DARGAN, C. J.
This was an application to the Court of Probate of Dallas, by Harriet Harrison, claiming to be the widow of Kirkland Harrison, deceased, and praying that dower might be allotted to her of the lands of the decedent. The application was dismissed, and the cause is brought before this court by writ of error.
[505]*505The facts which give rise to the questions of law for our revision, are these: I-n-1828/Kirkland Harrison, the decedent, intermarried with Harriet Ellison, the plaintiff in error, in the State of South Carolina, where both the parties then resided and ■ continued' to reside until the year 1834, when they removed to this State with the view to make it their permanent home. In a ■few months, however, after residing in this State, the plaintiff left her husband and returned to the State of South Carolina, where she has eve'r- since remained; but the decedent, her husband, continued to '"'reside -in this State until his death, which took place in the year -185G-. In the year 1835, the plaintiff in error filed her bill in equity-in’’South Carolina, alleging cruelty on the part of her husband towards her, and .'.praying alimony, and to be protected in living separate and apart-from her husband. A commission was issued from the Court of Chancery in South Carolina'directed to commissioners in this State, and before them Kirkland Harrison answered the bill denying the allegations of cruelty, blit made no:objections to the jurisdiction of the court. It does not appear that he took any-further notice of the suit, but she examined rvitnesses, and a ‘decree was rendered in conformity with'the prayer'of the bilk
In'the year 1839, Kirkland Harrison filed his bill ill the Chancery -Court of Dallas county against the plaintiff in error, in ■which she was styled Harriet Y. Harrison, formerly Ellison, alleging that she had voluntarily left his bed and board for the space of three years, with the intention of abandonment, and praying a divorce from the bonds of matrimony-. This bill, however, took no notice of the decree that had been tenderéd in the State of South Carolina, -and the plaintiff was made a party to it by publication only, without personal service, and it is stated in the affidavit of Harrison/filed to obtain the order of publication, that the plaintiff then resided in the State of South Carolina, and without the limits of this State. Upon proof of the marriage and that the parties removed to this State in the early .part of the year 1834, and that the plaintiff in error left her ■husband in a few months thereafter and returned to South Carolina, ryhere she had ever since remained, the chancellor de>creed a divorce according to the prayer of the bill. This decree was rendered in July, 1841, and in pursuance thereof an •act was passed by the Legislature of the State of Alabama) on [506]*506the lfítb day of January, 1844, divorcing the said Kirkland Harrison from his wife Harriet. In the year 1845, Kirkland Harrison intermarried with Margaret Smith in this State, with whom he lived as his wife until his death, and had by her one-child, who is now an infant. It also appeared in the court below, that by the laws of South Carolina, where the contract of marriage was celebrated between Kirkland Harrison and the plaintiff, the bonds of matrimony are indissoluble so long as the parties live, and for no cause can a valid marriage be dissolved, by the courts of that State.
This being the law of that State, it is contended, first, that a marriage celebrated there cannot be dissolved in another State,, although the parties have removed to, and become citizens of such other State, in which divorces a vinculo are allowed. I cannot, doubt but that the law of the placo of the actual domicil of the parties is to govern in questions of divorce, without regard to the law of the place where the marriage was celebrated; and if. the laws of the place of the domicil allow of divorces for any cause, the injured party may obtain one, although the law where the contract of marriage was consummated would not allow it for any cause. This is said to he the settled doctrine of the American courts, by Judge Story, in his work upon the Conflict of Laws, § 280, and the decisions (to which ho has referred, and which have fallen under my observation, fully sustain his assertion.
In the case of Barber v. Root, 10 Mass. 265, the parties were married in Massachusetts, but afterwards removed and fixed their domicil in Vermont, and in the latter State the wife obtained a divorce a vinculo by a decree of the Supreme Court, The validity of this decree came in question before the Supreme Court of Massachusetts, and it was determined to be valid, notwithstanding the cause for which the divorce was granted in Vermont would not have been sufficient to authorize the divorce by the laws of Massachusetts; and in the opinion the principle was asserted,that the conduct and relative duties of the married parties, as well as the relation itself, must bo governed by the law of the domicil of the parties, and not by the law of the place where the marriage was contracted; and even in annulling the .relation, reference must be had to the law of the domicil, -and not to the law of the place of the contract. In the case of Harteau v. [507]*507Harteau, 14 Pick. 181, the court said, that tbe place where the marriage was had seems to be of no importance, but we must Itok to the relation of the parties,- as it subsists and is regulated by our laws, without considering under what law, or in what country the marriage was contracted;, In the case of Dorsey v. Dorsey, 7 Watts, 350, the parties being citizens of Pennsylvania were married there,-but afterwards removed to Ohio, where the husband deserted the wife, who returned to her friends in Pennsylvania, and in that State filed her libel for divorce. The libel was dismissed on the ground that the courts of Ohio alone had jurisdiction of the matter, as the parties had their actual dómicil in that State at the time the offence by the husband was committed.- Chief Justice Gibson, in delivering the opinion of the court, said, “ that the law of the place of the marriage must necessarily be the law of the marriage, as to its primitive obligation ; but except upon the principle of perpetual submission to its supremacy in all things, it is not the law of the contract for the determination of its solubility.V. Again; he said, “while the parties remain subject to- our jurisdiction, the marriage is dissolvable only by our laws, but when they are remitted to another, it is incidentally remitted along with them.’5' The same principle is asserted in the case of Maguire v. Maguire, 7 Dana, 181. But it is contended, that by the laws of England the courts of Alabama have no authority to dissolve a marriage celebrated in a country where such contract is indissoluble, and that these laws are to govern in determining this question. But upon an examination of the English authorities, it will be found that even they would compel us to hold, that when a marriage is dissolved by the proper tribunals of this State, and the validity of the divorce is brought in question in our‘own courts, it must be held valid, notwithstanding by the laws of the place where the marriage was contracted no divorces were allowed. In the case of Rex v. Lolly, Eng. Crown Cases, 240, the prisoner was indicted and convicted of the crime of bigamy. Upon the trial it appeared that he had been married to Ann Scvaia, in Liverpool, who was divorced from him by the Consistorial Court of Scotland, and after such divorce, he was again married in England to Helen Hunter. The case was argued before all the.
Free access — add to your briefcase to read the full text and ask questions with AI
DARGAN, C. J.
This was an application to the Court of Probate of Dallas, by Harriet Harrison, claiming to be the widow of Kirkland Harrison, deceased, and praying that dower might be allotted to her of the lands of the decedent. The application was dismissed, and the cause is brought before this court by writ of error.
[505]*505The facts which give rise to the questions of law for our revision, are these: I-n-1828/Kirkland Harrison, the decedent, intermarried with Harriet Ellison, the plaintiff in error, in the State of South Carolina, where both the parties then resided and ■ continued' to reside until the year 1834, when they removed to this State with the view to make it their permanent home. In a ■few months, however, after residing in this State, the plaintiff left her husband and returned to the State of South Carolina, where she has eve'r- since remained; but the decedent, her husband, continued to '"'reside -in this State until his death, which took place in the year -185G-. In the year 1835, the plaintiff in error filed her bill in equity-in’’South Carolina, alleging cruelty on the part of her husband towards her, and .'.praying alimony, and to be protected in living separate and apart-from her husband. A commission was issued from the Court of Chancery in South Carolina'directed to commissioners in this State, and before them Kirkland Harrison answered the bill denying the allegations of cruelty, blit made no:objections to the jurisdiction of the court. It does not appear that he took any-further notice of the suit, but she examined rvitnesses, and a ‘decree was rendered in conformity with'the prayer'of the bilk
In'the year 1839, Kirkland Harrison filed his bill ill the Chancery -Court of Dallas county against the plaintiff in error, in ■which she was styled Harriet Y. Harrison, formerly Ellison, alleging that she had voluntarily left his bed and board for the space of three years, with the intention of abandonment, and praying a divorce from the bonds of matrimony-. This bill, however, took no notice of the decree that had been tenderéd in the State of South Carolina, -and the plaintiff was made a party to it by publication only, without personal service, and it is stated in the affidavit of Harrison/filed to obtain the order of publication, that the plaintiff then resided in the State of South Carolina, and without the limits of this State. Upon proof of the marriage and that the parties removed to this State in the early .part of the year 1834, and that the plaintiff in error left her ■husband in a few months thereafter and returned to South Carolina, ryhere she had ever since remained, the chancellor de>creed a divorce according to the prayer of the bill. This decree was rendered in July, 1841, and in pursuance thereof an •act was passed by the Legislature of the State of Alabama) on [506]*506the lfítb day of January, 1844, divorcing the said Kirkland Harrison from his wife Harriet. In the year 1845, Kirkland Harrison intermarried with Margaret Smith in this State, with whom he lived as his wife until his death, and had by her one-child, who is now an infant. It also appeared in the court below, that by the laws of South Carolina, where the contract of marriage was celebrated between Kirkland Harrison and the plaintiff, the bonds of matrimony are indissoluble so long as the parties live, and for no cause can a valid marriage be dissolved, by the courts of that State.
This being the law of that State, it is contended, first, that a marriage celebrated there cannot be dissolved in another State,, although the parties have removed to, and become citizens of such other State, in which divorces a vinculo are allowed. I cannot, doubt but that the law of the placo of the actual domicil of the parties is to govern in questions of divorce, without regard to the law of the place where the marriage was celebrated; and if. the laws of the place of the domicil allow of divorces for any cause, the injured party may obtain one, although the law where the contract of marriage was consummated would not allow it for any cause. This is said to he the settled doctrine of the American courts, by Judge Story, in his work upon the Conflict of Laws, § 280, and the decisions (to which ho has referred, and which have fallen under my observation, fully sustain his assertion.
In the case of Barber v. Root, 10 Mass. 265, the parties were married in Massachusetts, but afterwards removed and fixed their domicil in Vermont, and in the latter State the wife obtained a divorce a vinculo by a decree of the Supreme Court, The validity of this decree came in question before the Supreme Court of Massachusetts, and it was determined to be valid, notwithstanding the cause for which the divorce was granted in Vermont would not have been sufficient to authorize the divorce by the laws of Massachusetts; and in the opinion the principle was asserted,that the conduct and relative duties of the married parties, as well as the relation itself, must bo governed by the law of the domicil of the parties, and not by the law of the place where the marriage was contracted; and even in annulling the .relation, reference must be had to the law of the domicil, -and not to the law of the place of the contract. In the case of Harteau v. [507]*507Harteau, 14 Pick. 181, the court said, that tbe place where the marriage was had seems to be of no importance, but we must Itok to the relation of the parties,- as it subsists and is regulated by our laws, without considering under what law, or in what country the marriage was contracted;, In the case of Dorsey v. Dorsey, 7 Watts, 350, the parties being citizens of Pennsylvania were married there,-but afterwards removed to Ohio, where the husband deserted the wife, who returned to her friends in Pennsylvania, and in that State filed her libel for divorce. The libel was dismissed on the ground that the courts of Ohio alone had jurisdiction of the matter, as the parties had their actual dómicil in that State at the time the offence by the husband was committed.- Chief Justice Gibson, in delivering the opinion of the court, said, “ that the law of the place of the marriage must necessarily be the law of the marriage, as to its primitive obligation ; but except upon the principle of perpetual submission to its supremacy in all things, it is not the law of the contract for the determination of its solubility.V. Again; he said, “while the parties remain subject to- our jurisdiction, the marriage is dissolvable only by our laws, but when they are remitted to another, it is incidentally remitted along with them.’5' The same principle is asserted in the case of Maguire v. Maguire, 7 Dana, 181. But it is contended, that by the laws of England the courts of Alabama have no authority to dissolve a marriage celebrated in a country where such contract is indissoluble, and that these laws are to govern in determining this question. But upon an examination of the English authorities, it will be found that even they would compel us to hold, that when a marriage is dissolved by the proper tribunals of this State, and the validity of the divorce is brought in question in our‘own courts, it must be held valid, notwithstanding by the laws of the place where the marriage was contracted no divorces were allowed. In the case of Rex v. Lolly, Eng. Crown Cases, 240, the prisoner was indicted and convicted of the crime of bigamy. Upon the trial it appeared that he had been married to Ann Scvaia, in Liverpool, who was divorced from him by the Consistorial Court of Scotland, and after such divorce, he was again married in England to Helen Hunter. The case was argued before all the. ■judges of England, and they held the conviction right, cm the ¿round that no foreign tribunal ¡could dissolve an English marriage [508]*508a vinculo matrimonii, for a cause for which it Was not liable to he dissolved in England; and this case has been followed in the two subsequent cases of Tovey v. Lindsey, 1 Dow. R. 117, and McCarthey v. DeCaix, 2 Russ. & Mylne, 614. But in the subsequent case of Warrender v. Warrender, 9 Bligh ft. 89, the parties were married in England, but went to reside in Scotland. They afterwards went to England and executed articles of separation, The husband returned and resided in /Scotland; but the wife went abroad and never returned. The husband brought suit in Scotland for a divorce, on the ground of adultery; a divorce ft, vinculo was granted, and the cause finally came before the House of Lords pf England on appeal, and the decree was affirmed on the ground that the courts pf Scotland had jurisdiction to decree a divorce,, the parties'being actually domiciled there; and as the case came from Scotland, the House of Lords jras bound to administer the Scottish Igw. Without at present undertaking to s¡ay ?.vhether this case .can be reconciled with the pase of Lolly or not, it is clear that upon the authority pf the case of Warrender v. Warrender, we should be bound to hold the decree valid in this State, without regard to the question, how it would be considered in South Carolina where the marriage was contracted. For, if we admit that the courts of England would have disregarded the decree in the case of War-render and Warrender, had it been drawn in question in thfir courts, yet eyen the English .courts hold that in Scotland, where the parties resided and the decree was rendered,'it must be held valid. If then are governed by the JSnglish decisions, as the parties were domiciled in this State and the decree here rendered, we cannot refuse to give it validity, because by the place pf the contract of the marriage, the marriage tie is indissc? hole.
But I cannot give my assent to the case of Lolly and those founded upon it. It is trpe we must look to the lex loci contrac-tus to determine upon fho validity of the marriage, and fllso to ascertain the rights eaph party acquired in the goods or pro? perty of the other, possessed at the time of the miirppge, or acquired during the time of their domicil there. But when they remove and acquire a new domicil and become citizens of another country, although they carry their rights with them, they do not, and canppt parry with them the lex loci contractus. They come [509]*509imder a new set of laws,' and they must govern themselves by ihemy and if they acquire new rights aftet their removal, the law of the domicil must govern and ascertain them. Thus, if a marriage is celebrated in a country where the common law prevails, the husband becomes entitled to all the personal property of which the wife was possessed at the time of the marriage; but if they remove to a country where the civil laW prevails,- and af-terwards acquire property, the civil law, Unci not the common-law' of England, must furnish the rule by which the rights' of the husband and wife must be ascertained in reference to such newly acquired property. So,- on the other hand,-if the civil law prevails where the marriage is' celebrated and the parties reside, it will furnish the rule that will govern the rights that each- party takes,- by virtue of the marriage, in the gobds of the other’;- but if they subsequently remove to a country where the common law prevails and there acquire property, the common lavf must govern in reference to it. — Story’s Confl.- of Laws/ § 178.- If the laws of the' newly acquired domicil nriist- govern the marital rights as to property acquired- after the removal,- why shall not the relation itself in reference to the future conduct of the parties be governed'by the laws of" their newly acquired- home i The contract of marriage is unlike all others-in this/-unless'it bean-nulled by law,- the duties and obligations it imposes are never fully performed or ended until the contract' is' determined by' death. If then a married- couple shall remove from- the place of their marriage and take up their abode in: another jurisdiction,, and one of the parties there violates all the duties and obligations of the contract, by what laW-,- it- may be asked,- shall the injured party seek redress 1 Would the law of the’ domicil apply any Other remedy'for the wrong's committed within its own jurisdiction/ than it would if the marriage had been celebrated there % i think all will answer, that the same measure of redress and the same remedy would be applied, as if the parties bad been-there married-and if so, to my mind it follows that the marriage relation itself must be governed by the laws of the domicil,-irrespective of the'laws-of the place of the marriage ;- and’if governed by the laws of the domicil, it must be in toto; and conse-quentlyif the marriage is properly annulled by those laws, it should lie so considered all over the world.- We constantly refer to the lex hei to determine the validity of a contract,- and I will ask if we [510]*510should not refer .to the lex fori to .determine -upon the validity of its discharge.? .Upon .what principle.can we say that the decree .rendered in the case of Warrender v.’ Warrender is valid according to laws.of Scotland, but invalid in'England or elsewhere ? If the marriage was legally annulled in Scotland, where the parties resided, it should be so considered every where else; otherwise, we introduce this state of things, a contract binding on the parties every where except in the place of their dom-icil, and there it is legally discharged' and annulled. 'To my mind, it appears that the ease of Lolly is inconsistent -with the principle that governs in the case of Warrender v. Warrender, and that the one or the other of them will have to .be ultimately overruled by-the English courts; or, if not, many embarrassing questions and disagreeable consequences will flow.from the conflict, which we shall escape by steadily adhering to the American decisions, which hold that the laws of the domicil of the parties must .govern the relation of husband and wife, from the time they are domiciled at their new home, without regard to the laws of the. country where they were married. We come, therefore,-.to-the conclusion, that the decree rendered in Alabama is not invalid because the laws of South Carolina, where the marriage was contracted, do not allow of a divorce a vinculo mat-rimonii.
But the-decree,is .assailed on several other grounds. It is urged that it .is void because the plaintiff.in error was not served with process personally, and also because it .was not affirmed by tho Legislature at the next session after it was rendered, and further, that it-was fraudulently obtained.
Independent of our statute, it uncertain that the decree would be void, because the .plaintiff in error, who was the defendant t© the bill, was not personally served -with process, nor did she appear or submit to the jurisdiction of the .court. But in this State, as in many others of ..the Union, if not in all, the Legislature has passed laws to enable, a complainant to proceed against an absent or non-resident defendant, on whom personal service cannot be effected, by publication, when .the cause of complaint originates in this State, (see .Clay’s Dig. 353-4, § 48,) and decrees rendered upon service .by publication, in the manner prescribed by the act, unless controverted in the manner pointed,out thereby, and set .aside, .are equally as binding and obligatory [511]*511upon the absent defendant as if he had been duly served with process, or had appeared and answered the bill. See Bank of Norfolk v. The Heirs of Holman, 12 Ala. 369; Glover v. Glover, 16 ib. 440. It has been, however, argued that the cause of action or ground of complaint did not originate or take place in •-this State, and consequently the court had no jurisdiction torender the decree. But the bill alleges, and the proof shows, as well •as the decree itself, that the plaintiff in error removed with her husband to this State, and after living with him a few months here, she abandoned him and returned to South Carolina, The abandonment or desertion of the husband is the ground of complaint, and that took place in this State. Norean we yield our assent to the -argument that the plaintiff must have remained three years in-th- State after the abandonment in order to entitle her husband to proceed against her as an absent defendant. The desertion, with-the intention of abandonment, must continue three years to entitle the injured party to a divorce 5 but if the desertion takes place whilst the parties have their domicil in this "State, it is immaterial where the. guilty party resides during the three years, whether in or out of this State, the ground of complaint takes place here.
Neither is the decree ineffectual because the Legislature of the State did not pass a law confirmatory thereof, at the next General Assembly of the State held after the same was rendered. It is made the-duty of the party in whose favor a decree is rendered, to deliver to the Speaker of the House of Representatives, either by himself, his agent or attorney, a transcript of the proceedings and decree, in the manner directed by the act of 1820, (Clay’s Digest, 171,) and the Speaker is to cause the record to be opened in -the presence of the House, and the same to be read and proceeded upon according to the constitution of this State. But neither the constitution nor our acts passed in pursuance thereof prescribe the time within which the Legislature must act upon the decree to give it validity, and we cannot restrain or limit them to the session next after the decree is rendered, or hold the law void which they may pass confirmatory of the decree, because it was passed at a subsequent session.
The last objection is, that the decree was fraudulently obtained — first, because the bill describes the plaintiff in error by the name of Harriet Y, Harrison, when her name was Harriet, with[512]*512out the addition of the letter Y, and without s,- middle name.: secondly, because the bill omitted to state the proceedings and' decree had in South Carolina, nor were they brought in any manner to* the notice of the court.
It must bo observed that no evidence was introduced to show the intention of the complainant in alleging the name of his wife to be Harriet Y. Harrison instead of .Harriet Harrison, nor that the plaintiff'in error was misled or injured by the insertion of the letter Y as part of her name. But the question arises solely on the fact, and the plaintiff seeks to avoid the effect of the de- • cree, simply on the ground that she was christened by the name Harriet, without the addition of a middle name, and the bill was filed against her by the name of Harriet Y. We cannot- say from this circumstance alone that the decree was fraudulent. The bill filed by Kirkland Harrison sufficiently described-his ■wife to enable her at once to know against whom it was filed.. She is described as Harriet Y. Harrison, formerly Ellison,..and the place of their marriage is correctly given by the bill. If the plaintiff saw the publication made against her, she at once knew against whom it was filed. This at once would: do away with the idea of intentional fraud, for if the letter Y had been insert- • ed to mislead the plaintiff and to prevent her from contesting the bill and the decree that was rendered,, the complainant would scarcely have given such a description, of her as would, beyond doubt, have defeated the very purpose he had in view. But besides this, it is not even alleged in the pleadings that the plaintiff was not called or known, by the name of Harriet Y. Ham-son. It is not unfrequently the case that a middle name is given or assumed after the first is given, or that one becomes as well and as familiarly known by a name differing from his baptismal name, as he is by his true name. Whether the plaintiff in error may not, in the one or the other of these modes, have acquired the addition of the letter Y to her name is not negatived, either by proof or by the pleadings- The decree cannot be affected with fraud on this ground.
The only remaining ground- on which the decree is assailed for fraud,, is the omission to state in the bill the proceedings and decree rendered in South Carolina,, by which the plaintiff in error was authorized and protected in- living separate and apart from her husband, Kirkland Harrison- We must bear in mind [513]*513that we are not considering what effect a foreign tribunal or the ■ courts of a sister State would give to the Alabama decree, the plaintiff in error not being made a party to the bill by personal service of process, but the question is, what effect is to be given to this decree by the courts of Alabama % • and we have seen that inasmuch as the cause of complaint arose or took place here, .• and the plaintiff in error was made a party to the bill in the mode pointed out by our law> the decree is binding on her, .although she resided out of the State and did not have actual notice of the suit. To hold otherwise would not only be productive cf<* disastrous consequences-; but it would be to-deny to our! Legislature the power to pass laws enabling the courts of this State to ■ render a decree against, an absent defendant, when he was not personally served with process, although the cause of complaint arose here, and the absentee is made a party to the bill in the mode ■ prescribed by the Legislature. Such a proposition we could not sanction, nor do we suppose that.it would be sanctioned by any' court either of the United States or of England. As the plaintiff in error cannot object to the decree on-the ground that she did not have actual notice of the suit, the question is narrowed down to this,.is the decree to be considered void for fraud, when collaterally called in question,, because the bill omitted to state a fact or a groundlo-f defence that would have formed a bar to • the relief sought by it? In the case of Talbott v. Todd, (5 Dana 190,) the Court of Appeals of Kentucky held that the mere omission, perversion or. misrepresentation of the facts in a bill would not constitute fraud,-or subject the decree to impeach-ment on that ground.. We are satisfied with, the principle announced in this case, at all events, when the validity of the decree is collaterally called in question; for, if we allow the truth of the allegations of the bill on..wkich the decree is rendered to be contested, and the decree held'- for naught, if the- facts ai e found untrue,, we should take from. it. all binding efficacy, ard-open every question to litigation .that has been adjudicated and settled by the decree. .
Coming to the conclusion that the decree rendered in this State divorcing Kirkland Harrison .from, .his wife, cannot be impeached for any of the reasons alleged in ¡the pleadings, it becomes unnecessary to examine the important question, whether the decree rendered in South Carolina in favor of the plaintiff in error was • [514]*514binding on her husband or not. That question- may be hereafter presented in such a shape as to require its solution, but until then wo shall express no opinion upon it. '
There is no error in the record, and the judgment of the court .below must bo affirmed.