« AnteriorContinuar »
once for all, and, hence, we cannot wait to see that damages not following directly as a consehow the unknown adversities or contingencies of quence of the particular circumstances must be the future may affect the question; as if, by some specially pleaded. The loss of a particular prosother calamity, those prospects, which we près pect of marriage must be specially pleaded, no ently estimate, should turn out to have had no doubt, but why should the loss of the general existence at all; as if the girl should die before prospect belonging to a child whose injury so she reaches womanhood; or, having reached it, distigures her as to make marriage almost imposshould find a profitable marriage notwithstanding sible? It would seem rather to fall within the the distigurement.
rule of the Ohio case above cited, as applicable to "In the case of Ernestine Koch, injured on a girl's prospects in the future, although a mere shipboard, a servant girl, who, among other in infant now; and, generally, within the doctrine juries, received a wound in the forehead, from that such a loss is a natural consequence of the which a permanent scar resulted that somewhat injury, and not a special consequence, very much disfigured' her, Judge Deady allowed, as one like the loss to growing crops, which may be item, $500 for the scar, concerning which he uses compensated in damages. Suth. Dam. 158, 187, this language: 'It may be that the sum of $500 193-198. is an insufficient compensation for such a "It would be agreed by all that the injury to blemish upon the personal appearance of the this plaintiff does seriously impair her prospects libelant. But it does not appear that the scar of marriage when she reaches the marriageable will affect her personal appearance so as to make age, and I had no hesitation in holding that such her presence offensive or painful to others.' etc. impairment is an element of damage for the conAnd then he says this: "Still, the scar will be a sideration of the jury. It is not more likely to permanent distigurement of her person, for which unduly influence a jury, nor is it more difshe is entitled to some compensation. Karr v. ficult of estimation than any other element of Pasks, 44 Cal. 49. In this country, at least, it is damages confessedly within their consideration still open to every woman, however poor or when a mere child is injured, nor at all unlike humble, to obtain a secure and independent posi most of the elements of calculation or estimation tion in the community by marriage. In that in all cases of personal injury. It all depends on matter, which is said to be the chief end of her the fair judgment of the jury, and is especially existence, personal appearance-comeliness—is subject to the scrutiny of the court and its power consideration of comparative importance in the to control excessive verdicts, as was said by Cresscase of every daughter of Eve.' The Oriflamme, well, J., in Smith v. Woodfind, 1 C. B. (N. S.), 3 Sawy. 397; Fed. Rep. Cas. No. 10, 572; 3 Suth. 660, in a somewhat analogous estimation of damDam. 268, 1 Suth. Dam. 765.
ages without the aid of a precise rule. 3 Suth. "There are other familiar instances where loss Dam. 323, and note; Id. 289; 1 Suth. Dam. 810." of marriage prospects are elements of damage, as in seduction, breach of promise (for the particu SUBROGATION SURETIES ON OFFICIAL BOND. lar loss by that breach of contract), slander or -In Myers v. Miller, 31 S. E. Rep. 976, decided libel (under some circumstances), and sometimes by the Supreme Court of Appeals of West Virof false representations amounting to a distinct ginia, it was held that sureties on the official and actionable injury. Cooley, Torts, 277; 3 hond of a sheriff, upon being compelled to make Suth. Dam. 323. An injury to the person of a good the default of their principal, will, by the woman affecting her prospects of marriage fact of payment, become equitable assignees, and should be as actionable as one to her character. be subrogated to the position of the State in re
"The petition in this case does not specially spect of all its securities, liens, and priorities, for plead any loss of marriage prospects, but in the purpose of enforcing reimbursement from case like this it is difficult to see why there should their principal. The court said in part: “If be any special plea. It is said by Mr. Suther sureties know that they can be subrogated to the land that special damages are required to be priority of the State, less apprehension will be stated in the declaration, and that an unmarried felt in joining in the bonds of collectors, and less woman cannot secure damages on account of her delay in payment by solvent sureties. Other prospects of marriage being lessened by the per creditors are not injured, for, if the State has the sònal injury for which she sues, unless such first claim upon the fund, it does them no wrong, special damage be alleged; for which he cites: whether this claim is enforced by the State or by Hunter v. Stewart, 47 Me. 419; 1 Suth. Dam. 763, those standing in its stead. In Enders V. Brune, 765;3 Suth. Dam. 268, and note. Not baving an 4 Rand. 445, the court, in treating the subject of opportunity of examining that case to see the age subrogation, says: 'In enforcing these principles, of the woman, its bearing is not fully understood. courts of equity look not to the form but to the But presumably it was a woman, and not a child essence of the transaction. They consider the of five years of age, as to which it could hardly doctrine of substitution, not as one founded in be said that she could truthfully set up any contract, but the offspring of natural justice; nor special plea or averment as to a loss of marriage; do they leave it to the creditor to cede his actions, and, therefore, presumably the case, and all like but, so soon as a third person who has become it, would fall within the general rule of pleading bound with the debtor pays his debt to the cred
itor, they substitute him to the creditor, giving argued that because one of the plaintiffs made him every right, every lien, every security, to his note, and the others became indorsers, in which the creditor could resort, and, if the cred order to raise the money to pay the State the itor should with bad faith release any of those se · amount of the judgment, as disclosed by the evicurities, it would be a bar pro tanto to his recoy dence, therefore, the maker of the note is the only ery against the surety.'. McNeil v. Miller, 29 W. one who paid anything on the judgment, and the Va. 480, 2 S. E. Rep. 335 (Syl. point 1): "The others cannot be entitled to the release, because doctrine of subrogation, being the creation of they have not suffered. The sureties had a right, courts of equity, is so administered as to secure among themselves, to devise ways and means to essential justice, without regard to form, and is get the money, and, as between themselves, they independent of any contractual relation between may each and all be equally liable for the amount the parties to be affected by it.' 3 Pom. Eq. Jur. of the pote so made and indorsed. They got the sec. 1419: 'The surety who has paid or satis money and paid the debt, and are entitled to all fied the principal's debt or obligation is entitled the rights, remedies and priorities of the State in to be subrogated to, and to have the benefit of, all respect to said judgment. And how is the comsecurities which may at any time have been put plaining lienholder in any worse condition than into the creditor's hands by the principal debtor, he would be if the sureties had not paid the judgor which the creditor may have obtained by the ment, and the State were now pressing its collecprincipal debtor. By the fact of payment the tion instead of the plaintiffs ?" surety becomes an equitable assignee of all such 'securities, and is entitled to have them assigned TORT - DAMAGES TO WIFE BY HUSBAND – and delivered up to him by the creditor, in order CAUSE OF ACTION.-In Deeds v. Strode, 55 Pac. that he may enforce them for his own reimburse Rep. 656, decided by the Supreme Court of Idaho, ment and exoneration;' and note 1 to same sec it appeared that plaintiff, a married woman, haytion and cases there cited. On the subject of ing a husband from whom she had never been sureties on official government bonds, 24 Am. & lawfully divorced, married defendant. The latEng. Enc. Law p. 220: 'Sureties on bonds for ter marriage having been declared null and void, government officials, upon being compelled to plaintiff brings action to recover damages from make good the default of their principal, will be defendant for injuries alleged to have been resubrogated to the position of the government, in ceived by her from defendant while they were respect of all its securities, liens and priorities, cohabiting together, by reason of the defendant's for the purpose of enforcing reimbursement from having inoculated her with a veneral disease. It their principal or contribution from their co-sure was held that, it not appearing that defendant ties. And it is immaterial how the government's had induced plaintiff to enter into marital relaright of priority originated, whether out of com tions with bim by any fraud, deceit, or misrepremon-law prerogative, positive statute or contract; sentation, no recovery could be had. The followonce established that it is entitled to rank as a ing is from the opinion of the court: "It does not preferred creditor, the same preference will be up appear that the defendant in any way misled the held, by way of subrogation, for the benefit of the plaintiff, that he made any false representations surety.' Hawker v. Moore, 40 W. Va. 49, 20 S. E. to her, or practiced any fraud upon her, to induce Rep. 848; Boltz's Estate, 133 Pa. St. 77, 19 Atl. her to enter into the marriage relation with him. Rep. 303; Turner v. Teague, 73 Ala. 554; Living If there was fraud or deceit practiced in bringing ston v. Anderson, 80 Ga. 175, 5 S. E. Rep. 48; Irby, about the relation, it was presumably, under the v. Livingston, 81 Ga: 281, 6 S. E. Rep. 591; Hun statements in her complaint, attributable to the ter v. United States, 5 Pet. 173; Roberston v. plaintiff. She was the incapacitated party. It Trigg's Admr. 32 Gratt. 76; Crawford v. Ricbeson, was by her procuration--upon her motion, that 101 Ill. 351; Hook v. Same, 115 Ill. 431, 5 N. E. the pretended divorce from Deeds, her former Rep. 98; 1 Jones, Liens, secs. 99, 100. It is con husband, had been procured. She was in a positended that the auditor had no authority to assign tion to know and is presumed to know, whether the judgment of the State to plaintiffs. It is im that divorce was legal or not; whereas the defendmaterial whether an assignment is made or not, ant cannot be presumed to have any knowledge or as it will be seen from the authorities above cited information upon the subject. There is no allegathat the doctrine is well established, by almost tion in the complaint that defendant knew of the an unbroken line of decisions, that a surety who existence of the divorce in Deeds against Deeds. has paid the debt of his principal obligor is sub The plaintiff, holding herself out as one capacirogated in equity, by the act of payment, not tated and qualified to enter into the marriage reonly to the securities of the creditor, but to all lation, accepted the proposals of the defendant his rights of priority;' and 'what difference can to, and did, enter into such relations with him. logically result whether the creditor to whom the Her act was at least a fraud upon the defendant. sureties made payment is the State or an individ Plaintiff claims that by, through, and in conseual?' Orem v. Wrightson, 51 Md. 34. The state quence of, said relations she has been damaged, ment of the auditor, purporting to be an assign and asks the court to award her compensation ment, supplies the evidence of payment of the for such damage. We know of no principle of judgment to the State by the sureties. It is law or equity which will support this contention.
Appellants' counsel cite Nels. Div. & Sep. $ 1023. 892, cited by appellants, was an action for services, The language there used is as follows: "The -held no recovery could be had. The case of woman is relieved of her incapacity to sue and be Higgins v. Breen, 9 Mo. 497, is not in point,--ansued, She may sue the man who has entrapped other case of fraud by defendant. We have exher into a void marriage, and compel him to ac amined carefully all of the cases cited by councount for rents and profits of property he took sel, and have found not one which supports, even under such marriage. Where a woman is in- by implication, the contention of appellants. duced by fraud and deceit to enter into a void Cooley, Torts, p. 279, has, under the head of marriage, she may recover damages for such tort 'Fraudulent Marriage,' the following: “A serious without first having the marriage annulled.' wrong may be accomplished by inducing any This may be accepted as a correct statement of one, through misrepresentation and fraud, to enthe law; but how is it made applicable to the case ter into an illegal marriage.
The tort made by the record under consideration? The in such a case consists in the fraud accomplished, plaintiff has undoubtedly the rigbt to sue and be to the woman's serious, and perhaps permasued, but to avail berself of that right she must, nent, injury.' Counsel for appellants insist that, like every other person, have a cause of action. the injury of which plaintiff complains having There is no question of property rights involved been the result of the wrongful act of defendant, in this case. It is not claimed that the plaintiff plaintiff should be entitled to recover therefor, brought to the community any estate or property the same as though defendant had assaulted or whatever, or that the defendant derived any poisoned her. We do not recognize the parallel pecuniary benefit from said relation. The com contended for. The injury complained of in this plaint alleges that the defendant is the owner and case could scarcely have arisen but for the illegal possessed of property of the value of $150,000. relations existing between the parties, and such It is not claimed or pretended that the plaintiff relations were entered into voluntarily by plaintwas 'induced by fraud and deceit to enter into a iff, and were not induced by any fraud or misrepvoid marriage. The case of McDonald v. Flem resentation on the part of the defendant; and ing, 12 B. Mon. 285, cited in note to section 1023 of the plaintiff's incapacity to enter into marriage Nelson on Divorce and Separation, was one in relations constituted the illegality. The injury which the parties, after having cohabited together was consequent upon her own illegal act, and we as husband and wife for several years, separated, know of no principle of law authorizing recovery and the woman brought action to recover for her for injuries in such a case.” services during the time of such cohabitation, and also for money advanced by her to the defendant for the purchase of certain real estate. The ADVERSE POSSESSION — INTERRUPTION— TAX court held that, while she could not recover for SALE.- In Harrison v. Dolan, 52 N. E. services, she might for the money advanced, and Rep. 513, decided by the Supreme Juso decreed. The parties in that case were in pari dicial Court of Massachusetts, it was held delicto. While this decision supports the text in that where a tenant has continued in adNelson, it has no application to the facts in the verse possession of land for over twenty years, case at bar. Blossom v. Barrett, 37 N. Y. 434, the fact that during his occupancy there was a cited by appellants in their brief, was an action sale and conveyance of the premises for taxes brought by the plaintiff to recover damages of does not constitute an interruption of his possesthe defendant for fraudulently inducing the sion. The court said in part: "Adverse possession plaintiff to marry the defendant, and to cohabit is pure matter of fact, to be interrupted only by with hiin, he having another wife living, from interrupting the possessor's exclusion of adverse whom he was not lawfully divorced, and the de claimants, abandonment of his claim, or a change fendant being at the time incapacitated to marry in his intent. Whether the last two would have any one while his prior wife was living.' The any effect unless they were manifested, we need plaintiff's right to recover in that case was based not consider. In general, also, the effect of the upon the fraud of the defendant. It could not be adverse possession will not be abridged by a considered an authority in support of the con change of title. The adverse possessor ex hitention of the plaintiff in this case. In Robbins pothesi is a wrongdoer until the twenty years has v. Potter, 98 Mass. 532, cited by appellants, the elapsed. Commonly, at least, if not necessarily, plaintiff sued to recover money advanced to de his claim is adverse to all the world; and probfendant by her while they were living together ably any dealings among the excluded parties, as husband and wife under a marriage which both even when a deed by a disseisee is valid, would parties knew to be void. The court in that case not affect him. Probably the purchaser would held, in substance, that while the plaintiff would only stand in his seller's shoes. See Chapin v. not be allowed to recover for services rendered to Freeland, 142 Mass. 383, 387, 8 N. E. Rep. 128. defendant during the existence of the illegal re At all events, the action of the original disseisee lation between them, still she could recover for would be barred. money loaned defendant during that period, and “When it is held that the disseisor's possession which he had expressly contracted to pay. must be continuous in him and his predecessors Cooper v. Cooper, 147 Mass. 370, 17 N. E. Rep. in title during the whole time of limitation, and
the conveyance of the tax title to the plaintiff was bad, tben, since the very meaning of the ståtute of limitations is to bar liability for a wrong, and as the disseisin was a wrong to the demandant before the sale for taxes as much as, if not more than, afterwards, and was the same wrong, we do not perceive any ground in the tax sale, taken by itself, to prolong the demandant's right of action.
"If the conveyance of the tax title to the demandant were good as against the tenant, it might be necessary to consider whether a tax sale is adverse, and, as in the case of a title by disseisin or prescription, creates no privity with former owners, or whether, although it takes all titles, it conveys them in privity like a sale on execution. Pub. St., ch. 12, sec. 38. The question is not decided by Langley v. Chapin, 134 Mass. 82. Even if the former view - were taken, it still possibly might be held that no mere change of title, except one which puts it where it is above the statute, as in the sovereign apart (from statute, can prevent the gaining of a later title, which also is adverse to all the world, and is the result of an adverse holding, uninterrupted in fact for twenty years. Upon these points we express no opinion."
when the statute does not run against the State, it may be held that the statute has not run if the State has had the title during a part of the time relied upon. Armstrong v. Morrill, 14 Wall. 120, 145; Braxton v. Rich, 47 Fed. Rep. 178, 188; Hally. Gittings, 2 Har. & J. 112. But such decisions have no application to this case, if for no other reason, because the statute runs against the commonwealth as well as against private persons (Pub. St., ch. 196, sec. 11); and because, further, the commonwealth never had even a momentary title to the land.
"Again, the intimation in Abbot v. Railroad Co., 145 Mass. 450, 460, 15 N. E. Rep. 91, has no bearing. Tbat intimation concerned the acquisition of a right of way across a railroad, and was to the effect that a user begun across an earlier three-rod location would be interrupted in its operation by a later five-rod location. In such a case, the wrongdoer has no possession. He merely commits a series of trespasses. Whether the acquisition and implied assertion of right on the part of a railroad company by a location be or be not sufficient to interrupt the running of prescription (see Powell v. Bragg, 8 Gray, 441; Brayden v. Railroad Co., 171 Mass. —, 51 N. E. Rep. 1081), the determination cannot help us in dealing with the effect attributed by statute to allowing oneself to remain disseised for twenty years.
"As there was not even a momentary possession under the tax deed, it is not necessary to consider whether the words and meaning of the statute would not bar a disseisee at the end of twenty years if he had been continuously kept out by a succession of disseisins, one upon another, beyond remarking that there is no analogy between this case and the attempted acquisition of an easement by prescription, where successive users of a way, without right, are merely successive trespassers, except in those cases where, by the doctrine of privity, the later wrongdoer can add the time of his predecessor's adverse use to his own.
"A more subtle argument than those which we bave dealt with may be suggested. It may be said that as a tax sale, if valid, gives a good title as against all the world, it is like prescription, and really begins a new title, which can be barred only by twenty years of adverse holding after the new title begins. But we are not driven to consider this argument; because, if it prevailed, it could do the demandant no good. The tax purchaser was disseised by the tenant's continued adverse possession, and his deed to the demandant before St. 1891, ch. 354, conveyed no title as against the tenant. Faxon v. Wallace, 98 Mass. 44, 45; McMahon v. Bowe, 114 Mass. 140. In Daveis v.Collins, 43 Fed. Rep. 31, 33, where the jury were instructed that a sale for taxes would break the running of time in favor of the disseisor, it seems to have been assumed that the conveyance of the tax title to the demandant was good. It is stated that the plaintiff was “clothed with whatever title passed by these tax deeds.' Id. 34. If
WHAT IS A VALID LIMITATION TO CEASE UPON MARRIAGE OR A CONDITION VOID AS BEING IN RESTRAINT OF MARRIAGE?
Scarcely a branch of the old common law abounded with so much conflict and such subtle distinctions, as that of this question when does and when does not a devise or conveyance cease upon the marriage of the donee or devisee, or, in other words, what is a condition in restraint of marriage, and, therefore, void, and what a limitation to cease upon marriage, and, therefore, valid. The American courts have evolved some leading principles, out of the contradictory mess of the English decisions, and thereby cleared away much of the fog of the ancient learning, so that the conclusion of Mr. Redfield' is no longer true, when he says, that beyond certain general rules, "the cases seem to resolve themselves into the mere judgment of the court upon the circumstances of each particular case." The uncertainty of the authorities and refined distinctions laid down in the decisions led Lord Loughborough to say "that such was the state of the authorities, a judge could not be considered to act too boldly, whichever side of the proposi
1 Redf. Wills (2d. Ed.), p. 297. 2 Stackpole v. Beaumont, 3 Ves. 98.
tion he should adopt." This remark was unmarried,” held void as a condition against made upon the point that a bequest over was marriage. The authorities are reviewed in necessary to make a limitation good. But Arthur v. Cole, and it is said, quoting from that other phases of the subject give rise to Morley v. Rennoldson, that'a gift, until marthe same observation is fully proven by con riage, is a valid limitation, for in such case flicting English and a few American cases there is nothing to give an interest beyond upon the various propositions, arising from this marriage. But in a gift sought to be abridged subject. We are here concerned with the by a condition, the condition may be struck modern American doctrine on this interesting out and the original gift left in operation ; topic, and shall attempt to formulate some of but if a gift is until marriage and no longer, the more important principles established by there is nothing to carry the gift beyond the the decisions. In an early Pennsylvania case marriage.” And held, that the devise to a it was said: “As proper to frame a condition sister “so long as she lives or until marriage" certain words are recognized, among which is a valid limitation. Such language in most three are said to be most appropriate to make cases is held a valid limitation, and in others an estate conditional, namely, proviso, ita a condition and void. 10 A devise for and quod and sub conditione.”
“In during natural life, unless she shall be marCromwell's caset it was settled that three ried, in which case the gift is to cease. So things are necessary to make these words a long as she remains unmarried she is to have condition: 1st. That the clause where they the exclusive use," held a valid limitation and occur bave no dependence on another in the not a condition. 11 And a devise to the wife deed, but stands originally by and of itself. of testator "should she remain his widow" 2d. It be the language of the feoffor; and 3d. was held a valid limitation. 12 But the lanIt be compulsory on the feoffee.” This case, guage “if she so long remain a widow" was so far as an extensive research has shown, held a condition and void. 13 The court say: stands alone among the American decisions "The point in this case is a narrow one, and in laying down these subtle distinctions. And the same as if the testator had said, I give my while some of the refinements of the common daughter-in-law an annuity for life, but if she law are followed, the great preponderance of marry again it shall cease.”
marry again it shall cease.” A devise absoour courts is against such fine-spun reason lute in terms was directed on marriage to ing. In Hotz’s Estate the court said: “The cease, 14 held a condition ; but in Tennessee, as distinction between a bequest to which a con in most of the other States, held good as dition is appended in restraint of marriage, against a second marriage. The court say: and a limitation of an annuity or bequest to "No question has been the subject of more continue so long as a woman remains unmar controversy and contrariety of judicial opinried, has been fully recognized by our decis ion than that of provisions like this, whether ions. The difference between a condition in they be limitations or conditions in restraint restraint of marriage and a limitation desig- of marriage." The term “during widownating marriage as the extent of the bequest
6 Otis v. Prince, 10 Gray, 581. To same effect see is a narrow one, and in some cases the diffi
Randall v. Marble, 69 Me. 310; Waters v. Tazewell, 9 culty is to ascertain to which class a bequest Md. 291. belongs.” * * "In this bequest no
7 56 Md. Rep. 100.
8 2 Hare, 570, the leading English case. prior estate or interest is given to which 9 Little v. Birdwell, 21 Tex. 597; Bringle v. Dunk. condition is annexed. No estate is to be de ley, 14 Smed. & M. 16; Harmon v. Brown, 58 Ind. 207; feated by her marriage, for none is given."
Coppage v. Alexander, 2 B Mon. 313; Wooten v.
House, 36 S. W. Rep. 932; Duncan v. Phillips, 3 Head, And it was held, that the language “for and 415; Hughes v. Boyd, 2 Sneed, 512; Parsons v. Wins. during all the term she shall continue a ow, 6 Mass. 173; Hawkins v. Skegg, 10 Humph. 31; In widow,” was a valid limitation. But on the
re Bruch's Estate, 185 Pa. 194, 39 Atl. Rep. 813.
10 Coon v. Bean, 69 Ind. 474; Stillwell v. Knapper, other hand, where a testator, by a codicil, di 69 Id. 558. rected the trustee to pay over to a nephew the 11 Mann v. Jackson, 35 Cent. L. J. 383, where au. net income of property "so long as he remain
thorities are collected.
12 Phillips v. Medbury, 7 Conn. 568.
13 Hopper v. Dundee, 10 Pa. St. 75. See also Mickey's 3 Paschall v. Passmore, 15 Pa. St. 307.
App., 46 Id. 340. 42 Co. 710.
14 Herd v. Catron, 97 Tenn. 662, 37 S. W. Rep. 551, 37 $38 Pa. St. 422.
Lawy. Rep. Ann. 731.