Dulin v. McCaw.
| Decision Date | 18 December 1894 |
| Citation | 39 W.Va. 721 |
| Court | West Virginia Supreme Court |
| Parties | Dulin v. McCaw. |
The phrase "in rem11in the sixteenth section of chapter 60 of the Code of 1891 means "quasi in rem," and the suit is inter partes.
An affidavit for an attachment under section 1 of chapter 106 of the Code, which omits the phrase "at tin; least," is not in substantial compliance with the terms of the statute, the phrase being neither superfluous nor insignificant. See Aitmeyer v. Caulfield, 37 YY. Va. 487 (17 3. E. Rep. 409).
The right to move to quash an attachment on the ground of an insufficient affidavit is not under section 19 of chapter 106 waived by appearance and filing an answer.
The separate personal estate of a non-resident married woman may be proceeded against by suit in equity with order of attachment in the Circuit Court of the county, in which her separate personal estate is found.
The law of the place where the suit is brought governs the remedy. This includes the mode of proceeding, the form of the judgment or decree and the modes of carrying them into execution.
The extent, to which a married woman may bind herself or her separate personal estate, is prima facie determined by the law of the state, in which the contract is made, it being also the place of her domicile.
Leonard & Archer for appellant cited Code, c. 106, s. 1; 37 W. Va 847: 18 S. E. Rep. 758; Acts, 1891, c. 109, s. 12, 16.
This is a suit in equity by foreign attachment brought in the Circuit Court of Wirt county on the 26th day of March,
91 1892, by plaintiff, B. S. Dulin, against Mrs. M. G. McCaw, a married woman residing in the state of Pennsylvania, but owning separate property situate in the county of Wirt. The attachment was issued and levied on certain personal property, oil-boring tools, etc.; and, plaintiff's bill being filed, defendant appeared and demurred thereto, which demurrer the court overruled, and on her motion on 20th October, 1892, the cause was continued, and she was given thirty days in which to fife her answer.
On the 31st day of March, 1893, the defendant moved to quash the order of attachment for insufficiency of the affidavit, and next filed her answer to plaintiff's bill, and plaintiff replied generally; and on ihe 7th day of April, 1893, the court entered a final decree, overruling the motion to dissolve the attachment, and entering a decree personal in form against defendant, from which this appeal is taken. Four errors are assigned: (1) ft is a personal decree against a married woman. (2) It does not point out which part of her separate estate is sought to be subjected or charged with the payment of plaintiff's account. (3) It overrules defendant's demurrer. (4) It overrules defendant's motion to quash the attachment,
That the affidavit, on which the attachment was sued out, is insufficient, has been already decided in the cases of Altmyer v. Caulfield, 37 W. Va 847 (17 8. E. Rep. 409) and Grim v. Harmon, 38 W. Va. 596 (18 S. E. Rep! 753) see, also, Reed v. McCloud, 38 W. Va. 701, 703 (18 S. E. Rep. 924) and the motion to quash it should have been sustained. The appearance of defendant and the passing by of the attachment, and the entering of her demurrer to the bill and the filing of her answer had the effect of waiving any defect in the taking or execution of the order of publication; for she thereby submitted herself to the jurisdiction of the court; but it was not a waiver of her right to contest plaintiff's right to sue out the attachment, or to move to quash it for an insufficient affidavit, for the attachment is now used for other purposes of great importance to both the parties and to others interested, besides that of mesne process, to institute the suit and give the court jurisdiction, to that extent, of the cause. And this, I think, is the fair construction of our statute. See section 19 and section 23 of chapter 106 of the Code.
If defendant had first moved to quash the attachment and stopped at that point, the court in no event would have had jurisdiction of her person; but the demurrer and answer put her personally within the power of the court to pronounce any proper decree. I think the bill does set out sufficiently a good cause of action, viz. a debt created by defendant for the wages of plaintiff, as a laborer, in drilling for a certain time on an oil well of defendant, etc., and that the Circuit Court was right in overruling the demurrer.
The suit was instituted when chapter 66, as it is in the Code of 1891, was in force. The first part of section 16 is as follows: "A claim against the separate estate of a married woman for the payment of which she has charged the same shall be enforced only in a court of equity in remand not in 'personam." By the custom of London, which can be continuously traced back beyond the Norman Conquest (1066) a wife might carry on a trade, and in reference thereto could sue and be sued, as though she were a single woman. Langham v. Bewett, Cro. Car. 68; Beard v. Webb, 2 Bos. & P. 98; 1 Selw. X. P. 227; Bing. Inf. 260; Schouler. Hush. & Wife, § 89. Under the feudal system, her existence as the owner in fee of rea' estate was in many important particulars recognized and regarded; but as a freeholder she was, after the husband became tenant by the curtesy initiate, completely absorbed into the existence of her husband. About a century ago the court of chancery began to recognize her separate existence as the owner of property, and to regard her in a way as a feme sole and as such the owner of her own property with its incident of her right to dispose of it, when not expressly restrained; and because it was her property, it was chargeable with her debts as one of the incidents of property in general, and her creditors could make her pay them in a court of equity by a kind of equitable levy. By means of its exclusive power over trusts and the specific performance of contracts it was supposed to need no statute to enable such court to put it out of reach of the husband's creditors and beyond its control. To what end should she receive it if it is the property of the husband the next moment? Tyrrell v. Hope, 2 Atk. 561.
At this stage our court of chancery took up and applied the doctrine of a married woman's separate estate. See West v. West (1825) 3 Rand. (Va.) 373; Vizonneau v. Pegram (1830) 2 Leigh, 183; Woodson v. Perkins (1849) 5 Gratt. 845; Perm v. Whitehead (1867) 17 Gratt. 503. See Radford v. Carwile (1879) 13 W. Va. 572, where there is a full review of the cases, and a learned discussion of the subject, by Judge Green. Thus, as to her separate property, she was regarded, sub modo, as a feme sole; that the jus disponendi and the liability of her separate estate to pay all her debts incurred during coverture both followed as incidents of such ownership, only to be restrained or taken away by express words or intent made equally clear and manifest.
Our first statute dealing with the separate property and rights of married women was taken from the New York statutes, and is found as chapter 66 of the Code of West Virginia of 1868 (page 417) ami became the law on and after the 1st day of April, 1869. The first and fourth sections dealt with the equitable separate estate as it then existed. It enacted that it should remain her sole and separate property, as if she were a single woman, ami should in no way be subject to the control of her husband, or be liable for his debts. It evidently contemplated the speedy extinguishment of such equitable separate estates and made all that came into existence after the 1st day of April, 1869, statutory; making it her sole and separate property, as if she were a single woman, subject to but one restraint, that she could not sell and convey her real estate without her husband joining in the deed or writing, unless she was living separate and apart from her husband and applying it to women married after the 1st day of April, 1869, and to all property accruing after that date to women already married. If the action concerned her separate estate, she could sue and be sued as a feme sole, without joining her husband. In short, she owned with the powers of a feme sole, and could sue and be sued in relation thereto as a feme sole.
To this condition chapter 66 has substantially been brought by amendment and re-enactmen: by the act taking effect on the 16th February, 1898, and the act of 24th February, 1893 (see chapter 3, p. 6, and chapter 43, p. 157, Acts 1893) except that section 12, making her earnings her sole and separate property, is taken from section 14, c. 109, Acts 1891, now-found in the present Code (Ed. 1891) as section 14 of chapter 66. But when this suit was brought, as we have seen, section 16, c. 66, Code 1891, was the law, which says that the claim agairst her separate estate shall be enforced only in a court of equity, in rem and not in personam. In what sense is the term "in rem" here used? We generally turn to courts of admiralty for examples of proceedings and judgments in rem, in the proper sense; for a suit in admiralty to enforce a maritime lien is not an action against any particular person to compel him to do or forbear something, but a claim against all mankind, a suit in rem asserting the claim of the libellant to the thing as against all the world a method of procedure against the thing resorted to in that court to enforce a right in the thing, called a "maritime lien." It constitutes no incumbrance on the vessel, but becomes one only by virtue of an actual attachment. See. 2 Jones, Liens, § 1676 et seq. Whenever the debt for materials etc. is by law no matter what law or by what contrrct a lien on the vessel, then the vessel may be proceeded against in rem. and...
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