Doss v. Campbell

DARGAN,. G. J. The slaves in controversy belonged to the wife of the claimant before their intermarriage; they re- ■ sided in Texas at the time of the marriage, and the wife had the slaves in .her possession; they afterwards removed to Alabama,bringing the slaves with them; the husband being in possession of the slaves,.they were levied on in this State, to satisfy a debt owing by" him.. It was also shown, that by the laws of Texas the husband acquired no title to the property of-the wife, in con- • sequence of his marriage, but that she retained it to herself as Ivor separate property.- Upon these' facts, the question arises,.. whether the slaves are liable to the debts of the husband. We do not deem it necessary to enter into the discussion of the intricate question between real and personal statutes, nor the influence the act of the Legislature of Texas would have on the rights of the husband, if it be considered in the one light or the other.. For,-in our opinion,-without regard to the character of that statute, (that is, whether it be considered as a real or personal statute,) the plain an&; simple rule is this, the lex loa. contractus must govern, ..not only as to the validity of the marriage itself, but also in-.ascertaining the rights which each party takes in the property of the other and which cither owned at the time of the marriage. - But if they remove to another country or State,-and there acquire property, the rights of each to-such property, acquired after the removal, must he governed by the laws of their newly acquired home. Thus, if parties are married in a country where the common law prevails, the husband by virtue of the marriage acquires title to all the personal property of the wife which she had in possession at the time of the marriage, and their subsequent removal to a country where the'; 593 civil law prevails, will not re-invest her-with a right' to any por-" t-ion of it, but all the property acquired subsequent'to their re-1 moval will be governed by the laws of their newly acquired domi-' cil; and she will take the same interest therein as if the marriage' had been there celebrated. So, on the contrary, if they were" married in a country where the civil law prevails, and afterwards' remove to a State governed by the common law, the common law will regulate their future conduct and future acquisitions;' but the removal will not alter the rights of either to property then in possession, the title to which had vested under the civib law. This is the rule recognized in the case of Gayle v. Davis' Heirs, 4 Martin’s La. 645; nor is there any thing inconsistent -with this principle, in the case of Saul v. His Creditors, 3 Cond. La. 663. Judge Story,-in treating of these two decisions, considers that they recognize this rule: u wherb there is no express nup--tial contract, the law of the matrimonial domicil is to prevail, as to the antecedent property; but the property acquired after the" removal is to be governed by the actual domicil.” — Story’s Con. - of L., §1730. This rule-is plain and simple, and commends itself for its justice and equity, for there can be no justice in permitting the husband to acquire title to all the property of the wife, simply by-' a removal from one State to another, especially when we consider that he can control the domicil of the wife. • It is true, that if it were contrary to the laws of the actual dom-icil to allow married women to own property separate from their husbands, then their title to such separate property could not 1)0 protected by those laws. But no good reason, in my judgment, can be assigned why the husband should acquire title to ’’ all the property of the wife by a removal to'-a country that recognizes the right of married women to own separate property. The removal of Campbell and wife from Texas to this State worked no change of title to the property they respectively owned, and ’• the court therefore committed no error in the instructions given'1 to the jury. The other questions growing out of the assignment of errors, ~ wo have examined, and deem it sufficient to say we can perceive no error in-the record, and the judgment must be affirmed.