Smith v. McAtee

Crain, J., delivered the opinion of this Court. . The attachment in this case was issued by the appellee to affect the proceeds of sale of the real estate of the wife, to pay the debt of the husband. The facts as presented in the record are, that Nicholas Leister and wife were citizens of this State until August, 1854, when they removed to Illinois, where they resided' when this attachment — 435 — issued. Before removing from the State Leister became indebted to the appellee, who has always resided in "Washington county, Maryland. The fund in controversy was derived from the sale of -the real estate of Mary Gehr, the mother of Sarah Leister, the wife of Nicholas. Mary Gehr died in 1855, leaving real estate in Washington county, and by her last will and testament devised a child’s share of said estate to Sarah, the wife of Nicholas. In January, 1856, a bill was filed in the Circuit Court for Washington County against Leister and wife and the other devisees, for the sale of thereal estate for partition. The bill was answered by Leister and wife. In their answer Sarah, the wife of Nicholas, claimed her portion of the estate as her sole and separate estate, free from the debts of her husband, and insisted that the same should not be divested from her by a sale thereof. Nicholas, the husband, disclaimed all right, title or interest at law or in equity to any portion of the estate of Mary Gehr, by virtue of his marriage with the said Sarah or otherwise. A decree was passed in the cause on th'e 12th of August, 1856, for the sale of the property, and in the decree it was provided that the proportion of the proceeds of the sale of the property, allotted to Sarah, should be deemed her separate estate, for her sole and separate use and benefit, free from any claim or control of her husband or his creditors. After the sale of the property the amount of the proceeds due Sarah was credited to her sole and separate use, and paid over to the appellant as her attorney, when it was attached by the appellee to pay the debt of her husband. At the trial of the cause two bills of exception were taken by the appellant; the first to the admissibility of evidence, and the second upon the granting of the plaintiff’s and the rejection of the defendant’s prayers. To arrive at a proper solution of the questions to be determined by this appeal, we must ascertain the rights of — 436 — Sarah, the wife, under the will of her mother and the proceedings and decree of the Court, and whether the proceeds of the estate audited to her and received by Mr. Smith, as her attorney, were liable to be attached in our Courts for the payment of the husband’s debt. In 1841, the legislature recognizing the just and equitable right of the wife to the enjoyment of her real estate, passed a law to protect the real estate of the wife from the debts of the husband. This legislation in favor of the wife against the creditors of the husband so favorably impressed itself upon the public mind, that by the 38th Section of the 3d Article of the Constitution of 1851, the legislature was required to pass laws necessary to protect the property of the wife from the debts of the husband during her life, and for securing the same to. her issue after her death. The legislature acknowledging the wisdom of this provision in obedience to the mandate of the Constitution, enacted the law of 1853, Chapter 245. That act provides that all the property of the wife acquired or received, after her marriage, by purchase, gift, grant, devise, bequest, or in a .course of distribution, shall be protected from the debts of the husband, and not in any way be liable for the payment thereof. And to effect the objects of the law, the wife was given the benefit of all such remedies for her relief and security as then existed, or should be devised in the Courts of law or equity, without the necessity of the interposition of a trustee. The object contemplated by this law is too clear for doubt; by its enactment the legislature intended to give full protection and security to the property of the wife against the creditors of the husband, as previous to its enactment the cases of Peacock vs. Pembroke and Clarke, 4 Md. Rep., 280, and Turton’s Ex’rs vs. Turton, 6 Md. Rep., 375, had been decided by this Court, and in each case the property was adjudged to be the husband’s and subject to the payment of his debts. This act, soon after its passage, received a judicial inter — 437 — pretation in the case of Unger & Wife vs. Price, 9 Md. Rep., 552. In that case, Mrs. Unger had sold her potential right of dower, and invested the money in personal property, and it was held by this Court to be exempted from the debts of the husband. The case of Mrs. Leister is equally strong, and comes within the principle settled in Unger and Wife vs. Price. She was the devisee of real estate, and with the consent of her husband the proceeds of sale of the property under the decree of a Court of Equity were held to her sole and separate use, so audited to her and paid over to the appellant. But the appellee insists, that the proceedings and decree were not admissible evidence against him, because they were res inter alios acta. We admit, as a general rule, that judgments and decrees are evidence binding only between parties and privies. But there are many exceptions to this rule, and we are of opinion that this case forms one of the exceptions and comes within the principle settled by this Court in the case of Key vs. Dent, 14 Md. Rep., 98. The record was introduced in this case to show how the fund was derived, and that the conversion from realty into personalty was not to prejudice the rights of the wife. Eor that purpose, according to the decision in Key vs. Dent and the authorities relied on by Justice Eccleston, who delivered the opinion of the Court, the record was evidence. Head’s Rep’s. vs. McDonald, 7 Monroe, 207 ; 4 Phillips on Evidence, 920, 921, 977, (Ed. of 1843.) The record was confirmatory of the answers of the garnishee and proof that the decree was had as there set forth. It was a decree of a Court of competent jurisdiction, which in the exercise of its powers as a Court of Chancery settled the property to the sole and separate use of Mrs. Leister. And although we find this right of the wife to her property, protected in this State hy public policy, by statute and by a decree of a Court of Equity, yet it was earnestly contended by the learned counsel for the appellee, that a creditor of the — 438 — husband had a right to attach this fund in our Courts of justice for the debt of the husband, as by the laws of Illinois, where the husband and wife resided, the husband was entitled to all the personal property of the wife, and that by virtue of this law of the domicil the fund was vested in' the husband. And he claimed this right to divest the wife of her property by the law of the domicil, on the ground of comity. In this case we cannot sanction such a right, for it has been decided that comity is overruled by positive law, and that it is only in the silence of any particular rule, affirming, denying or restraining the operation of foreign laws, that. Courts of justice presume a tacit adoption of them by their own government. Gardner vs. Lewis, 7 Gill, 395. It is certainly competent for any State to adopt laws to protect its own property as well as to regulate it, and “ no State will suffer the laws of another to interfere with her own, and in the conflict of laws, when it must often be a matter of doubt, which shall prevail, the Court which decides, will prefer the laws of its own country to that of the stranger.” Story’s Conflict of Laws, section 28. The Courts of our State have perfect jurisdiction over all personal property as well as real within its limits, belonging to the wife, and they have a right to protect both from the debts of the husband. If therefore our legislative enactment in regard to the property of the wife and the laws of Illinois conflict, it cannot be made a question in our own Courts which shall prevail. “ Where there is no constitutional barrier, we are bound to observe and enforce the statutory provisions of our own State.” Davis vs. Jacquin, 5 Harris & Johnson, 109 ; Gardner vs. Lewis, 7 Gill, 395. As this fund by our laws is held by the appellant for the sole and separate use of Mrs. Leister, a creditor of the husband seeking a remedy against him in our Courts must be governed and regulated by our laws ; for Justice Story says “ a person suing in this country must take the law as — 439 — lie finds it, and wherever a remedy is sought, it must be administered according to the lex fori; and such a judgment is to be given, as the law of the State where the suit is brought, authorizes.” Story’s Conflict of Laws, secs. 571, 572. And in this Court in the case of Wilson & Co. vs. Carson & Co., 12 Md. Rep., 75, Le Grand, Chief Justice, says, “ The recognition of the laws of another State, in the administration of justice in this, is not a right stricti juris ; it depends entirely on comity, and in extending it, Courts are always careful to see that the statutes of their own State are not infringed to the injury of their own citizens.” (Decided 15th July, 1867.) We think these authorities decisive of the question, and that the. appellant has a right to rely in a Court of law upon the title of Mrs. Leister to the fund in controversy. Her right had not been divested by her own act or by operation of law, and the fund in his hands was not liable to be attached by the creditor of the husband. The views which we have .expressed of the legal propositions governing this case are conclusive upon the right of the plaintiff to recover, and it is unnecessary to examine the first bill of exceptions, to ascertain whether the evi-. dence offered by the defendant of the laws of Illinois touching the rights of husband and wife were admissible or not. It follows from what we have said, that the instructions given by the Court at the instance of the plaintiff and contained in the second bill of exceptions were erroneous. The prayers asked by the defendant’s counsel embrace in our opinion the true theory of the law of the case and ought to have been granted. For th,ese reasons we reverse the judgment of the Circuit Court. Judgment reversed without procedendo.