Walling v. Christian & Craft Grocery Co.

Mabry, J.:

The assignments of error question the correctness of the order granting a temporary injunction and overruling the piea. The theory of the defense interposed by the plea, which had been filed when the order was made, is that Mrs. R. A. Walling had acquired by the Alabama decree mentioned therein the status of a free dealer, subject to be sued at law by complete and adequate remedies, and that this status accompanied her as a personal qualification to this jurisdiction. Some question was raised, it seems, as to the sufficiency of the certification, or the transcript of the record in the Alabama court, but waiving that, we consider as presented the question whether Mrs. Walling can claim in this jurisdiction the status of a feme sole to the extent accorded her under the Alabama statute by the decree of the chancery court in that State. It appears that the Alabama decree which Mrs. Walling invoked was made under Section 2731 of the Alabama Code of 1876, and this did not authorize her to be made a free dealer with general powers to contract as feme sole. This section has been declared by the Alabama court to be simply an enabling act— narrowly enabling — for the purpose of authorizing .a married woman to become a feme sole in reference to her statutory and other separate estate to the. extent mentioned in the statute, and no further. It seems that a strict construction has been placed on this statute, and it has been regarded as establishing an exception to the general law then in force in reference to the capacity of married women to deal with their separate property. Dreyfus v. Wolffe, 65 Ala. 496; Ashford v. Watkins, 70 Ala. 156; Cohen v. Wollner, Hirschberg & Co., 72 Ala. 233; Cook v. Meyer Bros., 73 Ala. 580; Falk v. Hecht, 75 Ala. 293; Hatcher v. Diggs, 76 Ala. 189; Parker v. Roswald, 78 Ala. 526. Conceding, as appears to be the ruling in the last case cited, that if Mrs. Walling had engaged in a mercantile business in Alabama after the rendition of the decree, and had bought goods, she could be sued at law for the value of the same, the question occurs whether this status obtained by her in Alabama can be insisted on in this State after her permanent domicile here and as to transactions had in this jurisdiction. In our opinion a negative answer must be given to this question. To avoid any misconception as to the extent of our ruling, it' is deemed proper to state that no question arises as to the validity or rights under any contract made by Mrs. Walling while she was a citizen of or in the State of Alabama, nor does it appear that she brought to this jurisdiction any property acquired by her under her Alabama status. It does appear that she acquired real property in this State after she moved here, and this property in part is the subject of the present litigation. So far as this character of property is concerned, it is the universal rule that the laws of the State where it is situated furnish the rules for its descent, alienation and transfer, the construction and validity of conveyances thereof, and the capacity of the parties to such contracts and conveyances, as well as their rights under the same. Thompson v. Kyle, 39 Fla. 582, 23 South. Rep. 12. If Mrs. Walling resided in Alabama and under the law of her domicile had the capacities of a femé sole, she would still have to' comply with the laws of this State in reference to contracts and conveyances of real property situated here. Story says (Conflict of Laws, §101) that “the capacity, state and condition of persons according to the law of their domicile will generally be regarded as to acts clone, rights acquired, and contracts made, in the place of their domicile, touching property situate therein. If these acts, rights and contracts have validity there, they will be held equally valid elsewhere. If invalid there, they will be held invalid elsewhere.” In recognition of this rule, marriages valid where celebrated or contracted are regarded as valid elsewhere without reference to the domicile of the forum where the question of their validity may arise. Contracts by married women, valid under the laws where made though void under the laws of another domicile, have been enforced! in the courts of the latter. Thus, a married woman resident in Kentucky was made a free dealer under the laws of that State and entered into a valid contract there; the courts of Tennessee enforced the contract against her though by the laws of the latter' Staté her contract would be invalid. Robinson v. Queen, 87 Tenn. 445. See, also, Milliken v. Pratt, 125 Mass. 374, S. C. 28 Am. Rep. 241; Hill v. Chase, 143 Mass. 129, 9 N. E. Rep. 30; Bell v. Packard, 69 Me. 105, S. C. 31 Am. Rep. 251; Bowles v. Field, 78 Fed. Rep. 742. It. was decided in Scudder v. Union National Bank, 91 U. S. 406, that matters bearing upon the execution, interpretation and validity of a contract are determined by the law of the place where it is made. Matters connected with its performance are regulated by the law prevailing at the place of performance. Matters respecting the remedy depend upon the law of the place where the suit is brought. See, also, Ruhe v. Buck, 124 Mo. 178, 27 S. W. Rep. 412; Bank of Louisiana v. Williams, 46 Miss. 618, S. C. 12 Am. Rep. 319. After a thorough examination of the authorities, Story concludes as follows (Section 103, Conflict of Laws,) : “Hence we may deduce, as a corollary, that in regard to questions of minority or majority, competency or incompetency to marry, incapacities incident to coverture, guardianship, emancipation and other personal qualities and disabilities, the la.w of the domicile of birth, or the law of any other acquired and fixed domicile, is not generally to govern, but the lex loci contractus aut actus, the law of the place where the contract is made or the act done. Therefore a person who is a minor until he is of the age of twenty-five years by the law of his domicile, and incapable as such, of making a valid contract there, versej never-, theless in another country, where he would be of age at twenty-one years, generally make a valid contract a t that age, even a contract of marriage.” The reasoning of the court in the following cases sustains this view: Polydore v. Prince, Ware (U. S. Dist. Ct.) 402; Commonwealth v. Green, 17 Mass. 514; Saul v. His Creditors, 5 Martin (n. s.), 569, S. C. 16 Am. Dec. 212; Thompson v. Ketcham, 8 Johnson 190, S. C. 5 Am. Dec. 332; Pearl v. Hansborough, 9 Humph. 426. The Alabama statute (Section 2731, Code of 1876,) was simply an enabling-provision by which a married woman, in compliance with its provisions, could b°e made a femé sole as to her separate statutory estate in that State to the extent authorized by the statute. The chancellor in. ascertaining that she was entitled to the excepional and enabling benefits of the statute did not exercise any general powers belonging to a court of chancery but was limited in his powers to the grant of the statute. The effect of his finding under the statute was simply to invest the married woman in that jurisdiction with the exceptional status under the general laws of the State, of dealing with separate estate which she possessed as a feme sole to the extent provided and no- further. We have no question before us as to the validity of any contract made or act done by the marrired woman under such status in Alabama and our judgment is that Mrs. Walling can not avail herself of the decree under the Alabama statute as to acquisition of property and transactions in this State after she became a citizen here.. There are decisions on questions so analogous to the one we are considering as to make them apparently conflict with the conclusion we reach. We refer to the decisions holding that an illigitimate child, made legitimate by the subsequent marriage of its parents according to the laws of the country of the marriage and parental domicile, is thereafter legitimate elsewhere. Miller v. Miller, 91 N. Y. 315, S. C. 43 Am. Rep. 669, and the legal adoption of a child with capacity to inherit in one jurisdiction can likewise inherit in another jurisdiction where similar laws authorizing the adoption of children prevail. Ross v. Ross, 129 Mass. 243, S. C. 37 Am. Rep. 321. But there is a distinction to’ be observed in dealing with the questions; it is pointed out in the case last cited. It is there said: “the capacity or qualification to inherit or succeed to property, which is an incident of the status or condition, requiring no' action to give it effect, is to be distinguished from the capacity or competency to enter into contracts that confer rights upon others. A capacity to take and have differs from a capacity to do and contract; in short, a capacit)' of holding from a capacity to act. Generally speaking, the validity of a personal contract, even as regards the capacity of the person to make it, as in the case of a married woman or an infant, is to- be determined by the law of the State in which it is made.”

We have considered the quesuon as presented by counsel, but another view has suggested itself which we mention without a determination of it. The organic law provides that a married woman’s separate real and personal property may be charged in equity and sold, or the uses, rents and profits thereof sequestered for certain designated purposes. Article 11, Section 2, Constitution 1885; Halle v. Einstein, 34 Fla. 589, 16 South. Rep. 554. Does the making a married woman a free dealer, even in this jurisdiction, oust the court of chancery of the jurisdiction conferred by the constitution?

The bill clearly authorized the chancellor to grant the temporary injunction, and as there was nothing at the time before the court to' overcome it but the plea, which we decide presented no defense, there was no error in the orders granting the injunction and overruling the plea.

The remaining question presented relates to the ruling of the court denying the motion to dissolve the injunction. The answer of defendants had then been filed, and it is claimed that all the equities of the bill were met. From the conclusion already reached, it follows that all that part of the answer and defense relating to- the status of a free dealer claimed for Mrs. Walling under the' Alabama decree must be entirely disregarded. Mrs. Walling was a femé covert in this State engaged in a mercantile business at the time she bought goods from appellees and when the bill was filed against her. It is charged that the husband did not join his wife, R. A. Walling, in the execution of the bills of sale and deed, and the answer admits that they were executed as alleged. Copies were attached, to the bill as parts thereof, and from these it appears that Mrs. Walling, designating herself as a free dealer, alone executed them. One bill of sale was executed to- H. H. Ratliff & Co., for the entire stock of merchandise, and there is nothing connected with it showing the concurrence of the husband in the sale. In this State the husband and wife must join in all sales, transfers and conveyances of the property of the wife. Rev. Stats. §2072. In reference to personal property the statute should be liberally construed in giving effect to the transfers of the wife. Tunno v. Robert, 16 Fla. 738; Ballard v. Lippman Bros., 32 Fla. 481, 14 South. Rep. 154. The case is not here upon final hearing and it is not necessary to- determine the validity of the sale to Ratliff & Co., on account of the non-joinder of the husband therein, though upon the pleadings it appears the statute has not been complied with. It is stated in the answer that Ratliff bought the entire stock of goods from Mrs. Walling, and paid her cash one hundred and sixty dollars more than she owed him. She was at the time embarrassed with debts and threatened with suits by her creditors. We have condensed the answer in the statement given, but taken as an entirety, it is apparent that Ratliff knew when he purchased the stock of goods that Mrs. Walling was insolvent and that she was then disposing of all her property in order that it might not be reached by pressing creditors. Under such circumstances he should not have bought more than was necessary for his own protection. Christian v. Greenwood, 23 Ark. 258, S. C. 79, Am. Dec. 104; Meyberg v. Jacobs, 40 Mo. App. 128; Montgomery, Dryer & Co. v. Bayliss, 96 Ala. 342, 11 South. Rep. 198; Oppenheimer v. Guckenheimer, 39 Fla. 617, 23 South. Rep. 9.

Under our statute a married woman can sell her real property provided her husband join in the sale and con-veyance, but in order to render such sale and conveyance effectual to pass title, she must acknowledge before some officer authorized to take acknowledgments of deeds, separately and apart from her husband, that she executed the same freely and voluntarily and without compulsion, constraint, apprehension or fear of or from her husband, and the officer’s certificate must set forth all such facts. Sections 1956 and 1958, Revised Statutes. Mrs. Walling attempted to deed her property direct to her husband, claiming to act as a free dealer when she was invested with no such capacity, and her' deed was not acknowledged as required by statute to make the deed effective. If it be conceded that she could deed property direct to her husband, which we do not decide, still her deed is ineffective because not acknowledged as imperatively required by the statute. Carn v. Haisley, 22 Fla. 317.

Without considering the sufficiency of the answer in other respects to overcome the case made in the bill, we think the court did not err in refusing to dissolve the injunction.

Upon consideration of the questions presented we are of the opinion that the orders made were correct, and affirm the action of the court. Ordered accordingly.