1. A married woman having rents from her separate real estate
which had been settled upon her and was leased by her on long
leases, subject to her mother's dower, pledged them to her tenant
by proper instrument to a certain amount for advances. Sometime
afterwards, her mother being yet alive, she was divorced by a
decree which ordered her to direct payment of a-third of the rents
as they should become due to her husband for the
education and support of certain of their common children,
which the court in decreeing the divorce assigned to him. The
tenant refused to pay the husband anything in any way, but paid his
own advances, and then kept rents on hand, paying some to the wife.
After the divorce, and so after the husband's rights under the
decree had attached, she made a further pledge of the rents to the
tenant. It took some years before the sum for which the rents were
pledged before the divorce was paid. On bill by the husband and
account ordered -- the mother being now dead, and the dower-third
having fallen in to the wife -- the auditor held,
i. That as soon as the advances for which the rents were first
pledged were paid, the husband was entitled to be subrogated to the
wife's full rights, against the tenant as existing at the time when
the order in divorce was made (that is to say, exclusive of the
dower-third), till his-third of the two-thirds, with interest from
the date of the decree, was paid;
ii. That the tenant, for the payment of his demand under the
pledge made after the divorce, was to stand postponed till
this-third of the husband's was fully paid, and
iii. That the wife (to whom, as already said, after the divorce
there had fallen in, by her mother's death, the dower-third, a part
not subjected by the decree, to her husband) was to be confined to
the enjoyment of that dower-third till the husband was fully paid
his-third of the original two-thirds, and the tenant was paid
whatever he had advanced after the divorce.
Held, that the
report was right.
2. A married woman has the same power as a
feme sole to
pledge rents settled in trust for her to receive, take and enjoy
them to her sole and exclusive use and benefit.
3. Where a decree in divorce gives a husband one-third part of
his wife's rents, these being at the time of the decree subject to
a paramount right of dower in her mother, the-third does not become
in any way augmented by the mother's death and consequent falling
in of her dower's-third.
4. Where a divorced husband brings a claim against a tenant of
his wife for a portion of her rents allotted to him by the decree
of divorce, the tenant, if he means to take advantage of an alleged
nullity of the decree, must make his averment of the nullity in
such form as that the
Page 76 U. S. 109
husband can take issue. He cannot set it upon argument, although
his averment was that he had a mortgage of the rents, and "reserves
to himself the right to impeach the decree if occasion should offer
and require him to do so."
5. A decree in divorce, valid and effectual by the laws of the
state in which it was obtained, is valid and effectual in all other
states. Whether the finding by the court of domicil on which the
decree is founded is conclusive or only
prima facie
sufficient is not decided.
6. A wife may acquire a domicil different from her husband's
whenever it is necessary or proper that she should have such a
domicil, and on such a domicil, if the case otherwise allow it, may
institute proceedings for divorce, though it be neither her
husband's domicil nor have been the domicil of the parties at the
time of the marriage or of the offense.
By a statute in force in Indiana in 1857, [
Footnote 1] it was thus enacted:
"Divorces may be decreed by the circuit court of the state on
petition, filed by any person at the time a
bona fide
resident of the county in which the same is filed, of which
bona fide residence the affidavit of such petition shall
be
prima facie evidence."
"The grounds of divorce are (among others):"
"Abandonment for one year."
"Cruel treatment of either party by the other."
The statute further declares that, the court, in decreeing a
divorce, shall make provision for the guardianship, custody,
support, and education of the minor children of such marriage.
With this statute in force, one Mrs. Annie Jane Cheever, in
June, 1857, she being then in Marion County, Indiana, filed a bill
in the county court of the state (the proper court, if the case
were otherwise one for its cognizance), praying a divorce
a
vinculo from her husband, B. H. Cheever. Mrs. Cheever had come
to Indiana from Washington in apparently the February preceding,
and the city just named was the place where her parents had long
lived, where it seemed that she was brought up, and where in 1842
she was married, a contemporary document describing both herself
and
Page 76 U. S. 110
her then intended husband, as "of the City of Washington." At
the time of the application for divorce, Mrs. Cheever was owner, as
for more than seventeen years previously she had been, by devise
from her father, of real estate in Washington; a store on
Pennsylvania Avenue and two houses on Sixth Street; property which
on her marriage in 1842 had been settled in trust, that she should
"receive, take, and enjoy the rents and profits to her sole and
exclusive use and benefit."
There was little in the record to show exactly what motive took
Mrs. Cheever from Washington to Indiana, or how long exactly she
remained in Indiana, or how or where, by dates, she was living
after she left it. But it was certain that divorces
a
vinculo could not, when she went to Indiana, nor until long
after she was divorced in that state, be obtained by law in the
District of Columbia.
Her petition for divorce -- which described her as a resident of
Marion County and to which was annexed an affidavit that she was a
bona fide resident of the county at the time the petition
was filed (June 16th, 1857), and was so still -- represented that
she had been married to Cheever; that after conduct to her harsh,
cruel, and severe, he had in 1854 abandoned her without any purpose
of returning to her, and it gave the names and dates of birth of
four children which it stated were the issue of the marriage.
The husband, by an answer of three lines, denied the allegations
of the wife's bill and required strict proof, and on his part filed
a cross-bill setting forth the fact of her separate property, the
existence of the children, that in 1854 a disagreement arose
between him and his wife which was wholly irreconcilable, that he
had abandoned her with intent never to live with her again; that
reconciliation was impossible; and he, too, on his part concluded
his petition with a prayer for a divorce
a vinculo and to
have custody of the older children, and the profits of the real
estate to support them.
To this cross-bill of her husband Mrs. Cheever appeared
without process, and the cause being called for trial, it
was
by
Page 76 U. S. 111
consent of parties submitted to the court without a
jury, and "the court having heard the evidence," as the record
stated, found the marriage, abandonment, and
residence of Mrs.
Cheever, the birth and names of the children all as alleged,
and on the 26th of August, 1857, decreed the divorce prayed for by
both parties alike.
How long Mrs. Cheever remained in Indiana after this date was
not quite apparent. It rather
seemed as if she had left it
in the end of the following September. The record of the already
described proceeding in divorce, contained under the date of
February 24, 1858, this entry:
"Now comes S. Yandes, Esq., attorney for B. H. Cheever, and L.
Barton, Esq., attorney for Annie Jane Cheever, and on their motion
each of said parties has leave to withdraw their respective
depositions filed in this Court at the last term thereof, in the
cause then pending for divorce between said Cheever and
Cheever."
Sometime before December of the same year (in June, as was said
in one of the briefs without contradiction by the other), Mrs.
Cheever remarried and went to Kentucky. Her second husband dying,
she came back, apparently, to Washington. She was there it seemed
in 1862 and 1863.
Prior to the divorce, she had made to one Wilson, a grocer, two
leases of five years each, of the store in Washington; one of the
leases, made in 1855, ran from the 1st of October in that year till
the 1st of October, 1860, and the other (made July 16, 1857, forty
days before the divorce) for a further term of five years, to
commence when the first one should expire.
Besides these two leases made before the divorce, she made
a-third one in 1858 after it, this-third one running for ten years
from the expiration of the first one -- that is to say, from the
1st October 1860 till the same day in 1870, this last lease
containing a stipulation that if the premises should be destroyed
by fire during the term, the rent should cease until the premises
should be rebuilt by the lessors.
Wilson, the lessee, already named, appeared to have been on
friendly terms with Mrs. Cheever and her mother, and
Page 76 U. S. 112
from time to time during her domestic troubles advanced to her
money, collected the rents of her Sixth Street houses, paid certain
claims against her, charging them against the rents of the property
occupied or managed by him. To secure him for these advances made
and certain others to be made, Mrs. Cheever, nine months
before the divorce, executed a deed of trust, in form, to
two gentlemen of Washington, Messrs. Carlisle and Maury, and Wilson
went on making advances on the one hand, and charging them against
rents on the other, to the extent, as was alleged, of near $5,000,
the whole of this sort of business being done without much
formality. A likelihood of confusion of accounts and of contest
about them, if-third parties became interested to intervene, was
augmented by the fact that after the divorce and after Cheever's
rights, if any, under the Indiana order had attached, Mrs.
Cheever-Worcester received further advances from Wilson, not
secured by the deed of trust and which advances it was agreed by
her that Wilson should still charge against rents; and finally,
that in 1862, the storehouse was destroyed by fire, that the mother
of Mrs. Cheever-Worcester received the insurance money, $4,000, and
that Wilson, under the covenant received the insurance it.
The decree of divorce in Indiana, which allotted the children in
pursuance of the statute there, gave Cheever the three oldest, and
Mrs. Cheever one, the youngest, and at the same time ordered that
"as the rents should become due and payable," he should receive for
the maintenance and education of the children which he took, the
one-third part of those which would be coming to Mrs. Cheever in
her own right, to obtain which Mrs. Cheever was ordered to give to
him a proper authority to demand them of the tenant. Mrs. Cheever
was to have the remaining two-thirds. The mother was still alive,
and her dower-third was as yet paramount.
Mrs. Cheever, soon after the divorce, executed a power with an
assignment to Cheever to receive the rents, interlining in it
before execution, a declaration that the assignment was subject to
a previous encumbrance of about $5,000
Page 76 U. S. 113
to Wilson. Cheever, disregarding this part of the instrument,
demanded his one-third of Mrs. Cheever's two-thirds, and Wilson
setting up his prior right, and refusing to pay, Cheever now filed
a bill in the court below, against him, Mrs. Cheever (now called
Worcester), and her new husband, Worcester himself, setting out the
divorce, order &c., and praying for a specific performance of
the Indiana order as to the portion of the rents allotted to him,
and for general relief.
Mr. and Mrs. Worcester set up that the advances had not been yet
paid by the rents, but of course did not set up that the divorce in
Indiana was void.
Wilson set up the same allegation that the rents had not yet
repaid him his advances made on the faith of them, and while he
made no averment that the divorce was void, he yet stated that
he
"did not admit its validity or regularity, or that it was
operative to affect his rights, but, on the contrary, reserved to
himself the right to impeach it if occasion should offer and
require him to do so."
The matter, independently of the question of validity of the
Indiana divorce, which, as Worcester died some time after filing
his answer, it was possible might now be made, was obviously very
much one of figures; and the court, in June, 1863, referred the
matter to an auditor to state an account; the mother of Mrs.
Cheever-Worcester having died in the April before, and her
one-third so falling in to her daughter.
The auditor, assuming the validity of the divorce, and bringing
his account down as near to the date as practicable of his report,
considered that the order of payment ought to be:
1. Wilson's advances to Mrs. Cheever, as secured by the trust
deed of Carlisle and Maury.
2. Cheever's one-third of the rents under the Indiana order from
the time the advances were so satisfied.
3. So much of Cheever's one-third of the rents as had been
displaced by the interference of Wilson's prior claim, from the
date of the Indiana order to the date of the payment of the
advances under the trust deed, to payment
Page 76 U. S. 114
of which one-third, the whole two-thirds of Mrs.
Cheever-Worcester's rents were to be devoted; and, as the reporter
understood his view -- this part of the case not having been argued
here -- he held [
Footnote 2]
that Wilson was bound on the principle of subrogation to pay so
much of Cheever's third as had been thus displaced; the effect of
the auditor's whole view being to throw Wilson on later rents for
reimbursement of advances not secured by the trust deed (the only
ones as yet unpaid), and leaving to Mrs. Cheever-Worcester, for a
considerable time, nothing but the dower one-third which had fallen
in by her mother's death.
Acting on these views of law, and subrogating Cheever to
Wilson's rights against Mrs. Cheever-Worcester, the auditor, after
much work of calculation, presented certain figures in result. Both
Cheever and Wilson excepted to the report. Cheever excepted:
1. To the position assumed by the auditor, that the wife had
power, under the marriage settlement, to anticipate and pledge her
rents.
2. To the auditor's not bringing in, after the death of the
mother, Mrs. Cheever-Worcester's new one-third, to help to pay him
a one-third of the whole rents.
3. To the finding as to the state of the accounts between Wilson
and Mrs. Cheever, as to the advances.
Wilson, on his part, objected to his being too much postponed
for his later advances.
The court sustained the defendant's exceptions and dismissed the
bill, upon the ground that the Indiana decree was wholly void as to
each of the subjects of which it undertook to dispose; the divorce,
the children, and the property. Cheever then brought the case
here.
In this Court, while some reference was made, on the side of
Cheever, to the views of the auditor as to the wife's power of
anticipation, to his view that the dower one-third was not subject
to the Indiana order, and to his figures, and by
Page 76 U. S. 115
Wilson to the principle of subrogation adopted, the argument was
on the validity of the Indiana divorce and orders.
MR. JUSTICE SWAYNE delivered the opinion of the Court.
The material facts of the case, as disclosed in the record, are
as follows:
On the 6th of September, 1842, Cheever, and the defendant,
Page 76 U. S. 116
Annie, then Annie J. Hughes, executed a deed of marriage
settlement, whereby the title of the real estate therein described,
situate in the City of Washington, was vested in Sarah T. Hughes,
the mother of Annie,
"in trust, to permit her daughter, the said Annie J. Hughes, to
receive, take, and enjoy the rents and profits of the said lands
and premises to her sole and exclusive use and benefit,"
&c. The property embraced in the settlement is designated in
the proceedings as "the Avenue property," and "the Sixth Street
property." On the 8th of September, 1842, the parties were married.
On the 10th of September, 1855, Mrs. Cheever and Mrs. Hughes
executed to the defendant, Wilson, a lease of the Avenue property
for five years, from the 1st of October, 1855, at an annual rent of
$1300, to be paid quarterly. On the 26th of November, 1856, they
executed a deed of trust to Carlisle and Maury, to secure certain
advances therein mentioned, made, and to be made, by the defendant
Wilson, to Mrs. Cheever.
This deed refers to the lease, and authorizes Wilson, after the
1st of October, 1857, to retain and apply the rents to the
indebtedness until it should be extinguished. On the 11th of
February, 1857, Mrs. Cheever executed to Wilson a paper purporting
to assign to him all the rents then due and thereafter accruing
until he should have received the sums therein mentioned. A further
lease was given by Mrs. Hughes and Mrs. Cheever to Wilson, on the
16th of July, 1857, of the Avenue property, for the term of five
years, to commence on the 1st of October, 1860, at the same rent,
to be paid in the same manner as was provided in the former lease.
Mr. and Mrs. Cheever lived together in Washington until December,
1854, when they separated. On the 16th of June, 1857, Mrs. Cheever
filed her petition for a divorce in the Circuit Court of Marion
County, Indiana. She described herself therein as a
bona
fide resident of that county. The cause was removed by an
order for a change of venue to the Circuit Court of Madison County,
in that state. On the 19th of August, 1857, Cheever appeared and
filed his answer and a cross-petition. On the 26th of that month,
the court decreed
Page 76 U. S. 117
a divorce
a vinculo matrimonii, and thereafter by the
agreement of the parties, it was further decreed that Cheever
should have the custody of the three elder children, and that Mrs.
Cheever should have the custody of the younger one until the
further order of the court, and that for the support and education
of the children Cheever should receive one-third of the rents and
profits, to which Mrs. Cheever was entitled, accruing from the
property described in the deed of settlement. The decree
declared,
"that the same is hereby decreed to the said Benjamin, as the
same shall hereafter become due and payable, for the uses and
purposes of the said infant children during the lifetime of the
said Annie. . . . And the said Annie shall execute to the said
Benjamin a good and sufficient power to receive said rents and
profits for the uses and purposes herein declared, which shall be
sufficient for the purpose."
On the 27th of August she executed such an instrument, pursuant
to the decree; but before doing so she added this sentence to the
draft which had been prepared: "This assignment of rents is subject
to an encumbrance upon said rents to my agent, Jesse B. Wilson, of
about $5,000." Her interest in the rents at the date of the decree
was two-thirds in possession, and the remaining third expectant
upon the death of her mother, who received that portion for her
dower. Notice of the decree was given to Wilson within a very short
time after it was rendered. He did not recognize the complainant's
claim, and has never paid him anything.
Soon after the divorce was granted Mrs. Cheever married Louis
Worcester. On the 11th of December, 1858, Worcester and wife gave
to Wilson an instrument whereby they assigned to him all her rents
until he should have received the sum of $3,000. On the 30th of
December, 1858, Worcester and wife and Mrs. Hughes gave to Wilson
an extension of his lease of the Avenue property for the term of
ten years, from the 1st of October, 1860, being an addition of five
years to the term of the last preceding lease. At the same time Mr.
and Mrs. Worcester executed to him a further assignment of the
rents. The Avenue buildings were destroyed by fire
Page 76 U. S. 118
in April, 1862. Wilson erected the present store on the property
at a cost to himself of upwards of $4,000. He has continued to
occupy it, and has paid no rent since the fire to anyone.
Mrs. Hughes died on the 12th of April, 1863. Worcester died
before that time. On the 22d of October, 1863, Wilson and Mrs.
Worcester came to a settlement of their accounts. He had collected
the rents of the Sixth Street property up to that time, but did so
no longer. The accounts embraced the rent received from that
property, as well as that from the Avenue property, and extended to
the period of the fire. The result was that she was found to be
indebted to him in the sum of $3,290.
The complainant's bill was filed the 21st of June, 1858, and
seeks a specific performance of the Indiana decree, against Wilson,
as to the portion of the rents allotted to the complainant for the
benefit of the children. On the 17th of June, 1863, it was ordered
by the court that the auditor should report upon the state of the
accounts between Mrs. Worcester and Wilson. There was no finding as
to the rights of the parties, and no specific directions were given
in the order.
The auditor made a very elaborate report. Assuming the Indiana
decree to be valid, his conclusions were that the balance due to
Wilson for his advances on the faith of the pledges of the rents,
prior to the divorce or his having notice, and at the time of
notice -- which the auditor found to be the 11th of September, 1857
-- was $4,627.78, including interest, and that this balance was
extinguished on the 1st of January, 1863, leaving an overplus of
$23.30; that there was due to the complainant the sum of $622.97,
including interest, for rents, from the time of the payment of
Wilson's advances to the 1st of January, 1865, the last quarter-day
before the adjustment by the auditor, and the further sum of
$2,437.41 and interest for rents, from the date of the decree to
the time the advances were paid; that the amount of the rents,
accruing from the time of the payment of the advances, to the 1st
of March, 1865, from the Avenue property,
Page 76 U. S. 119
as well as the Sixth Street houses, while the defendant
collected the rents of the latter, excluding the third, which fell
in by the death of Mrs. Hughes, was $1,831.84; that the amount due
to the complainant was therefore $3,060.38, and that the sum in the
hands of the defendant Wilson applicable thereto in payment,
$1,831.84, was not sufficient to pay complainant's arrears by the
sum of $1,295.58.
According to the report the claimant is entitled to a decree
against Wilson for the sum of $1,831.84, with interest from the 1st
of March, 1865, and for the further sum of $1,295.58 against Mrs.
Worcester, with interest from the same time. The sum proposed to be
decreed against Wilson is made up of two elements: (1) the
complainant's share of the rents received by Wilson after his
advances were paid, with interest down to March 1, 1865, being
$622.97; and (2) the share belonging to Mrs. Worcester of the rents
accruing after the same period (excluding her mother's share, which
lapsed by her mother's death), with interest computed also to the
1st of March, 1865, being $1,208.87, these sums making together the
aggregate of $1,831.84. The auditor held that Wilson was liable for
the latter sum, because the complainant was entitled to it, on the
principle of subrogation. All the parties excepted to the report.
The court sustained the defendants' exceptions, and dismissed the
bill upon the ground that the Indiana decree was void.
Upon the execution of the deed of settlement, the real estate
therein described became the separate property of Mrs. Worcester,
and she had the same power to anticipate and encumber the rents as
if she had been a
feme sole. [
Footnote 3]
The proportion of the rents to which the complainant was
entitled was one-third of the two-thirds to which Mrs. Worcester
was entitled at the time of the rendition of the decree
Page 76 U. S. 120
in Indiana. The decree had reference to her rights as they
existed at that time. It was not affected by the falling in of the
other-third, which her mother held as her dower to the time of her
death.
The complainant was not bound by the lease of December, 1858. It
was executed after the decree and notice to Wilson. He was bound by
the preceding lease of July, 1857, which was executed before the
decree. That lease contained a covenant on the part of Wilson to
repair and pay rent. It did not expire until October 1, 1865.
The buildings on the Avenue property destroyed by fire in April,
1862, were insured in the name of Mrs. Hughes for $4,000, and she
received that amount from the insurance company. The lease of 1857
fixed the amount of the rent, and the complainant is entitled to
claim accordingly.
Under the lease of 1858, important questions may arise between
Wilson, Mrs. Worcester, and the estate of Mrs. Hughes, but they do
not affect the rights of the complainant in this litigation, and we
need not therefore consider them.
It was proper, under the circumstances, to include in the
accounts the rents received by Wilson from the Sixth Street
property. That property was embraced in the deed of settlement and
in the Indiana decree. The record of that case was filed with the
bill as an exhibit, and became a part of it. The prayer of the bill
is for general relief. The securities given by Mrs. Worcester
embraced alike the rents accruing from that and the Avenue
property. Wilson had applied and credited both. It would not be
proper to withdraw and separate the former.
It appears by the complainant's exceptions that he objected
strenuously in the court below to the findings of the auditor, as
to the state of the accounts between Wilson and Mrs. Worcester
touching the advances. After a careful consideration of the
evidence, we are satisfied with his conclusions, and see no reason
to disturb them. We do not think anything would be gained to the
interests of justice by modifying the report, or by setting it
aside, and ordering a further examination of the subject.
Page 76 U. S. 121
We think the auditor was right in his conclusion upon the point
of subrogation. A much larger amount of the complainant's share of
the rents than this principle will give him of hers, was applied in
payment of Wilson's advances. It is proper that an equal amount of
her share, according to her rights, as they were when the decree
was rendered, should replace what had been so applied for her
benefit. This will leave, unaffected by this ruling, for her
enjoyment, the full-third which had belonged to her mother, and to
which she became entitled at her mother's death. We are satisfied
with the auditor's findings as to the amount for which the
defendants respectively should be held liable. Their exceptions
should have been overruled.
The decree rendered in Indiana, so far as it related to the real
property in question, could have no extraterritorial effect, but if
valid, it bound personally those who were parties in the case, and
could have been enforced in the
situs rei, by the proper
proceedings conducted there for that purpose. [
Footnote 4] But no question arises upon that
subject. The assignment executed by Mrs. Worcester to the
complainant, of the 27th of August, 1857, in pursuance of the
decree, was ample to vest in him the interest and authority which
the court ordered her to convey. The reservation in behalf of
Wilson was only what the law without it would have prescribed, and
did not impair its efficacy, or limit what would otherwise have
been the scope of its effect and operation.
The main pressure of the arguments here has been upon the
question of the validity of the Indiana decree. Those at the bar
were confined to that subject, and the printed briefs go but little
beyond it.
The courts of the United States take judicial notice of the laws
and judicial decisions of the several states. [
Footnote 5]
Upon looking into the laws of Indiana we find that the
Page 76 U. S. 122
proceedings in the case there were governed by "an act
regulating the granting of divorces, nullification of marriages,
and decrees and orders of court incidental thereto," approved May
13, 1852. The petition makes a case within the statute. It alleges
that the petitioner was a
bona fide resident of the county
where it was filed, and sets forth as causes for a divorce
abandonment from December, 1854, and cruel treatment, by the
husband. His answer denied the allegations of the petition. His
cross-petition prayed for a divorce, for the custody of the
children, and for provision for their support out of the separate
property of the wife described in the deed of settlement. The
decree sets forth as follows:
"The court find the marriage, abandonment, and residence of the
said Annie J. Cheever, and the births, and names, and ages of the
children, as alleged in the original petition, to be true, and the
residue of said petition to be untrue."
A divorce was thereupon adjudged in the usual form.
It would be a sufficient answer to the questions raised as to
the validity of this decree, that no such issue is made in the
pleadings. The answer of Mrs. Worcester is silent upon the subject.
Wilson, in his answer, says he "does not admit the validity or
regularity of said decree," or that "it is operative to affect his
rights," but, on the contrary, "reserves to himself the right to
impeach it if occasion should offer and require him to do so." This
language is too vague and indefinite to have any effect. If he
desired to assail the decree, he should have stated clearly the
grounds of objection upon which he proposed to rely. The averments
should have been such that issue could be taken upon them.
[
Footnote 6] He and his
co-defendant are precluded by the settled rules of equity
jurisprudence from entering upon such an inquiry. Their silence is
an admission, and they are bound by the implication. As, however,
the question has been fully argued upon both sides, and may arise
hereafter in further litigation between the parties, we deem it
proper to express our views upon the subject.
Page 76 U. S. 123
The petition laid the proper foundation for the subsequent
proceedings. It warranted the exercise of the authority which was
invoked. It contained all the requisite averments. The court was
the proper one before which to bring the case. It had jurisdiction
of the parties and the subject matter. The decree was valid and
effectual, according to the law and adjudications in Indiana.
[
Footnote 7]
The Constitution and laws of the United States give the decree
the same effect elsewhere which it had in Indiana. [
Footnote 8] "If a judgment is conclusive in a
state where it is rendered, it is equally conclusive everywhere" in
the courts of the United States. [
Footnote 9]
It is said the petitioner went to Indiana to procure the
divorce, and that she never resided there. The only question is as
to the reality of her new residence and of the change of domicil.
[
Footnote 10] That she did
reside in the county where the petition was filed is expressly
found by the decree. Whether this finding is conclusive or only
prima facie sufficient is a point on which the authorities
are not in harmony. [
Footnote
11] We do not deem it necessary to express any opinion upon the
point. The finding is clearly sufficient until overcome by adverse
testimony. None adequate to that result is found in the record.
Giving to what there is the fullest effect it only raises a
suspicion that the
animus manendi may have been
wanting.
It is insisted that Cheever never resided in Indiana; that the
domicil of the husband is the wife's, and that she cannot have a
different one from his. The converse of the latter
Page 76 U. S. 124
proposition is so well settled that it would be idle to discuss
it. The rule is that she may acquire a separate domicil whenever it
is necessary or proper that she should do so. The right springs
from the necessity for its exercise, and endures as long as the
necessity continues. [
Footnote
12] The proceeding for a divorce may be instituted where the
wife has her domicil. The place of the marriage, of the offense,
and the domicil of the husband are of no consequence. [
Footnote 13]
The statute of Indiana enacted that "the court, in decreeing a
divorce, shall make provision for the guardianship, custody, and
support, and education of the minor children of such marriage."
[
Footnote 14] That part of
the decree which relates to this subject has been already
sufficiently considered.
Barber v. Barber, [
Footnote 15] has an important bearing upon
the case under consideration. There a wife had obtained a divorce
a mensa et thoro, and an allowance of alimony, in the
state of New York. The husband afterwards removed to Wisconsin. To
enforce the payment of the alimony she sued him in equity in the
district court of the United States for that district. The court
was clothed with equity powers. The ground of federal jurisdiction
relied upon was the domicil of the husband and wife in different
states. The court decreed for the complainant. This Court, on
appeal, recognized the validity of the original decree, sustained
the jurisdiction, and affirmed the decree of the court below. This
is conclusive upon several of the most important points involved in
the case before us.
Decree reversed and the case remanded with directions to
enter a decree in conformity to this opinion.
[
Footnote 1]
Act of May 13, 1852.
[
Footnote 2]
Printed transcript of record, December Term 1869, No. 53, pp.
47, 53, 54
[
Footnote 3]
Colvin v. Currier, 22 Barbour 387;
Heatley v.
Thomas, 15 Vesey Jr. 596;
Bullpin v. Clarke, 17
id. 365;
Jaques v. Methodist Church, 17 Johnson
548;
North American Coal Company v. Dyett, 7 Paige 9;
Insurance Company v. Bay, 4 Comstock 9;
Gardner v.
Gardner, 22 Wendell 526;
Browning v. Coppage, 3 Bibb
37, 1 Story's Eq. § 64.
[
Footnote 4]
Sutphen v. Fowler, 9 Paige 280;
Massie v.
Watts, 6 Cranch 148,
10 U. S. 158;
Swann v. Fonnereau, 3 Vesey Jr. 44;
Portarlington v.
Soulby, 3 Mylne & Keene 104;
Monroe v. Douglass,
4 Sanford's Chancery 185;
Shattuck v. Cassidy, 3 Edwards'
Chancery 152; 1 Story's Eq. §§ 743, 744.
[
Footnote 5]
Pennington v.
Gibson, 16 How. 80.
[
Footnote 6]
8
White v. Hall, 12 Vesey 324.
[
Footnote 7]
Statute of 1852, § 33;
McQuigg v. McQuigg, 13 Ind. 294;
Noel v. Ewing, 9
id. 52;
Lewis v. Lewis,
ib., 105;
Rourke v. Rourke, 8
id. 430;
Tolen v. Tolen, 2 Blackford 407;
Wilcox v.
Wilcox, 10
id. 436.
[
Footnote 8]
Constitution, Art. 4, § 1; 1 Stat. at Large 122;
D'Arcy v.
Ketchum, 11 How. 175.
[
Footnote 9]
2 Story on the Constitution § 1313;
Christmas v.
Russell, 5 Wall. 302.
[
Footnote 10]
Case v. Clarke, 5 Mason 70;
Cooper's Lessee v.
Galbraith, 3 Washington C.C. 550;
McDonald
v. Smalley, 1 Pet. 620.
[
Footnote 11]
Noyes v. Butler, 6 Barbour S.C. 613;
Hall v.
Williams, 6 Pick, 239;
Mills v. Duryee, 2
Amer.Leading Cases 791, note.
[
Footnote 12]
2 Bishop on Marriage and Divorce 475.
[
Footnote 13]
Ditson v. Ditson, 4 R.I. 87.
[
Footnote 14]
Act 1852, § 21.
[
Footnote 15]
62 U. S. 21 How.
582.
