Depas v. Mayo

• Decision Date: 31 March 1848
• Citation: 11 Mo. 314
• Parties: ISAAC DEPAS v. PEYTON R. MAYO AND WIFE.
• Court: Missouri Supreme Court

11 Mo. 314

ISAAC DEPAS

v.PEYTON R. MAYO AND WIFE.

Supreme Court of Missouri.

March Term, 1848.

APPEAL FROM ST. LOUIS CIRCUIT COURT.

HAMILTON, for Appellant.

1. It is conceded, that the matrimonial domicil of the parties was New Orleans, they having mutually intended and agreed to fix their residence there. But a change took place, and St. Louis afterwards became their actual domicil. 2. The rules which have been established in such cases, are as follows: The matrimonial domicil, governs as to all acquisition previous to the removal. But where there is a change of domicl, the law of the actual domicil will prevail, as to all future acquisitions of movable property. And, as to realty, the law of the place where it is situated. 3. The bill fails to show that by the laws of Louisiana, property thus acquired, by a change of personalty into realty, would not be held by the husband in his own right. The rights of the husband are not to be taken away by mere implication. 4. The bill fails to show what the respective rights of the parties are on a dissolution of the marriage. The presumption is, that the wife procured by the decree of the Parish Court, all that she was entitled to, under the laws of Louisiana. Clearly the court had jurisdiction over the subject, and could have rendered an effectual decree for the protection of the wife's interest in this property, if it had been regarded as any longer belonging to the community. The court will presume in favor of the legality of the decree. 5. It does not appear from the stating part of the bill, but that the defendant is the creditor partner of the concern, to an amount much larger than the whole sum paid for the lot purchased. 6. By the conversion, the personalty was changed into realty, and partook of the nature a new acquisition, within the second rule cited. 7. The decree of the court is erroneous. It does not order an account to be taken and stated of the parnership community, but simply directs the commissioner to ascertain the amount of the rents, and the increased value of the land, and then awards execution, under which the whole of the rents and profits may be collected.

BOGY, on same side.

1st. If a tacit contract be admissible at all, it is to be construed in the same way as if the law of the country, of the marriage, were inserted in it. §§ 157, 158, 159, p. 141, and following, and § 190, Story's Conflict of Laws, 2nd ed.; Saul v. Creditors, 17 Martin's R. 599; Decouche v. Savatier, 3 Johns. Ch. R. 190. 2nd. The extent of this tacit agreement depends upon the extent of the law. Laws affecting real estate, or real laws as they are called, have no extra-territorial force. Story's Conflict of Laws, § 21, pp. 20, 21; Bluchard v. Russell, 13 Mass. R. 4; Bank of Augusta v. Earle, 13 Peters, 584, 591.3rd. The doctrine of the common law, as applicable to immovable property, is the law of the place, rei sitae governs. § 454, Conflict of Laws, pp. 382, 383.4th. If the law of community is purely real, a change of domicil can have no effect on the rights of the parties. See the views of different points in Story's Conflict of Laws, § 160, pp. 143 to 187, inclusive, Gales v. Davis' Heirs, 4 Martin's R. 645, 649. 5th. Each State of the confederacy being sovereign, has the exclusive right to control the disposition of its soil. 6th. Personal property of an intestate must be distributed by the laws of the country of the domicil. 3 Cranch, 319. But as regards real property, it is an unquestionable principle of general law that the title to, and disposition of it, must be exclusively subject to the laws of the place where it is situated. Kerr v. Moore, 9 Wheat. 565; The United States v. Crosby, 7 Cranch, 115; Robinson v. Campbll, 3 Wheat. 212; McComick v. Sullivan, 10 Wheat. 192; Society for the Propagation of the Gospel v. Wheeler et al., 2 Gollison, 105; Clark v. Graham, 6 Wheat. 577; Thatcher v. Powell, 6 Wheat. 119; Jackson v. Chew, 12 Wheat. 153; Darby v. Mayer, 10 Wheat. 469.CROCKETT & BRIGGS, AND SPALDING & TIFFANY, for Appellees.

1. There is a mistake in the statement of the appellant. In the record, made a part of the bill, the appellant, Depas, was made a party, being summoned by the sheriff. A decree was pronounced of divorce, on 16th June, 1842. Afterwards, on 3rd July, 1844, the record states that “by consent, and in open court,” testimony was taken; and the entry is, “this cause was this day taken up by consent of the parties.

A. BODIN, Esq., for Plaintiff,

Z. LATOUR, Esq., for Defendant.

After hearing counsel, the court,” &c., and then follows the final decree from bonds of matrimony. So that it seems, not only that the writ was served, but the party complainant was prsent by counsel at the final hearing and decree. 2. The domicil of marriage was Louisiana. The complainant's counsel admits this, and the estate of the community, on the dissolution of it, is to go according to the laws of said domicil. Story's Conflict, §§ 170, 171, 186. 3. It is therefore claimed that even if the law of the matrimonial domicil does not govern as to the lot in question, yet the wife is to be considered as having an equity in the same, on the ground of the fraud. 4. If the general rule be that the law of the matrimonial domicil is to govern as to personalty, as the authorities seem to show conclusively, then it is contended that, in this case, this investment is to be considered as of personalty, and the lot itself personalty, as regards this action, not being an acquisition, but an investment. 5. And further, that the time of the residence in Missouri is not to be held as a domiciling in another country, but as an expedition, an adventure. The man brought up some merchandise--bought the lot--sold out his goods--and returned.

NAPTON, J.

This was a proceeding in chancery by Mayo and wife against Depas, to enable them to get the benefit of an alleged equitable interest in a lot of ground in the city of St. Louis. The facts stated in the bill are substantially as follows: Sarah S. Essex (now Mrs. Mayo), originally resided in Philadelphia, where she was married to Isaac Depas, of New Orleans. At the time of the marriage it was the design of the parties to make New Orleans their place of residence, and they accordingly proceeded to that city immediately after their marriage, and continued to reside there for several years. Both parties at the time of their marriage were destitute of property, but by their joint exertions they succeeded in accumulating a considerable estate. By the laws of Louisiana, it is stated, one-half of all the property acquired during the coverture belongs to the wife, and cannot be conveyed by the husband or otherwise disposed of, so as to defeat the wife's interest, nor is it subject to the husband's debts. In 1838, Depas and his wife removed to St. Louis, taking with them a considerable amount of money and property, acquired by their joint industry in New Orleans, as before stated, and soon after their arrival, Depas purchased with the money aforesaid a lot in the city of St. Louis, and took the title in his own name. The parties continued to reside in St. Louis for several years, and then returned to New Orleans. After their return to New Orleans Depas became intemperate in his habits, and was guilty of brutal conduct towards his wife, so that, in 1841, she was compelled to apply for a divorce in the courts of that State. The Parish Court of New Orleans, which had jurisdiction of this matter, directed a monthly alimony of sixty dollars during the pendency of the suit. Process was served on Depas on the 3rd July, 1841, and on the 9th July, 1844, a final decree was pronounced divorcing the parties. Depas never paid the alimony, but, to defraud his wife and prevent its collection, disposed of all his property, so as to place it beyond the reach of legal process.

Upon this statement of facts, the complainant, Mrs. Mayo, bases the following claims: 1. That New Orleans being the place of the matrimonial domicil, by the laws of Louisiana all estate acquired subsequent to the marriage, was held in community, and the complainant was entitled to one-half thereof, on the dissolution of...