Barrett v. Failing

• Decision Date: 05 May 1884
• Citation: 4 S.Ct. 598,28 L.Ed. 505,111 U.S. 523
• Parties: BARRETT v. FAILING and Wife. 1
• Court: U.S. Supreme Court

111 U.S. 523

4 S.Ct. 598

28 L.Ed. 505

BARRETT v. FAILING and Wife.¹

May 5, 1884.

W. W. Chapman, for appellant.

J. N. Dolph, for appellees.

GRAY, J.

This is a bill in equity filed in the circuit court of the United States for the district of Oregon by Mary E. Barrett, a citizen and resident of the state of California, against Charles D. Failing and Xarifa J. Failing, his wife, citizens and residents of the state of Oregon. The bill alleged that on September 25, 1866, the plaintiff was, and for more than two years theretofore had been, the wife of Charles Barrett, and was a citizen and resident of the state of California; that on that day she commenced a suit for divorce against him for his misconduct in a district court of the state of California for the Fifteenth judicial district, that court having jurisdiction thereof, and being authorized to grant divorces according to and by virtue of the laws of that state; that he was duly serv d with process, and appeared and made defense; and that on April 18, 1870, the plaintiff being still a citizen of that state, that court rendered a decree in her favor, dissolving the bond of matrimony between him and her. The bill further alleged that, at the time of the commencement of that suit, Charles Barrett was not the owner of any real estate in the state of California, but was the owner in fee-simple of certain land (particularly described) in Portland, in the state of Oregon; that on February 4, 1868, he fraudulently conveyed this land to his daughter, the female defendant, without consideration, and with intent to defraud the plaintiff of her just rights in it, and for the purpose of preventing her from asserting her claim thereto or interest therein; that, at the time of the commencement of the suit for divorce, the plaintiff did not know that he was the owner of this land; that he died in Oregon in July, 1870; and that by the laws of the state of Oregon, and under and by virtue of the decree of divorce, the plaintiff became and was entitled to one-third of this land. The bill prayed for a decree that the plaintiff was the owner in fee-simple of one-third of this land, and that the defendants held it in trust for her, and for a conveyance, a partition, an account of rents and profits, and further relief. The defendants filed a general demurrer to the bill, which was sustained by the circuit court, and the bill dismissed. See 6 Sawy. 473; S. C. 3 Fed. Rep. 471. The plaintiff appealed to this court.

It is not doubted that the decree of divorce from the bond of matrimony, obtained by the plaintiff in California, in a court having jurisdiction to grant it, and after the husband had appeared and made defense, bound both parties and determined their status. The question considered by the court below and argued in this court is whether, by virtue of that decree, and under the law of Oregon, the wife is entitled to one-third of the husband's land in Oregon. Unless otherwise provided by local law, a decree of divorce by a court having jurisdiction of the cause and of the parties, dissolving the bond of matrimony, puts an end to all obligations of either party to the other, and to any right which either has acquired by the marriage in the other's property, except so far as the court granting the divorce, in the exercise of an authority vested in it by the legislature, orders property to be transferred, or alimony to be paid by one party to the other. In estimating and awarding the amount of alimony or property to be so paid or transferred, the court of divorce takes into consideration all the circumstances of the case, including the property and means of support of either party; and the order operates in personam, by compelling the defendant to pay the alimony or to convey the property accordingly, and does not of itself transfer any title in real estate, unless allowed that effect by the law of the place in which the real estate is situated.

Accordingly, it has been generally held that a valid divorce from the bond of matrimony, for the fault of either party, cuts off the wife's right of dower, and the husband's tenancy by the curtesy, unless expressly or impliedly preserved by statute. Barber v. Root, 10 Mass. 260; Hood v. Hood, 110 Mass. 463; Rice v. Lumley, 10 Ohio St. 596; Lamkin v. Knapp, 20 Ohio St. 454; Gould v. Crow, 57 Mo. 200; 4 Kent, Comm. 54; 2 Bish. Mar. & Div. (6th Ed.) §§ 706, 712, and cases cited. In each of the Massachusetts cases just referred to, the divorce was obtained in another state. The ground of the decision of the court of appeals of New York in Wait v. Wait, 4 N. Y. 95, by which a wife was held not to be deprived of her right of dower in her husband's real estate by a divorce from the bond of matrimony for his fault, was that the legislature of New York, by expressly enacting that 'in case of divorce dissolving the marriage contract for the misconduct of the wi e, she shall not be endowed,' had manifested an intention that she should retain her right of dower in case of a divorce for the misconduct of the husband. See, also, Reynolds v. Reynolds, 24 Wend. 193. The decisions of the supreme court of Pennsylvania in Colvin v. Reed, 55 Pa. St. 375, and in Reel v. Elder, 62 Pa. St. 308, holding that a wife was not barred of her dower in land in Pennsylvania by a divorce obtained by her husband in another state, proceeded upon the ground that, in the view of that court, the court which granted the divorce had no jurisdiction over the wife. And see Cheely v. Clayton, 110 U. S. 701; S. C. ante, 328.

Whether a statute of one state securing or denying the right of dower in case of divorce extends to a divorce in a court of another state, having jurisdiction of the cause and of the parties, depends very much upon the terms of the statute, and upon its interpretation by the courts of the state by the legislature of which it is passed, and in which the land is situated. In Mansfield v. McIntyre, 10 Ohio, 27, it was held that a statute of Ohio, which provided that in case of divorce for the fault of the wife she should be barred of her dower, was inapplicable to a divorce obtained by the husband in another state; and the wife was allowed to recover dower upon grounds hardly to be reconciled with the later cases in Ohio and elsewhere, as shown by the authorities before referred to. In Harding v. Alden, 9 Greenl. 140, a wife who had obtained a divorce in another state recovered dower in Maine under a statute which, upon divorce for adultery of the husband, directed 'her dower to be assigned to her in the lands of her husband in the same manner as if such husband was actually dead;' but the point was not argued, and in the case stated by the parties it was conceded that the demandant was entitled to judgment if she had been legally divorced. The statute of Missouri, which was said in Gould v. Crow, 57 Mo....