Kimball v. Kimball

• Decision Date: 01 June 1909
• Citation: 75 N.H. 291,73 A. 408
• Parties: KIMBALL v. KIMBALL.
• Court: New Hampshire Supreme Court

73 A. 408

75 N.H. 291

KIMBALL

v. KIMBALL.

Supreme Court of New Hampshire. Hillsborough.

June 1, 1909.

Transferred from Superior Court, Hillsborough County; Stone, Judge.

Action by Alice E. Kimball against John F. Kimball. Verdict for plaintiff for $3,250, and case transferred from the superior court. Case discharged.

The farm was once the property of the husband, and was deeded by him to his wife before their lawful marriage, but while they supposed they were husband and wife. After the impediment was removed, they were lawfully married. Her evidence tended to prove that she thereafter deeded the farm, upon his promise to pay over to her the proceeds; while his evidence was to the effect that he never gave the farm to her, but that she held the title in trust for him. He also offered to show in defense, that, after this suit was brought, she broke open his safe and took therefrom $5,500. This defense was ruled out because it accrued after the suit was brought. The property is situated in Vermont, and the parties lived there and in Massachusetts during the time covered by these transactions. There was no proof of the law of either state. Toward the close of the trial the plaintiff filed a bill in equity in aid of her suit at law. Subject to exception the court denied the defendant's motion for a nonsuit, and submitted the case to the jury upon the issue "Whose farm was this—the plaintiff's or the defendant's?"

Doyle & Lucier, for plaintiff.

Wason & Moran, for defendant.

PEASLEE, J. As between the lex loci and the lex fori, the former governs, both in torts and contracts, in respect to the legal effect and incidents of the acts. Whatever would be a defense to this action if brought in the state where the transactions took place is a defense here. Beacham v. Portsmouth Bridge, 68 N. H. 382, 40 Atl. 1066, 73 Am. St. Rep. 607; MacDonald v. Railway, 71 N. H. 448, 450, 52 Atl. 982, 59 L. R. A. 448, 93 Am. St. Rep. 550. When the law of a sister state becomes material it is to be proved like any other fact. It cannot be assumed, or found without proof. Taylor v. Barron, 30 N. H. 78, 100, 102, 64 Am. Dec. 281; Emery v. Berry, 28 N. H. 473, 486, 61 Am. Dec. 622. The question is determinable in the trial court. Jenne v. Harrisville, 63 N. H. 405. As the states in question derive the body of their law from England, it is presumed, in the absence of proof, that the common law prevails. 4 Wig. Ev. § 2536. The rule, adopted in some states, that the law of a sister state will be presumed to be like that of the forum, not only as to the judicially declared law, but also as to statutory enactments, is not followed here. Leach v. Pillsbury, 15 N. H. 137. As the case now stands, the rights of these parties are governed by the common law as understood and applied in this state. The "stubborn and inflexible principle of the common law" (Andrews, J., in Hendricks v. Isaacs, 117 N. Y. 411, 22 N. E. 1029, 6 L. R. A. 559, 15 Am. St. Rep. 524), which refused to recognize contracts between husband and wife, has been, and still is, followed here, except as modified by statute. Patterson v. Patterson, 45 N. H. 164; Burleigh v. Coffin, 22 N. H. 118, 53 Am. Dec. 236. The motion for a nonsuit of the action in assumpsit should have been granted.

But it is urged that, if the wife has no standing in a court of law, she has in equity, that the issues have been tried, and a bill in equity has been filed as an amendment, and that therefore she should now have a decree for the amount of the verdict. That she may proceed in equity is settled by the great weight of authority. "But courts of equity (following in this particular, as in most others, the civil law) have always recognized the wife as possessing a legal entity apart from that of her husband. The moment that the separate existence of the wife was admitted it followed that the impossibility of recognizing any contractual relations between them at once disappeared. Therefore courts of equity have never refused to enforce such contracts merely because of any difficulty springing from the common-law doctrine of the unity of husband and wife. The courts do not enforce all contracts between husband and wife, because the power is an equitable one, and to be used for the best interests of all the parties, including their interests as husband and wife. Sto. Eq. Jur. § 1368; Bisp. Eq. 8 114." Garwood v. Garwood, 56 N. J....