If the marriage is voidable where contracted (but is not there annulled), and the parties remove to another State, the question becomes more complex. If void or voidable by the laws of the latter State also, it would seem reasonable that it should be held to be voidable there. However this may be, it is certainly not void in the latter State, so as to be susceptible of collateral attack in its courts.

Finally, if the marriage is valid by the law of the latter State, while voidable (though not annulled) in the State where it was contracted, it would seem, upon principle, that it should be voidable in the latter, for the invalidity relates to the marriage contract, and not to the status merely.7

8

In Cummington v. Belchertown, a woman residing in Massachusetts married there, and afterwards became insane. Her husband, leaving her in Massachusetts, went to New York, where he applied to have the marriage annulled on the ground of fraud in its procurement, alleging that his wife had been insane before her marriage and that this fact had been concealed from him. The New York court annulled the marriage for the fraud alleged (which was not a ground for annulling the marriage in Massachusetts), and the validity of the New York decree coming in question in Massachusetts, the court held it invalid. One of the grounds of its decision was that the validity of the marriage contract, entered into in Massachusetts, should have been governed by Massachusetts, not by New York, law.

In Sutton v. Warren, an Englishman married in England

State, except, according to some authorities, when it is the actual domicil of the parties at the time of the marriage. See ante, § 73. A fortiori should it be so (probably without even the exception just adverted to) when the mar riage is voidable only in the latter State. See Cummington v. Belchertown, 149 Mass. 223, 226, 21 N. E. 435.

5 Cummington v. Belchertown, 149 Mass. 223, 226, 21 N. E. 435.

Sutton v. Warren, 10 Met. (Mass.) 451; Com. v. Lane, 113 Mass. 458, 463, 18 Am. Rep. 509.

7 See Cummington v. Belchertown, 149 Mass. 223, 226, 21 N. E. 435. But it is possible that the general favor shown towards marriages would prevent this result.

8 149 Mass. 223, 226, 21 N. E. 435.

910 Met. (Mass.) 451, already quoted, ante, § 75.

j

his mother's sister, the English law at that time rendering such a marriage merely voidable. The parties afterwards (the marriage not having been annulled meanwhile) removed to Massachusetts, where such marriage was absolutely void. The husband having brought suit upon a chose in action belonging to the wife, it was objected that the marriage was void under Massachusetts law, but the court held that it could not be subjected to collateral attack.

§ 79. The Marriage Status or Matrimonial Union — Its Commencement and Continuance. As has been already observed, the status of marriage, the legal union between man and wife, is justly deemed one of the most important, if not the most important, of all the relations recognized by the law.1

The discussion of the proper law regulating the marriage status may be divided into the following heads: (1) The law governing the commencement of the status; (2) That governing the continuance of the status, with the incidents arising therefrom; and (3) The law governing the dissolution of the status, or divorce, a separate chapter being devoted to the latter.

---

The commencement of the marital relation is to be found, as has been already pointed out, in the marriage contract, the proper law governing which, both as to the capacity to enter into it, and as to the formal and substantial validity thereof, has been heretofore sufficiently considered."

The status once acquired under a marriage contract valid by the proper law, the marriage relation is recognized and continues to exist in every State whither the parties may wander, until it is terminated by the death of one, or the divorce of both.

The marriage status is essentially a mode of life, and it is peculiarly appropriate therefore that it should be governed in all particulars by the law of the place where the parties live, that is, by the law of their domicil, and that when their domicil changes the law governing their status should change with it. But this principle, like most others whose object is

2 Ante, §§ 73, 77, 78.

1 Ante, § 76. Cook v. Cook, 56 Wis. 195, 43 Am. Rep. 706, 14 N. W. 33, 36; Clark v. Clark, 8 Cush. (Mass.) 385.

the determination of the "proper law," is subject to the operation of the great exceptions mentioned in the second chapter, in which the lex fori will be substituted for a proper foreign law, whenever the policy or interest of the forum or its citizens demands such a course.

Hence, the fact that the law of the legal situs or domicil of the parties gives the husband extraordinary rights over the person of the wife, not authorized by the laws of the State where they happen to be, such as the right of personal chastisement, the right to deprive her of liberty, etc., will not justify the husband in resorting to such measures in the latter State. Its courts and conservators of the peace will interfere in such cases to the same extent as if the parties were residents of the forum. . For purposes of police, the law of the actual situs of the person will always govern.*

§ 80. Incidents of the Marriage Status Marital Rights in Consort's Property Lands. -The incidents of the marriage tie arise by operation of law from the marital relation, not from the marriage contract, and are to be determined and controlled in general by the same law that controls that relation, the lex domicilii, unless the particular case is one of the great exceptions. As has been said by a learned judge: 1 "When the contracting parties have entered into the married state, they have not so much entered into a contract as into a new relation, the rights and duties and obligations of which rest, not upon their agreement, but upon the general law of the State, statutory or common, which defines and prescribes those rights, duties, and obligations. They are of law, not of contract."

Marital rights in the property of the consort are incidents of the matrimonial status implied by law, and in this aspect may be regarded as partaking of that status. In another aspect, they may be regarded as mutual transfers of interests in prop

1 Harrison v. Harrison, 20 Ala. 629, 56 Am. Dec. 227, 232; Maguire v. Maguire, 7 Dana (Ky.), 181, 186; Prosser v. Warner, 47 Vt. 667, 19 Am. Rep. 132, 134; Blackinton v. Blackinton, 141 Mass. 432, 435-436. Whart. Confl. L. §§ 166, 167.

See

1 Appleton, J., in Adams v. Palmer, 51 Me, 481, 483. See State v. Tutty, 41 Fed. 753, 758.

erty by operation of law. In either aspect it will be found that they are in general to be determined and regulated by the same law that regulates the status itself, namely, the law of the parties' legal situs or domicil, at least if the property in question is personalty. But marital rights may arise not only as incidents of the marriage status, but also from marriage settlements or contracts entered into between the parties. In such cases the rights of the parties are regulated by their contract, not by the law.

In respect to immovable property, it is well settled that in this, as in every other transfer or link in the chain of title, the lex situs of the property in question will control. Hence, as to such property, if there be no nuptial contract the lex situs will govern; if there is a nuptial contract, it will operate only so far as the lex situs permits.

Thus, the dower right of the wife (and the curtesy of the husband) in the lands of the consort will be determined and regulated by the law of the place where the land lies, not where the parties live.

4

In Lamar v. Scott, a man domiciled in Georgia died. He had been seised during the coverture of land in South Carolina, by whose law a seisin at any time during the coverture sufficed to give the wife dower. He had aliened the land without joining his wife in the deed. By the law of Georgia (his domicil) the wife was dowable only in the lands of which the husband died seised. The South Carolina court held that the lex situs should govern, and that the wife must be endowed of the lands there situated.

In Depas v. Mayo," Depas of Louisiana married in Pennsylvania a woman resident in Pennsylvania. They immediately proceeded to Louisiana, where they resided for several years.

2 Post, § 81.

3 Ante, § 12; Lamar v. Scott, 3 Strob. L. (S. C.) 562; Newcomer v. Orem, 2 Md. 297, 56 Am. Dec. 717, 718; Moore v. Mayor, etc., 8 N. Y. (4 Selden) 110, 59 Am. Dec. 473, 474; Kneeland v. Ensley, Meigs (Tenn.), 620, 33 Am. Dec. 168, 169; Depas v. Mayo, 11 Mo. 314, 49 Am. Dec. 88, 90-91.

4 3 Strob. L. (S. C.) 562.

11 Mo. 314, 49 Am. Dec. 88.

Both parties at the time of the marriage were destitute of property, but soon by their joint exertions accumulated a considerable amount. By the laws of Louisiana, one half of all property acquired during the coverture belonged to the wife, and could not be disposed of by the husband. Afterwards Depas and his wife removed to St. Louis, and Depas purchased (with money in part belonging to his wife under Louisiana law) a lot in St. Louis, taking the title in his own name. The parties were afterwards divorced in Louisiana, and the wife claimed one half of the St. Louis lot by way of implied trust. The Missouri court held that the Louisiana law governed as to the personalty acquired while the parties were domiciled there, and that the wife was therefore entitled to one half of such property; but that, as to the land in Missouri, the lex situs must govern. But since, under Missouri law, if one purchased land with the funds of another, the conveyance being made to the former, he was deemed a mere trustee for the latter, the court adjudged that Depas was a trustee for his wife to the extent of one half the St. Louis lot.

So, also, if there be an express ante-nuptial or post-nuptial contract touching the marital rights in land, its effect and validity must be controlled by the lex situs of the land, not by the law of the place where such contract, or the contract of marriage, was entered into, nor by the lex domicilii of the parties."

In Absence

§ 81. Marital Rights in Personalty of Consort of Express Contract. We have already had, and will hereafter

Richardson v. De Giverville, 107 Mo. 422, 17 S. W. 974; Heine v. Ins. Co., 45 La. Ann. 770, 13 So. 1; Besse v. Pellochoux, 73 Ill. 285, 24 Am. Rep. 242; Fuss v. Fuss, 24 Wis. 256, 1 Am. Rep. 180, 181; Castro v. Illies, 22 Tex. 479, 73 Am. Dec. 277, 281. But if the contract is valid and sufficient under the lex situs, and is capable of specific enforcement there, the contract will confer an equitable title to the land, without a deed. See Castro v. Illies, 22 Tex. 479, 73 Am. Dec. 277, 281; Fuss v. Fuss, 24 Wis. 256, 1 Am. Rep. 180, 181. In Polson v. Stewart, 167 Mass. 211, 45 N. E. 737, it was held that the law of the place of contract, not the lex situs, should control in this respect. But this case related to a contract for the relinquishment of marital rights, not for the acquisition of them. This case is discussed post, § 174.