Polson v. Stewart

• Decision Date: 05 January 1897
• Citation: 167 Mass. 211,45 N.E. 737
• Parties: POLSON v. STEWART.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

167 Mass. 211

45 N.E. 737

POLSON v. STEWART.

Supreme Judicial Court of Massachusetts, Suffolk.

January 5, 1897

COUNSEL

Jabex Fos, for plaintiff.

George Upham, for defendant.

OPINION

HOLMES J.

This is a bill to enforce a covenant made by the defendant to his wife, the plaintiff's intestate, in North Carolina, to surrender all his marital rights in certain land of hers. The land is in Massachusetts. The parties to the covenant were domiciled in North Carolina. According to the bill, the wife took steps which, under the North Carolina statutes gave her the right to contract as a feme sole with her husband as well as with others, and afterwards released her dower in the defendant's lands. In consideration of this release, and to induce his wife to forbear suing for divorce for which she had just cause, and for other adequate considerations, the defendant executed the covenant. The defendant demurs.

The argument in support of the demurrer goes a little further than is open on the allegations of the bill. It suggests that the instrument which made the wife a "free trader," in the language of the statute, did not go into effect until after the execution of the release of dower and of the defendant's covenant. But the allegation is that the last-mentioned two deeds were executed after the wife became a free trader, as they probably were in fact, notwithstanding their bearing date earlier than the registration of the free trader instrument. We must assume that at the date of their dealings together the defendant and his wife had as large a freedom to contract together as the laws of their domicile could give them.

But it is said that the laws of the parties' domicile could not authorize a contract between them as to lands in Massachusetts. Obviously, this is not true. It is true that the laws of other states cannot render valid conveyances of property within our borders which our laws say are void, for the plain reason that we have exclusive power over the res. Ross v. Ross, 129 Mass. 243, 246; Hallgarten v. Oldham, 135 Mass. 1, 7, 8. But the same reason inverted establishes that the lex rei sitae cannot control personal covenants not purporting to be conveyances, between persons outside the jurisdiction, although concerning a thing within it. Whatever the covenant, the laws of North Carolina could subject the defendant's property to seizure on execution, and his person to imprisonment, for a failure to perform it. Therefore, on principle, the law of North Carolina determines the validity of the contract. Such precedents as there are, are on the same side. The most important intimations to the contrary which we have seen are a brief note in Story, Confl.Laws, § 436, and the doubts expressed in Mr. Dicey's very able and valuable book. Lord Cottenham stated and enforced the rule in the clearest way in Ex parte Pollard, 4 Deac. 27, 40, et seq.; Id., Mont. & C. 239, 250. So Lord Romilly, in Cood v. Cood, 33 Beav. 314, 322. So in Scotland, in a case like the present, where the contract enforced was the wife's. Findlater v. Seafield (Feb. 8, 1814) 17 Fac.Col. 553. See, also, Cuninghame v. Semple, 6 Mor.Dict. 4462; Ersk.Inst. bk. 3, tit. 2, § 40; Westl.Priv.Int.Law (3d Ed.) § 172; Ror.Int.St.Law (2d Ed.) 289.

If valid by the law of North Carolina, there is no reason why the contract should not be enforced here. The general principle is familiar. Without considering the argument addressed to us that such a contract would have been good in equity if made here (Holmes v. Winchester, 133 Mass. 140; Jones v. Clifton, 101 U.S. 225; Bean v. Patterson, 122 U.S. 496, 499, 7 Sup.Ct. 1298), we see no ground of policy for an exception. The statutory limits which have been found to the power of a wife to release dower (Mason v. Mason, 140 Mass. 63, 3 N.E. 19; Peaslee v. Peaslee, 147 Mass. 171, 181, 17 N.E. 506), do not prevent a husband from making a valid covenant that he will not claim marital rights with any person competent to receive a covenant from him (Charles v. Charles, 8 Grat. 486; Logan v. Birkett, 1 Mylne & K. 220; Marshall v. Beall, 6 How. 70). The competency of the wife to receive the covenant is established by the law of her domicile, and of the place of the contract. The laws of Massachusetts do not make it impossible for him specifically to perform his undertaking. He can give a release which will be good by Massachusetts law. If it be said that the rights of the administrator are only derivative from the wife, we agree, and we do not for a moment regard any one as privy to the contract except as representing the wife. But, if then it be asked whether she could have enforced the contract during her life, an answer in the affirmative is made easy by considering exactly what the defendant undertook to do. So far as occurs to us, he undertook three things: First, not to disturb his wife's enjoyment while she kept her property; second, to execute whatever instrument was necessary in order to release his right if she conveyed; and third, to claim no rights on her death, but to do whatever was necessary to clear the title from such rights then. All these things were as capable of performance in Massachusetts as they would have been in North Carolina. Indeed, all the purposes of the covenant could have been secured at once in the lifetime of the wife by a joint conveyance of the property to a trustee upon trusts properly limited.

It will be seen that the case does not raise the question as to what the common law and the presumed law of North Carolina would be as to a North Carolina contract calling for acts in Massachusetts, or concerning property in Massachusetts, which could not be done consistently with Massachusetts law.

With regard to the construction of the defendant's covenant we have no doubt. It is "to surrender, convey, and transfer to said Kitty T. Polson Stewart, Jr., and her heirs, all the rights of him, the said Henry Stewart, Jr., in and to the lands and property above described which he may have acquired by reason of the aforesaid marriage; and the said Kitty T. Polson Stewart, Jr., is to have the full and absolute control and possession of all of said property free and discharged of all the rights, claims, or demands of every nature whatsoever of the said Henry Stewart, Jr." Notwithstanding the decision of the majority in Rochon v. Lecatt, 2 Stew. (Ala.) 429, we think that it would be quibbling with the manifest intent to put an end to all claims of the defendant, if we were to distinguish between vested rights which had and those which had not yet become estates in the land, or between claims during the life of the wife and claims after her death. It is plain, too, that the words import a covenant for such further assurance as may be necessary to carry out the manifest object of the deed. See Marshall v. Beall, 6 How. 70; Ward v. Thompson, 6 Gill & J. 349; Hutchins v. Dixon, 11 Md. 29; Hamrico v. Laird, 10 Yerg. 222; Mason v. Deese, 30 Ga. 308; McLeod v. Board, 30 Tex. 238.

Objections are urged against the consideration. The instrument is alleged to have been a covenant. It is set forth, and mentions one dollar as the consideration. But the bill alleges others, to which we have referred. It is argued that one of them--forbearance to bring a well-founded suit for divorce--was illegal. The judgment of the majority in Merrill v. Peaslee, 146 Mass. 460, 463, 16 N.E. 271, expressly guarded itself against sanctioning such a notion, and decisions of the greatest weight referred to in that case show that such a consideration is both sufficient and legal. Newsome v. Newsome, L.R. 2 Prob. & Div. 306, 312; Wilson v. Wilson, 1 H.L.Cas. 538, 574; Besant v. Wood, 12 Ch.Div. 605, 622; Hart v. Hart, 18 Ch.Div. 670, 685; Adams v. Adams, 91 N.Y. 381; Sterling v. Sterling, 12 Ga. 201. Then it is said that the wife's agreement in bar of her dower was invalid, because it had not the certificate that she had been examined, etc., as required by the North Carolina statutes annexed to the bill. Whether it was invalid or not, the defendant was content with it, and accepted the execution of it as a consideration. This being so, it would be hard to say that it was not one, even if without legal effect. Whether void or not, it is alleged to have been performed; and, finally, if it was void, it was void on its face as matter of law, and the husband must be taken to have known it; so that the most that could be done would be to disregard it. If that were done, the other considerations would be sufficient. See Jones v. Waite, 5 Bing.N.C. 341, 351.

Demurrer overruled.

DISSENTING

FIELD C.J. (dissenting).

I cannot assent to the opinion of a majority of the court. By out law, husband and wife are under a general disability or incapacity to make contracts with each other. The decision in Whitney v. Closson, 138 Mass. 49, shows, I think that the contract sued on would not be enforced if the husband and wife had been domiciled in Massachusetts when it was made. As a conveyance made directly between husband and wife of an interest in Massachusetts land would be void although the parties were domiciled in North Carolina when it was made, and by the laws of North Carolina were authorized to make such a conveyance, so I think that a contract for such a conveyance between the same persons also would be void. It seems to me illogical to say that we will not permit a conveyance of Massachusetts land directly between husband and wife, wherever they may have their domicile, and yet say that they may make a contract to convey such land from one to the other, which our courts will enforce. It is possible to abandon the rule of lex rei sitae, but to keep it for conveyances of land and to abandon it for contracts to convey land seems to me...