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Ledger Loan and Building Association v. Cook
The CotrRT.
Williams v. Baker (21 P. F. Smith, 476) rules this case. It was there decided that the certificate of the magistrate to the acknowledgment of a deed by a married woman that she was of full age was not conclusive, and further that the married woman could not ratify the deed after she came of age, except in the manner prescribed by the Act of Assembly, that is by an acknowledgment separate and apart from
[81] her husband. We may regret this result where the par-' ty was deceived by the deliberate falsehood of the woman, but it would be a dangerous precedent to hold that her title could pass in any other way.
PER CuRiam.
Judgment affirmed.— Weekly Notes.
[Albany Law Journal.]
The question of the necessity of separation to pass title on the sale of part of a mass of property was elaborately considered by the Court of Errors and Appeals in Hurf v. Hires, 11 Vroom, 581. The case was this: The defendant bought of one II. two hundred bushels of corn, out of a lot of four or five hundred bushels in H.’s crib-house. He inspected and approved of the corn as it lay in bulk, and paid the price in cash. The arrangement between the defendant and H. was,that the corn should be left in the crib until it was hardened, and then H. was to deliver it. The whole lot of corn was then levied on by the plaintiff, as sheriff, under an execution against H. After the levy II. measured out and delivered two hundred bushels of it to the defendant. In trover by the sheriff, held (reversing the decision of the Supreme Court), that a charge to the jury that the two hundred bushels the defendant bought not having been separated from the entire bulk, no property in it passed to the purchaser, and that the whole was liable to levy under the execution against H., and that the defendant was liable to the sheriff for the value of the two hundred bushels, was erroneous. The cases on this subject are many and not harmonious. Most of them were cases where the rights of unpaid vendors were involved, and courts have laid held of slight circumstances to retain the property in them. Another class of cases is where the sale is complete in all respects except that the bulk from which the property purchased is to be separated is not identical in kind or uniform in value, and some advantage may be derived from the privilege of selection; Foote v. Marsh, 51 N. Y. 288; Gillet v. Hill, 2 C. & M.
[82] 530; Aldridge v. Johnson, 7 E. & B. 885. The doctrine of the principal case that, on a contract of sale of a certain quantity from a larger bulk, uniform in kind and quality, the property will pass though there be no separation if such be the intention; is held in New York, Connecticut, Maine and Virginia; Kimberly v. Patchin, 19 N. Y. 330; Russell v. Carrington, 42 id. 118; S. C., 1 Am. Rep. 498; Chapman v. Shepard, 39 Conn. 413: Waldron v. Chase, 37 Me. 414; Pheasant v. Pendletons, 6 Randolph, 473. [Decided Jan. 21, 1878.] Divorce — foreign judgment — jurisdiction—comity.—A divorce granted in another state, against a citizen of this state, domiciled and actually abiding here throughout the pendency of the proceedings there, without appearance or actual notice, is of no effect in this state; Borden v. Fitch, 15 Johns. 121; Bradshaw v. Heath, 13 Wend. 407; Vischer v. Vischer. 12 Barb. 640; Kerr v. Kerr, 41 N. Y. 272; Hoffman v. Hoffman, 46 id. 30; Kilburn v. Woodworth, 5 Johns. 37; Shumway v. Stillman, 4 Cow. 294; 6 Wend. 447; Ferguson v. Crawford, 70 N. Y. 253; Kinnier v. Kinnier, 45 id. 535, and Hunt v. Hunt, 72 id. 217, distinguished. Although a state may adjudge the status of its citizens toward a non-resident, and authorize such judicial proceedings as it sees fit, such proceedings have no extra-territorial force; Cheever v. Wilson, 9 Wall. 108, and Pennoyer v. Neff, 95 U. S. 714, distinguished. The proceeding is neither in rem nor quasi in rem, so as to bind a citizen of another state not notified or appearing. Woodworth v. Spring, 4 Allen 321. A judgment in rem is not usually ground for proceeding in personam in another jurisdiction. Pauling v. Bird’s Exrs., 13 Johns. 192. Nor will effect be given to such a judgment on the principle of comity of states for the reason that at the time of the rendition of the judgment our own statute provided for divorce against a non-resident by a like substituted service. Judgment reversed. People v. Baker.
Opinion by Folger, J.