Roth v. Roth

104 Ill. 35, 1882 Ill. LEXIS 258

• Court: Illinois Supreme Court
• Decided: May 12, 1882
• Status: Published

Opinions

Mr. Justice Mulkey

delivered the opinion of the Court:

In the view we take of this ease we do not deem it necessary to follow counsel in the wide range their exhaustive and elaborate arguments have taken, but shall confine ourselves to one or two of the topics discussed in the briefs, which we regard as conclusive of the controversy, whatever may be our views with respect to the other issues in the case.

So far as the marriage between Roth and Madelaine Moser is concerned, we have no hesitancy in saying that for all purposes, in this State, it was a legal and valid marriage, notwithstanding Roth, at the time, was a subject of the kingdom of Wiirtemberg, and had not obtained a license authorizing such marriage from the sovereign of that kingdom, as required by the laws thereof. As both the parties were domiciled here at the time of its celebration, it is not important to determine whether the validity of a marriage depends upon the lex domicilii or the lex loci contractus, for whatever conclusion might be reached upon that question, the result would be the same, so far as this case is concerned. Both laws being identical, if the marriage was in conformity with either it must necessarily have been with the other also, and as it seems to have been solemnized in strict conformity with our statute regulating the subject, and as the parties were manifestly competent, under our own laws, to contract the relation, it follows, as before stated, the marriage was valid and binding.

While this marriage was clearly valid here for all purposes whatsoever, it does not follow that upon the return of the parties to the country of their nativity, and of which they were still subjects, it would or ought to be held equally valid there, for it is clearly settled by the decided weight of private international law, so called, that every State has the power to enact laws which will personally bind its citizens or subjects when sojourning in a foreign jurisdiction, provided such laws in terms profess to so bind them when thus circumstanced. It is true, such laws have no extra-territorial effect so as to authorize their enforcement in a foreign country, and may, therefore, so far as their execution is concerned, be said to remain dormant till the return of those violating them, when they will be enforced in the same manner, and to the same extent, as if their infraction had occurred within the State enacting them. Story on Conflict of Laws, secs. 114 d, 117, 244, 22; Wharton on Conflict of Laws, sec. 161; Lawrence.’s Wheaton, p. 172; 4 Phill. Int. Law, 29, sec. 34; Piggott on Foreign Judgments, 167,168; Dicey on Domicile, p. 215; 1 Burge on Col. Law, 188, 195, 196; 1 Bishop on Marriage and Divorce, see. 368; Sussex Peerage case, 11 Cl. & Fin. 85; Brook v. Brook, 9 H. L. Cases, 193; Fenton v. Livingston, 3 Macq. 497; Mette v. Mette, 1 Sw. & Tr. 416; Van Voorhis v. Brintnall, 86 N. Y. 18; Commonwealth v. Lane, 113 Mass. 458.

Nor does it follow the status or relation created by the marriage could only be annulled by our own courts, or that it could only be annulled by other courts for such causes as would be recognized as sufficient for that purpose under our own laws. When the parties returned to Würtemberg and acquired a new domicile there, so far as their personal rights and relations are concerned our laws and government ceased to have any power over them or concern with them. Personally the State had no claims on them, an'd they owed it no allegiance or duty. Barber v. Root, 10 Mass. 260; Hunt v. Hunt, 72 N. Y. 228; Kinnier v. Kinnier, 45 id. 535; Cheever v. Wilson, 9 Wall. 108; Ditson v. Ditson, 4 R. I. 87; Harvey v. Farnie, L. R. 5 P. D. 153; same case affirmed, L. B. 6 P. D. 35; Story on Conflict of Laws, secs. 211, 213; 1 Bishop on Marriage and Divorce, secs. 367, 368; Wharton on Conflict of Laws, sec. 211; Guthrie’s Savigny on Private Internat. Law, p. 248. Whether the kingdom of Wurtemberg, on their return and acquiring a new domicile there, would recognize the status or relation which they had con-, tracted here, depended upon its own laws, and not upon ours. That kingdom, in 1808, adopted an ordinance or law, which was in full force at the time of the marriage in Chicago, declaring all such marriages in a foreign State, without the license of the sovereign, absolutely null and void. It was, therefore, according to the general current of authority on the subject, entirely competent for the courts of that kingdom having jurisdiction of such matters, to give effect to that law by annulling and setting aside-the marriage, upon a proper application for that purpose, which was done in this case. 1 Bishop on Marriage and Divorce, secs. 367, 368; Story on Conflict of Laws, secs. 18, 19, 21-23, 25; Wharton on Conflict of Laws, (2d ed.) sec. 207; 4 Phill. on Int. Law, secs. 3, 11, 12, 13, 16, 24, 25; Guthrie’s Savigny on Private Int. Law, 248.

/Ordinarily, where a party, upon a change of domicile, goes into another State or country, the personal status which he carries with him will be recognized by the courts of the latter country. This is certainly the general rule, but it is subject to certain well recognized exceptions. If, for instance, such status has been acquired, as in the present case, by a violation of an express provision of the positive law of the State in which its recognition is asked, or if it be contrary to the genius and spirit of its institutions, as a title of nobility would be here, or if it is opposed to its settled policy, or to the good order and well being of society, or to public morality and decency, in all such cases the status would not and should not be recognized by the courts of the latter State. 2 Kent, *p. 458; Wharton on Conflict of Laws, (2d ed.) secs. 207,165 ; Story on Conflict of Laws, secs. 98, 244; 4 Phillimore on Int. Law, (ed. 1861,) p. 529; Brook v. Brook, 9 H. L. Cas. 193; Cincinnati Mutual Health Ass. v. Rosenthal, 55 Ill. 91; Forbes v. Cochrane, 2 B. & C. 448; Melle v. Mette, 1 Sw. & Tr. 416; Commonwealth v. Lane, 113 Mass. 458; Van Voorhis v. Brintnall, 86 N. Y. 18.

Assuming the compromises of appellant with Amalie and Both, respectively, relating to her interest in the latter’s estate, were made by her in ignorance of her rights, and that they were effected through the fraud and misrepresentation of them, and others acting in concert with them, as is claimed by her, of which we express no opinion, at least for the present, it follows the result of this case must depend chiefly upon the legal effect which must, under the circumstances stated, be given by the courts of this State to the decree rendered by the Wiirtemberg court annulling the marriage, and this we regard as the vital question in the case. The general rule unquestionably is, where it affirmatively appears the court of a foreign State has jurisdiction of the parties and subject matter of the suit, its judgment or decree will be conclusive on the parties, their legal representatives and privies, in all countries where the matters litigated are again drawn in question, and this is particularly true with respect to judgments or decrees affecting the status of a person, for they are in the nature of judgments in rem, which are binding on the whole world. Wharton’s Conflict of Laws, secs. 800, 801, 802, 815, 816, 817, 822, 835; Bigelow on Estoppel, 170, 178; Freeman on Judgments, sec. 528; 2 Bishop on Marriage and Divorce, see. 755; Foote on Private Int. Jur. 473, 474; Guthrie’s Savigny on Private Int. Law, sec. 373, note c; Harvey v. Farnie, L. R. 5 P. D. 153; Gould v. Crow, 57 Mo. 200; Rose v. Himely, 4 Cranch, 162; Hobbs v. Henning, 17 C. B. (N. S.) 821; Doglioni v. Crispini, L. R. 1 Eng. & Irish App. 301.

The .above rule is also fully recognized by this court. (Baker v. Palmer, 83 Ill. 568.) The limitation to this rule is, that it may be shown that such judgment or decree was obtained by means of fraud, or some gross abuse of the process of the court, or flagrant departure from the ordinary course of judicial procedure, as, for instance, that a party in interest sat as a judge in the cause. Foote on Private Int. Jur. 456, 472; 2 Story’s Eq. Jur. sec. 1582; Piggott on For. Judgments, 116; Westlake on Private Int. Law, (last ed.) secs. 309, 310; Crowley v. Isaacs, 16 L. T. (N. S.) 529; Ochsenbein v. Papelier, L. R. 8 Ch. App. 695.

While it is claimed by counsel for appellant, in general terms, that the court rendering .the decree in question acted without jurisdiction, and that the same was obtained by fraud, yet we fail to discover anything in the record to warrant either- 0of these charges. It is not sufficient, as it has often been held by this court, for the purpose of successfully assailing a transaction on the ground of fraud, to charge fraud generally; but the complaining party must state in his pleading, and prove on 'the trial, the specific acts or facts relied on as establishing fraud. That has not been done in this case. So far as we are able to discover, the trial was perfectly regular, and conducted with the utmost fairness, and we see no ground to question the jurisdiqtion of the court. The depositions of persons learned in the law of that country have been taken in this cause, and they clearly show the, several courts through which that case passed during its pendency, were, by the laws of that country, the proper tribunals to take cognizance of cases of that character in the manner it was done. And it is further shown that both parties appeared in the cause, by themselves and counsel. Hence, as before'stated, we see no ground for questioning the jurisdiction of those tribunals. We are of opinion, therefore, the decree of nullity must be given in the courts here the same effect which w'ould be given to it by the courts of the country in which it was rendered. The effect of the decree there, as we understand it, was not merely to establish conclusively the nullity of the contract of marriage, or of the marriage itself, but also to annul and terminate the status or marital relation of the parties which arises from a de facto as well as a de jwre marriage, so as to leave them in precisely the same condition as if no marriage had ever taken place between them. This being the effect of the decree there, it must be given the same effect here. Barber v. Root, 10 Mass. 260 ; Ross v. Ross, 129 id. 243; Kinnier v. Kinnier, 45 N. Y. 535; Hunt v. Hunt, 72 id. 228; Harvey v. Farnie, L. R. 5 P. D. 153; Roach v. Garan, 1 Ves. Sr. 159; Collington’s case, 2 Swanst. 326, note; 2 Kent’s Com. *p. 107; 2 Bishop on Marriage and Divorce, see. 754; 1 id. secs. 354, note, 355; Wharton on Conflict of Laws, (2d ed.) secs. 1-3, 213, 671; Story on Conflict of Laws, secs. 37, 595, 597; 4 Phill. on Int. Law, (new ed.) secs. 836, 839; Freeman on Judgments, sec. 579; Foote on Private Int. Jur. 473, 474.

Such, then, being the legal operation of the decree, it follows that the appellant was not at the time of Both’s death his wife, either de facto or de jure, and hence she is not his widow, for no one answers that description who was not his wife at the time of his death, and consequently she has no right, as such, to succeed to his estate. (Hood v. Hood, 110 Mass. 463.) For the same reasons it follows that the subsequent marriage between Both and Amalie was lawful and valid, and that relation having continued up to the time of his death, it results that she, and not appellant, is his lawful widow, and as such is entitled to his estate. It is true the “marriage and inheritance contract” did not, upon his decease, have the effect of clothing her with legal title to the real estate in controversy, as his survivor, as it doubtless would have done had the property been situated in the kingdom of Wiirtemberg instead of here; for it is not competent for parties, here or elsewhere, by mere agreement, to change the manner of transferring real property in this State, but the agreement in question, upon his decease, operated as an equitable assignment of the estate to her, which was properly enforced by the decree in this case. Story on Conflict of Laws, secs. 143, 159,-184; Westlake on Private Int. Law, (new ed.) secs. 34, 35, 205; ibid, (old ed.) secs. 99, 371; Decouche v. Savetier, 3 Johns. Ch. 190; Basse v. Pellochoux, 73 Ill. 285.

Having reached the conclusion stated with respect to the decree of nullity, it is therefore unnecessary to discuss the effect of the compromise above alluded to, and relied upon as an estoppel by appellee. Whatever our views might be with respect to that matter, we are of opinion the law is with the appellee, on the grounds already stated.

Decree affirmed.