Reel v. Elder

• Decision Date: 06 July 1869
• Parties: Reel <I>versus</I> Elder.<SMALL><SUP>1</SUP></SMALL>
• Court: Pennsylvania Supreme Court

Page 308

62 Pa. 308

Reel versus Elder.¹

Supreme Court of Pennsylvania.

May 20, 1869.

July 6, 1869.

May 20th 1869.

Before THOMPSON, C. J., READ, AGNEW, SHARSWOOD and WILLIAMS, JJ.

Error to the Court of Common Pleas of Dauphin county: Of May Term 1869.

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W. DeWitt, for plaintiff in error:—The marriage of John and Amelia Elder, the seisin of John Elder in the farm, and his death being proven, the right of Amelia to dower at common law is complete. The decree of divorce between John and Amelia Elder as proven by record from Montgomery county, Tennessee, is null and void and of no effect in Pennsylvania, and can have no extra-territorial operation against Amelia Elder to deprive her of dower as widow of John Elder, because, 1. The court of Montgomery county had no jurisdiction of the party respondent at any time before during the pendency of or after the proceedings in divorce, as the respondent was never out of the state of Pennsylvania. The want of jurisdiction is apparent on the face of the record, and is proven to be true by the testimony; 2. The court of Montgomery county never had jurisdiction of the subject-matter of the divorce: Bissell v. Briggs, 9 Mass. 466; Phelps v. Holker, 1 Dal. 261; Armstrong v. Carson's Ex'rs., 2 Id. 302; Benton v. Burgot, 10 S. & R. 240; Dorsey v. Dorsey, 7 Watts 350; Steel v. Smith, 7 W. & S. 450; Baxley v. Linah, 4 Harris 241; Rogers v. Burns, 3 Casey 527; Bishop v. Bishop, 6 Id. 416; Miltimore v. Miltimore, 4 Wright 159; Colvin v. Reed, 5 P. F. Smith 375; Hoffman v. Hoffman, 55 Barb. N. Y.

Because upon the face of the record it appears that there was no notice to the respondent of the proceedings in divorce within the territorial limits of the forum or voluntary appearance by her. The notice of the taking of depositions on a commission served as appears of record is no legal, much less an actual notice to Amelia Elder; and had it been a personal notice, it was not within the forum of the court attempting to obtain jurisdiction of the party respondent, and therefore is a nullity: Flower v. Parker, 3 Mason 251; Story's Conflict of Laws, chap. 14, §§ 539, 543, 546; Piquet v. Swan, 3 Mason 469; Fenton v. Garlick, 8 Johns. 194; Dunn v. Dunn, 4 Paige 425; Lyon v. Lyon, 2 Gray 367; Arnold v. Tourtelet, 13 Pick. 172; Irby v. Wilson, 1 Dev. & Bat. 568; Borden v. Fitch, 15 Johns. 121; Mills v. Duryee, 7 Cranch 481.

Because the divorce was obtained in fraudem legis of Pennsylvania; John Elder maliciously deserted his wife for the purpose of obtaining a divorce in Tennessee. The decree is of no value in the courts of the county whose laws are sought to be infringed: Jackson v. Jackson, 1 Johns. 424; Borden v. Fitch, 15 Id. 145.

The plaintiff is not barred of her dower by her adultery. The evidence shows that she did not elope from her husband, but he from her. In order to bar a widow of dower, proof of adultery alone is not sufficient — she must have left her husband voluntarily. A woman abandoned by her husband and afterwards committing adultery does not forfeit her dower: Thomas's Coke, 703 n.; Green v. Harvey, 3 Bacon's Abr., tit. Dower, p. 224; Stegall v. Stegall, 2 Brock. 258; 4 Kent's Com. 53; 1 Roper on Husband and Wife 331; Cogswell v. Tibbetts, 3 N. H. Rep. 41; Walters v. Jordan, 13 Iredell 361; Graham v. Law, 6 Jones's U. C. C. Rep. 310; Shaeffer v. Richardson's Adm'rs., 27 Ind. Rep. 123; Bell v. Nealey, 1 Bailey's (S. C.) Rep. 312; 1 Washburn on Real Prop. 227; Scribner on Dower 498, § 2; 1 Bishop on Marriage and Divorce 628.

Even had she forfeited her dower by her adultery, under Statute of Westminster 2d, the reconciliation of her husband with her, and the subsequent cohabitation, restored to her the right of dower in any lands he held during coverture, although he had aliened them before reconciliation: Coke's Lit. 33, n. 8; Menville's Case, 13 Coke's Rep. 23; Rolle's Abr., tit. Dower 680; 1 Lilly's Abr. 669, tit. Dower H.; 3 Bac. Abr., tit. Dower 224; Perkin's Con., tit. Dower 155; Harris v. Harris, 4 Esp. 41; Bateman v. Ross, 1 Dow. 235; Park on Dower ^*222; Clancy on Married Women 201; 1 Roper on Husband and Wife, pt. 2, 559; 1 Brightly on Husband and Wife 539; 1 Hilliard on Real Prop. 101; 4 Kent ^*53; 1 Washburn on Real Prop. 227; Scribner on Dower 506; Lakin v. Lakin, 2 Allen 45; Bryan v. Bachseller, 6 R. I. Rep. 546; Lecompte v. Wash, 9 Miss. 557; Hollister v. Hollister, 6 Barr 449; Nathan v. Nathan, 2 Phila. Rep. 205.

L. B. & Hamilton Alricks, for defendant in error.—The Tennessee court had jurisdiction to decree the divorce causa adulterii, and the decree is valid in Pennsylvania because the husband had resided the statutory period of time in Tennessee to become a citizen; because the laws of Tennessee and Pennsylvania recognise adultery as a cause of divorce, and because the wife had notice of the proceedings: Bishop v. Bishop, 6 Casey 416; Rogers v. Rogers, 15 B. Monroe 364; Dorsey v. Dorsey, 7 Watts 352; Colvin v. Reed, 5 P. F. Smith 375; Hart v. Lexas, 21 Wend. 40; Miltimore v. Miltimore, 4 Wright 151; Warrender v. Warrender, 9 Bligh 89; 2 Kent's Com. 117.

The effectiveness of the above principles depend on the law of comity between the states of the Union.

The Constitution of the United States requires the recognition of the validity of the decree of the divorce: Mills v. Duryee, 7 Cranch 481.

The doctrine of marital unity also requires the recognition of its validity: Hollister v. Hollister, 6 Barr 451; Green v. Green, 11 Pick. 410.

The courts have uniformly held that to entitle a court to jurisdiction in divorce, it is sufficient that one of the parties was domiciled in the country: Harteau v. Harteau, 14 Pick. 181; Harding v. Allen, 9 Green 140; Tolen v. Tolen, 2 Blackf. 407; Hull v. Hull, 2 Strobh. Eq. 174; Parson on Cont. 117, note; Bishop on Marriage and Divorce 155.

The plaintiff's acts create an equitable estoppel to her claim: Com. v. Moltz, 10 Barr 530; McMahan v. McMahan, 1 Harris 380; Schoch's Appeal, 9 Casey 351; Styer's Appeal, 9 Harris 86; Tyson v. Passmore, 2 Barr 124; McCullough v. Wilson, 9 Harris 436.

The defendant was a bonâ fide purchaser for value, without notice: Ackla v. Ackla, 6 Barr 228; Hill v. Epley, 7 Casey 334; Martin v. Ives, 17 S. & R 365.

De Witt, in reply.—The principle of equitable estoppel cannot apply in favor of defendant, as the acts relied on to estop her were subsequent to his purchase: Com. v. Moltz, 10 Barr 527; Eldred v. Hazlet, 9 Casey 316; Brubacker v. Okeson, 12 Id. 519; Hill v. Epley, 7 Id. 334; Lawrence v. Brown, 1 Seld. 394; Cuttle v. Brockway, 8 Casey 49.

The plea that defendant is a purchaser for value, without notice, is not a good defence in an action of dower, unde nihil habet: Larrow v. Beam, 10 Ohio 498; Blake v. Heywood, 1 Bailey's Ch. 208; Campbell v. Murphy, 2 Jones's Eq. 357; Ridgeway v. Newbold, 1 Harrington 385; Jenkins v. Bodley, 1 Sme. & Mar. 338; Gano v. Gilruth, 4 Greene 453; Wailes v. Cooper, 24 Miss. 208; Daniel v. Hollingshead, 16 Ga. 190; Attorney-General v. Wilkins, 17 Beav. 285; 1 Story's Eq. §§ 630, 631; 2 Scribner on Dower 157.

The opinion of the court was delivered, July 6th 1869, by SHARSWOOD, J.

The only assignments of error which we will consider are the 2d, 3d and 4th. Those which remain are so clearly contrary to the rules of this court (6 Harris 578), that we must dismiss them on that ground. Fortunately, however, no injury results to the plaintiff in error, for the only questions which arise on the record are presented in the assignments which are well made.

The first of these questions is as to the effect of the divorce à vinculo matrimonii decreed by the Circuit Court of Montgomery county, Tennessee. The court below instructed the jury as follows: "We are of the opinion that the divorce decreed by the court of Tennessee effectually destroyed the marriage contract between John and Amelia Elder." It is probable that the learned judge would not have so held, if, at the time of the trial below, Colvin v. Reed, 5 P. F. Smith 375, had been reported, or the decision brought to his notice. That case rules this. It settles that the injured party in the marriage relation must seek redress in the forum of the defendant, unless where such defendant has removed from what was before the common domicil of both. "In a proceeding to dissolve a marriage," says Agnew, J., "the parties stand upon a level of rights; when the injured party seeks a new domicil, and the domicils are, therefore, actually different, there is no greater reason why the husband's new domicil should prevail over the wife's than that hers should prevail over his. In this aspect, justice requires that neither should draw the other within the folds of a foreign jurisdiction." The rule thus established is so reasonable and fair that it must commend itself to every man's innate sense of justice; for surely it needs no argument to prove that no one who has not shut himself out by his own voluntary act of flight from justice should be condemned without a hearing or an opportunity to be heard. Nor did the evidence given of the notice of the pendency of the proceeding, admitting that it was served on the plaintiff, make any difference; for, in the language of the opinion in Colvin v. Reed, "back of it lies the want of power of the distant state to subject her to its jurisdiction." Clearly, when it is once determined that a court has not jurisdiction, notice, or even process duly served, cannot give vitality to the judgment it may pronounce. It is null and void, at least, as to any extra-territorial effect. Nor can it alter the case that the title to the land in which the plaintiff claimed her dower, did not vest in John Elder until after the decree was pronounced. At the time it did so vest the plaintiff was his lawful wife, and entitled to her dower after his death, in any lands of which he might be seised at any time during the...