but instead her domicil was in Kentucky. Having such domicil it was in the undoubted power of that state to authorize its courts to adjudge her no longer married to her husband.

I will now endeavor to trace the course of decision in the states. The most ultra of the cases I have discovered, refusing recognition to a foreign divorce on substituted service, is one from South Carolina, wherein it was held, that the wife's dower in land in that state was not barred, notwithstanding that the divorce was obtained upon her suit, upon the ground of no jurisdiction over defendant. It was distinctly denied that anything in the nature of estoppel could work an opposite result12 in the case. Massachusetts appears to have regarded the power of estoppel differently, for it was there held that a decree in favor of a husband dismissing the wife's libel for divorce upon the ground that he had already obtained divorce from her on substituted service in another state, "estopped her from averring anything to the contrary of the decree in Illinois, purporting to sever that (marriage) relation," and dower out of land in that state was denied. 18 The case in which the libel was dismissed was stated by Justice Gray, in Atherton v. Atherton, supra, to rule that divorce on publication service by court of matrimonial domicil concluded the wife against contradicting the fact of desertion as alleged, so as to file a libel for divorce in another state where she had acquired a residence. 14

It may be assumed that all of the states that have held, that non-resident defendants, served by publication, may by cross petition, bill, or complaint obtain a decree of divorce outside of their domicil, 15 would not approve the conclusion reached by the South Carolina court, at least, that seems to me to logically follow.

In Pennsylvania, Ohio, Wisconsin, Vermont, and Illinois it has been held that a de

12 McCreery v. Davis, 44, S. C. 191, 28 S. C. 655. 13 Hood v. Hood, 110 Mass. 463.

14 Hood v. Hood, 11 Allen 196. See also Burlem v. Stannon, 115 Mass. 438.

15 Wadsworth v. Wadsworth, 81 Cal. 182, 22 Pac. Rep. 148, 15 Am. St. Rep. 38; Sterl v. Sterl, 2 Ill. App. 223; Jenness v. Jenness, 24 Ind. 359, 87 Am. Dec. 335; Watkins v. Watkins, 135 Mass. 83; Chilton v. Chilton, 108 Mich. 267, 66 N. W. Rep. 53, 31 L. R. A. 160; Jones v. Jones (N. Y.), 15 N. E. Rẹp. 707, 2 Am. St. Rep. 447; Fisk v. Fisk (Utah), 67 Pac. Rep. 1064; Ferry v. Ferry, 9 Wash. 239, 37 Pac. Rep. 431..

other state would not deprive the wife of dower in lands elsewhere, though it might dissolve the marriage relation between the parties. 16 Dower does not appear to have been involved in the three cases last cited, but in the Wisconsin case it was broadly ruled that inchoate interests in the husband's property were not to be affected by such a decree. In the Vermont case it was said it could have no effect on property rights, and in the Illinois case it was directly ruled the homestead to an abandoned wife given by the statute could not be thus taken away, as this right was incident to the marriage the same as dower. In Indiana, Kentucky, and Missouri decrees so obtained were held to bar dower elsewhere by force of statutes prescribing that divorces have such effect, these statutes being construed to apply as well to foreign, as to domestic, divorces.17 The Indiana case also says that the decree is not open to collateral attack on the ground that plaintiff was not a bona fide resident. The Missouri statute prescribed that "if the husband be divorced from the wife for her fault or misconduct she shall not be endowed," and the court permitted that fault or misconduct to be regarded as established by a decree upon substituted service, while the Ohio court, in Doerr v. Forsythe, supra, held that fault or misconduct meant such as could authorize divorce in Ohio, and further, as the wife "had no opportunity to defend, all that can be claimed for the decree is, that it dissolved the marriage relation." The Missouri court also maintained that the marriage relation being dissolved absolutely and everywhere, "property rights dependent alone upon its continued existence must cease" everywhere. "The husband is no longer entitled to curtesy in the wife's lands, or to receive to his possession her choses in action, and the wife's incomplete right to dower in his lands, wheresoever situate, must cease," and says: "these are the doctrines of common law." Then is quoted the statute prescribing she shall not lose her dower, unless divorce is for her fault.

16 Platt's App., 80 Pa. St. 501; Doerr v. Forsythe, 50 Ohio St. 726, 40 Am. St. Rep. 703; Cook v. Cook, 56 Wis. 195; Prosser v. Warner, 47 Vt. 667; Lynn v. Sentel, 183 Ill. 382, 75 Am. St. Rep. 110,

17 Holbish v. Hattel, 145 Ind. 59, 33 L. R. A. 783; Hawkins v. Ragsdale, 80 Ky. 353; Gould v. Crow, 57 Mo. 200.

Apart from what the court says are the "doctrines of the common law," to which I will advert later herein, it seems to me that the statute requires the wife's fault to be affirmatively shown before dower is lost, and this cannot be done by a decree on substituted service, against which she had no opportunity to defend, unless the principle in Atherton v. Atherton, supra, applies. If the wife had obtained this divorce upon like service, the Missouri court, following the reasoning in a case from Maine, would have awarded dower, that state having a statute of like import. 18

19

The Iowa Supreme Court took the same view as to dower ceasing upon the dissolution of the marriage as was expressed by the Missouri court. But it has been strenuously denied, that such is the effect, or was the effect, at common law of statutory divorce as to marriage originally valid, unless the law specifically so provides. The maxim by Lord Coke of ubi nullum matrimonium ibi nulla dos is claimed to apply only to a case of a marriage void ab initio,20 as the English law did not allow divorces a vinculo for cause subsequent to marriage. All such divorces, adultery being the only ground, were a mensa et thoro, and it will hardly be claimed, that these barred dower. It is further pointed out, that in all parliamentary divorces a vinculo a clause barring dower was uniformly inserted. It was said by the Court of Appeals of New York, that though dower "is contingent and becomes absolute only by survivorship, still it is a vested right of which the wife can only be deprived by her own act or by forfeiture."21 It must be admitted, however, that the great current of authority, including the federal supreme court22 is against this view, the contrary effect being assumed without discussion.

In Alabama, California, Kansas, relations to the estate of the deceased husband have been held to be affected by foreign decrees on substituted service. In Alabama, the matrimonial domicil, whence the husband removed to Arkansas, there obtained divorce, remarried, returned to Alabama, died, both

18 Harding v. Allen, 9 Me. 140.

19 Marvin v. Marvin, 59 Iowa 699; Boyle v. Latham, 61 Id. 174.

20 Scribner on Divorce, p. 541 and cases cited. 21 Wait v. Wait, 4 Comst. 95.

22 Maynard v. Hill and Barrett v. Failing, supra.

23

wives surviving. To the second wife homestead and exemption were allowed out of his estate.2 In California, New York being the matrimonial domicil,-husband having removed to Missouri where he obtained divorce and then to California where he died, it was held, the former wife was not entitled to administer as widow.24 And in Kansas, to which state the husband returned after procuring divorce in another state, it was held that a suit by former wife for alimony could not be sustained. 25

It seems to be the rule in Massachusetts and New Jersey, that a constructive service decree will be recognized in these states, as affecting status, if for a cause of action constituting ground for divorce in these respective jurisdictions. 26 But in New York it is said the rule of recognizing no such divorces upon any ground will be adhered to, until the federal supreme court shall declare differently.27 As we have seen, this position has been reversed to the extent, that a constructive service decree rendered in the state of matrimonial domicil is entitled to faith and credit. It was also held in this state, that though the court had jurisdiction of the parties, if the divorce was upon a cause not there recognized, it would not defeat dower in that state. 28 But this doctrine may be considered as overruled by the Atherton case.

Though also the divorce be on constructive service, it will be recognized if rendered at the legal domicil of both parties; and the fact, that the divorce is upon a ground not recognized in Massachusetts, and that the marriage occurred in that state, the then domicil of the parties, will not prevent its barring both curtesy and dower as to land there situated. 29

Collateral Attack.-There is a strong current of authority to the effect, that these decrees though regular upon their face may be attacked as void because of the lack of bona fide residence, necessary to give the court jurisdiction. The case from Indiana of Hil

23 Thompson v. Thompson, 91 Ala. 591, 11 L. R. A. 443.

24 In re James, 99 Cal. 374, 37 Am. St. Rep. 60. 25 Roe v. Roe, 52 Kan. 724, 39 Am. St. Rep. 367. 26 Loker v. Gerald, 157 Mass. 42, 34 Am. St. Rep. 252; Felt v. Felt, 59 N. J. Eq. 47 L. R. A. 546.

27 Williams v. Williams, 130 N. Y. 193, 14 L. R. A. 220; Lynde v. Lynde and Atherton v. Atherton, supra.

28 Van Cleaf v. Burns, 118 N. Y. 549, 133 N. Y. 540, 15 L. R. A. 542

29 Ross v. Ross, 129 Mass. 243 and cases cited.

30 Shannon v. Shannon, 4 Allen, 134; Sewall v.

bish v. Hattel, supra, is the only one I find asserting the contrary.

Upon the whole it may be stated that scarcely another state fully supports New York and South Carolina in holding that the marriage status of a non-resident defendant not submitting to the jurisdiction of the domicil of the plaintiff is not affected, New Jersey doing so only qualifiedly, while other states, which recognize that the status is af

fected, deny that property rights are involved. Those, that hold, that dower and curtesy fall with the status, do not necessarily say or mean to say, that property rights are affected, as these are regarded as contingencies and not vested interests. By others it is by force of state statute, that dower is taken away. The Atherton case, carefully limited to the case at bar, treats both of the parties as Kentucky residents, and, as such, bound by legislation prescribing their social status or condition. Though that case reserves opinion as to how far the bona fides of domicil may be inquired into, yet I think it may be said, that the other cases in the same volume place the court on the side of the great weight of authority, that decrees upon constructive service may be shown to be void for the lack of real domicil. The view that court may take of dower and curtesy, namely, whether or not they are in any sense vested rights, will, it appears to me, determine, whether or not of parties having separate domicils, these survive divorce on constructive service. Alimony and costs must follow the rule as to ordinary money judgments.

It seems reasonably clear, that the dower and curtesy question comes within the purview of the faith and credit clause to be conclusively settled by the supreme federal tribunal. It does not seem as clear, however, that this clause enables that tribunal to determine for the different states the question of status so far as criminality, legitimacy and inheritance are concerned, and that its view, if it should so hold, that a marriage dissolved as to one of the spouses was likewise dissolved as to the other would not be binding on the Sewall, 122 Mass. 156; People v. Dowell, 25 Mich. 247; Leith v. Leith, 39 N. H. 20, 56 Ind. 263, 125 Ind. 163, 78 Me. 187; Hoffman v. Hoffman, 46 N. Y. 30, 14 R. I. 378; St. Lure v. Lindsfelt, 82 Wis. 346, 19 L. R. A. 515; Adams v. Adams, 154 Mass. 290, 13 L. R. A. 275.

Supreme Court of Michigan, December 29, 1902. Where one who is solvent, with his wife's consent, expends all his money in improving her property, thereby enhancing its value many times, creditors who have trusted him for materials, believing the property to be his own, can follow such improvements to the premises upon which they have been made.

STATEMENT OF FACTS: In the fall of 1896 defendant James A. Connery made a contract with Boegert & Son to furnish the materials and do the carpenter work on a brick building he was erecting in East Saginaw. Boegert & Son made a contract with D. Hardin & Co. to furnish the door and window frames and cornice for the outside of the building and the entire inside finish of the building. The materials for the outside were furnished in the winter and early spring of 1897, and some time in May complainant began the delivery of the inside finish, which amounted to about $750. D. Hardin & Co. were paid about all the work and material amounted to for the work on the outside, leaving the inside finish alone unpaid. In May, 1897, Devillo Dennison, who had general charge of the business of D. Hardin & Co., learned that Boegert & Son were not responsible, and, before delivering any inside finish, informed Mr. Connery that they would not deliver any of the material for said inside finish without pay therefor upon delivery, unless he (Connery) would agree to pay for it, which Dennison testifies he did agree to do, but Connery denied, both in his answer and upon the stand, claiming that he only agreed to assist them in getting their pay, and did notify them every time he paid Boegert & Son any money. While the work was in progress Mr. Connery gave his note for $500, afterwards paid $100 on it, and renewed the note for the balance. Later he gave his note for the balance due on the contract, of $348.76. He has paid neither of those sums. D. Hardin & Co., before the 60 days had elapsed from the date of furnishing the last material, filed their lien on the property, and served a notice thereof, with a copy of their account, upon said Connery. When they commenced to enforce their lien, they learned that the land belonged to Mr. Connery's wife. Said lien suit terminated in a consent decree against said Connery and Boegert & Son for the sum of $888.85 in favor of complainant, and a de

cree in favor of Mrs. Connery, declaring her land freed from all claim under the mechanic's lien. Later an execution was issued against said James A. Connery and Boegert & Son, which was returned wholly unsatisfied. An alias execution was issued later, and levied upon the real estate upon which complainant's building materials were used, viz., lot 7 in block 17 of Hoyt's plat of East Saginaw, in Saginaw county, Mich., and this bill was filed in aid of such execution and also as a judgment creditors' bill. The lot itself was not worth over $1,000, and was entirely unproductive. After the erection of said building it was worth $10,000; and, while defendants occupy one-third as a homestead, the remaining twothirds yields a gross income of $900 per year. The entire expense of the building was defrayed from the means of Mr. Connery, except $2,500, borrowed on the property, $2,000 of which yet remains a lien on the land.

GRANT, J.: Mr. Connery had no credit at the time he made contracts for the erection of this building upon his wife's land. The only facts from which any intent to defraud either Boegert & Son or those who furnished the materials are that Mr. Connery made the contracts in his own name; that his wife knew it; that she furnished no funds; that Mr. Connery did not inform those with whom he contracted that he was not the owner of the building, but did in fact by his conduct treat it as his own, and to this conduct she by her silence assented. It is true that those with whom he was dealing might have ascertained, by examination of the record in the office of the register of deeds, that the record title was in his wife. But even prudent merchants are not always thus careful. We think that complainants had a right to believe that Mr. Connery was the owner of the land, and to deal with him as such. He expended all his means in the erection of the building. By so doing he became insolvent, and had not sufficient left to pay the claim of D. Hardin & Co. The question, therefore, is, can a person out of debt and solvent expend all his means in improving his wife's property, and thus become insolvent, and leave creditors, who have trusted him for materials to be used in such improvements without redress? Have such creditors a right by suit in chancery to pursue the property of their debtor, which, with the knowledge and consent of his wife, he has expended in improvements upon her property? Counsel have evidently made diligent search, and find no case directly in point. We also are unable to find any authorities decisive of the question, and must, therefore, decide it upon principle. The case is not within those where there were existing creditors; nor do we think it within the case of Cole v. Brown, 114 Mich. 396, 72 N. W. Rep. 247, 68 Am. St. Rep. 491, and authorities there cited, holding that, where there are no existing creditors, the voluntary conveyance of property by a husband to his wife is valid, unless conveyed for the express purpose of defrauding subsequent

creditors. It is well established that an existing creditor may follow the improvements made by an insolvent debtor to the premises upon which they have been made by the consent of the wife, and that he has a lien upon them for his debts. Rose v. Brown, 11 W. Va. 122, 137, and Association v. Reed, 96 Va. 345, 31 S. E. Rep. 514, and authorities there cited. In all the cases cited by counsel for complainants in which the courts have allowed creditors to follow such improvements the debtor was, at the time of making the improvements insolvent. Such are the cases of Lathrop v. Gilbert, 10 N. J. Eq. 344; Kirby v. Bruns, 45 Mo. 234, 100 Am. Dec. 376; Newcomb v. Phillips (Ky.), 9 S. W. Rep. 529; Burt v. Timmons, 29 W. Va. 444, 2 S. E. Rep. 780, 6 Am. St. Rep. 664; Thefethen v. Lynam, 90 Me. 276, 38 Atl. 335, 38 L. R. A. 190, 60 Am. St. Rep. 271. Mrs. Connery stood by and permitted her husband to enter into contracts enhancing the value of her property many times. She is several times richer than before. She has received the benefit of all her husband's property, and as well the property of complainants to the value of $888.85. Boegert & Son have not received the amount due them from Mr. Connery by about a like sum. This is not a case where a husband has made an absolute transfer of property to his wife, and has afterwards entered into business, contracted debts and become insolvent. He had transferred nothing to her when his contract with Boegert & Son was made. He had not agreed with her to do so. So far as she was concerned, he might have stopped work at any time, and removed the unused material. The transfer to her was complete only as the work was done, and after the material used had become a part of the realty. Until then it was his, and subject to levy for his debts. He had become insolvent when D. Hardin & Co. furnished the material. She knew that he was erecting this building as though it were his, though he was in fact erecting it for her. Both are occupying a part of it as a homestead, and living upon the income derived from the other. Both are thus enjoying the benefit of the identical property which was erected in part at the expense of his creditors. The transaction is abhorrent to equity and good conscience. Equity stamps it as fraudulent in fact, though not in intent, and will extend its arm to accomplish justice. The original interest of the wife will be protected.

The decree is reversed, and decree entered for complainants, with costs of both courts. The other justices concurred.

NOTE.-Right of Creditors to Enforce a Lien or Follow Property Furnished the Debtor Where the Latter Has Expended it Upon His Wife's Proverty.— We had difficulty in framing the subject of this annotation to our satisfaction, as we desire to limit it closely to the real question decided in the principal case, a question of great importance. Probably we could not improve on the statement of the proposition here involved, furnished by the court in this case,— "can a person out of debt and solvent expend all his

means in improving his wife's property, and thus become insolvent, and leave creditors, who have trusted him for materials to be used in such improvements, without redress?" Upon the question as thus stated the court said counsel were able to find no authorities. We must be careful to distinguish the question here to be discussed from the right of existing creditors to follow the property of their insolvent debtor who has expended his money in improving his wife's property. Thus, where a husband expends his money in building a house on his wife's land, it is a voluntary transfer of property, and, even though expended without fraudulent intent in fact, may be charged on such land for debts existing when such improvements were made. Humphrey v. Spencer, 36 W. Va. 11, 14 S. E. Rep. 410. Many other authorities to the same effect and accessable to the profession have taken this question altogether out of the field of controversy. Nor must the particular question before us be confused with that other rule of law which denies the right of subsequent creditors to subject to their demands improvements made by an insolvent husband upon his wife's property. Thus, the mere fact that there is no consideration for the expenditure of money by the husband in erecting improvements on his wife's land does not entitle his subsequent creditors to subject the property to that extent to the payment of their claims, but they must prove an actual fraudulent intent. Caswell v. Hill, 47 N. H. 407; Arnold v. Slaughter, 36 W. Va. 589, 15 S. E. Rep. 250. A case quite analogous to the principal case is that of Hitchcock v. Kelly, 41 Conn. 611. In this case a husband purchased land and conveyed it to his wife, and immediately afterwards made a contract for the erection of a valuable house with persons to whom he represents that he is the owner of the land, his wife assenting to all his acts, upon which representations and the security of their lien such persons erect the building, and afterwards file a builder's lien therefor, which he resists on the ground that the premises belonged to his wife. The court held-first, that the money drawn from the savings bank was in law the money of the husband, and that he therefore paid for the land; second, that the taking of the conveyance to his wife was equivalent to a voluntary conveyance; third, that the facts showed an intent to defraud the petitioners in taking the title to the wife, and that the conveyance was therefore void as against them; fourth, that a decree of foreclosure should be granted against the husband and his wife, including interest on the debt from the time it became due. This case goes very far beyond the limits of the rule, as ordinarily stated in the cases, and can only be justified on the ground that the original conveyance of the land on which the improvements were made was in fact fraudulent as to subsequent creditors. If the land had belonged originally to the wife or if the husband had made the conveyance to her purely as a gift and without fraudulent intent to injure creditors, her original interest could not be touched by creditors, nor could any judgment run against her, and the creditors would be bound, as in the principal case, to bring a special action in the nature of a creditor's bill, in aid of the execution of its judgment against the husband, subjecting the property of their debtor in the improvements made, only to the extent, however, that they exceed the value of the wife's interest. This statement is well supported by a quotation from the argument of the court in the case of Holden v. Crump, 78 Tenn. (10 La.) 320: "A wife can only part with the title to lands held by her to her sole and

separate use, in the mode prescribed by statute. If, therefore, the husband put improvements on land so held at his own expense, he cannot claim compensation from her or her heirs, although the work be done with her knowledge and consent. Nor can a mechanic acquire a lien on the land, under the statute in his favor, for work and labor and materials furnished by contract with the husband alone. Knott v. Carpenter, 3 Head (Tenn.), 542. The same is true even if the wife see the work in progress and give directions how it shall be done, unless indeed she join in the contract." Further on, however, the court says: "In a clear case of fraudulent participation on the part of the wife in the investment, the rule might be otherwise, she being secured, out of the proceeds of sale, the value of the land without the improvements." In Smith's Adm'rs v. Poythress, 2 Fla. 92, 48 Am. Dec. 176, it was held that where a husband gave his individual notes for the value of improvements made on his wife's separate estates, which he held in charge and trust, and the wife assented to and acknowledged the improvements and the debts, and the husband became insolvent, it was held that in equity, the separate estate of the wife was liable for the debts, and that the creditors of the husband were entitled to the same equity which he would have had, had he paid the debts.

As to the right of contractors or material men to enforce their liens upon the property of the wife, where their services or material have been used, under contract with the husband, to improve his wife's property, the authorities agree with the position taken by the principal case that the lien being a statutory proceeding cannot be enforced against the wife's separate estate unless she joined in the contract. Thus, it was held that even where a wife consented that her husband should, at his own expense, build houses on land held by her to her separate use, the contractor who furnished the materials and built the houses, supposing that the husband was the owner, was not entitled to a lien under the Mechanic's Lien Act. Huntley v. Holt, 58 Conn. 445, 20 Atl. Rep. 469, 9 L. R. A. 111. See also: Groth v. Stahl, 3 Colo. App. 8, 30 Pac. Rep. 1051; Lyon v. Champion, 62 Conn. 75, 25 Atl. Rep. 392: Campbell v. Jacobson, 145 Ill. 389, 34 N. E. Rep. 39; Fetter v. Wilson, 51 Ky. 90; Garnett v. Berry, 3 Mo. App. 197; Dearie v. Martin, 78 Pa. 55.

JETSAM AND FLOTSAM.

A SAMPLE OF LEGAL ETHICS.

An ex-county judge in one of the small towns of Wisconsin has placed the following card in his county paper to the consternation of his fellow-members of the profession:

"Real Estate and Probate Law.-Has it occurred to you that many a fortune has been lost to the rightful owners by bad management of estates and want of experience in the preparation of wills; and do you realize that 12 years of exclusive attention to that class of business, as county judge, may be of great value to you?

Having withdrawn from the general law practice I shall henceforth give my exclusive attention to probate matters, conveyancing and foreclosure proceedings, and having established my office at my residence near the court house, my expenses are reduced to a minimum, so that I can make charges absolutely satisfactory.