Fung Dai Kim Ah Leong v. Lau Ah Leong

• Decision Date: 02 July 1928
• Docket Number: No. 5360.,5360.
• Citation: 27 F.2d 582
• Parties: FUNG DAI KIM AH LEONG v. LAU AH LEONG.
• Court: U.S. Court of Appeals — Ninth Circuit

27 F.2d 582 (1928)

FUNG DAI KIM AH LEONG v. LAU AH LEONG.

No. 5360.

Circuit Court of Appeals, Ninth Circuit.

July 2, 1928.

Thompson, Cathcart, Beebe & Winn, F. E. Thompson, E. H. Beebe, and Montgomery E. Winn, all of Honolulu, Hawaii, for appellant.

Harry Irwin, of Hilo, Hawaii, and Robertson & Castle, A. G. M. Robertson, A. L. Castle, W. A. Greenwell, and A. Withington, all of Honolulu, Hawaii, for appellee.

Before GILBERT, RUDKIN, and DIETRICH, Circuit Judges.

DIETRICH, Circuit Judge.

This is an appeal from a decree of the Supreme Court of Hawaii, affirming a dismissal by the circuit court of the appellant's bill of complaint, by which she sought to establish an interest in property held by the appellee. In the opinion below (29 Hawaii 770), may be found a comprehensive statement of the facts; for our purpose, details are unnecessary.

Both parties are of Chinese blood and nativity. In 1884 plaintiff, a girl 17 years old, came to Hawaii, where defendant was then residing, and after some negotiations a marriage was agreed upon and a wedding ceremony was held, all in accordance with Chinese customs, but without a license, as required by the laws of Hawaii. They immediately assumed, and thereafter for 35 years maintained, the relations of husband and wife. In the course of time the plaintiff bore to defendant 13 children, and, besides performing the domestic duties of a housewife, assisted him in carrying on his mercantile business. Success attended their joint efforts, with the result that at the time of the trial there was an accumulation of several hundred thousand dollars' worth of property. Following a decision of the Supreme Court of Hawaii in 1920 (Parke v. Parke, 25 Hawaii, 397), expressly overruling an earlier decision of that court and holding that a license was prerequisite to a valid marriage, defendant ceased to recognize plaintiff as his wife, and denied her any interest in the property accumulated during the long period they had lived together. That what was done would, in the absence of the territorial statute requiring a license, have constituted a valid common-law marriage, there can be no doubt, and that in believing they were living together in lawful wedlock they acted reasonably finds confirmation in the fact that not only was defendant advised by competent legal counsel that the marriage was valid, but such was the effect of a decision of the highest court of the territory. Godfrey v. Rowland, 16 Hawaii, 377.

Conceding that "there is great inherent justice in the complainant's claim," the Supreme Court was nevertheless of the opinion that the legal obstacles to its recognition are insurmountable. Under the civil law it was thought little difficulty would be encountered, but under the common law, which prevails in Hawaii, no basis for relief was found. There are but few reported decisions involving questions of the property rights of a putative wife, where for one reason or another the supposed marriage turns out to be void, but in the majority of those which have come to our attention relief of some character has been granted. Buckley v. Buckley, 50 Wash. 213, 96 P. 1079, 126 Am. St. Rep. 900; Knoll v. Knoll, 104 Wash. 110, 176 P. 22, 11 A. L. R. 1391; Powers v. Powers, 117 Wash. 248, 200 P. 1080; Coats v. Coats, 160 Cal. 671, 118 P. 441, 36 L. R. A. (N. S.) 844; Schneider v. Schneider, 183 Cal. 335, 191 P. 533, 11 A. L. R. 1386; Morgan v. Morgan, 1 Tex. Civ. App. 315, 21 S. W. 154; Chapman v. Chapman, 11 Tex. Civ. App. 392, 32 S. W. 564, 68 Am. St. Rep. 376; Fuller v. Fuller, 33 Kan. 582, 7 P. 241; Werner v. Werner, 59 Kan. 399, 53 P. 127, 41 L. R. A. 349, 68 Am. St. Rep. 372; Krauter v. Krauter, 79 Okl. 30, 190 P. 1088 (that Oklahoma is a common-law state, see McKennon v. Winn, 1 Okl. 327, 33 P. 582, 22 L. R. A. 501); Bracken v. Bracken, 45 S. D. 430, 188 N. W. 46; Strode v. Strode, 3 Bush (Ky.) 227, 96 Am. Dec. 211. See, also, note to Deeds v. Strode, 96 Am. St. Rep. 263, 272, 273; on subject "Marriage," by Mr. Chief Justice Harlan, 26 Cyc. pp. 918, 919. (It should be added that the writer on this subject in Corpus Juris, at sections 137-138, vol. 38, expresses a view much less positive.)

In these cases the principles invoked are not always the same, and, it may be conceded, in finding a basis for relief, some of them have put a strain upon statutory provisions the relevancy of which is not entirely obvious. But in all of them there is evinced a purpose to prevent a result so inherently wrong as to shock our common conception of fundamental justice.

Directly to the contrary is Schmitt v. Schneider, 109 Ga. 628, 35 S. E. 145. This was the only decision the court below found to be in point upon that side of the question, but the following may be cited as having some bearing in defendant's favor, though in the main they have to do with questions of the availability of certain specific remedies at law. Bell v. Bennett, 73 Ga. 784; Ward v. Dailey, 118 N. C. 55, 23 S. E. 926; Nicely v. Howard, 195 Ky. 327, 242 S. W. 602; Cooper v. Cooper, 147 Mass. 370, 17 N. E. 892, 9 Am. St. Rep. 721; Stewart v. Vandervort, 34 W. Va. 524, 12 S. E. 736, 12 L. R. A. 50; Ogden v. McHugh, 167 Mass. 276, 45 N. E. 731, 57 Am. St. Rep. 456; De France v. Johnson (C. C. Minn.) 26 F. 891. In the last case, strangely enough, the principle of estoppel was recognized as having efficacy to protect the innocent mortgagee, but not the putative wife, by whom the mortgage was given, though she was equally innocent.

The conclusion of the court below is made to rest upon a statutory provision prescribing as a rule of decision the common law of England, and the assumption that, however harsh and unjust the result, the plaintiff is without remedy under that law. This statute, first enacted in 1892 (section 5, c. 47, Session Laws of 1892), and, with slight amendment, now section 1, Rev. Laws of Hawaii 1925, provides that "the common law of England, as ascertained by English and American decisions, is declared to be the common law of the territory of Hawaii in all cases, except as otherwise expressly provided by the Constitution or laws of the United States, or by the laws of the territory, or fixed by Hawaiian judicial precedent, or established by Hawaiian usage," etc.

It is noteworthy that in its discussion the lower court cites no English decisions declaring the common law of England on the subject, and in the elaborate brief for defendant it is said: "A careful search of the English reports fails to disclose any case where the exact point has been in issue and decided." We may therefore assume that there is no English decision expressly "ascertaining" the common law upon the exact point, and the American decisions are mainly as above noted.

Of the statutory provision the court below said: "This section makes the principles of the common law just as binding on this court as if they were embodied in legislative enactments. We have no more power to change them than we have to change a statute." And it is true, "we lean toward the interpretation adopted by the Supreme Court of the territory, and will not disturb its decision unless there is clear error." Ewa Plantation v. Wilder, 289 F. 664, 670, and cases therein cited. But by the language quoted from the opinion below we do not understand that the court intended to overrule its earlier decisions, and to hold that the courts may not adapt to new conditions, arising out of a different social or economic system, fundamental principles underlying the common law, or adopt a new rule appropriate to a relation unknown to the common law. Such rigidity was not accorded to the provision in Orient Ins. Co. v. Pioneer Mill Co., 27 Hawaii, 698; and in Dole v. Gear, 14 Hawaii, 554, a case involving domestic relations, the court, in speaking of this section, among other things, said:

"The common law consists of principles, and not of set rules. It therefore admits of different applications under different conditions. Moreover, by the terms of our statute it is to be ascertained by American as well as by English decisions. In Morgan v. King, 30 Barb. N. Y. 9, the court, in construing a somewhat similar statute, said (at page 13): `The adoption of the common law, in the most general terms, by the government of any country, would not necessarily require or admit of an unqualified application of all its rules, without regard to local circumstances, however well settled and generally received those rules might be. Its rules are modified upon its own principles, not in violation of them.' And (at page 14): `When it is said that we have in this country adopted the common law of England, it is not meant that we have adopted any mere formal rules, or any written code, or the mere verbiage in which the common law is expressed. It is aptly termed the unwritten law of England; and we have adopted it as a constantly improving science, rather than as an art; as a system of legal logic, rather than as a code of rules. In short, in adopting the common law, we have adopted its fundamental principles and modes of reasoning, and the substance of its rules as illustrated by the reasons on which they are based, rather than by the mere words in which they are expressed.' * * * The common law has been adopted by constitutional or statutory provision or judicial decision in nearly all of the United States. It has been expressly adopted by Constitution or statute in many of the states in which the courts hold that equity has jurisdiction in cases of this kind independently of statute, before such decisions were made, and yet, although the statute does not appear to have been expressly referred to in such decisions, the courts were undoubtedly aware of it, and recognized their general duty to follow the common law, and justified their departure from the English rule in this particular class of cases because of a change of circumstances. We need not consider at length all the changes in...