Ferry v. Spokane, P. & S. Co.

• Decision Date: 06 July 1920
• Docket Number: 3472.
• Citation: 268 F. 117
• Parties: FERRY v. SPOKANE, P. & S. RY. CO. et al.
• Court: U.S. Court of Appeals — Ninth Circuit

268 F. 117

FERRY v. SPOKANE, P. & S. RY. CO. et al.

No. 3472.

United States Court of Appeals, Ninth Circuit.

July 6, 1920

James G. Wilson and Geo. B. Guthrie, both of Portland, Or., and Charles Haldane, of New York City, for appellant.

Charles H. Carey, James B. Kerr, and Omar C. Spencer, all of Portland, Or., for appellees.

Before GILBERT, ROSS, and HUNT, Circuit Judges.

GILBERT Circuit Judge.

The appellant brought a suit to establish her alleged dower rights in certain real estate in the state of Oregon, the title to which had stood in the name of her former husband, but which he had sold and conveyed without her signature to the deeds. The court below sustained a motion to dismiss the bill.

The appellant concedes that the bill shows that at the time of her husband's death, and at the time of the conveyances she was a nonresident of the state of Oregon. A statute of the state in force since 1854 provides:

'A woman being an alien shall not on that account be barred of her dower; and any woman residing out of the state shall be entitled to dower of the lands of her deceased husband lying in this state of which her husband died seized. ' L.O.L. Sec. 7306.

The statute was taken from the laws of Michigan, there adopted in 1846. In Pratt v. Tefft, 14 Mich. 191, the Supreme Court of Michigan, construing the statute, held that one of its purposes was to provide that a woman might bar her dower by nonresidence, and that a woman residing out of the state at the time of her husband's death was not entitled to dower of lands in the state of which he had been seized, but which he had conveyed without her joining in the deed. That construction was reaffirmed in Ligare v. Semple, 32 Mich. 438, and again in Stringer v. Dean, 61 Mich 203, 27 N.W. 886. Wisconsin also adopted the Michigan statute, and in Bennett v. Harms, 51 Wis. 251, 8 N.W. 222, it was held that a woman who was not a resident of the state at the time of her husband's death was not entitled to dower in lands which he conveyed during the marriage without her signature, and that the nonresidence intended was a nonresidence at the time of the husband's death, and not at the time of his conveyance of the land. In Ekegren v. Marcotte, 159 Wis. 539, 150 N.W. 969, the former decision was modified, and it was held that the words 'residing out of this state' referred, not to the time of the husband's death, but to the time of the conveyance. In Thornburn v. Doscher (C.C.) 32 F 810, in construing the Oregon statute, Judge Deady followed the decisions of Michigan and Wisconsin, and held that a woman not a resident of the state was not entitled to dower in the lands therein of which her husband did not die seized. That construction was accepted by the Supreme Court of Oregon in Cunningham v. Friendly, 70 Or. 222, 139 P. 928, 140 P. 989. Nebraska also had adopted the statute, and it has there received the same construction as in the states before mentioned. Atkins v. Atkins, 18 Neb. 474, 25 N.W. 724; Miner v. Morgan, 83 Neb. 400, 119 N.W. 781; Burr v. Finch, 91 Neb. 417, 136 N.W. 72.

A statute of Kansas, creating an interest in the nature of dower, provided:

'That the wife shall not be entitled to any interest under the provisions of this section in any land to which the husband has made conveyance, when the wife, at the time of the conveyance is not or never has been a resident of this state.'

In Buffington v. Grosvenor, 46 Kan. 730, 2 P. 137, 13 L.R.A. 282, the court followed the decisions in Michigan, Wisconsin, and Nebraska, and denied dower to a nonresident wife.

But it is contended that the Oregon statute is unconstitutional, in that it is repugnant to section 2, art. 4, and the Fourteenth Amendment. Corfield v. Coryell, 4 Wash.C.C. 371, Fed. Cas. No. 3,230, is cited, in which it was said:

'The inquiry is: What are the privileges and immunities of citizens of the several states? We feel no hesitation in confining these expressions to those privileges and immunities which are, in their nature, fundamental, which belong, of right, to the citizens of all free governments, and which have, at all times, been enjoyed by the citizens of the several states which compose this Union, from the time of their becoming free, independent, and sovereign.'

The same constitutional objection was made in several of the decisions to which we have referred. In Bennett v. Harms it was held that a nonresident wife's expectancy of dower being inchoate, was under the absolute control of the state Legislature, and that the Legislature was not prevented from discrimination...