Harvey v. Wickham

Scott, Judge, delivered the opinion of the court. 1. As there was personal service on the defendant, Harvey, in the suit of Flint against him, and a general judgment, and as the execution was founded on that judgment, we can not perceive the force of the objection growing out of the alleged defect in the affidavit on which the attachment was sued out, which was the original process in that action. The proceedings in the suit referred to, including the levy and sale under the execution, do not rely for a support on the attachment, but on the personal service of the writ, and the general judgment following. The fact that the lands had been attached in the suit did not restrain the sheriff from levying on them by virtue of the execution under the general judgment. The mere recital in the sheriff’s deed that the lands thereby conveyed had been attached in the suit, is a mere matter of description, and does not show that the sheriff relied for authority in making the sale on the attachment. Both the judgment and the execution show the contrary. (R. C. 1845, tit. Attachment, art-. 1, § 11, 59, p. 186, 145.) 2. This court, in the case of Reaume v. Chambers, (22 Mo. 36,) held that after a descent cast no entry or actual pos [116] session was necessary in order to entitle a husband to curtesy in his wife’s land. 3. The prohibition against laws impairing the obligation of contracts is found in the constitution of the United States. The obligation to perform a contract is coeval with the undertaking to perform it. It originates with the contract itself ; operates anterior to the time of performance. The second instruction asked by the plaintiff was, that if Harvey and wife and J. W. Flint were all residents of the state of Louisiana at the time the notes were given upon which the judgment of said Flint against said Harvey, used in evidence in this case, was had, then said Flint was not protected by the laws of the state of Missouri before said suit was brought in St. Louis county, Missouri, in said suit of said Flint against said Harvey. If this instruction is understood, it seems to convey the idea that the laws of a State have no extra-territorial validity. We held, in the case of Gray v. Cunningham, (20 Mo. 170,) that the act of March 5th, 1849, exempting certain property of married women from execution for the debts of their husbands, did not apply to debts contracted before its passage. The restriction against laws impairing the obligation of contracts being found in the constitution of the United States, if a creditor, who resides in a state, is protected from the operation of a law which injuriously affects him, it would be difficult to give a reason why a creditor, residing out of the state, is not also protected. The restriction was designed more for the protection of non-residents than residents. It would be much more reasonable that a state should pass laws impairing the obligation of contracts of her own citizens than of the contracts of those who are not subject to her laws. But if the law was only designed for residents, how do Harvey and his wife seek protection under it? If it does not protect Flint because he is a non-resident, why should it protect Harvey, who is also a non-resident? It is obvious that the whole argument, drawn from the want of extra-territorial operation of laws, if there is any thing in it, is much stronger against Harvey than against Flint. But there [117] can be no doubt on this subject under tbe constitution of tbe Uioited States. 4. Notwithstanding tbe remark in the case of Schneider v. Staihr, (20 Mo. 271,) it may well be questioned whether, under the act of March 5, 1849, the husband’s estate in his wife’s land, by virtue of the marriage, can be sold under execution for the payment of his debts. But that question does not arise here, as the debt, -on which the judgment and execution are founded, was in existence before the passage of the act. With the concurrence of the other judges, the judgment will be affirmed.