Thorn v. Weatherly

• Decision Date: 04 February 1888
• Citation: 7 S.W. 33
• Parties: THORN <I>v.</I> WEATHERLY.
• Court: Arkansas Supreme Court

Page 33

7 S.W. 33

THORN

v. WEATHERLY.

Supreme Court of Arkansas.

February 4, 1888.

Appeal from circuit court, Green county; W. H. CATE, Judge.

L. L. Mack & Son, for appellant. E. F. Adams, for appellee.

COCKRILL, C. J.

The bill in this case was filed by the appellees against Josiah Thorn and his wife, Martha, to reform a deed executed by Josiah Thorn to J. B. Thorn, whose estate is represented by the appellees. The deed did not correctly describe the tract of land which Josiah had sold to J. B. Thorn. Martha Thorn, the wife of the grantor, joined in the deed to relinquish dower. The court granted the relief prayed by the plaintiff as to the husband, but refused it as to the wife. As the plaintiffs have not appealed, and Josiah does not complain, no question arises upon that branch of the case.

Martha Thorn filed a cross-complaint, however, claiming the land as her own. It appears that she came into possession of money in the state of Tennessee, in 1870, where she and her present husband, Josiah Thorn, were then domiciled as husband and wife. The money was a gift from her sister, as the equivalent for a distributive share of their father's estate, from participation in which Mrs. Thorn had been excluded by the father's will. It was not shown that there was any attempt on the part of the donor to exclude the marital rights of the husband. The husband and wife came to Arkansas the following year, and invested the money in lands, of which the 40 acres in controversy is a part. The purchase was made by the husband, and the deed was executed to him by and with the consent of the wife. In the spring of 1874 the husband sold the tract in dispute to J. B. Thorn. The contention of Martha Thorn is that the lands were held by her husband in trust for her, and that J. B. Thorn knew the fact at the time of his purchase. Her effort is to recover the land. The decree denying her relief must be affirmed.

It is enough, for the purpose of this case, to cite Hydrick v. Burke, 30 Ark. 124; Dyer v. Arnold, 37 Ark. 22; and Gainus v. Cannon, 42 Ark. 503. They are all cases involving similar questions. In each case money came to the wife in another state, where the husband and wife were then domiciled, and was invested in property in this state after the parties removed here. In each of the cases, as in this, there was a failure to prove what the law of the state was where the property was acquired, and it was ruled that the presumption would be indulged that the marital rights of the husband were governed by the common law in the state where the property was acquired; that by that law the money due to the wife, when collected, became the property of the husband, and remained his after removal into this state. The burden of proof in such cases is upon the wife to show that the property became and remained her separate property. To the same effect, see Tinkler v. Cox, 68 Ill. 119; Litchtenberger v. Graham, 50 Ind. 288; Oliver v. Robertson, 41 Tex. 422. Especially applicable to the facts of this case is the language used by the court in Gainus v. Cannon, in speaking of money received by the wife in the state of Mississippi: "The husband was entitled, by marital right, to receive his wife's distributive share of her father's estate, and the payment to her was payment to himself. She had no right to receive and hold it in opposition to him. * * * It was voluntarily paid to her, with her husband's assent, and became his by force of the common law, unless he, then or subsequently, by some agreement valid between them, constituted himself her trustee." Schouler, Dom. Rel. § 82.

It is argued that the proof shows that the money received by Mrs. Thorn would have been her separate estate, if governed by the laws in force in this state at the time she received it in Tennessee. Be that as it may, we cannot presume that positive provisions of the law similar to those found in our constitution or statutes, relative to the separate property of married women, were ever in force in Tennessee. Cases supra. We know judicially from the history of the country that the common law is the basis of Tennessee's jurisprudence. If that state has departed from the common principles of that system, the fact must be proved. We cannot take judicial notice of statutory changes that may have been made, nor can we presume that the same innovations have been made in that state as in our own. The familiar doctrine that a state of things once existing is presumed to continue until a change, or an adequate cause of change, is shown, is indulged in regard to the existence of the common law in those states which recognize that system as the source of their jurisprudence. It rests upon the party who asserts that a different rule prevails to prove it. This has been frequently ruled by this court, and is in accord with the weight of authority elsewhere. See Norris v. Harris, per FIELD, J., 15 Cal. 252; cases collected, 2 Cent. Law J. 379; 1 Greenl. Ev. § 43, note a; Lawson, Pres. Ev. 366 et seq; Reg. v. Nesbitt, 2 Dowl. & L. 529. The cases are numerous in which it is said that in the absence of proof the law of a foreign state will be presumed to be the same as that of the forum. But an examination of a number of such cases has demonstrated that only in exceptional instances is the doctrine as applied inconsistent with the rule announced in Hydrick v. Burke, supra; and like cases. In many of the cases it will be found that a common-law principle, unaffected by statute, governed the question where the cause was tried, and the announcement of the rule that the law of the forum would be presumed to be the law of the foreign state, was only another mode of saying that the common law was presumed to be in force in the foreign state. Thus, in the case of Cox v. Morrow, 14 Ark. 603, the rule...