be a special reason for requiring it the court can 80 act; but it would put them to a disadvantage to establish it as a rule that the non-resident party in our federal courts must, when a bond is necessary, find sureties in the place where the court is held. The bond in this case will be approved, and the rehearing l'efused.
F A.ILING and another.
(Otromt Oourt, D. ()regon. June 27, 1880.)
DIVOROE-FOREIGN DECRBB-OREGON CODB OB' CIVIL PROOlllDUlUI,
t 495.-Bection 495 of the Oregon Code of Civil Procedure provides tta, .. whenever a marriage shall be declared void, or dissolved, the party I.t whose prayer sitch decree shall be made shall, in all cases, be entitled to the undivided one-third part in his or her individual right, in fee, of the whole of the real estate owned by the other at the time of luch decree, "" "" "" "" "" "" and it shall be the duty of the court. in all such cases, to enter a decree in accordance with this provision." Held, that a decree of divorce obtained in another state did not come Within the purview of this section. 10 as to affect the title to landl Within the state of Oregon.
In Equity. Demurrer to Bill.
Sidney Dell and W. Scott Bebee, for plaintiff. William Strong, for defendants. DEADY, D. J. This suit is brought to establish the right of the plaintiff to the undivided one-third of the west half of lots 7 and 8, in blook 63, in the town of Portland, the same being of the value of $2,000, and for an aooount of the rents, and profits thereof during the past six years. It appears from the bill that on September 25,1866, the plaintiff,.then a resident and citizen of California, commenoed a suit in the court of that state. to obtain a divorce from hElr husband, Charles Barrett, then a resident and citizen of OregoI;l, and on April 1, 1870, obtained a decree therein dissolving the bonds of marriage between herself and husband; that at the date of the commencement. of said suit said Barrett was the
owner of the premises aforesaid, and that on or alwut Feb· ruary 4,1868, he 'conveyed said premises to his daughter, the defendant Xarifa·J. Failing, with intent to prevent the plaintiff from aoquiring any right in the premises by said decree; that at the commencement of said suit for divorce the plaintiff did not know that said Barrett was the owner of said premises, and that he died shortly after the deoree of divorce was obtained; that said Xarifa has been in the possession of said preII!ises for the past six years, and received the rents and profits thereof, amounting to $500 per annum. Upon these faots the plaintiff claims that by the laws of Oregon, and by virtue of the decree aforesaid, she became and was entitled to one-third of the premises, This claim is made under section 495 of the Oregon Code of Civil Procedure, which provides that "whenever a marriage shall be declared void, or dissolved, the party at whose prayer such decree shall be made, shall, m all cases, be entitled to the undivided one-third part in his or her individuall'ight, infee, of the whole of the real estate owned by the other at the time of such decree, in addition to the further decree for maintenance provided for in section 497; and it shall be the duty of the court, in all such cases, to enter a decree in accordance with this provision." As it originally stood in the Code, this section simply provided that upon the dissolution of a marriage the real property of the parties should be discharged from any claim or interest of the other therein; provided, if the marriage was dissolved on account of the adultery or conviction of a felony of either party, then the innocent party should b. entitled as tenant in dower, or by the ourtesy, as the case might be, in the real property of the other, the same as if that other were dead. The statute deolared this to be the legal effect and operation of the deoree, and it was neither necessary nor proper that the pleadings or decree should allege or contain anything on the subjeot. The section was amended as it now stands on December 20, 1865, and the purpose of it is manifest. It is to give the prevailing and so far innueellt party in this suit, in all cases-no matter what the cause of divorce-absolutely one-third of the otLer's real property, as
BARRETT 'V. FAILING.
taining the divorce in the land of the other, and also the duty of the court to make the decree accordingly; but did not decide what effect, if any, the omission to provide for the matter in the decree would have upon such right. However, in my judgment, the amended section, like the original one, gives the right upon the entry of the decree, without any mention of it being made therein, and that the clause in the former, concerning the nature of the decree to 'be entered, is, so far as this matter is concerned, merely cumulative, and that in no event need there be any allegation or proof concerning the lands to be affected by the decree; but only, if there is a. decree for a divorce, that it shall contain a provision to the effect that the party obtaining it is thereupon and thereby entitled to one-third of the real property then owned by the other, whatever it may be. If any question should arise as to what property was so owned by such other, it can, as it should be, determined by appropriate proceedings between the parties interested. If, then, the decree of divorce in Barrett v. Barrett had been pronounced by a court of this state, in a proceeding under title 7 of its Code of Civil Procedure, concerning "suits to declare void or dissolve the marriage contract," I should have no hesitancy in holding that this. suit could be maintained, unless the ruling in Bamford v. Bamford, supra, should prevent me.. But counsel for the plaintiff go further, as they must, to maintain this bill, and contend that the right conferred by said section 495 on the prevailing party in the lands of the other is given to such party, not only by the mere operation of the statute, and as a result of the decree, and not by it, but in all cases of divorce, whether obtained in the courts of this state, under its Code of Procedure, or elsewhere; that the declaration in said section 495, "whenever a marriage shall be declared void or dissolved, the party at whose prayer such decree shall be made, shall, in all cases, be entitled to the un· divided one-third part · · of the whole of the real estate is a general owned by the other at the time of such rule, of universal application, like the provision in the statute
BARRETT V. FAILING.
of descents, declaring that whenever any person shall die intestate, and seized of real property, it shall descend to certain persons; or that of dower, which declares that the widow of every deceased person shall be entitled to dower in the inheritance of her husband; and cite Harding et ux. v. Alden, 9 Me. 140; De Gooey v. Godey, 39 Cal. 157,161; Whetstone v. Coffey, 4:8. Tex. 269. In Texas and California the civil law is so far in force that property acquired during the marriage, otherwise than by gift, devise, or descent, is common property; that is, it belongs to the matrimonial community, the husband and wife, equally, subject to the right of management on the part of the husband during coverture. The cases cited from· these states only decide that when a decree of divorce is declared, and no disposition is made of the community property, the wife may assert her right to her interest in it in another suit before another court of the same state; and this, although the statute of the latter state provided that, in case of the dissolution of the marriage by the decree of the court, "the common erty shall be equally 'divided between the parties, and the court granting the decree shall make such order for the division of the common property." But the question whether Ii. decree of divorce obtained in another state-a foreign decree -comes within the operation of this section 495, so as to affect the title to lands in this state, these cases do not decide. The case in 9 Maine goes further, and holds that under the law of that state, which provided generally that when a divorce was decreed for the adultery of the husband the wife should be entitled to dower the same as if he were dead, a wife divorced in Rhode Island for the adultery of the husband, committed in North Carolina, was entitled to dower in his lands in Maine. The contest in the case was principally as to the validity of the Rhode Island divorce, and, assuming that to have been valid, her right to dower was allowed without much consideration, the court being apparently controlled by the fact that the provision was general, "and not limited to divorces decreed within the state."
AmI so the question of what was the legislative intent in the case of the. Oregon statute must be determined mainly upon its own la.nguage and circumstances. In this connection weight must be given to the fact that said seotion 495 occurs in a code of procedure, and in that division of it which authorizes and regulates the granting of divorces in and by the courts of the state only, and not in a general statute, defining or prescribing the rights of husband and wife, as such, in the lands or property of each other. Although, then, the statute does say that the prevailing party shaU "be entitled ,in all cases" to a third of the other's land, yet the question arises, in what all cases? Is it all the cases of divorce brought and determined under this code in the courts of Oregon, and for the causes therein prescribed and allowed, or does the phrase include all the cases decided under any code in any country and for any cause? In my judgment the statute only comprehends all the cases provided for in it, and which may be said to arise, or at least be determined under it, and in the courts whose procedure is regulated by it. By the Code, § 266, a judgment "in any action" is authorized to be docketed, whereupon it becomes a lien upon the property of the judgment debtor in the county. The phrase "any action" is quite as comprehensive as all actions; but can it be supposed for a moment that under the circumstances it includes a judgment given in any other state or country, or that any judgment was in the contemplation of the legislature, other than those authorized and provided for in the code in which the provision occurs? It may be admitted that the legislature has the power to provide that a decree of divorce, pronounced in the courts of another state, shall have the same effect upon the real estate property of the parties in this state as if given here, or that a judgment given in a foreign forum might be docketed here with the same effect as if given in the courts of the state. But is not to be inferred that the legislature intended to make any such-extraordinary provisions from the bare use of language which is fairly satisfied when confined to domestic decrees and judgments, and only occurs in a code of proced·
me made to regulate judicial proceedings in the courts of
the state. The results which follow from allowing a decree of divorce in another"sttite to !::ia,ve the same effect upon thepr;operty of either within this state as if given here, are sufficiently serious to prevent such . ' a conclusion, unless , I the statute was plain and peremptory to that effect. '. Divorces may be and are allowed in ,other states andeountries for causes and undel'circnmstanc6s not allowed" here, and contra:ryto publie policy and' morals of theatate. 'But if section 495 is taken absolutely, and construed t? include all cases of a decree for divorce given, as well witbout the state as within it, theft such divorces, although granted contrary to the laws and polioy of this state, would nevertheless be allowed an extra-territorial force and effect witltin it; often, as in this case, against the property of its Slwn citizens. Aid is sought to be given to the claim of the plaintiff by invoking the rule prescribed in article.4 of the national constitution, and act of congress, passed in pursuance of May 26, 1790, (1 St. 122,) which in effect declares that the judgments of each state shall have the same and effec,t in every other state tqat thl;ly have in the state where ,they 'were given. But it is admitted that the d.ecree of the California court is valid and effectual here as a decree of divorce, and that is all the effect· it has in that state. The law of California, unlike that of this state, does not provide that a. decree of divorce shall work transfer or forfeiture of onethird 9f the real property of the one party to the other, and if it did could have no extra-territorial effect, but would be confined in it)i operation to the property of the parties within that state. The plaintiff's decree of divorce, although valid and effect. ual, as such, can have no operation or effect upon real arty in this state, except with its consent declared in its laws. n this decree was within the purview of the provision in sec. tion 495, I think this Buit could be maintained. But, in my judgment, that not being the caBe, the demurrer to th( bill must be sustained; and it is so ordered.
UNITED STATES t1.
(Commissioner'. Oourt, D. New Jersey. --,1880.)
JURISDICTION STATES STATE AND FEDERAL (JOURTS STOPPING UNlTJl:D
MAILS-REV. ST. § 3995.-Section 3995 of the Revised Statutes provides that .. any person who shall knowingly and wilfully obstruct or retard the passage of the mail, or any carriage, horse, driver, or carriercarrying the same, shall, for every such offence, be punishable by. fine of not more than $100." Held, that such statute is applicable to a person stopping a train carrying the United States mail, although he has obtained a judgment and writ of possession from a state court against the railroad company in respect to the lands about to be crossed by such train.
Hearing before Commissioner. Upon complaint made by the agents of the New York & Greenwood Lake Railroad Company defendant was arrested upon the charge of obstructing the passage of the United States mails carried on a tmin of the said company. Upon the examination it appeared that the defendant had 1llaced obstructions upon the rails, and refused to allow the mail train to pass, on the ground that the land belonged to his mother, and that he held a writ of possession issued out of the Morris circuit court against the railroad company. The conductor of the train told him that the train carried the United States mail, showed him the mail bags, and re· quired him to remove the obstructions, but he refused to do so, and forbade the conductor to remove them, saying that he held possession of the land under an order of the court, and would hold the conductor liable for trespass if the train crossed the land. The train was run back to a telegraph station for orders, and afterwards returned, and the conductor removed the obstructions, and crossed the land in spite of the remonstrances of the defendant. The train was delayed more than two hours. Geo. M. Keasbey, Ass't U. S. Dist. Attorney, for the Government. R. D. Salmon and Wm. P. Miller, for defendant.