Reel v. Elder

The opinion of the court was delivered,

by Sharswood, J.

The only assignments of error which we will consider are the 2d, 3d and 4th. Those which remain are so clearly contrary to the rules of this court (6 Harris 578), that we must dismiss them on that ground. Fortunately, however, no injury results to the plaintiff in error, for the only questions which arise on the record are presented in the assignments which are well made.

The first of these questions is as to the effect of the divorce d vinculo matrimonii decreed by the Circuit Court of Montgomery county, Tennessee. The court below instructed the jury as follows : “We are of the opinion that the divorce decreed by the court of Tennessee effectually destroyed the marriage contract between John and Amelia Elder.” It is probable that the learned judge would not have so held, if, at the time of the trial below, Colvin v. Reed, 5 P. F. Smith 375, had been reported, or the decision brought to his notice. That case rules this. It settles that the injured party in the marriage relation must seek redress in the forum of the defendant, unless where such defendant has removed from what was before the common domicil of both. “ In a proceeding to dissolve a marriage,” says Agnew, J., “ the parties stand upon a level of rights; when the injured party seeks a new domicil, and the domicils are, therefore, actually different, there is no greater reason why the husband’s new domicil should prevail over the wife’s than that hers should prevail over his. In this aspect, justice requires that neither should draw the other within the folds of a foreign jurisdiction.” The rule thus established is so reasonable and fair that it must- commend itself to every man’s innate sense of justice; for surely it needs no argument to prove that no one who has not shut himself out by his own voluntary act of flight from justice should be condemned without a hearing or an opportunity to be heard. Nor did the evidence given of the notice of the pendency of the proceeding, admitting that it was served on the plaintiff, make any difference; for, in the language of the opinion in Colvin v. Reed, “ back of it lies the want of power of the distant state to subject her to its jurisdiction.” Clearly, when it is once determined that a court has not jurisdiction, notice, or even process duly served, cannot give vitality to the judgment it may pronounce. It is null and void, at least, as to any extraterritorial effect. Nor can it alter the case that the title to the land in which the plaintiff claimed her dower, did not vest in John Elder until after the decree was pronounced. At the time it did so vest the plaintiff was his lawful wife, and entitled to her dower after his death, in any lands of which he might be seised at any time during the coverture.

■ The remaining questions arise from the following language of the charge specified in the 2d assignment of error: “We are of the opinion that, independent of the divorce, the plaintiff, by her course of conduct, is precluded from recovering dower in the present case, and your verdict should be in favor of the defendant.” This instruction took every question of fact from the jury. In this, we think, there was error. Setting aside the Tennessee record, which in this part of his charge the judge excludes from consideration, so far from there being any conclusive evidence, which would justify the court in withdrawing the case from the jury, it was all oral testimony, depending not only on the credit to be given to the witnesses, but on the construction to be put on their language. However clear and indisputable may be the proof when it depends upon oral testimony, it is nevertheless the province of the jury to decide, under instructions from the court, a< to the law applicable to the facts, and subject to the salutary power of the court to award a new trial if they should deem tht. verdict contrary to the weight of the evidence.

But assuming the facts in evidence as all proved, we think thv instruction would still be erroneous. It could only have beet., based upon one of two assumptions of law: either that the adui • tery proved to have been committed by the plaintiff was a leg<u bar to her action of dower; or that she was equitably estopped b / her acts or declarations from setting up her claim against tho defendant.

At common law adultery was no bar of dower; for, says Lord Coke, “ It is necessary that the marriage do continue, for if that be dissolved, the dower ceases, ubi nullum matrimonium, ibi nulla dos. But this is to be understood where the husband and wife are divorced á vinculo matrimonii, as in case of precontract, consanguinity, affinity, &c., and not a mensa et thoro, only for adultery:" Co. Litt. 32, a; 2 West. 435; Sir William Grant in Seagrave v. Seagrave, 13 Vesey 443; Bryan v. Bachseller, 6 Rhode island 546. But the law was changed in this respect by the Statute of West-minister, 13 Edw. 1, st. 1. c. 34 (Rob. Dig. 188), by which it was provided, “ that if a wife willingly leave her husband and go away and continue with her avouterer, she shall be barred for ever of action to demand her dower that she ought to have of her husband’s lands, if she be convicted thereupon, except that her husband willingly, and without coercion of the church, reconcile her and suffer her to dwell with him; in which case she shall be restored to action.” As well by the express words of this statute as the uniform construction put upon it by the courts, elopement, or, perhaps, to speak more accurately, a voluntary separation, or departure by the wife from her husband, as well as adultery, is necessary to make the bar complete: Co. Litt. 32, b; 2 Inst. 435. It is true that this elopement need not be with the adulterer, for even where there has been a voluntary separation by mutual agreement the statute applies: Hethrington v. Graham, 6 Bing. 135. It is still necessary, however, that she should have separated herself from him sponte — willingly. The provision of the statute is comprehended shortly, as Lord Coke tells us, in two hexameters:

Sponte virum mulier fugiens et adultera facta,

Dote sua careat, nisi sponsi sponte retracta.

Green v. Harvey, Roll. Abr. 680; Bacon’s Abr., tit. Dower, F; Stegall v. Stegall, 2 Brock. 259; Cogswell v. Tibbetts, 3 New Hamp. 41; Shaffer v. Richardson, 27 Ind. 122; Walter v. Jordan, 13 Iredell 361; Bell v. Nealy, 1 Bailey (S. C.) 312. Now there was not only no evidence that the plaintiff had willingly left her husband, but the proof was direct, positive, and uncontradicted, that he had deserted her. He did not request her to go with him, nor even inform her of his intention, He left her clandestinely, on the false pretence that he was going a-gunning, and was absent for several years. His own crime of unfaithfulness to his marriage vows exposed her to seduction, and that she fell was as much his fault as hers. The industry and zeal of the plaintiff’s counsel has found a case in point, decided in the Common Pleas of Upper Canada (Graham v. Law, 6 Jones 310); but it required no authority to sustain so plain a position. This view renders it unnecessary to consider the effect of the evidence of final reconciliation between John Elder and the plaintiff, as it only could become important if the dower had been barred by force of the statute.

At the time, then, of the execution of the deed to the defendant for the land, the plaintiff was the lawful wife of John Elder, and had done nothing to bar her action of dower. Was there evidence of anything which ought to work as an equitable estoppel to prevent her maintaining her claim against the defendant ? The principle of equitable estoppel is well stated by Lord Chief Justice Denman, in Pickard v. Sears, 6 Ad. & Ell. 469, that “ When one by his words or conduct wilfully causes another to believe in the existence of a certain state of things and induces him to act on that belief, so as to alter his own previous position, the former is concluded from averring against the latter a different state of things as existing at the same time:” Commonwealth v. Moltz, 10 Barr 527. “Estoppels,” says Woodward, J., “operate only between parties and privies, and the party who pleads an estoppel must be one who was adversely affected by the act which constitutes the estoppel:” Cuttle v. Brockway, 8 Casey 49; Eldred v. Haslett, Administrator, 9 Id. 307. We must, therefore, confine our consideration of the acts and declarations of the plaintiff to such as" had taken place prior to the conveyance to the defendant. We pass by the question, whether some evidence should not have been adduced to show that they were known to him and influenced his conduct. These facts were simply that the plaintiff had been living in'adultery with, and had a child by, a man named Pickel, and that they passed as man and wife. This is the extent of the 'testimony of Shaeffer, the only witness who speaks as to a .period.prior to the deed. “I never heard them say they were married or not married,” says he. Barbara Britenbaugh testifies, indeed “she (the plaintiff) said they were married; they said they had a certificate of marriage. I only heard her say she had a certificate of marriage; said this when she first came.” She first came to Campbellstown in the last of March or beginning of April, 1856, which was the only place where the witness knew them. This was after the date of the deed, which was February 2d 1856. These subsequent declarations could not estop the plaintiff ; for, in the nature of things, they could not have influenced the defendant in his purchase, and d fortiori, the proceedings before Justice Reed can have no such effect, for that proceeding was commenced as late as September 29th 1856. Upon the testimony,

then, as returned with'this bill of exceptions, it does not appear that there was any evidence to submit to the jury which ought to operate as an estoppel. That the defendant was a bonfi fide purchaser without notice, sufficiently appears, and it is most probable that he was deceived into the belief that the woman with whom John Elder was then living, and who joined in the deed, was his lawful wife; but we see no evidence in the cause that any act or declaration of the plaintiff contributed to produce that deception. That it is no defence to an action of dower that the defendant is a bona, fide purchaser for value without notice, is a point well settled by the authorities: 2 Scribner on Dower 29, and the cases there cited.

Judgment reversed, and venire facias de novo awarded.