Drake v. Glover , 30 Ala. 382 ( 1857 )

WALKER, J.

The established doctrine now is, that no State court takes judicial notice of the statute laws of a sister State. They must be proved as facts ; and this court can no more look outside’ of the bill of exceptions, to ascertain -what the statute laws of another State are, than it would to ascertain any otjier facts. — Story on Conflict of Laws, 527, § 637; Barnes v. Mobley, 21 Ala. 232; Inge v. Murphy, 10 Ala. 885; Richardson v. Williams, 2 Porter, 249. The sections of the Code of Louisiana, referred to in the bill of exceptions, aro*not set out; and we cannot look into the Code of Louisiana, for the purpose of ascertaining what those sections contain. In doing so, we should violate a principle of law well recognized in this court, and take judicial notice of what the statute laws of a sister State are.

It is unquestionably the law, that whatever title Mrs. Drake may have acquired in Louisiana, while she and her husband were domiciled in that State, would bo unimpaired by the change of the matrimonial domicile and the removal of the property to this State. — Doss v. Campbell, 19 Ala. 590. But the mode of conveying the property, after its removal, and the change of domicile to this State, must be governed by the laws of this State, and not by the laws of Louisiana. The lex loci contractus governs, “as to the nature, the obligation, and the interpretation-of a contract.” — Story on Conflict of Laws, 219, § 263; McDougald’s Adm’r v. Rutherford, at the present term. An-exception prevails, .as to stocks and other like property, owing its existence to, or regulated by peculiar local laws; but it is clear that the transfer in this State of any personal property, being in this State at the time, by parties domiciled in this State, is valid or invalid according as it may or may not conform to and consist with the laws of this State.’ — Story on Conflict of Laws, 314, § 363.

It follow's from what we have said, that the mode of transferring, and the validity of a transfer by Mrs. Drake, after she became domiciled, and had her property with her in the State of Alabama, is to be determined by the laws of this State, where the transfer is alleged to have been made, and not by the laws of Louisiana. From the three charges given by the court, we perceive that it acted upon the idea, that the laws of Louisiana did not prohibit the alienation of the property, but merely prescribed the mode of alienation. We, therefore, confine ourselves to the question, whether the mode of alienation and transfer, diroctedjju the Louisiana law, is obligatory in this State. As * ffiio transfer is to be governed by the laws of this State, it is competent for us to pass -upon the second and thi^d. charges, although we have not the Louisiana law*l^fore us.

As the separate estate of Mrs. Drake in the slave sued for accrued under the laws of another State, and is not a separate estate created by the statutes of our State, it is not governed, as to the mode of its transfer and conveyance, by section 1984 of the Code ; and therefore, it is not indispensable to the validity of a transfer of her title to the slave, that it should be conveyed in writing, jointly by,the husband and wife. — Gerald and Wife v. McKenzie, 27 Ala. 166; Friend v. Oliver, ib. 532; Hardy v. Boaz, 29 Ala. 168.

The second charge given asserts two distinct propositions : 1st, that if Mrs. Brake was present, and assented to the sale by Bainer, she ratified the sale, and was estop-ped from denying the authority of Bainer to sell; 2d, that if Mrs. Brake knew of the sale, and the execution of the bill of sale, and did not object to the same, she ratified the sale, and was estopped from denying the authority of Bainer to sell. The former is a correct legal proposition. The latter is incorrect. The mere fact that Mrs. Brake knew of an unauthorized sale of her property, and did not object, does not, of itself, amount to an estoppel. To constitute an estoppel by mere silence, the party upon whom it is sought to visit the estoppel must be present. The rule is, “that where one knowingly suffers another, in his presence, to purchase property, to which he has a claim or title, which he willfully conceals, he wall be deemed under such circumstances to have waived his claim, and will not afterwards be permitted to assert it against the purchaser or his privies.” The charge was clearly wrong, in assuming that the failure of Mrs. Brake to object to an unauthorized sale of her property, of which she knew, would estop her. Conceding that the rule applies to her, she could not be estopped, unless she was present, and being present omitted to object.

But we are of the opinion, that this doctrine of estoppel for a mere omission to assert one’s right, does not apply to the wife, where her husband makes an unauthorized sale of her property in her presence. The authorities to that effect seem clear and satisfactory, and it is the only doctrine which can be reconciled with the theory of the coercion of the husband’s presence. — McIntosh v. Smith, 2 La. Annual R. 756; Palmer v. Cross, 1 Smedes & Marsh. 48; Bank of the United States v. Lee, 13 Peters, 107; Jackson v. Hobhouse, 2 Mer. 482, bottom page 363. It is true that coverture is, as a general rule, no protection against the effect of silence, when it is a married woman’s duty to speak, in order to prevent an unauthor-izecl sale of bier property to an innocent person. — 1 Story’s Equity, 414, § 385; Fonblanque’s Equity, book 1, cb. 3, § 1, page 164; Savage v. Foster, 9 Mod. 35-38; Beckett v. Cordley, 1 Bro. Ch. R. 353, 358 ; 2 Sugden on Vend. 263. But we think it would be inconsistent with the view which the law itself takes of the conjugal relation, to require the wife to interpose against her husband, when in her presence he sells her property. If, however, it should appear that the silence of the wife was fraudulent, in fact, and not the result of marital restraint, she would be estopped. — Wilkes v. Fitzpatrick, 1 Humph. 54.

The third charge is obnoxious to the same objection, which we have already decided is applicable to the second. It makes the wife’s failure to object to a sale of which she knew, without regard to whether she was present or not, amount to an estoppel. Eor that reason, it is, in our opinion, erroneous.

The court having erred as above stated, the judgment must be reversed, unless it had been affirmatively shown that the party sustained no injury by the errors in the charges.' We cannot intend, under this rule, that if the Louisiana statutes had been set out in the bill of exceptions, they would have shown the absence of all injury from the charges. The presumption - is of injury where there is error.

The judgment of the court below is reversed, and the cause remanded.