected the alien plaintiffs, but as between the citizen
of Pennsylvania and the citizen of Ohio the court could not
exercise jurisdiction. Before the cause was brought on, however,
the court permitted the complainants to amend their bill by
striking out the citizen of Pennsylvania as complainant and making
him a defendant, and the question was whether the original defect
was cured by this circumstance and whether the court, having
jurisdiction over all the parties then in the cause, could make a
decree. This Court held that jurisdiction depended upon the State
of the parties at the commencement of the suit, which no subsequent
change could give or take away; that if an alien became a citizen
pending the suit, the jurisdiction which was once vested would not
be divested, and so, if a citizen sued a citizen of the same state,
he could not give jurisdiction by removing and becoming a citizen
of a different state, but that just as the omission to state the
character of parties might be corrected at any time before hearing,
so by an amendment made by striking out the person whose presence
as a complainant prevented the exercise of the jurisdiction the
impediment could be properly removed. The case was one, however,
where the remaining complainants might have originally instituted
the suit without joining the
Page 138 U. S. 708
other unless as a defendant, and the other was retained as a
party by the amendment.
In this case, on the 21st of December, 1886, after the proofs
had been taken but before the hearing, an amendment was permitted
by the court by striking out the original averment as to the
citizenship of the complainants Faber and Watt, executors, and
inserting a new averment stating Faber's citizenship as before, but
Watt to be "a subject of the kingdom of Great Britain, temporarily
residing in the State of New York," and the cause was then
directed, upon the ground that the letters to Faber had been
revoked, to proceed in the name of James S. Watt, sole surviving
executor of James Symington, and was discontinued as to Faber. But
the difficulty with this attempt to obviate the fatal defect in
jurisdiction was that the record showed that Watt was not the sole
surviving executor of James Symington when the bill was filed, but,
on the contrary, when the application to amend was made, plaintiffs
exhibited to the court and filed in the case exemplified copies of
the records and files in the office of the surrogate of the County
of New York in the matter of the application of Gustavus W. Faber
for a revocation of the letters testamentary issued to him as one
of the executors, by which it was shown that on the 4th of May,
1886, Faber filed his petition for the revocation of the letters as
to him, and that the order of revocation was entered on that day.
It therefore appeared that Watt could not have maintained the bill
as amended, on the 25th day of August, 1885, when the bill as
originally framed was filed, and jurisdiction could no more be
given to the circuit court by the amendment than if a citizen of
Florida had sued another in that court and subsequently sought to
give it jurisdiction by removing from the state.
Clarke v.
Mathewson, 12 Pet. 164;
Morris v. Gilmer,
129 U. S. 315.
The decree is reversed, and the cause remanded, with
instructions to dismiss the bill for the want of
jurisdiction.
MR. JUSTICE BREWER dissented.
