Ruhe v. Buck

G-antt, P. J.

This record presents this case.^ At the time of the transactions involved, a married woman in Missouri was incompetent to make a valid contract at law. At that time, however, she was authorized by the laws of Dakota to contract as a feme sole, and sue and be sued as such.

Mrs. Buck, the wife of O. W. Buck, became thp purchaser of a city lot in Tarkio, Missouri, and held a bond for title from Perkins the owner, until a balance of the purchase money should be paid.

Under the firm name of O. W. Buck & Company Mrs. Buck and her husband became indebted in Dakota and the interest of herself and her husband in *183 said lot was attached for said debt in an action commenced in the circuit court of Atchison county, Missouri. After this attachment was levied on the lot, Mrs. Buck sold the lot to Thompson & Trout, who afterward paid the balance of the purchase money to Perkins and received a warranty deed from Perkins which was recorded.

That a married woman was not subject to a suit by attachment in Missouri prior to 1889 was decided by this court in Gage v. Gates, 62 Mo. 412, and that a judgment obtained against her in such a proceeding was a nullity was repeated in Lincoln v. Rowe, 64 Mo. 138, and that she could not be sued as a member of a mercantile firm at law was also settled in Weil v. Simmons, 66 Mo. 617.

From these and many other decisions, it would appear that no resident creditor could proceed by an attachment at law against a married woman in this state, for a debt contracted in this state, and this record presents the question whether our laws will give nonresident creditors remedies to collect their claims against a married woman in this state which we uniformly deny to our own citizens.

The supreme court of the United States in Scudder v. Bank, 91 U. S. 406, sums up the general principle in / a few words: “Matters bearing upon the execution, the interpretation, and the validity of a contract are determined by the law of the place where the contract is made. Matters connected with its performance are regulated by the law prevailing at the place of performance. Matters respecting the remedy, such as bringing of suits, admissibility of evidence, statutes of „ limitation, depend upon the law of the place where the suit \is brought

So that, while we concede that, by the laws of Dakota, Mrs. Buck could enter into a contract of *184 partnership .with her husband and become bound for the debts of that partnership, the question remains, when the creditors sue her in this state, are they bound to take such remedies and such only as our laws offer against a married woman, for such she remains, . notwithstanding her capacity to contract and sue and be sued, or are we bound to treat her as a single person? Judge Story in his treatise on the Conflict of Laws, section 556 [8 Ed.] says: “Having stated these general principles in relation to jurisdiction (the result of which is, that no nation can rightfully claim to exercise it, except as to persons and property within its own domains), we are next led to the consideration of the question, in what manner suits arising from foreign causes are to be instituted and proceedings to be had until the final judgment. Are they to be according to the law of the place where the parties, or either of them live? Or are they to be according to the modes of proceeding and forms of suit prescribed by the laws of the place where the suits are brought? Fortunately here there is scarcely any ground left open for controversy, either at the common law or in the opinions of foreign jurists, or in the actual practice of nations. It is universally admitted and established that the forms of remedies and modes of proceeding and the execution of judgments are to be regulated solely and exclusively by the laws of the place where the action is instituted; or * * * according to the lex fori.”

This principle has been illustrated in many ways. Thus in Williams v. Haines, 27 Iowa, 251, the supreme court of Iowa, in an opinion of Chief Justice Dillon, held, in an action on a sealed instrument executed in Maryland that, although by the laws of Maryland, the consideration could not be inquired into; yet, as the Iowa statutes provided that “the want or failure in *185 whole or in part of the consideration of a written contract might be shown as a defense,” and “the addition of a private seal * * * should not affect its character in any respect,” the consideration could be impeached in an action in Iowa. Said the court: “The plaintiff must take such remedy as our laws afford him. He has not a vested right in the courts of other states to all the common law incident of contracts, provided the obligation of the contract be not impaired.” The courts of Iowa “must administer its own laws and not those of other states.” In Doe ex Dem. Mathuson v. Crawford, 4 McLean’s Rep. (U. S. C. C.) 540, judgment was rendered in Indiana on a note executed in Ohio. The laws of Indiana required an appraisement of lands before a sale on execution, and that no lands should be sold for less than one half of their appraised value, but the sheriff sold without regard to the valuation laws. The question was, whether the sale was void for failure to comply with the Indiana law. The contention was that, as the contract was made in Ohio, its laws should control and not those of Indiana. Discussing the proposition that the remedy existing in the state where the contract was made constituted an essential part of it, Mr. Justice McLean, said: “It is impracticable and can not be enforced. * * * In the present case the laws of Ohio can not be recognized in Indiana, in giving a different remedy from the existing laws here. No difficulties arise in giving effect, in any state to what is properly called the law of the contract, in contradistinction to the law of the remedy. In the case before us, the note was given to a firm in Cincinnati, and payment was to be made there. We look to Ohio for the rate of interest, * * * demand * * * and protest and notice required by law of Ohio. But, *186 as the remedy has been sought in Indiana, the laws of Indiana must govern,” as to the execution and sale.

So in Railroad v. Barron, 83 Ill. 365, a garnishee proceeding was commenced against the company in Illinois to recover wages due Barron. The company answered it owed Barron $40, but set up that Barron was a resident of Wisconsin and. the head of a family and that by the laws of Wisconsin such wages were exempt. It was urged that, as Barron was a resident of Wisconsin and the debt was contracted in that state, the exemption laws of Wisconsin should control; but the supreme court of Illinois held that this law merely affected the remedy when an action should be brought in Winconsin and could not be invoked in Illinois, saying: “The remedy must be governed by the laws of the state where the action is instituted.”

And in Burchard v. Dunbar, 82 Ill. 450, a married woman signed the note of her husband in New York and bound her separate estate by an express agreement to that effect. It had previously been ruled that upon this equitable charge the laws of New York permitted a judgment at law, without indicating any property out of which it was to be satisfied. Ins. Co. v. Babcock, 42 N. Y. 613. An action was brought on this note in Illinois, and the circuit .court held on the authority of the New York decision last cited, that the note was valid, and binding at law in New York and that it could be enforced as such in Illinois, but the' supreme court of Illinois held that it did not follow that, because the remedy was an action at law in New York, it would be the same in Illinois, Judge Scixoleield saying: “But the law of the remedy is no part of the contract. Wood et al. v. Child et al., 20 Ill. 209. ‘When the question is settled that the contract of the parties is legal, and what is the true interpretation of the language employed by the parties in framing it, the lex *187 loci ceases its functions, and the lex fori steps in and determines the time, the mode, and the extent of the remedy.’ Sherman et al. v. Gassett et al., 4 Gilm. 531; Chenot v. Lefevre, 3 lei. 643.

“That appellant charged her separate estate with the payment of the amount of the note, by the law of New York, is beyond question. * * * But this is in equity only; and, although by our present statutes * * * married women may sue and be sued, either with or without joining their husbands, and defend without regard to whether the husband shall defend or not, and judgments may be recovered against them, * * * we still preserve the distinction between actions at law and suits in equity; and there is no authority (in Illinois) for suing and obtaining judgments against them in actions at law on purely equitable liabilities.”

It will be observed that, though the wife’s contract was a binding obligation and she could be sued at law by the lex loci, and, although by the laws of the forum she could be sued with or without joining her husband, still the plaintiff was given such remedy only, to wit, a suit in equity, as the law of the forum afforded in such a case, irrespective of the lex loci.

In the case at bar it is argued that, had her undertaking in New York been good, at law, she could have been sued at law in Illinois; so she could, but it would have been so because the law of the forum gave that right; but, as we have seen, the law of Missouri denied the right to attach a married woman prior to the revision of 1889.

In Milliken v. Pratt, 125 Mass. 374, the question was whether a contract made in Maine by a married woman domiciled in Massachusetts, which a married woman was not at the time capable of making under the laws of Massachusetts, tut was then alloioed by the *188 law of Maine, and which, she could lawfully make in Massachusetts, at the time of the suit, could be enforced in the courts of Massachusetts. And the supreme court of Massachusetts answered in the affirmative, placing the decision, however, on the comity of states and that the contract, in view of the subsequent enabling act of Massachusetts, was not contrary to the policy of that state.

As the contract was valid by the lex loci and as the lex fori afforded a remedy at the commencement of the suit, there would seem to be no doubt of the soundness of that decision; but if the law of Massachusetts had up to that time regarded the contracts of married women as utterly void at law, and had not permitted them to sue or to be sued, it would seem a different conclusion would have been attained, judging from the intimation of the distinguished jurist, Mr. Justice G-ray, that is was possible “that in a state where a common law prevailed in full force, by which a married woman was deemed incapable of binding herself by any contract whatever, it might be inferred that such an utter incapacity, lasting throughout the joint lives of husband and wife, must be considered as so fixed by the settled policy of the state, for the protection of its own citizens, that it could not be held by the courts of that state to yield to the law of another state in which she might undertake to contract.” The case supposed by Judge G-ray is this case in fact.

By the law of this state, Mrs. Buck’s contract would have been absolutely void at law and no action could have been maintained thereon in our courts, and such was the long established policy of this state, and, unlike Massachusetts, she had not relaxed this rule prior to, and at, the time this attachment was levied.

Is this state required, out of a spirit of comity, to award a nonresident a remedy at war with her own *189 policy, and one which she constantly denied to her own citizens! The supreme court of Rhode Island, in Hayden v. Stone, 13 R. I. 106, answered in' the negative. That the law of the forum governs as to remedies in the enforcement of contracts, see, also, Pickering v. Fisk, 6 Vt. 102; Bank v. Railroad, 45 Wis. 172; Leiber v. Railroad, 49 Iowa, 688; Denny v. Faulkner, 22 Kan. 89; Green v. Van Buskirk, 5 Wall. 307; Wharton on Conflict of Laws, sec. 121; Bank v. Bonnally, 8 Peters, 362; Lairdy v. Hodges, 26 Ark. 356.

A case very similar to this arose in Illinois. An action at law was brought against a married woman. She pleaded coverture at the time of making the contract and the commencement of the action. Reply contract good by the laws of Iowa where it was made and a liability to suit as a feme sole in that state. Discussing the sufficiency of this reply, the supreme court of Illinois said, “a party seeking to enforce a contract valid by the laws of another state, must avail of the remedy provided by our laws. * * * That part of the replications which alleges that, by the laws of the state of Iowa, a married woman could be sued alone on contracts concerning her separate property j did present an immaterial issue,” but because by the laws of Illinois she could be sued alone, it was held that enough remained to make a good replication. Halley v. Ball, 66 Ill. 250.

A different conclusion was reached in Robinson v. Queen, 87 Tenn. 445. Although the court recognized the rule already stated in these words: “Under this rule we act in requiring the husband to be a party defendant with the wife, as was done in the ease at bar. While under the laws of Kentucky this married woman has had her disabilities removed, and can contract, sue, and be sued as a feme sole, we recognize and enforce in this state (Tennessee) so much of the foreign law as *190 determines and fixes her liability, in other words the law of the contract; blit in enforcing such liability in the courts of this state, if she is plaintiff, she must sue by next friend or with her husband, and, as defendant, her husband must be joined with her as a party.”

In other words, her status as a married woman by the laws of Tennessee still remained, and the remedies there given against a married woman controlled. That was a proceeding in a chancery court, and we are not sufficiently advised of the practice in that state to draw any conclusion as to its persuasiveness as an authority for the practice here invoked. The general principle announced is in harmony with the rule heretofore deduced.

In Gibson v. Sublett, 82 Ky. 596, the supreme court of Kentucky held a married woman personally liable in Kentucky on a note executed in Louisiana, although, if she had made the note in Kentucky her promise would have been void. The reasons for this decision are tersely stated by the court. They say: “And if, by the law of the place of the domicile of the husband, a married woman has a capacity to sue or to make a contract, or to ratify an act, her acts so done will be held valid everywhere. Story’s Conflict of Laws, sec. 66a. If, then, the contract is to be held valid and binding here, because it is so in the state where it was made, it would seem to reasonably follow that her property here should be subject. For, to hold that a valid and binding contract is not enforceable at any time, nor in any manner, is absurd,” and the court consequently held, “that the remedy provided for the satisfaction of judgments (in Kentucky) should be applied as though the judgment was against a feme sole.”

Entertaining, as we do, the highest respect for the court that decided this case, we do not think its reasoning convincing in that case. In our opinion, it has *191 mingled the “lex loci contractus” with the “lex fori” which are distinct in their nature and obligation, and treats them as one. We do not think that many other courts have gone so far. The rule which recognizes the binding force of the contract where made, has never gone to the extent of attaching to it the local remedies and carrying them into another jurisdiction, but it is left to each nation and state to enforce such a contract according to its own laws.

As already said, when this action was.brought, this court had, by .uniform decisions, held that a married woman could not be sued by attachment in actions at law in Missouri. /No such remedy was available in our courts in favor of resident creditors. Had any citizen of Missouri, on a contract made or to be performed in this state, proceeded by attachment at law against this real estate, no lien would have been created and no valid judgment could have been rendered against Mrs. Buck and no purchaser for value would have been affected, but if plaintiff’s contention is true, the fact that this claim originated in Dakota has changed all this and his attachment is as valid as if Mrs. Buck was a single woman. But Mrs. Buck is still a married woman and there was no such exception, in our code of procedure, in favor of contracts executed beyond our borders when this suit w^s brought, and an attempt to enforce such a distinction out of a spirit of comity would create endless confusion. A purchaser’s rights ought not to depend upon the accidental circumstance of the place of the execution of the contract upon which the judgment is based.

/ Our courts administer justice without distinction, according to the modes prescribed by the state, and those who seek them must take such remedies as are prescribed.

*192 An infant’s contract may be good in Illinois, butj if he is sued in Missouri, he is proceeded against as an infant, by next friend or guardian. His status for the purposes of the action is determined by our laws in force when the suit is brought.

It follows that the circuit court properly held that the proceedings by attachment against Mrs. Buck were void, and hence presented no obstacle to the purchase by Trout and Thompson, and its judgment is affirmed.

Burgess, J., concurs; Sherwood, J., dissents.