Starr v. Hamilton

22 F. Cas. 1107, 1 Deady 268, 1867 U.S. App. LEXIS 784

• Court: U.S. Circuit Court for the District of Oregon
• Decided: June 25, 1867
• Status: Published

Opinion

DEADY, District Judge.

By virtue of the sheriff’s sale, on September 4, 1866, and the subsequent deed to the plaintiff, in pursuance of the order confirming such sale, the plaintiff acquired all the estate or interest which the defendant, A. Hamilton, had in the real property described in the complaint at the time of such sale. What then was the interest. if any, of A. Hamilton in the property in question on September 4, 1866?

Block two hundred and fifty was conveyed to the wife, Christina Hamilton, on February 13. 1858. At that time the effect of marriage upon the property of the wife was regulated and prescribed in Oregon by the rules of the common Jaw. By the common law, the husband, by reason of the marriage, became seized of a freehold estate in all the lands in which the wife had an estate of inheritance. White v. White, 5 Barb. 474, 481; Snyder v. Snyder, 3 Barb. 621; 2 Kent, Comm. 108; 2 Bac. Abr. 695, 705. ■ This freehold estate, which the common law gave the husband in the lands of his wife, was his absolute property, as much as though it had been conveyed to him by his wife before marriage. It could lie seized and sold on execution by the creditors of the husband. 2 Kent, Comm. 110.

But it is claimed on behalf of the defendant, Christina Hamilton, that the constitution of this state has worked a change in the law in this respect, which is applicable to this case. The constitution (article 15, § 5), provides: “The property and pecuniary rights of every married woman at the time of marriage, or afterwards acquired by gift, devise or inheritance, shall not be subject to the debts or contracts of the husband; and laws shall be passed for the registration of the wife’s separate property.” Independent of the constitutional provision, the property of the wife is not necessarily her separate property or estate. “The separate estate of a married woman is that alone of which she has the exclusive control and benefit, independent of the husband, and the proceeds of which she may dispose of as she pleases; and its character as such must be imparted to the property by the instrument (or power otherwise) by which she is invested with such right to it.” Cord, Mar. Worn. §. 225. The instrument by which block two hundred and fifty was conveyed to Christina Hamilton did not in any degree impart to it the character of separate property. It is but an ordinary deed, conveying the property to her and heirs by her husband, and contains no terms from which it can be inferred that it was the intention of the grantor to exclude the husband, as such, from the benefit and control.of it. For aught that appears in the deed, the property was conveyed to the wife, subject to the general marital rights of the husband as then prescribed and defined by law. Looking then to the nature of the instrument by which block two hundred and fifty was conveyed to the wife, and the law as it stood at the time of such conveyance, there can be no doubt but that the husband then became seized of a freehold estate in the same, which could be taken on execution by his creditors. The fact that the purchase money was derived from the’sale of the wife’s real property in Missouri, which she inherited from her mother, does not affect the question. That was not her separate property. It was her general property and subject to the marital rights of her husband, at the time of the marriage in 1853. Moreover, by the sale of it in 1857, it was converted into personal property — money—and upon the receipt by him became the absolute and exclusive property of the husband.

The constitution went into force on February 14, 1859. What effect did it have upon the lights of the husband in this property? The constitution makes provision for the registration qf the wife’s separate property, but does not declare in express terms what shall be considered such separate property. The contemplated registration is not for the benefit of the wife, but for the protection of the public. Still it is evident that the constitution intended to change the law on the subject of the wife’s property, and to change in favor of the wife. This being the case, it is the duty of the courts to give effect to such purpose so far as it can be ascertained with reasonable certainty. If the constitution had said, “The property and pecuniary rights of every married woman,” etc., shall be deemed to be her separate property, or shall be held by her as her separate property, no doubt could arise as to the legal effect of the language employed.- This would have imparted a particular character to her property, so far as enumerated in the constitution, however acquired; the effect of which would have been to have excluded her husband from all control over it or benefit in it. The language actually employed in the constitution is “shall not be subject to the debts or contracts of the husband.” Taken in connection with the fol-' lowing clause, providing for the registration’ of the wife’s separate property, I think these words ought to be construed, so far at least' as third persons are concerned, as equivalent to a declaration that the property enumerated in section 5 shall be the separate-property of the wife. If the wife’s property is not to be “subject to the debts or contracts of the husband." he is thereby precluded from any control over it, and if he has any benefit or interest in it, it is beyond the reach of his creditors, for it is - not “subject to his debts or contracts.” This seems to be the conclusion of the supreme court of the state in Brummet v. Weaver, 2 Or. 168. Any narrower construction than this would defeat the evident intention of the constitution to change the law concerning the effect of marriage upon the wife’s property in favor of the wife. If, notwithstanding the provision in the constitution, the husband, by reason of the marriage, is still invested with a freehold estate in his wife’s lands, then it may be well said, as maintained by the plaintiff, that such estate— the property of the husband — may be taken on execution, by the creditors of the husband, without conflicting with the provision in the constitution concerning the property of the wife. Such a construction would leave the subject as it stood at common law, without giving any effect to the constitution whatever. For these reasons 1 think that the property of the wife, as enumerated or described in the constitution, ought to be considered her separate estate in the technical sense of that term —property over which the husband acquires none of the marital rights known to the common law.

At the time the constitution went into force and from the date of the conveyance to the wife, the husband liad a freehold estate in block two hundred and fifty. Tills was a vested right. Could the constitution take it away from him and give it to the wife, or should it be so construed? The act of April 7, 1848, of the New York legislature, for the more effectual protection of the projierty of married women, so far as it related to existing rights of property, in married persons, was declared unconstitutional and void by the courts of that state. White v. White, 5 Barb. 474; Westervelt v. Gregg. 2 Kern. [12 N. Y.] 202. These decisions maintain, that the rights of the husband in the property of the wife at the time of the passage of the act were vested rights to property, of which he could not be deprived, except by due process of law — forensic trial and judgment. But this conclusion was put upon the ground of the prohibition contained in the constitution of the state of New York: “No person shall be deprived of life, liberty or property, without due process of law;” while in the case at bar, the enactment under consideration is a part of the constitution itself — the supreme law of the land.

Whether the people of a state in the formation and adoption of a constitution are omnipotent or not is an unsettled question. Probably they ought to be held so, in the same sense in which the English parliament is deemed omnipotent — as having power to “do everything that is not naturally impossible.” 1 Bl. Comm. 161. They are for the time being the supreme sovereign power of the state, and the constitution is their direct, definite and permanent will, expressed in the form of a law. But 1 do not deem it necessary to pass upon this question, because I am satisfied that the provision in the state constitution was not intended and does not operate retroactively. It is a general and salutary rule of the common law, that “no statute is to have a retrospect beyond the time of its commencement” (6 Bac. Abr. 370); and this rule applies in the construction of a constitution as well as a statute. In the construction of statutes, courts are to take “as a leading guide, * * * the presumption that all laws are prospective and not retrospective,” Dash v. Van Kleeck, 7 Johns. 486; and Kent, C. J. (Id. 502), says; “The very essence of a new law is a rule for future uses.” The language of the constitution is in no sense retrospective. It declares a new and important rule of property, as to married persons, and this rule, at least in the absence of express words to the contrary, should be construed as only intended to be applied to “future cases.” I understand that the learned justice of the supreme court of the state from the Fourth district. lias, on the circuit, construed this provision of the constitution as being prospective. I am not aware of any decision of the supreme court of the state on the subject. But I think the last clause of section 10, art, 18. of the constitution, confines the operation of this provision to future cases. Section 10 is the saving clause of the new constitution. It declares that the property and right of the territory and political subdivisions thereof shall remain "as if the change of government had not been made; and private rights shall not be affected by such change.” The freehold estate of the husband in block two hundred and fifty was vested in him before and at the time this change was made. The enjoyment and ownership of this estate was then a private right in the husband — a right of property — and as such is protected by this saving clause, even if there was any doubt as to the true construction of article 15, § 5.

The registration of this property, on March 28, 1866, so far as block two hundred and fifty is concerned, availed the wife nothing. In fact she had no separate property in that block to protect by registration. The plaintiff having succeeded by purchase to the estate-or interest of the husband in block two hundred and fifty, is entitled to the possession of the same. The duiation of this estate is for the life of the husband, for although at common law, this estate might terminate with the death of the wife, for want of issue bom alive, yet by our statute the husband is tenant by the courtesy, “although such husband and wife may not have had issue born alive.” Gen. Laws, 1845-64, p. 717. As the defendants wrongfully withhold the possession from the plaintiff, he must have judgment against them accordingly, and against the defendant, A. Hamilton, for damages for the use and occupation of the property since September 4, 1866, according to the findings of the court. As to the lots three, four, five and six in block two hundred and fifty-three, the facts are different. They were conveyed to the wife after the constitution went into: force, and by force of the constitution and the registration of March 28, 1866, must be held to be the wife’s separate property, unless the following objections of the plaintiff or some of them are sufficient to take the case out of the constitution.

(1) The constitution can only apply to future marriages, for by the obligations of the marriage contract entered into before the constitution the husband was entitled to a freehold estate in all estates of inheritance which. the wife might acquire during coverture.

(2) The property in these lots was acquired by purchase, and property acquired by the wife after marriage is not declared to be separate property by tbe constitution, unless acquired by gift, devise or inheritance.

(.oj If these lots can be said to be acquired by gift, it was tile gift of tbe husband to the wife, and on grounds of public policy the constitution should be so construed as to exclude such gifts from the category' of separate property.

The first of these objections raises the question. long mooted, as to whether marriage is a contract within the provision of the national constitution which forbids any state from passing a law impairing the obligation of a contract. I do not think this objection well founded. Marriage has its inception in contract — the assent of the parties — but when established it becomes a relation. ■ This relation is in no sense a contract. It is rather a civil institution, beyond the control or caprice of the parties to it, to be governed and regulated by law. This law, and not contract, regulates and prescribes the rights of the parties in the property of each other, and until these become vested interests, the legislative power may modify them from time to time, to suit the convenience and wants of society, or to promote the relation or to protect the parties to it. In my judgment the constitution should be construed, as applicable to marriages in existence when the constitution went into force, so far as the after acquired property of the wife is concerned. See White v. White, 5 Barb. 477, and Snyder v. Snyder, 3 Barb. 623.

The second objection is not free from difficulty. Strictly speaking the real property can only be acquired by purchase or descent. “Descent is the title whereby a person, upon the death of his ancestor, acquired the estate of 'the latter as his heir at law.” Bouv. Law Dict. 448. The title to real property acquired in any other manner than by descent /is title by purchase. The phrase in the eon-j stitution “by inheritance,” is in legal parlance I the exact equivalent of “descent.” Title, or acquisition by gift or devise, is in law a title by purchase. The constitution cannot be construed to prevent the wife in any case from holding as her separate property that which she acquires during marriage by purchase in the legal sense of that term. It expressly includes acquisitions by gift or devise, and in law these are both deemed titles by purchase. But I suppose the constitution could not be construed to include property acquired by the wife by purchase in the popular sense — that is when the title was obtained for a valuable consideration moving directly from herself, unless the purchase consist as a matter of fact in the exchange or investment of already acquired separate property for some other. However, upon the facts, in my opinion, the title to these lots was not acquired by the wife by purchase in the popular sense. It must be presumed that the consideration proceeded directly from the husband. The wife had no separate property out of which to make the purchase. The seven hundred dollars which she loaned (as she calls it) her husband in 1ST>7, was already his property by virtue of the marriage. The consideration paid for these lots being just seven hundred dollars, it is evident that as between the husband and wife the purchase was made for the purpose of returning to the latter the remainder of the money that he had acquired by the sale of her Missouri property. In this view of the matter, the transaction is substantially a gift to the wife from the husband.

The third objection assumes that a gift from the husband to the wife is against public policy. The language of the constitution is unqualified — property acquired by gift. As the law stood before the constitution, the husband could give property to his wife, though for other reasons it was necessary to resort to the intervention of a trustee. It should be remembered also, that in this case, there is no question of fraud or rights of creditors. The plaintiff claims as the purchaser of the husband, and only acquired the. rights of the latter as against the wife. “Where a husband in solvent condition and in good faith makes a gift to his wife, I know of nó rule of law or principle of public policy that can be invoked to declare the same void. Besides. whatever may have been the law or public policy. I do not see how any court can presume to limit or restrict the language of the constitution, and hold that the unqualified words — acquired by gift — shall have effect only in the diminished sense — by gift from some person other than her .husband. This would be legislation and not construction — and legislation on mere grounds of public policy, a matter for the law maker to determine and not the courts.

I am of the opinion, that the lots in block two hundred and fifty-three area gift from the husband to the wife, and that by force of the constitution and the registration of March 28, I860, they became the separate property of the latter. This being the case, the plaintiff acquired nothing by his purchase of the husband's interest at the sheriff's sale, for the simple reason that the latter had no interest in the property — at least no interest which could be the subject of levy and sale on execution.

In the consideration of lots in block two hundred and fifty-three, 1 have omitted to make special mention of lot four. The consideration for the conveyance of this lot to the wife was her release of her right of dower in certain other property of the husband’s which had been taken and sold on execution. This right of dower was a mere contingency, depending upon whether the wife survived the husband or not. The estate of the tenant in dower is neither acquired by gift, devise or inheritance. The contingent right to dower in the lands of the husband, which the wife has during the life of the latter is a mere expectancy and cannot be called her separate property — if it can be termed property at all. Money derived from the sale of such right becomes the property of the husband. When the husband joined with the wife in the release of the right of dower to Robinson, in consideration that Robinson then conveyed to the wife lot 4, I think he appropriated the proceeds or value of the right of dower to the purchase of that lot, and made a gift of it to the wife. See Dick v. Hamilton [Case Nq. 3,890].

It may also be noticed, that by the terms of the conveyance, granting the lots in block two hundred and fifty-three to the wife, it is provided that she shall hold them to her own separate use and benefit, and free from the control of her husband. Whether this form of conveyance was not sufficient to make this the separate property of the wife, independent of the provision of the constitution, I do not decide. The question was pressed upon the court by the counsel for the defendants, but the conclusion to which I have arrived renders it unnecessary to consider it.

Judgment must be given for the plaintiff, in accordance with the conclusion of law in the findings of the court.