France v. Connor

• Decision Date: 01 June 1891
• Citation: 27 P. 569,3 Wyo. 445
• Parties: FRANCE v. CONNOR et al. [1]
• Court: Wyoming Supreme Court

27 P. 569

3 Wyo. 445

FRANCE v. CONNOR et al. ^[1]

Supreme Court of Wyoming

June 1, 1891

Error to district court, Carbon county; SAMUEL T. CORN, Judge.

Petition by Amanda W. France against John W. Connor and William R Brown for the assignment of dower. Demurrer sustained. Plaintiff brings error. Affirmed.

Judgment affirmed.

C. N Potter, for plaintiff in error.

John W Lacey and Brown & Arnold, for defendants in error.

GROESBECK, C. J. MERRELL, J., having been of counsel in kindred cases, and announcing in open court his disqualification, under the provisions of section 6 of article 5 of the constitution of this state, the Honorable RICHARD H. SCOTT, judge of the district court of judicial district No. 1, was called in by the remaining judges of this court, and sat with them in the hearing of this cause. CONAWAY and SCOTT, JJ., concur in the opinion.

OPINION

GROESBECK, C. J.

The following facts appear in the petition of the plaintiff in error: She was married to James France, February 7, 1887, and he died intestate, August 21, 1888, leaving her, his widow, surviving him. March 16, 1888, James France, being then insolvent, executed and delivered to the defendants in error a deed of assignment, under the laws of Wyoming territory, of all of his property not exempt from execution, including realty of considerable value, situate in the county of Carbon, for the benefit of all of his creditors. The assignees have since been in the possession of all of the assigned property. Mrs. France did not join in the deed of assignment, and brought suit in the district court of Carbon county for the admeasurement and assignment of dower in the realty so assigned, and for an accounting of all the rents, issues, and profits thereof since the death of her husband, to the end that she may have her dower rights therein, which she claims. The assignees, defendants in error, demurred to this petition on the grounds that the court was without jurisdiction to grant the relief prayed for, and because the petition does not state facts sufficient to constitute a cause of action. The demurrer was taken under advisement by said district court, the Honorable SAMUEL T. CORN, then associate justice of the supreme court of Wyoming territory, presiding as judge of said court, and the demurrer was thereafter sustained by the district court. Mrs. France excepted thereto, and failing, and not desiring to plead further, judgment was rendered for the defendants in error, and she prosecutes proceedings in error in this court.

The plaintiff in error in the court below and in this court and in the brief and argument of her counsel asserted her right to dower under section 18 of an act of the congress of the United States known as the "Edmunds-Tucker Act," entitled "An act to amend an act entitled 'An act to amend section fifty-three hundred and fifty-two of the Revised Statutes of the United States, in reference to bigamy, and for other purposes,' approved March twenty-second, eighteen hundred and eighty-two."

Dower and tenancy by the curtesy were abolished at a very early day in the territory of Wyoming by an act entitled "An act regulating descent and distribution of property," approved December 10, 1869, which was incorporated with slight amendments in the Revised Statutes of Wyoming for 1887, and is found in section 2221 thereof, in the following language: "Dower and the tenancy by the curtesy are abolished, and neither husband nor wife shall have any share in the estate of the other, save as herein provided." It is by the terms of section 18 of this Edmunds-Tucker act that plaintiff is entitled to dower, if at all, as it is conceded that she is not entitled thereto under any law of the territory of Wyoming. Although not mentioned in the brief of counsel, we deem it proper to state that the legislative assembly of Wyoming passed a statute, approved March 9, 1888, which, among other things, made provision for the release of dower and all rights of the wife in the lands of the husband, mainly in cases of homestead, and providing a simple method of procedure where the wife is insane. The statute does not confer or recognize the right of dower, but, on the contrary, expressly disclaims such a purpose. The closing section of the statute is as follows: "Nothing herein contained shall, of itself, be deemed to confer upon any married woman any dower interest in the lands of the husband; but whenever and so long as any such right of dower exists by virtue of the laws of congress or otherwise, the same may be relinquished, released, or barred, as herein provided." Sess. Laws Wyo. 1888, c. 75, p. 167. It is necessary, therefore, to review the history of the legislation of congress germane to the general object and purview of the act, to ascertain the mischief sought to be remedied by this legislation, and the reasons that impelled congress to enact the various laws to check, restrain, and punish the practice of polygamy. The first attempt of congress in this direction was the enactment of the anti-polgyamy act, entitled "An act to prevent the practice of polygamy in the territories of the United States and other places, and disapproving and annulling certain acts of the legislative assembly of the territory of Utah," approved July 1, 1862. This act has three sections. The first defines the offense of bigamy, and prescribes the penalty therefor, and by the express terms of the section the law applies to the territories of the United States, and to any other place over which the United States have exclusive jurisdiction. This section became section 5352 of the Revised Statutes of the United States. Section 2 annuls an ordinance of the provisional government of the so-called "State of Deseret," incorporating the Church of Jesus Christ of Latter-Day Saints, validated by an act of the legislative assembly of the territory of Utah, and all other acts and parts of acts of said legislative assembly which "establish, support, maintain, shield, or countenance polygamy. " Section 3 limits the value of real property to be held in any territory of the United States by any religious corporation or association to the sum of $ 50,000. This last section became section 1890 of the Revised Statutes of the United States. This anti-polygamy act remained in force as originally enacted for nearly 20 years, when it was amended by what is known as the "Edmunds Law," entitled "An act to amend section fifty-three hundred and fifty-two of the Revised Statutes of the United States, in reference to bigamy, and for other purposes," approved March 22, 1882, (22 U.S. St. at Large, c. 47, p. 30.) This act contains nine sections, but only the first and second sections are amendatory of the original act. Section 1 amends section 1 of the anti-polygamy act, (section 5352, Rev. St. U. S.;) and section 2 has a saving clause as to offenses committed prior to the passage of this amendatory act. The other sections, except the last which is numbered 9, relate to the defining of the offense of unlawful cohabitation, the method of procedure in the courts in the prosecution of the cognate offenses of polygamy and unlawful cohabitation, the qualification of jurors, a provision for the amnesty of offenders convicted under prior laws, legitimates the issue of Mormon marriages born prior to January 1, 1883, disqualifies polygamists and bigamists as voters, and makes them ineligible to hold office or any place of public trust. Section 9 provides for a board or commission, to be appointed by the president of the United States, by and with the advice and consent of the senate, to have control and charge of elections and registration in Utah, etc.

The next law on this subject is found in the act, which took effect without the signature of the president, March 3, 1887 which is familiarly known as the "Edmunds-Tucker Act," the title to which is quoted supra. It has 27 sections, and the subject-matter of the act is much broader than the title. It is not wholly amendatory of the Edmunds law of March 22, 1882, but contains many other matters foreign to the object and scope of the act as expressed in the title, which does not contain the clause "for other purposes," which is inserted therein only as part of the title of the Edmunds law. The act is a mosaic of legislation, and its loose arrangement is a powerful argument in favor of the wise provision of the constitutions of many of the states, which does not appear in the federal constitution, that no bill, except general appropriation bills and bills for the codification and general revision of the laws, shall be passed containing more than one subject, which shall be clearly expressed in the title. Grouping the sections in some sort of system, it will be observed that 16 sections, (6, 7, 8, 11, 12, 15, 16, 17, 19, 20, 21, 22, 23, 24, 25, and 27,) by the express terms of each, respectively, apply only to the territory of Utah. In the above-indicated order they repeal laws of Utah providing that prosecutions for adultery can only be commenced on the complaint of the husband or wife; enlarge the powers and jurisdiction of the court commissioners appointed by the supreme and district courts of Utah; enlarge the powers of the United States marshal for Utah, and his deputies; repeal laws of Utah giving illegitimate children capacity to inherit from the father; repeal laws of Utah conferring jurisdiction on probate courts, or judges thereof, other than matters of administration of the estates of decedents, and the guardianship of persons and property of infants and those of unsound mind; repeal laws of Utah incorporating the Perpetual Emigration Fund Company; dissolve that corporation, and prohibit the reincorporation thereof, or of associations of like character;...