State ex rel. Cunningham v. Carroll
| Decision Date | 03 December 1878 |
| Citation | 6 Mo.App. 263 |
| Parties | STATE OF MISSOURI, EX REL. J. S. CUNNINGHAM ET UX., Respondent, v. JAMES CARROLL ET AL., Appellants. |
| Court | Missouri Court of Appeals |
1. The interpretation of a contract will generally be governed by the law of the place where the contract was made; but questions of personal capacity and questions depending upon the subsisting domestic relations of parties will generally, upon a change of residence, be determined by the law of the domicile.
2. Where, by the law of the domicile at the time of the marriage, the personalty of a married woman is her sole and separate property, such property, when brought into Missouri, will be exempt from execution to satisfy the husband's debts without the intervention of a nominal trustee, the husband becoming trustee by operation of law.
APPEAL from St. Louis Circuit Court.
Affirmed.
This is a suit upon a constable's official bond, for alleged malfeasance in seizing and selling the separate property of the plaintiff in interest, Elizabeth Cunningham, under an execution against her husband, James S. Cunningham. Plaintiffs obtained judgment in the Circuit Court, from which the defendants appealed.
The plaintiffs Cunningham were married in May, 1871, in the State of Ohio, where they resided thereafter until August, 1874, when they removed to this State and established themselves in the city of St. Louis. By the law of Ohio, as shown in evidence, all personal property owned by the wife at the time of her marriage, or afterwards purchased with her means, became and remained her separate property, and could not be subjected to any demands against her husband. The property levied on in this instance consisted of a lot of household furniture which belonged to Mrs. Cunningham at the time of her marriage, or was afterwards purchased with her means while residing in Ohio, and was brought to this State by the plaintiffs at the time of their removal. The levy complained of was made in March, 1875, a few days prior to the enactment of our present statute securing to a married woman her separate personal property against liability for the debts of her husband.
SMITH & MCCANN, for appellants: There being a conflict between the law of Ohio and of Missouri as to the rights of the parties to the property in controversy, the law of the latter State must prevail.-- Minor v. Cardwell, 37 Mo. 350; Story on Confl., sects. 189-199; Whart. on Confl., sect. 196; Oliver v. Townes, 2 Mart. 93; Woodford v. Stephens, 51 Mo. 443; Hall v. Harris, 11 Texas, 300; Seymour v. Butler, 8 Iowa, 309; Allison v. Bowles, 8 Mo. 348. The wife must keep her goods separate and distinguishable from those of her husband, and if she permits them to be mixed and confused with his, they are liable to be levied on for his debts.--Schouler's Dom. Rel. 216; Glover v. Alcott, 11 Mich. 470; Gross v. Reddig, 45 Pa. St. 406; Kelly v. Drew, 12 Allen, 407.
L. B. VALLIANT, for respondent: Where the title to personal property has become fixed as the separate property of a married woman by the laws of another State, that title is not disturbed by her removal of the property to this State.-- Murray v. Fox, 11 Mo. 558; Stewart v. Bell, 33 Mo. 134; Doss v. Campbell, 19 Ala. 590; Lyon v. Knott, 26 Miss. 548. Where the property is the separate property of a married woman, and no trustee is named in the conveyance by which she acquires it, her husband becomes trustee by operation of law.--2 Story's Eq. Jur., sect. 1380; Freeman v. Freeman, 9 Mo. 772.
In the former hearing of this cause, our attention was not particularly directed to the effect of the rule in equity jurisprudence whereby, when property is conveyed to a married woman for her separate estate, no trustee being named, her husband becomes her trustee for the management of the property to her use. An application of this rule, by the light of the additional authorities furnished by respondents' counsel, presents the rights of the parties, respectively, in an aspect materially different from that in which they were viewed in our former opinion. The point upon which the case was then made to turn was, that where a party has acquired certain rights under the laws of a foreign State, and moves into this State, whose laws and policy forbid the recognition of such rights, the law of the new domicile must prevail, and the foreign law, or its incidents, cannot be imported to overturn it. The respondents combat this doctrine on grounds of international comity and of certain supposed exceptions applicable to the marital relation. Their counsel suggests that we have misconceived the leading authorities cited in their behalf. Upon a careful reëxamination of those authorities, we fail to perceive the supposed misconception, and find nothing but confirmation of the impressions before received from them. Thus, in the case of Doss v. Campbell, 19 Ala. 590, the court, after quoting from Judge Story that “where there is no express nuptial contract the law of the matrimonial domicile is to prevail as to the antecedent property,” uses this language: “It is true that if it were contrary to the laws of the actual domicile to allow married women to own property separate from their husbands, then their title to such separate property could not be protected by those laws.” In adopting the same conclusion, we remarked that the qualification did not affect the rights of the wife in that case, because the statute law of Alabama upon the subject was in accord with that of Texas, the matrimonial domicile. Counsel assumes that we erred in this, because he finds that the Alabama statute to which we referred first appeared in the revision of 1852, whereas the decision was rendered in June, 1851. Yet in the same volume (19 Ala.), at p. 619, is reported the case of Kidd v. Montague, in which the court passes upon the act “for securing to married women their separate estates,” etc., reciting that it became a law on March 1, 1848. This law, substantially the same as that of Texas, had therefore been in force for more than three years when the decision in Doss v. Campbell was rendered. The mistake of counsel arises, doubtless, from the fact that the law did not appear...
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