By the provision in Act 68 of the laws of the Territory of
Arizona that the common law of England, so far as it is consistent
with and adapted to the natural and physical condition of this
territory and the necessities of the people thereof, and not
repugnant to or inconsistent with the Constitution of the United
States or bill of rights, or laws of this territory or established
customs of the people of this territory, is hereby adopted, and
shall be the rule of decision in all the courts of this territory,
the common law was not made unqualifiedly the rule of decision, but
that law, as modified by the conditions of the territory, and
changes in the common law relation between husband and wife had
been expressed in statutes prior to the passage of the act of
By a conveyance from a husband to his wife, property does not
lose its homestead character.
The deed of a person alleged to be insane is not absolutely
void; it is only voidable, and may be confirmed or set aside.
The inquiry as to the insanity of Mrs. Hancock was not open to
The case is stated in the opinion of the Court.
Page 181 U. S. 568
MR. JUSTICE McKENNA delivered the opinion of the Court.
This is an appeal from the judgment of the Supreme Court of
Arizona affirming the judgment of the District Court of the Third
Judicial District of the territory, rendered in an action of
ejectment originally brought against Hancock and his wife, and to
which action Pemberton was afterwards made a party.
The facts as found by the supreme court are as follows:
"This was an action by the appellant to recover possession of
five certain lots in the City of Phoenix, and for the value of the
rents and profits thereof. The complaint is in the usual form in
ejectment cases. The defendants William A. Hancock and Lilly B.
Hancock, husband and wife, answered, pleading 'not guilty,' and
setting up the statute of limitations in bar of the plaintiff's
right to recover. Similar defenses were interposed by the defendant
Thomas W. Pemberton, who, by way of cross-complaint, also pleaded
his ownership and possession of said premises, and asked for
affirmative relief as against the adverse claims of the plaintiff.
Upon the trial in the court below, the plaintiff was adjudged to
have no right, title, or interest in said property, and the
defendant Pemberton was adjudged to be the owner and entitled to
the possession thereof. From this judgment of the district court,
the plaintiff prosecutes an appeal."
"The record shows the material facts in the case to be
substantially as follows: on February 27, 1886, the legal title to
the premises in controversy was vested in William A. Hancock, the
common source from which both the plaintiff and the defendant
Pemberton deraign title. The said premises were enclosed as one
tract, with a dwelling house situated upon lots 14 and 15, and had
been occupied by the defendants William A. Hancock and Lilly B.
Hancock as a homestead ever since 1873. On the said 27th day of
February, 1886, and while the said premises were so occupied and
claimed as a homestead, the said William A. Hancock, for the
consideration of love and affection,
Page 181 U. S. 569
deeded the same by a direct conveyance to his said wife, Lilly
B. Hancock. The value of the said property so conveyed did not at
that time exceed the sum of $4,000. On March 5, 1892, certain
creditors (Herrick & Luhrs) obtained a judgment in the District
Court of Maricopa county against the said William A. Hancock for
the sum of $2,524.02 upon an indebtedness contracted by him
November 1, 1883. An execution was issued upon said judgment April
5, 1892, and the same was levied upon the premises here in
controversy as the property of William A. Hancock. No proceeding
was had to set aside the anterior conveyance to his wife, but the
said real estate was formally sold under said execution to the
plaintiff George H. N. Luhrs, to whom a sheriff's deed was made on
February 4, 1893, conveying the title which is the basis of his
ejectment suit. On March 21, 1892, the said Lilly B. Hancock and
William A. Hancock had borrowed from one Robert Allstatter the sum
of $2,600, and on the same day, to secure the payment thereof, had
executed to the said Allstatter a mortgage upon all of the
aforesaid premises. This mortgage, presumably executed in good
faith, was subsequently foreclosed, and the defendant Thomas W.
Pemberton became the purchaser at the foreclosure sale. He received
the sheriff's deed for the said premises on February 14, 1895, took
possession thereof from the Hancocks, and has since paid the taxes
and made valuable improvements upon the property. The plaintiff
Luhrs was never in the possession of the premises."
The supreme court also certified that the exceptions on the
trial to the rulings of the court were: (1) to the admission of the
deed dated February 27, 1886, from Hancock to his wife; (2) the
rejection of evidence tending to prove that Hancock made an
application for a homestead under the public land laws of the
United States, and filed an application in the land office of
Tucson, completed his homestead proofs, and received a certificate
from the receiver for the land applied for; a certified copy of the
papers was offered in evidence, but ruled out; (3) the rejection of
evidence of the insanity of Mrs. Hancock at the time she executed
the mortgage to Robert Allstatter, the foundation of Pemberton's
title; (4) the admission in evidence
Page 181 U. S. 570
of the note and mortgage over the objection of plaintiff
claiming Mrs. Hancock insane and incompetent to make them.
We are confined to the assignment of errors based on these
rulings. Harrison v. Perea, 168 U.
; Holloway v. Dunham, 170 U.
; Young v. Amy, 171 U.
; 18 Stat. 27.
(1) The ground of objection to the deed is that it is void as a
conveyance because void at common law, void under the statute
restricting the conveyance of homesteads, and void because a fraud
upon creditors, "and especially the plaintiff, whose debt against
Hancock then existed."
It is conceded that part of the property was a homestead in 1883
at the time of the commencement of the suit by Herrick and Luhrs,
but that, before judgment the homestead had ceased to exist,
because, under the statute of the territory passed March 10, 1887,
a declaration in writing was necessary to be filed and recorded in
the office of the county recorder to preserve the homestead
exemption. In other words, it is conceded that the property was a
homestead when Hancock executed the deed to his wife in 1886, but
it is claimed that, the deed being void and the property ceasing to
be a homestead in 1889, it became subject to his debts.
Two questions arise: the validity of the deed, and the
continuance of the homestead. We need not now express an opinion as
to the latter. The former should be answered in the affirmative.
The contention is that the deed was void because it was made
directly by Hancock to his wife without the intervention of a
trustee, and the contention is claimed to be supported by act No.
68 of the laws of the territory. That act provided as follows:
"The common law of England, so far as it is consistent with and
adapted to the natural and physical condition of this territory and
the necessities of the people thereof, and not repugnant to, or
inconsistent with, the Constitution of the United States, or Bill
of Rights, or laws of this territory, or established customs of the
people of this territory, is hereby adopted and shall be the rule
of decision in all the courts of the territory."
It will be observed not the common law unqualifiedly was
Page 181 U. S. 571
made the rule of decision, but that law as modified by the
conditions of the territory, and changes in the common law relation
between husband and wife had been expressed in the statutes prior
to the passage of the act of 1885. A community of property of the
marriage was provided for; each of the spouses could have separate
property, and of hers she had the absolute disposition. The
separate legal individuality of the wife therefore was recognized,
and the doctrine which confounded her being with that of her
husband was abolished. The conditions had passed away which caused
it to exist. New and more natural conditions had arisen, and the
act of 1885 adopted the common law only so far as it suited to
those conditions. This was the view of the supreme court of the
territory, and we adopt it. That learned court could certainly know
what the natural conditions of the territory and the necessities of
its people were, and how far consistent with them the laws of a
past time were.
Indeed, the modification of the common law as to the property
relations of husband and wife generally in this country was
expressed by this Court in Jones v. Clifton, 101 U.
. In that case, the assignee in bankruptcy brought
suit to set aside two deeds made by Clifton to his wife, executed,
as it was contended, to defraud creditors. They were asserted to be
void for the reason, among others, "because made directly to his
wife, without the intervention of a trustee, and so passed no
interest to her." To the contention it was replied that the deeds
were voluntary settlements upon his wife. "And," Mr. Justice Field
said, speaking for the Court,
"it cannot make any difference through what channels the
property passes to the party to be benefited, or to his or her
trustee -- whether it be by direct conveyance from the husband or
through the intervention of others. The technical reasons of the
common law arising from the unity of husband and wife, which would
prevent a direct conveyance of the property from him to her for a
valuable consideration, as upon a contract or purchase, have long
since ceased to operate in the case of a voluntary transfer of
property as a settlement upon her. The intervention of trustees, in
order that the property conveyed may be held as her separate estate
Page 181 U. S. 572
the control or interference of her husband, though formerly held
to be indispensable, is no longer required."
This doctrine applies to a homestead as well as other real
estate, unless the laws of the territory prescribe the form or put
limits upon the alienation of a homestead. It is claimed that the
law does, and paragraph 2141 of the Compiled Laws of 1887 is cited.
The paragraph is as follows:
". . . no mortgage, sale, or alienation of any kind whatever of
such land [the homestead] by the owner thereof, if a married man,
shall be valid without the signature of the wife to the same,
acknowledged by her separately and apart from her husband."
A statute similar to that of Arizona came up for construction in
Burkett v. Burkett,
78 Cal. 310, and, following the
principle of other cases in the same court and cases in other
states, it was held that the object of homestead laws was to
protect the wife and through her the family, and that a conveyance
of the homestead by the husband to the wife was not forbidden by
the statute, and was therefore valid. The following cases were
cited: Spoon v. Van Fossen,
53 Ia. 494; Green v.
53 Ia. 426; Thompson on Homesteads, sec. 473; Platt on
Rights of Married Women, sec. 70, p. 225; Riehl v.
28 Wis. 86; Baines v. Baker,
140; Ruohs v. Hooke,
3 Lea 302; Harsh v. Griffin,
72 Ia. 608.
But, independent of other cases, the court said it would not
"hesitate to hold such conveyances valid," and disregarded as
unimportant the differences which were pointed out between the
statutes of the states whose decisions were cited and the statute
The contrary has been held by the Supreme Court of Illinois in
Kittermin v. Milwaukee Ins. Co.,
134 Ill. 647, but the
reasoning of the other cases we think is the better, and, besides,
their number is not without weight.
The Supreme Court of California held, as the Supreme Court of
Arizona held in the case at bar, that by a conveyance of the
husband to the wife, the property did not lose its homestead
character. As the title certainly passed, that is unimportant, and
equally unimportant whether the homestead was or was
Page 181 U. S. 573
not divested by the act of 1887, in the view we take of the
effect of appellant's judgment against Hancock. It cannot prevail
against the mortgage of Allstatter unless it became a lien upon the
land covered by the homestead. It is so contended, but
unjustifiably. The deed from Hancock to his wife was prior to the
judgment. The mortgage to Allstatter was subsequent to the
judgment, but prior to the levy of the execution, and the latter
can only relate to and be supported by the judgment, if the
judgment became a lien upon the property. It has been held in some
jurisdictions that a judgment against a debtor becomes a lien on
land fraudulently conveyed by him. In other jurisdictions, it has
been held otherwise, and this Court has held otherwise.
2 Wall. 237, was a creditor's bill to set
aside fraudulent conveyances, and a question arose as to the effect
of the judgment upon land previously conveyed. The Court said:
"The judgment obtained by Mills and Bliss was the elder one, but
it was subsequent to the conveyance from Miller to Williams. It is
not contended that the judgment was a lien on the premises. The
legal title having passed from the judgment debtor before its
rendition, by a deed valid as between him and his grantee, it could
not have that effect by operation of law."
The rule and the reason for it are admirably expressed by Judge
Deady in In re Estes,
3 F. 141, as follows:
"In my own opinion, the lien of a judgment which is limited by
law to the property of or belonging to the judgment debtor at the
time of the docketing is not nor cannot, without doing violence to
this language, be held to extend to property previously conveyed by
the debtor to another by deed valid and binding between the
parties. A conveyance in fraud of creditors, although declared by
the statute to be void as to them, is nevertheless valid as between
the parties and their representatives, and passes all of the estate
of the grantor to the grantee, and a bona fide
from such grantee takes such estate, even against the creditors of
the fraudulent grantor, purged of the anterior fraud that affected
the title. . . . Such a conveyance is not, as has been sometimes
supposed, 'utterly void,' but it is only so in a qualified sense.
Practically it is only voidable, and that at the instance of
Page 181 U. S. 574
proceeding in the mode prescribed by law, and even then not as
against a bona fide
purchaser. . . . The operation of the
lien of a judgment, being limited by statute to the property then
belonging to the judgment debtor, is not a mode prescribed by which
a creditor may attack a conveyance fraudulent as to himself, or
assert any right as such against the grantor therein. This lien is
constructive in its character, and is not the result of a levy or
any other act directed against this specific property. It is the
creature of the statute, and cannot have effect beyond it."
(2) The assignment of error based on the ruling of the court in
rejecting evidence of an application by Hancock to enter a
homestead under the public land laws is disposed of by the views
expressed above. As the title passed to Mrs. Hancock by the deed to
her from her husband, and from them to Pemberton through the
mortgage executed to Allstatter, it is not necessary to consider,
as we have said, whether the property continued or ceased to be a
(3) The third and fourth exceptions to testimony were based on
the alleged insanity of Mrs. Hancock when she executed the note and
mortgage to Allstatter. But we do not think that inquiry was open
to the appellant. The deed of an insane person is not absolutely
void; it is only voidable -- that is, it may be confirmed or set
aside. 159 U. S. 159
U.S. 547. Besides, the title of Pemberton, one of the defendants in
error, comes through a judgment against Mrs. Hancock, and that
cannot be attacked collaterally. Ingraham v. Baldwin,
N.Y. 45; Kilbee v. Myrick,
12 Fla. 419; Foster v.
23 Ga. 168; Speck v. Pullman Palace Car Co.,
121 Ill. 33; Maloney v. Dewey,
127 Ill. 395; Woods v.
93 Ind. 164; Boyer v. Berryman,
123 Ind. 451;
Stigers v. Brent,
50 Md. 214; Heard v. Sack,
Mo. 610; McCormick v. Paddock,
20 Neb. 486; Lamprey v.
29 N.H. 299; Brittain v. Mull,
99 N.C. 483;
Henry v. Brothers,
48 Pa. 70; Wood v. Bayard,
Pa. 320; Grier's Appeal,
101 Pa. 412; Denni v.
60 Tex. 337.
The other questions discussed by counsel we do not think it is
necessary to consider.