Arrington v. . Arrington

9 S.E. 200, 102 N.C. 491

• Court: Supreme Court of North Carolina
• Decided: February 5, 1889
• Status: Published

Opinion

Smith, C. J.

(after stating the case). The referee disallowed the credit of $1,000, claimed upon the consignment of cotton to the Mcllwaines, or any abatement of the debt by reason of the deed of release to John P. Arrington of the judgment lien upon his land, but does admit a deduction therefrom to the amount of the excess received on the sale of the land of L. N. B. Battle, the principal debtor, over the moneys expended in obtaining the title thereto.

The rulings of the Court disallow any abatement of the debt for these causes, and charge the estates of both sureties, in s«lido, with the whole d'ebt, and fix the executors with personal assets to the amount of $3,500, devised under the Rowland mortgage.

Without a minute inquiry into the terms of each of the exceptions specifically, the appeal, in substance, brings up, for review, the rulings upon points mentioned, and to such we confine our attention.

The appellants (and in using the term we do not include, in considering this part of the appeal, the said W. PI. Arring-ton and his assignees, whose interests are those of the plaintiff herein) insist as follows:

1. The Court erred in overruling the referee in disallowing the credit for the excess received in disposing of the land of the guardian, obtained from the Mellwaines, by which the referee reduced the judgment debt. This sum, it is said, belonged to the principal, and being received by the husband, while entitled to reduce into possession, and apply to his own use the wife’s dioses in action, must be deemed a reduction into possession and discharge of so much of the debt as if a direct payment had been made. The facts connected with this exception are fully set out in the referee’s findings, and do not require repetition. Sections 13 and 14, and, again, sections 16 to 23 inclusive.

Whatever infirmities may exist in the conveyance from L. N. B. Battle to the Mellwaines, from the fraudulent intent of the former, as between the parties, it was effectual, and subject to the condition for redemption contained in the contemporaneous sen led instrument given by the bar-gainees to the bargainor. The title was made good under the execution sale, under the judgment recovered by W. W. Parker, at which the said Mellwaines bought whatever estate remained in the judgment debtor, and took the Sheriff’s deed therefor, at the instance of the latter. This, if the deed was fraudulent, would pass, not the right retained to redeem, but the full legal estate, as if no conveyance had been made. But it would still be held by the purchasers, in subordination to the debtor’s right of redemption, upon payment of the additional sum advanced to secure the title at the request of Battle. These sums constituted the incum-brance, the removal whereof entitled him to a reconveyance. In this condition, and while Battle was negotiating to raise the requisite amount, which one William Rich agreed to pay, and take the title and hold it as a security therefor, the said Mellwaines, through their attorney in fact, sold and conveyed, for the consideration of $6,280, the said land to said W. H. Arrington and L. F. Battle, this sum being claimed by the grantors as that for which the property was held as a security. An action was brought by the said purchasers against Battle, who had remained in possession, to recover the same, and for other relief, in which, by consent, a decree of sale was entered, and, pursuant thereto, the premises were put up for sale on April 21,1884, and brought the sum of $10,967.70. This sum, after deducting expenses, of the suit and sale, $331.50, was divided between the plaintiffs in the action. The appropriation of the moiety by the said W. H. Arrington to his own use was of moneys belonging to the principal debtor, Battle, for which, in equity, the latter was entitled to a credit, and therefore must be regarded as a reduction into his possession of'so much of the chose in action as if directly paid by him. The self-adjustment is but the enforcement of an equity to have the sum thus received applied as a payment upon the debt, the husband having then the right to collect it, or any part of it, and appropriate the sum collected to his own use.

We, therefore, reverse the ruling of the Judge, and restore that of the referee in respect to this sum.

2. The appellants claim a further reduction of the judgment by reason of the deed of release given the executor and devisee, John P. Arrington, on land of the value of $4,000, and an exoneration altogether or pro tanto .of the remaining lands liable for the debt. We are unable to give either effect to the act of exoneration, as demanded by the appellants. If this was done to enable the devisee to make sale of the land unencumbered, the personal liability of the said John P. would remain to account for the funds received therefor in an apportionment of the loss among the different terre-tenants, and if retained itself would not escape the obligation to contribute. The rule in equity, under which an exemption results from the release of one of several sureties to the same obligation to the others, is personal, and does not prevail, even in such cases, when there is but an agree- meat or covenant not to sue, and the relinquishment of a right to proceed against one of several tracts of land with different owners is, in legal operation, but an agreement to look only to other lands, alike subject to a lien, as a means of satisfaction. Dudley v. Bland, 83 N. C., 220, and cases cited.

If there were a right of exoneration, it would be confined to such excesses required of others, over and above the aliquot portion of each — the release operating only as would a payment, leaving to all others the duty of contributing their ratable parts.

. But the judgment here attaches to the entire real estate of the said A. H. Arrington as a unity, and the subdivision into parts, upon apartition proceeding, cannot impair the creditor’s right to enforce satisfaction out of any of its parts, as that right existed in the testator’s life-time, nor can it impair the right of the respective tenants to be relieved of a common burden, by causing all to share in it, a right unaffected by the creditor’s action', in subjecting some portion to the entire burden in relief of the residue. The contribution is the consequence of the relations of teuants who have made partition, which the creditor cannot destroy or impair.

We, therefore, uphold the ruling of’the Court which sustains the action of the referee in refusing any abatement of the debt on this account.

3. The further reduction demanded in the Mcllwaine debt, for the proceeds of cotton consigned, above the debt incurred for supplies, thereby enlarging, by the value of the excess of $1,000, the sum with which the judgment should be credited, upon the resale of the land, cannot be allowed, for the reason that the sum went into the hands of Battle as his homestead exemption. This was surrendered to him in the suit to recover the land, and never having been received by W. H. Arrington, could not be applied to a payment upon the judgment; for if it ought to have been thus collected and applied, and a personal liability rests upon him for the loss, it is not money received, and cannot diminish the debt as if in fact paid.

These embi’acing the substantial matters presented in the record, we do not find it needful to pursue and discuss the exceptions in detail outside of those disposed of, and in general terms deem itsufficientto say that, except in the error pointed out, the judgment must be affirmed, when modified in accordance with this opinion.

Upon the trial of this issue, the record of proceedings in said Court was exhibited in evidence, and parol proof offered.

The defendant W. H. Arrington, and W. H. Morris & Sons, his assignees, asked of the Court the following instructions, predicated upon the evidence:

“ 1. That upon the whole evidence W. H. Arrington did not appear either personally or by any duly constituted attorney in the said action for divorce, and therefore the-decree pronounced in said action is null and void.

“ 2. That the courts of Illinois had no jurisdiction of this cause of action, and hence the decree is null and of no effect in North Carolina.

“3. That the Courts of Illinois had no jurisdiction of or over W. EL. Arring on, he never having been an actual resident of said State, and hence the decree in said cause is void and of no effect in North Carolina.

“ 4. There is no evidence to show that an appearance by attorney gives the Court jurisdiction of a party in the State of Illinois, and therefore, even though appearance had been made by attorney in said Court of said State, unless the-statutes of said State regulating said appearance had been proven, such decree cannot be sustained under our law.

“ 5. That if Mrs. Arrington went to Illinois for the purpose of obtaining a divorce from the said W. H. Arrington,, the decree granting such divorce is null and void.

“ 6. There is no evidence to show that a residence of one year is sufficient to obtain a divorce in Illinois, for that the statutes of Illinois regulating the length of residence in that State requisite to render competent a suit for divorce in the courts of that State have not been proven as by law required.”

The presiding Jhdge instructed the jury as follows :

“ There is but one issue or question submitted to you to pass upon in this case, and that is whether the plaintiff and the defendant, W. H. Arrington, were divorced by the decree of the Court in Illinois, which has been read to you in evidence. You see there was a decree or judgment of that Court, granting to Mrs. Arrington a divorce from her husband.

“And the question for you is whether that judgment is of legal, binding effect here. If it is, your answer should be, xYes’; if it is not, and she is still his wife by the laws of North Carolina, you should answer No’.

“You are the sole arbitrators of the fact, but your judgment is controlled by the law, and it is incumbent upon me to explain to you the principles of law which govern this case, and they are not difficult nor perplexing. In the first place, did Mis. Arrington have such a domicile in the State of Illinois, at the time the suit for divorce was instituted, as gavé the courts of that State jurisdiction over her cause ? Ordinarily, the domicile of the husband is the domicile of the wife, and the authority to fix that domicile is in the husband. But there are circumstances which would warrant the wife in changing her domicile. For instance, if the husband should, by cruel or barbarous treatment, endanger her life, or should offer such indignities to her person as to render her condition intolerable and her life burdensome, in either of these cases the wife would have the right to change her domicile; and there is no law which would require her to remain in North Carolina.

“If it were more convenient to her or more pleasant to her to live in another State or another country, she would have .the right to do so. Now, apply these principles which I have laid down.

“ Did the husband, W. H. Arrington, afford to his wife the home which he ought to have done and the treatment which is due from husband to 'wife, and this is, at the least, kindness, support, protection ; or did he treat her in such a manner as to render her condition intolerable and her life burdensome ?

“ If he treated her with kindness, and afforded her the support and protection which he ought to have done, and was unwilling for her to change her domicile, she would have no right to leave him. But if he treated her with such indignities, or acted in either of those ways which I have cited to you as affording her just cause for leaving him, she had a right to leave him and to select her own place of residence, either in this State, in Illinois, or anywhere else. If she left him without cause, and went to Illinois, not with the bona fide intention of living there, but simply for the purpose of obtaining, through the courts of that State, a divorce from her husband, it would be a fraud upon the jurisdiction of the courts of that State, even if she remained there for one year, as required by the statutes of Illinois, before bringing her action for divorce; and if, after considering the evidence-which has been submitted to you, and the instructions which I am now giving you, you come to the conclusion that she-had no just cause for this step, and was not acting in good faith, as I have described, then you should answer, ‘ No f i. e., they were not divorced.

“ But if she had good cause to leave him for any of the-reasons I have given you, and did go to Illinois with the bona fide intention of residing there, even though she intended to sue for a divorce, and remained there a year, she had the right to bring her suit for divorce against him there, and if he appeared there in person or by authorized counsel, and .so recognized the jurisdiction of the court over him, he is ■bound by its decrees, and you will answer, ‘Yes;’ i. e., they were divorced by the decree of the Circuit Court of Sanga-mon County, Illinois.

“ Now, if you have come to the conclusion that she did .have cause to leave her husband, and went to Illinois with the bona fide intention of remaining there, I instruct you that the letter of defendant of August 5, 1880, to Clinton L. Conlding, attorney, gave him (Conkling) full authority to enter an appearance; and as he did enter an appearance in the month of August, the Court of Illinois thereby acquired jurisdiction over him, which it could not have done by personal service in North Carolina, nor by publication, and you will answer, ‘ Yes.’

“ But if you find that she had no cause to leave her husband, and did not go to Illinois with the bona fide intention of remaining there, but simply to stay there long enough to enable her to bring her suit for divorce, the Court had no jurisdiction, and you will answer, ‘No.’”

Defendants excepted to the refusal to give the special instruction as asked, and to the instruction as given.

The j*ury responded to the issue, “Yes.”

• The sum to be paid being ascertained, we are next to inquire whether it belongs to the plaintiff or is subject to the disposal of her husband or his assignees, and this depends ■upon the efficacy of the decree of divorce a vinculo obtained by her in the proceeding instituted in Sangamon Circuit ■Court, sitting in Chancery, in the State of Illinois, against him for that purpose in dissolving the bonds of matrimony and reinstating her in the possession of all ■ her property rights as a feme-sole. Upon an issue framed to raise the question, .and under instructions of the Court, the jury responded in .the affirmative.

In our opinion, the directions given to the jury in passing upon the issue properly presented the matter, and the law bearing upon it, for an intelligent rendering of the verdict. The bonafides in the act of removal was made an e-sential element in giving the jurisdiction invoked in a decree of separation that puts an end to the marriage relation.

We sustain also the instruction that the communication to the attorney in Illinois, dated on August 5, 1880, conveys an authority to him to appear in the cause for her husband, and ivarranted his action in the premises. In it he uses these words: “ I write to employ you as my attorney in the suit of myself and wife, which is now pending here and in your Court. I herewith enclose you ten dollars for advice and retaining fee in the case.” It is true, in the concluding part of the letter, after detailing his domestic troubles, he adds: “ If it should be necessary that I should fight the case, then I am willing to pay you a liberal fee to appear for me. Please answer at once, and write me what you will charge me to appear in the case, or what you will charge me to guarantee me my success in the case and possession of my children.”

This indicates some misgiving as to what course should be pursued, but does not recall the previous employment.

When depositions in the cause were to be taken for the plaintiff, interrogatories on her behalf were sent out with the dedimus protestatem to one Harper, as commissioner, in Nash County, to which were added cross-interrogatories, signed Clinton L. Conkling, attorney for defendant, and with this endorsement, “Filed September 6, A. D. 1880. James A. Winston, Clerk.”

The commission was executed, the 'depositions taken, and direct and cross interrogatories answered, and return made to the Court. s

Again, the record contained this entry, made on October 4,1880, a term day of said Court:

“Pattie Arrington, Complainant, v. William Ii. Abrington, Defendant.

In Chancery: For Divorce.

Now, at this day, come the parties hereto, by their solicitors, and the complainant, by her solicitor, moves the Court that defendant be required to file his answer to the bill of complaint, whereupon, the defendant, by his solicitor, C. L. Conlding, moves that the time for filing defendant’s answer be extended to the 4th day of November-next, which is allowed, and it was thereupon ordered that the said defendant file his answer to said bill by said 4th day of. November.”

Subsequently, application to withdraw the appearance was made and refused, and the cause proceeded, without further interference from defendant’s counsel, to a final determination.

The understood and exercised power to interpose thus introduces the defendant into the action, and the Court, thus having jurisdiction of the subject-matter and of tlie_ parties, may proceed to final judgment, and it becomes binding and conclusive on both, as a dissolution of the relation. We are not disposed to concede this effect to a proceeding wholly ex-parte, and wherein no personal service of process is made on the defendant, and he is brought in by publication under the local law of the State, as is strenuously, but unnecessarily, pressed in argument, though in direct conflict with the case of Irby v. Wilson, 1 D. & B. Eq., 568, a decision which has not been disturbed since its rendition, in 1887, by the eminent Judge who then constituted one of the Court, as to the extra-territorial effect of such a decree upon a non-resident defendant. There are cases, and some are cited in the brief of the plaintiff’s counsel, to the effect that an ex-parte decree of divorce, obtained by one who has a domicile in the State in which the Court is held that grants it, operates as a change of the status of the pluintiif, and its efficacy prevails everywhere. Such is the ruling in Ditson v. Ditson, 4. R. I., 87, based on Art. IV, sec. 1, of the Constitution of the United States. Such is declared to be the result where the husband resided in Connecticut with his wife, deserted her,, and left the State, and she obtained divorce in one of its courts. Hull v. Hull, 2 Stroth., S. C., 174.

Such a proceeding is recognized as valid in the State granting it, because authorized by its laws, as well as to the marriage relation as to rights of property, growing out of the relations, situated within its jurisdiction. Harrison v. Harrison, 19 Ala., 499.

There are admitted difficulties in reconciling the rulings which determine the status of a resident plaintiff, without determining, at the same time, that of the non-resident defendant, where the relation subsists between the two, and what disunites the one fails to disunite the other; and, on the other hand, to take from one who has never been served with personal process, by a foreign judgment, not only personal, but property rights, possessed beyond the jurisdictional limits. These difficulties may be removed by harmonious and consistent legislation, which they seem to invite. But our province is to interpret, not to make, the law, and we must abide by that of our own State. The case most relied on, or at least most largely quoted from, in the brief therein, Cheever v. Wilson, 9 Wall., 108, does not sustain the contention of counsel. The husband, who, with his wife, resided in Washington City, on her removal to Indiana, and instituting the suit against him for divorce, both put in his answer thereto and filed a bill against her, to which she appeared without process. The controversy was as to the residence of the wife, and the acquirement of jurisdiction in the Circuit Court of Indiana.

The present case has peculiar features in its claims for recognition in this State. The marriage contract was entered into here, and the facts alleged, which form the grounds of the divorce, occurred here, and are insufficient to warrant a disruption of the marriage tie, and are cause for a separation only. They are adjudged sufficient in Illinois, whose Court takes cognizance of the complaint and decrees a dissolution. Could the Court of this State, were the defendant not a party, permit the rights of property in the wife’s estate to be divested and taken from him ? Would it not be, intended or not, an evasion and fraud upon our law to allow to the decree such an operation ? We should be slow to recognize such a result. But the point does not arise, though discussed in a "contingent aspect of the case for the plaintiff, since the defendant, by the 'act of his counsel and under his authority, has become a voluntary party to the action, and submitted to the jurisdiction of the Court in the premises, so that he must abide by the consequences.

The plaintiff, ceasing to be the wife, is to be reinstated to the right of all her dioses in action, not reduced to possession by her husband, before the entering up the decree of separation. This is the settled law upon the subject.

In Slave v. Peace, 8 Conn., 541, the effect of a legislative divorce upon rights of property, arising out of marriage in extinguishing it, was earnestly contested as a violation of the contract, under the Federal Constitution, but it was sustained and put upon the same footing as a judicial divorce, and such is now the declared law in reference to each mode of separation a vinculo matrimonii. 1 Bishop Mar, and Div., section 693.

“ Personal choses in action which belong to the wife, reduced into possession by the Husband, in the words of a recent author, remain his, but as to rights dependent on marriage, and not actually vested, a full divorce or the legal annihilation ends them.” Schouler’s Dom. Rel., § 221, and authorities cited in the notes.

The rule is supplemented by our act of 1871-72 (The Code, § 1843), which puts an end to an estate in dower or by curtesy, a claim to the year’s provisions or distributive share in the estate of either, the right to administer, and “ eve'ry right and estate in the real or personal estate of the other party, which, by settlement before or after marriage, was settled upon such party in consideration of the marriage only.”

The judgment will be thus modified and affirmed.

Modified and affirmed.