Wick v. Dawson Et Ux

• Decision Date: 01 April 1896
• Parties: WICK et al. v. DAWSON et ux.
• Court: West Virginia Supreme Court

24 S.E. 587

42 W.Va. 43

WICK et al.

v.DAWSON et ux.

Supreme Court of Appeals of West Virginia.

April 1, 1896.

Lex Fori—Married Woman—Charges against Estate—How Enforced—Equity—Discovery— Attachment of Absent Defendant—Lex Loci Rei Sit^e—Lex Loci Contractus — Administrator's Sale—Contract to Set Aside—Validity—Fraudulent Conveyances —Remedies of Creditor.

1. The law of the place where the suit is brought governs the remedy. This includes the mode of proceeding, the form of the judgment or decree, and the methods of carrying them into execution.

2. A claim against the separate estate of a married woman could, in this state, be enforced only by a suit in equity, and by no personal decree, until the passage of section 15 of chapter 3 of Acts of 1893, p. 6, amending chapter 60 of the Code.

3. Bills for relief may also contain prayers for the discovery of facts which are essential to the relief prayed for in the bill.

4. Although a bill be taken for confessed as to any defendant, the plaintiff may have an attachment against him, or an order for him to be brought in to answer interrogatories. Code, c. 125, § 48.

5. The liability of the separate real estate of a married woman to be subjected to the payment of claims against her is governed by the law of the state where such real estate is situated.

6. A contract is made where it is delivered, and the law of the state where it is made generally controls in respect to its validity; but, if it appears that it was made to be performed in some other state, then its validity is to be governed by the law of the place of performance.

7. Land is sold under a decree, but before the sale is confirmed it is agreed, at the instance of the purchaser, between him and a creditor under the decree entitled to a part of the proceeds of sale, that if the latter will agree to the setting aside of the sale, he, the purchaser, will save the creditor harmless from all loss which he may sustain by reason of setting the sale aside and having the property again offered. Held, such contract is not per se a fraud upon the due administration of justice, and, unless such fact is made to appear, it is binding upon and enforceable against the purchaser.

8. If a married woman directly or indirectly convey her separate real property to her husband upon a consideration not deemed valuable in law, this is void as to her creditors whose debts shall have been contracted at the time it was made, if such creditors had the right, while the land was hers, to subject it or its rents and profits to the payment of their debts. As against existing creditors such voluntary conveyance is conclusively presumed to be fraudulent in law.

9. The creditor is not compelled to go against the land as the land of the husband, because he also excuted the contract of indemnity on which the suit is brought.

(Syllabus by the Court.)

Appeal from circuit court, Jefferson county.

Bill by Henry Wick and others, partners as Henry Wick & Co., against Charles L. Dawson, executor of A. M. Harmau, deceased, and Ida W. Dawson, on a contract of indemnity. From, a judgment for defendants, plaintiffs appeal. Reversed.

Forrest W. Brown, for appellants.

George Baylor, for appellees.

HOLT, P. On appeal from final decree of the circuit court of Jefferson county, dismissing plaintiffs' bill on demurrer, and refusing to permit a third amended bill to be filed. The bill seeks to subject certain real estate situate in this state, in the county of Jefferson, as the separate property of Ida W. Dawson, the wife of defendant Charles L. Dawson, to the payment of the damages resulting from the breach of the following contract which she had executed at Cleveland, Ohio, as the surety of her husband: "The Society for Savings vs. Nathaniel D. Moore, et al. Agreement. The real estate described in the petition in this case having been advertised and sold to the undersigned, Charles L. Dawson, for forty-seven thousand ($47,000) dollars, and the said Dawson desiring to have the sale set aside, and the property offered again for sale by the sheriff, and the defendants, Henry Wick & Co., objecting to such resale, it is agreed by the undersigned, Charles L. Dawson and Ida W. Dawson, his wife, that in consideration of the defendants (Wicks) consenting that said sale may be set aside, and the property again offered, that they, the said Charles L. Dawson and Ida W. Dawson, will indemnify said Wicks and save them harmless from all loss which they may sustain by reason of setting said sale aside, and having the property again offered; and will pay to said Wicks whatever difference there may be in the amount which they would now realize if the present sale were confirmed and the amount bid paid, and what they may hereafter realize upon a resale of the property, so that said Wicks will not lose anything by consent to have said property again offered. Charles L. Dawson, Executor of Estate A. M. Harman, Deceased. Ida W. Dawson. Cleveland, O., May 11, 1889." Plaintiffs claim that upon the case as made by this bill as amended, and by the third amended bill which the court refused to permit them to file, they were entitled to relief upon three distinct grounds: (1) A decree against Ida W. Dawson, it being an Ohio contract, which authorizes such a decree. (2) To set aside as voluntary the conveyance of the land to her husband, and the conveyance by Dawson to the pendente lite purchaser. (3) To a discovery of the personal estate of Mrs. Ida W. Dawson. (4) It is also contended that, conceding this contract to bind defendant Charles L. Dawson as his personal contract, it is joint, and, one of the parties executing it being a married woman, and it being necessary in this state, at the time this suit was brought, to sue in equity as to the separata estate of such married woman, the court, in order to avoid needless multiplicity of suits, will go on to a complete adjudication, giving relief against both. 1 Pom. Eq. Jur. § 181; U. S. v. Union Pac. Ry. Co., 160 U. S. 1-52, 16 Sup. Ct 190.

It is contended on the part of defendants that this contract, made by a married woman in the state of Ohio, will not bind, and cannot be enforced against her separate real estate in West Virginia. So far as the law of this state bears on the case, it makes no such limiting distinctions. Chapter 66 of the Code (1887) determines what shall be the sole and separate property of a married woman; that she shall have the ownership as if she were a single woman, and the jus disponendi and the liability of her separate estate to the payment of her debts incurred during coverture are incidents of such ownership. Hughes v. Hamilton, 19 W. Va. 366; Radford v. Car-wile, 13 W. Va. 572. No authority has been cited in support of such contention, and I take it for granted that none can be found denying any one the equal protection of the laws of this state solely because the contract sued on happened to be made in some other state. See Bank v. Williams, 46 Miss. 618. This is an Ohio contract, executed in that state, and to be performed there, and therefore the law of that state determines its validity. Case v Dodge, 18 R. I. 661, 29 Atl. 785; Milliken v. Pratt, 125 Mass. 374. And by the law of Ohio it is conceded to be valid. On this subject, see Hefflebower v. Detrick, 27 W. Va. 16; Baum v. Birchall, 150 Pa. St. 164, 24 Atl. 620; Taylor v. Sharp, 108 N. C. 377, 13 S. E. 138. The law of the place where the suit is brought governs the remedy. This includes the mode of proceeding, the form of the judgment or decree, and the methods of carrying them into execution (Dulin v. McCaw, 39 W. Va. 721, 20 S. E. 681), and the law of the state where the land, the separate property of the married woman, is situated, must determine the question of its liability to be subjected to the payment of claims against her. Story, Confl. Laws (8th Ed.) § 590; 3 Am. & Eng. Enc. Law, 576. No real estate can be acquired by operation of law in any other manner, or to any other extent, or by any other means than those prescribed by the lex loci rei sitae. 3 Am. & Eng. Enc. Law, 566. The contract being valid by the law of Ohio, the place where made, a suit on it in this state will be sustained if it does not contravene the law or policy of this state at the time when the action was brought. The contract was also valid by the laws of this state when it was made, on the 11th day of May, 1889; also when this suit was instituted, in April, 1890. But defendant Ida W. Dawson did not appear until the 16th day of March, 1892. It seems by the bill that she signed the contract as surety of her husband for the benefit of an estate of which she was sole legatee, and by the act of 1891 it was provided that "no married woman shall become the security, indorser, or guarantor of or for her husband, " etc. See Code 1891, p. 621, c. 66, § 11. This section was repealed by act of February 16, 1893. See chapter 3, Acts 1893, p. 6. It was not intended that the act of 1891 should have any retroactive effect rendering void on that ground this and other subsisting contracts which were valid when made, and, since the act of 1891 has been repealed, it could not, after such repeal, be said that such a contract contravenes the law or policy of this state. But, besides, it appears from the facts alleged that it was entered into by the executor for...