Dulin v. Mccaw

CourtSupreme Court of West Virginia
Writing for the CourtHOLT
Citation39 W.Va. 721,20 S.E. 681
Decision Date18 December 1894
PartiesDULIN. v. McCAW.

20 S.E. 681
39 W.Va.
721

DULIN.
v.
McCAW.

Supreme Court of Appeals of West Virginia.

Dec. 18, 1894.


Attachment Affidavit — Sufficiency — Claim against Wife's Property — Venue—Conflict of Laws—Liability of Married Woman.

1. The phrase "in rem, " in the sixteenth section of chapter 66 of the Code of 1891, means "quasi in rem, " and the suit is inter partes.

[20 S.E. 682]

2. An affidavit for an attachment under section 1 of chapter 106 of the Code, which omits the phrase "at the least, " is not in substantial compliance with the terms of the statute, the phrase being neither superfluous nor insignificant. See Altmeyer v. Caulfield, 17 S. E. 409, 37 W. Va. 847.

3. 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.

4. The separate personal estate of a nonresident 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.

5. 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.

6. 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.

(Syllabus by the Court.)

Appeal from circuit court, Wirt county.

BiU by B. S. Dulin against Mrs. M. G. McCaw. Decree for plaintiff, and defendant appeals. Modified.

Leonard & Archer, for appellant.

HOLT, J. This is a suit in equity, by foreign attachment, brought in the circuit court of Wirt county on the 26th day of March, 1892, by plaintiff, B. S. Dulin, against Mrs. M. G. McCaw, a married woman residing in the state of Pennsylvania, but as 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 30 days in which to file her answer. On the 31st day of March, 1893, 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 the 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. Pour errors are assigned: (1) Because it 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) Because it overrules defendant's demurrer. (4) Because 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 Altmeyer v. Caulfield, 37 W. Va. 847, 17 S. E. 409, and Crim v. Harmon, 38 W. Va. 596, 18 S. E. 753 (see, also, Reed v. McCloud, 38 W. Va. 701, 703, 18 S. E. 924), and the motion to quash it should have been sustained. The appearance of defendant, and passing by the attachment, and entering her demurrer to the bill and filing 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 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 60. 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 rem and not in personam." By the custom of London, which can be continuously traced back beyond the Norman Conquest (1006), 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. 08; Beard v. Webb, 2 Bos. & P. 98; 1 Selw. N. P. 227; Bing. Inf. 260; Schouler, Husb. & Wife, § 89. Under the feudal system, her existence, as the owner in fee of real 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 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 his control. To what end should she receive it if it is the property of the husband the next moment? Tyrrell v.

[20 S.E. 683]

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 (1819) 5 Grat. 345; Penn v. Whitehead (1867) 17 Grat. 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 447), and 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, and 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...

To continue reading

Request your trial
24 practice notes
  • First Nat. Bank in Alexandria v. Ernst, No. 25969.
    • United States
    • Supreme Court of Nebraska
    • 18 Mayo 1928
    ...S.) 750, 18 Ann. Cas. 1024;Union Nat. Bank v. Chapman, 169 N. Y. 538, 62 N. E. 672, 57 L. R. A. 513, 88 Am. St. Rep. 614;Dulin v. McCaw, 39 W. Va. 721, 20 S. E. 681;Scudder v. Union Nat. Bank, 91 U. S. 406, 23 L. Ed. 245; 5 R. C. L. 935, § 26; Frasier v. Charleston & W. C. R. Co., 73 S. C. ......
  • Smith v. Smith, No. CC817
    • United States
    • Supreme Court of West Virginia
    • 19 Octubre 1954
    ...The rights sought are only rights personal to [140 W.Va. 303] the litigants, not rights 'against all the world'. See Dulin v. McCaw, 39 W.Va. 721, 20 S.E. 681; Hall v. Hall, 12 W.Va. 1; 11 M.J., Judgments and Decrees, Section Does personal service of process on a defendant outside the State......
  • Int'l Harvester Co. of Am. v. McAdam
    • United States
    • United States State Supreme Court of Wisconsin
    • 22 Febrero 1910
    ...807, 59 L. R. A. 498, 97 Am. St. Rep. 840;Ruhe v. Buck, 124 Mo. 178, 27 S. W. 412, 25 L. R. A. 178, 46 Am. St. Rep. 439;Dulin v. McCaw, 39 W. Va. 721, 20 S. E. 681;Bank of Louisiana v. Williams, 46 Miss. 618, 12 Am. Rep. 319;Studebaker Bros. Co. v. Mau, 13 Wyo. 358, 80 Pac. 151, 110 Am. St.......
  • In Re Estate Of Elizabeth E. Fox, (No. 9999)
    • United States
    • Supreme Court of West Virginia
    • 18 Mayo 1948
    ...courts of West Virginia. Wood v. Shrewsbury, 117 W. Va. 569, 186 S. E. 294; Wick v. Dawson, 42 W. Va. 43, 24 S. E. 587; Dulin v. McCaw, 39 W. Va. 721, 731, 20 S. E. 681. At common law the testimony of parties to the record and parties having a direct interest in the outcome of the litigatio......
  • Request a trial to view additional results
24 cases
  • First Nat. Bank in Alexandria v. Ernst, No. 25969.
    • United States
    • Supreme Court of Nebraska
    • 18 Mayo 1928
    ...S.) 750, 18 Ann. Cas. 1024;Union Nat. Bank v. Chapman, 169 N. Y. 538, 62 N. E. 672, 57 L. R. A. 513, 88 Am. St. Rep. 614;Dulin v. McCaw, 39 W. Va. 721, 20 S. E. 681;Scudder v. Union Nat. Bank, 91 U. S. 406, 23 L. Ed. 245; 5 R. C. L. 935, § 26; Frasier v. Charleston & W. C. R. Co., 73 S. C. ......
  • Smith v. Smith, No. CC817
    • United States
    • Supreme Court of West Virginia
    • 19 Octubre 1954
    ...The rights sought are only rights personal to [140 W.Va. 303] the litigants, not rights 'against all the world'. See Dulin v. McCaw, 39 W.Va. 721, 20 S.E. 681; Hall v. Hall, 12 W.Va. 1; 11 M.J., Judgments and Decrees, Section Does personal service of process on a defendant outside the State......
  • Int'l Harvester Co. of Am. v. McAdam
    • United States
    • United States State Supreme Court of Wisconsin
    • 22 Febrero 1910
    ...807, 59 L. R. A. 498, 97 Am. St. Rep. 840;Ruhe v. Buck, 124 Mo. 178, 27 S. W. 412, 25 L. R. A. 178, 46 Am. St. Rep. 439;Dulin v. McCaw, 39 W. Va. 721, 20 S. E. 681;Bank of Louisiana v. Williams, 46 Miss. 618, 12 Am. Rep. 319;Studebaker Bros. Co. v. Mau, 13 Wyo. 358, 80 Pac. 151, 110 Am. St.......
  • In Re Estate Of Elizabeth E. Fox, (No. 9999)
    • United States
    • Supreme Court of West Virginia
    • 18 Mayo 1948
    ...courts of West Virginia. Wood v. Shrewsbury, 117 W. Va. 569, 186 S. E. 294; Wick v. Dawson, 42 W. Va. 43, 24 S. E. 587; Dulin v. McCaw, 39 W. Va. 721, 731, 20 S. E. 681. At common law the testimony of parties to the record and parties having a direct interest in the outcome of the litigatio......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT