McCreery v. Davis

• Decision Date: 20 April 1895
• Citation: 22 S.E. 178,44 S.C. 195
• Parties: McCREERY v. DAVIS.
• Court: South Carolina Supreme Court

22 S.E. 178

44 S.C. 195

McCREERY v. DAVIS.

Supreme Court of South Carolina

April 20, 1895

Appeal from common pleas circuit court of Richland county.

Action for specific performance brought by Charles W. McCreery against J. Henry Davis. Defendant had judgment, and plaintiff appeals therefrom, upon the following grounds and exceptions "(1) Because his honor held that: 'According to the uniform decisions of the courts of this state, marriage has been adjudged to be a civil contract.' (2) Because his honor held that: 'Assuming that marriage is a civil status, that can be modified or changed by the law of the domicile, it does not follow that the judgment of divorce changing the matrimonial status of Mrs. Rhoda McCreery in Illinois can have the effect of dissolving the matrimonial status or relations of her husband as a citizen of South Carolina. It cannot have such effect if, as universally conceded, each state has the sovereign right to fix and regulate the domestic status of its own citizens. The judgment of divorce granted Mrs. Rhoda McCreery in Illinois cannot affect the matrimonial status of her husband, Charles W. McCreery, as a citizen of this state, under section 1 of article 4 of the constitution of the United States, giving faith and credit to foreign judgments in this state. This provision of the constitution of the United States was never intended to afford one state the means of fixing or changing the marital status of the citizens of another state, in hostility to the laws and public policy of the latter state with reference to marriage. To give such effect to this constitutional provision would be to authorize one state to legislate for, and to control the domestic policy to govern in, another state. If divorces could be granted for any cause in this state, public policy might demand a recognition in this state of the judgment of divorce granted in Illinois. No country will, however, consent to recognize a foreign judgment which is contrary to its views of public policy and morality. If one state has the unquestioned right to adopt and enforce its own domestic policy with reference to marriage and divorce, the same right must be accorded to every other state. If Charles W. McCreery's marriage is to be regarded as contracted in South Carolina, his present marital status or condition must be determined by the decisions of our own courts with reference to marriage. This court will not undertake to overrule the well-settled law of this state relating to the marriage contract, in order to change the matrimonial status of Charles W. McCreery in this state to suit the changed status of his wife under the laws of Illinois.' (3) Because his honor held that 'Regarding the marriage of Charles W. McCreery, as having been contracted in South Carolina, I conclude, as matter of law, that the judgment of divorce granted in the state of Illinois at the instance of Mrs. Rhoda McCreery did not dissolve the matrimonial status of her husband, Charles W McCreery, in the state. If the judgment of divorce granted in Illinois could have the effect of dissolving the matrimonial relations of Charles W. McCreery in this state, it could not divest the inchoate right of dower of his wife, Mrs. Rhoda McCreery, in the first lot of land referred to in the agreement between plaintiff and defendant, of which Charles W. McCreery was seised in fee prior to the date of said judgment of divorce. The statute of Illinois also reserves the wife's right of dower.' (4) Because his honor held that: 'If the marriage of Charles W. McCreery is to be regarded as having been contracted in the state of New York, the judgment of divorce granted in Illinois, under the New York decisions, could not have the effect of dissolving the matrimonial relations of Charles W. McCreery.' (5) Because his honor held that: 'Considering the marriage of Charles W. McCreery as contracted either in this state or in New York, I conclude, as matter of law, that the judgment of divorce granted in Cook county, in the state of Illinois upon the application of plaintiff's wife, Mrs. Rhoda McCreery, does not dissolve the matrimonial relations of her husband, the plaintiff, Charles W. McCreery, as a citizen of this state.' (6) Because his honor erred in passing upon the marital status of Charles W. McCreery, whereas it was only necessary to the decision of this case to pass upon the marital status of Rhoda McCreery. (7) Because his honor should have held that under the constitution of the United States, and the acts of congress passed in pursuance thereof, the judgment of divorce granted by the courts of Illinois is valid and binding in the courts of this state. (8) Because, it having been admitted that the proceedings for divorce were regular, and the judgment therein valid, and in accordance with the laws of the state of Illinois, it was error to hold that the said judgment was ineffectual to dissolve the marriage contract in this state. (9) Because his honor held that: 'The plaintiff is not entitled to compel specific performance of the agreement by the defendant, J. Henry Davis, and that plaintiff's complaint be dismissed, with costs.' (10) Because his honor held that: 'The doctrine of estoppel, as to Mrs. Rhoda McCreery, need not be considered, as she is not a party to this action."' Affirmed.

Lyles & Muller, for appellant.

Alston & Patton, for respondent.

POPE J.

On the 3d day of January, 1893, the plaintiff and defendant entered into a written agreement whereby the plaintiff, for a valuable consideration, agreed to sell and convey to the defendant, free of incumbrance or defect of title of any character, two certain lots of land situate in the county of Richland, in the state of South Carolina. When the plaintiff tendered his deeds of conveyance of said two lots of land to the defendant, the defendant refused to accept said deeds, claiming that the same were not free from incumbrance or defect of title, in this respect, namely, that there was no renunciation indorsed on said deed of the dower of Rhoda Baldwin McCreery, the wife of the plaintiff; and the said defendant still refused said deeds after he had exhibited to him a certified copy of a judgment of the circuit court of Cook county, in the state of Illinois, in an action wherein the said Rhoda Baldwin McCreery was plaintiff and the said Charles W. McCreery was defendant, rendered at the May term, 1891, of said court, and whereby the bonds of matrimony theretofore existing between the said Rhoda and Charles were dissolved. On the 3d of February, 1893, the plaintiff, Charles W. McCreery, commenced his action, by summons and complaint, against the defendant, J. Henry Davis, in the court of common pleas for Richland county, in the state of South Carolina, for a judgment requiring the said J. Henry Davis to specifically perform his contract, and that when the plaintiff, Charles W. McCreery, should deliver his deed, with full warranty, for said two lots of land, to the defendant, J. Henry Davis, he should accept the same, and pay the purchase money therefor to Charles W. McCreery. The defendant, in his answer, admitted the facts set up in the complaint, "except that he denies that the title offered him by the said plaintiff is free from defects or incumbrances; and he alleges that the said deeds of conveyance offered him by said plaintiff are defective, in this: that the said plaintiff is, and at the time mentioned in said complaint was, a married man, and that his wife was, and is now, alive, and that said deeds of conveyance bear no renunciation of dower by his said wife." The cause, being thus at issue, came on to be heard by his honor, Judge Witherspoon, at the spring (1893) term of the court of common pleas for Richland county, in the state of South Carolina, on the pleadings, and on the following written agreement as to the admitted facts:

"(1) That on or about the 4th day of February, 1885, the plaintiff, then and ever since a citizen of the city of Columbia, state of South Carolina, was lawfully married, in the city of Brooklyn, in the state of New York, to one Rhoda Baldwin, then a citizen of Brooklyn, and state of New York. That very shortly thereafter the plaintiff, with his wife, returned to the said city of Columbia, state of South Carolina,--his said place of residence,--where they lived together as husband and wife until on or about the 7th day of June, 1887, at which date his said wife left his house and home, and moved to the city of Chicago, Cook county, state of Illinois. That on the 14th day of March, 1891, the said Rhoda McCreery, plaintiff's wife, filed in the circuit court of said Cook county, State of Illinois (a court of record, and general jurisdiction), her bill of complaint against the plaintiff, for a divorce a vinculo matrimonii from him, in which complaint she alleges that she was an actual resident of the county of Cook, and had been for more than 20 months, then last past, a resident of the state of Illinois; that on the 4th day of February, 1885, she was lawfully married to the said Charles W. McCreery, and from that time until about the 7th day of June, 1887, she lived with the said Charles W. McCreery, as his wife, at which time she was compelled to leave him on account of his extreme and repeated cruelty to her,--and further alleging and setting forth in detail his acts of cruelty towards her; extreme and repeated cruelty being one of the causes for which divorces are granted in the statute law of said state of Illinois. That thereupon there issued out of said court, and under the seal thereof, the people's writ of summons, directed to the sheriff of said Cook county to execute. That said summons, and due notice of the filing thereof and of the complaint, were served upon the plaintiff

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