<p>Before Shipp, J., Charleston, January, 1919.</p> <p>Action by Mary S. Dawson against Thomas Della Torre and Arthur Bynah’ as-executors, &c., under the will of John B. Dawson, deceased, and others. From order sustaining a demurrer to the complaint, the plaintiff appeals.</p> <p>The decree referred to follows:</p> <p>This is an action for recovery of dower in certain property now owned by thé several grantees and devisees of plaintiff’s deceased husband, from whom she has been granted a divorce a vincule matrimonii by a Court of general jurisdiction in the State of Maryland, where the plaintiff and her husband were married.</p> <p>The case is now before me on a demurrer to the complaint. It is admitted by counsel for plaintiff that the divorce granted by the Court in Maryland is valid and binding in that State, but it is claimed not to bind the defendant in this State, nor on plaintiff so far as her dower is concerned.</p> <p>The complaint alleges facts which would entitle the plaintiff to dower in the premises described in the complaint if she had been the wife of the deceased husband at the time of his- death or if she had not been legally divorced by the Maryland Court in July, 1906.</p> <p>The sole question, therefore, before me now is whether or not the judgment of absolute divorce granted by the Court in Maryland as aforesaid is binding on the plaintiff herein to the extent of depriving her of her dower interests in the property of her deceased husband situated in South Carolina, where the husband had his legal residence at the time of his marriage to plaintiff on December 24, 1890, in the city of Baltimore, Md., until the date of his death on February 23, 1917.</p> <p>The plaintiff alleges in her complaint, paragraph 8, “that said Dr. John L. Dawson, the defendant in said cause, having never had a domicile in Maryland and having been served only with process by appointment in a railroad station in Baltimore while passing through, was not subject to the jurisdiction of said Court in Maryland, and was not bound in South Carolina by said proceedings in Maryland, and this plaintiff alleges that she has never remarried.” This allegation is a mere conclusion of law. The fact that he was not a resident of Maryland and was served only while passing through, the jurisdiction is not sufficient allegation of fact to show that the service was not good. If he had been brought into the jurisdiction under legal process in another-action, he 'might not have been subject to process in that action wherein he was then served, but nothing appears here to show that he was not there of his own volition. Certainly there was no allegation tending to show a collusion, for that implies a fraud on the Court; so, if the defendant in that action, Dr. Dawson, had come within the jurisdiction of the Court for the purpose of placing himself within the jurisdiction or for the purpose of allowing himself to be legally served with process, it would have signified no collusion. , .</p> <p>If the plaintiff was the legal wife of Dr. John D. Dawson at the time of his death, she would now be entitled to all she claims in her complaint. But according to her own admissions in her complaint and through counsel, she was not the legal wife of Dr. Dawson at his death nor had she been his wife since the decree of the Court granting an absolute divorce in July, 1906.'</p> <p>Now then, since it has been established that these parties were divorced absolutely by a Court of general jurisdiction in another State of the Union, this State and its Courts are compelled to “give full faith and credit” to the judgment of such Court in a sister State, and the only remaining question that could enter into our inquiry would be whether such Court had jurisdiction of the cause and the parties.</p> <p>In the case of Thompson v. Whitman, 18 Wall., 457; 21 E. Ed., 897, cited as authority in McCreery v. Davis, 44 S. C., 195; 22 S. E., 178; 28 E. R. R., 655; 51 Am. St. Rep., 794, we find the following language, to-wit: “The record of a judgment rendered in another State may be contradicted as to the facts necessary to give the Court jurisdiction; and if it be shown that such facts did not exist, the record will be a nullity, notwithstanding it may recite that they did exist. Want of jurisdiction may be shown either as to the subject-matter of the person, or, proceedings in rem, as to the thing.” In the same case it was held that the want of jurisdiction of the Court by which a judgment rendered in any State may be questioned in a collateral proceeding in another State, notwithstanding the provisions of the fourth article of the Constitution and the law of 1790, and notwithstanding the averments contained in the record of the judgment itself.” Again, in Hanley v. Donoghue, 116 U. S. 4, 6 Sup. Ct., 244; 29 E. Ed., 535, cited in the case of McCreery v. Davis, supra, we find this language, to-wit; “Judgments recovered in one State of the Union, when proved in the Courts of another, differ from judgments recovered in a foreign country in no other respect than that of not being re-examinable upon the merits, nor impeachable for fraud in obtaining them, if rendered by a Court having [competent] jurisdiction of the cause and of the parties.”</p> <p>That our State, aside from its duty under the Federal Constitution, recognizes divorces granted by Courts of other States, there can be no doubt. We find in our Criminal Code, § 381, relating to bigamy, the following, to-wit: “Whoever, being married, and whose husband or wife has not remained continually for seven years beyond the sea, or continually absented himself or herself, the one from the other, for the space of seven years together, the one of them not knowing the other to be living within that time, * * * or whose marriage has not been annulled by decree of a competent tribunal having jurisdiction both of the cause and the parties, shall marry another person,” etc. Again we find a provision very much similar in Section 3754 of our Civil Code, relating to1 bigamous marriages, providing that marriages of persons having a husband or wife living are void, adding a proviso as to “any person who shall be divorced.’ This statute was referred to in the case of McCreery v. Davis, supra, and the Supreme Court, in discussing it, said that, while there were no cases in our reports construing it, yet it was evidently meant to mean only “valid” divorces, and since neither the State of New York, where the marriage was performed, nor the State of South Carolina, where one of the parties lived (the defendant), recognized as a cause for divorce that for which that divorce was granted, the statute would not avail anything. This language would indicate clearly that, had that divorce been granted on grounds recognized in New York, where the marriage was performed, and the Court had had jurisdiction of the persons, this State would have recognized the judgment of the State granting this divorce. Now in the case at bar the marriage was performed in the State of Maryland, and the Court granting the divorce was a Court of the State of Maryland, and jurisdiction of the defendant had been acquired, for he was served in the State of Maryland.</p> <p>In the case of Haddock v. Haddock, 201 U. S.,. 567, 26 Sup. Ct., 527; 50 D. Ed., 868; 5 Ann. Cas., 1, Chief Justice White (then Associate Justice), in laying-down certain propositions of law which he says were “irrevocably concluded by previous decisions of this Court” goes on in his opinion, using this language, to-wit: “It has, moreover,</p> <p>been decided that where a bona fide domicile has been acquired in a State by either of the parties to a marriage, and a suit is brought' by the domiciled party in such State for divorce, the Courts of that State, if they acquire personal jurisdiction also of the other party, have authority tO' enter a decree of divorce, entitled to' be enforced in every State by the full-faith and credit clause. Cheever v. Wilson, 9 Wall, 108 [19 E. Ed. 604].”</p> <p>It seems, therefore] well settled that where a marriage has been contracted in a State, and afterwards in that State where one of the parties is domiciled, a suit for divorce is begun and the other party is personally served, the judgment of that Court is binding not only on the parties, but on every Court in every State of the Union where that judgment is properly pleaded or admitted by the adverse jparty to exist.</p> <p>The case at bar has all the essential elements which make the judgment of absolute divorce granted by the Maryland Court valid and binding on the parties, their privies, and the Courts of this State. Therefore I sustain the demurrer to the complaint in this action and dismiss the complaint, and it is so ordered.</p> <p>Mitchell & Smith cite: Matters affecting the title to real property are goverened by the law of the locus: 44 S. E., 643, (N. C.); 61 E. R. A., 898 ; 80 Pac., 556, (Wash.); 178 U. S., 186; 44 D. Ed., 1028; 247 U. S., 16; 245 U. S., 412, 416; 12 C. J., 456. Law of State where the land lies controls dower right: 111 S. C., 523; 30 N. E. 661, (N. Y.); 15 E. R. A. 542; 11 N. E. 118, (O.); 98 N. E. 488; 14 Cyc. 888; 34 S. C.E. 562; 7 S. C. 150, 152; 14 Cyc. 936. Matrimonial status is not a property right: 12 S. C. 29. Divorce decree in Maryland has no extraterritorial effect: 107 Md. 335-6. “Pull faith and credit” clause does not require this State to permit a divorce decree of a sister State to alter its own laws as to dower: 178 U. S. 186; 47 Atl. 376, (Del.); 114 111. App. 655; 36 S. C. 367, ' (W. Va.) ; 30 N. E. 661; Dec. Dig. “Judgments,” Sec. 822; 4 Cent. Dig., Sec. 1490. Dower law in S. C.: 1 Civ. Code, 1912, Secs. 3469-78, 3485-93. Dower attaches to any 'lands seised by husband during coverture: 34 S. C. E. (3 Strob.) 562. And is paramount to any person claiming under the husband by a subsequent act: 94 S. C. 492, 494. Elopement only method of divestment, other than voluntary renunciation: 44 S. C. 195, 226; 56 S. C. 173; 36 E. R. A. 517. Renunciation prior to vesting only thing that will estop wife: 16 S. C. 91; 52 S. C. 108; 53 S. C. 2; 63 S. C. 126; 87 S. C. 47; 89'S. C. 175; 96 S. C. 435; 44 S. C. 195; 41 S. C. 363; 18 S. C. Eq. 275; 18 S. C.' Eq. 222. Right attaches with marriage and seising: 88 S. C. 286; 94 S. C. 492; 28 S. C. 580; 31 S. C. 547; 34 S. C. E. 562. After vesting wife can convey or assign it by deed: 29 S. C. 501; 35 S. C. 88. Valid decree in sister State must be recognised here so far as it affects status of the parties: 21 S. C. Eq. (2 Strob.), 174; 80 S. C. 94; 75 S. C. 145. In reply : Power to grant a divorce is statutory: 19 C. J. 23, 462, 504, 506; 12 S. C. 30; 20 S. C. Eq. (1 Strob.), 387.</p> <p>Thos. Della Torre et al., as Executors, &c., and Joseph W. Barnwell for Charleston Library Society, cite: “Pull faith and credif’ 'clause construed and in what cases of divorce, a State is bound to recognise decree of mother State: 201 S. C. 567; 181 U. S. 155; 181 U. S. 175; 198 U. S. 317; 181 U. S. 183; 21 How. 582; 9 Wall. 123; 215 U. S. 909; 210 U. S. 231; 226 U. S. 551; 44 S. C. 195. Personal service of defendant in State where divorce is granted is essential4. 44 S. C. 195., Divorce bars dower: 4th Kent. 55; 4 Barb. 192; 1 Wash. Real Prop. 243; 14 Cyc. 943; 111 U. S. 526; 10 Mass. 260; 110 Mass. 463; 10 Ohio 396; 20 Ohio 454; 2 Bishop Mar. & Div., Sec 706, 712; 2 Strob. Eq. 175. Foreign divorces recognised here'. 76 S. C. 145; 80 S. C. 94; Crim. Code, 1912, Sec. 381; 1 Civ. Code, 1912, Sec. 3754.</p>
