#### Ruth Barber *versus*George B. R. Root.

A judgment creditor levied his execution on the rents and profits of lands holdee by the judgment debtor in right of his wife, as her dower in the estate of het former husband ; and it was holden that the creditor’s interest in the lands was determined by a decree of divorce *a vinculo*obtained in the state of *Vermont,*at the suit of the wife of the debtor, although the marriage had been contracted in this state; the parties, at the time of the divorce, having had tlieir domicile in *■Vermont.*

This was a writ of entry on the demandant’s own seism, and came before the Court upon an agreed statement of facts to the following effect: —

The demandant was formerly the wife of *Eli Bush;*and after his decease, *viz.,*on the 24th day of August, ] 804, certain lands, of which the said *Eli*died seised, and of which the demanded premises were parcel, were duly and legally assigned to her as her dower in the estate of her said late husband, and she accordingly entered, and became seised thereof as tenant in dower. In March, 1805, she intermarried with one *Matthew Barber,*within this commonwealth. During the continuance of said marriage, and before any dissolution thereof, *Boot,*the tenant, having recovered a judgment against the said *Matthew*for his sole debt, caused his execution to be extended on the demanded premises, then in the seisin and occupation of the said *Matthew*and *Buth*in her right; and on the 1st day of October, 1810, possession of the same was delivered to the tenant, that he might receive the rents and profits thereof for the term of three years from the time of the said extent.

On the 13th day of February, 1813, the said *Buth*procured, in the Supreme Court of Judicature of the state of *Vermont,*pursuant to the laws if said state, where she and the said *Matthew*then dwelt *263and had their home, a decree of said court, divorcing her from the bonds*of matrimony with the said *Mat-*[*261 ] *thew,*(if such was the legal operation of the said decree;) and from that time the said *Ruth*has remained single.

Upon these facts, it was agreed that judgment should be entered for the demandant or tenant, agreeably to the opinion of the Court.

*Howe,*for the tenant.

If the marriage, in this case, is considered as a *contract*merely, it was entered into in" this commonwealth ; and, although the laws of a foreign state may be recognized for the purpose of *enforcing*a contract entered into *there,*they are never recognized for the purpose of discharging a contract entered into *here.*(1)*Vermont*is to be considered as a foreign state. (2)

If this is viewed as a mere question of policy, it is deserving of some consideration, whether this Court will lend its aid to carry into effect, between its own citizens, a judgment of a foreign court, when the demandant has resorted to that court for the avowed purpose of gaining relief in a case not provided for by our laws, and, indeed, against the policy of them. In the case of *Greenwood*vs. *Curtis*(3) the court say, when the giving a legal effect to a contract would exhibit to the citizens of this state an example pernicious and detestable, it will not be enforced. The legislature, by providing that a divorce *a vinculo*shall be granted only for the cause of adultery, have, in effect, declared that it would be “ pernicious and detestable ” to grant it for any other cause. If a divorce for cruelty be recognized, as was the case here, one for every cause, for which a foreign legislature may see fit to authorize it, must be recognized; and thus the sacredness of the marriage contract be entirely destroyed.

If the law regulating divorces be considered as belonging rather to the criminal than the civil department of the law, the criminal jurisdiction of every court is limited to the country in which it is held, and the effect of its sentences must be as limited as its jurisdiction. A man convicted of an infamous crime in *Vermont*would be excluded from testifying in the courts of that state; but not so here ; and yet * this is not a part of the sentence [ * 262 ] in such cases, but a consequence only of the conviction.

The husband of the demandant acquired, by the marriage, a life estate in the demanded premises, (4) subject to be defeated only by *264a dissolution of the marriage, pursuant to the laws of this commonwealth, either by the death of the wife, or a divorce *a vinculo*for adultery committed by the husband. If the marriage is dissolved for the adultery of the wife, the rights of the husband, or those claiming under him, are not affected by it. But if, in this case, the land reverts to the wife merely in consequence of the *decree*of the court in Vermont, (as it must, if at all,) then it would revert, as well in case she were the guilty cause, as if she were not. This would be enabling persons, not merely to take advantage of their own *wrong,*but of their own *crimes.*

*Gold-*for the demandant.

The cause being continued *nisi*for advisement,, at the following March term in *Suffolk*judgment was ordered to be entered for the demandant.

(1)

 4 *D. & E.*182, *Hunter*vs. Potts.- 1 *H. Black.*131, *Solomons*vs. *Ross.*— 1 *H Black.*665, *Sill*vs. *Warwick.*— 2 *H. Black.*402, *Phillips*vs. *Hunter.*— 2 *B. & P.*229 *Bruce*vs. *Bruce.*

(2)

1 *Mass. Rep.*401, *Bartlet*vs. *Knight.*— 1 *Caines's Rep.*460, *Hitchcock & Al.*vs *Aicken.*— *Kirby's Rep.*119, *Kiblee*vs. *Kiblee.*— 1 *Dallas's Rep.*261, *Phelps & Al.*v. *Holker.*— 1 *Johns. Rep.*424, *Jackson*vs. *Jackson*

(3)

6 *Mass. Rep.*378.

(4)

 10 *Co*42—2 *Inst.*510. — 1 *Sid.*11. — *Co. Lit.*273, *b*

Sewall, J.

The demandant’s title is as tenant for life in the demanded premises, which were assigned to her as and for her dower of and in the lands and tenements of a former husband, *Eli Bush,*deceased. The tenant defends under the same title, and claims to hold the premises by the extent of an execution, upon a judgment recovered by him against *Matthew Barber,*the second husband of the demandant, with whom she intermarried after the assignment to her of her dower, and while she continued in the seisin and occupation of the demanded premises, as of her freehold and estate. The extent, produced by the tenant, is an appraisement of the rents and profits of the demanded premises for the term of three years; which are set off to the tenant to hold to him accordingly, in satisfaction of his execution against *Matthew Barber.*

Some doubts have arisen as to the regularity of the proceedings and return, — whether these are according to the provisions of the statute directing the issuing, extending, and [ * 263 ] * serving of executions. (1) For myself, I am satisfied upon this point.. The interest of the husband in the real estate of his wife, that is, in any lands or tenements wherein she has an estate of freehold, whether of inheritance or for life, is a title to the rents and profits during the coverture. The estate itself remains entire to the wife, or to her heirs, upon the dissolution of the marriage. (2) The case of a tenant by the courtesy may be said to be a continuance of the relation in that appropriate manner. The rents and profits were all, therefore, that was assignable in a due course of law. But we have not found it necessary to determine, conclusively, upon the regularity of the extent and return shown in this case. A different practice has been, we believe, adopted in some *instances;*and lands holden as dower have been taken and *265appraised, according to the value of the whole interest and estate, estimating the chances of the life of the tenant in dower, *(a)*

An extent, for a determined number of years, of the rents and profits, is a charge or encumbrance ; but the legal seisin of the freehold remains undisturbed. The present action is, therefore, right in point of form. If the charge upon the estate had been defeated, or was at an end, when this action was brought, it was compétent for the demandant to aver her own seisin of the demanded premises; and, without proving an entry upon the tenant, subsequent to the determination of his estate, she is entitled to recover against him, as upon a disseisin done to herself.

The demandant contends that the term by which the demanded premises were encumbered for the benefit of the tenant, and to satisfy his execution against *Matthew Barber,*although not elapsed in point of time when this action was commenced, had been determined and defeated by a dissolution of the marriage, and a divorce from the bonds of matrimony, which had existed between her and the said *Matthew.*And there can be no doubt that a divorce from the bonds of matrimony has, in this respect, the same operation and effect which a dissolution of the marriage by the death of one of the parties would have. (3)

* The marriage of the demandant with *Matthew Barber*[ * 264 ] was contracted within this state, while the parties resided here. They have since resided together in the state of *Vermont;*and there, while the parties had, both of them, their domicile in that state, the divorce relied on for the demandant was decreed by the Supreme Court of that state. The proceedings, at the instigation of the demandant, and the decree thereon, are duly certified in that authentic form which entitles them to full faith and credit in the courts of this state.

But against a conclusion for the demandant upon this evidence, several suggestions .have been made and argued by the counsel for the tenant, which were thought, at the time, to deserve some consideration.

Decrees of divorce obtained in the state of *Vermont*have been thought liable to be impeached, particularly because of the very extraordinary jurisdiction in suits for divorce there assumed and exercised. The case of *Jackson*vs. *Jackson,*(4) cited in the argu ment for the tenant, is a striking instance of the extent to which *266this assumed power has been carried, and serves to show the mischievous consequences to be apprehended from it.

In that case, however, the Supreme Court of the state of *New York*did not undertake to pronounce upon the validity of the proceedings and decree in the state of *Vermont,*whether a divorce was thereby effected between the parties, or not. They refused their aid, in an action brought by the wife, who had obtained the decree of divorce against the husband, to charge him with a sum of money allowed her as alimony. The action was not sustained, and upon reasons which have great strength in their application to the rights of the parties in that action.

The proceedings and decree, relied upon for the demandant in the case at bar, are liable to none of the objections which prevailed in the case cited. The jurisdiction of the parties between whom the divorce was decreed must be considered as well established by their residence together in the state of *Vermont,*as husband [ * 265 ] and wife, in a manner * that proves a permanent domicile there before the suit for a divorce was commenced, and which continued when the decree was obtained. The tribunal for divorces in the state of *Vermont*had, therefore, an exclusive jurisdiction, not only of the parties, but of the subject matter of the suit, according to the regulations, respecting causes of divorce and alimony, which have been adopted in this state, (5) and which are generally received.

, Regulations on the subject of marriage and divorce are rather parts of the criminal, than of the civil, code; and apply not so much to the contract between the individuals, as to the personal relation resulting from it, and to the relative duties of the parties to their standing and conduct in the society of which they are members; and these are regulated with a principal view to the public order and economy, the promotion of good morals, and the happiness of the community. A divorce, for example, in a case of public scandal and reproach, is not a vindication of the contract of marriage, or a remedy to enforce it; but a species of punishment, which the public have placed in the hands of the injured party to inflict., under the sanction, and with the aid, of the competent tribunal, operating as a redress of the injury, when, the contract having been violated, the relation of the parties, and their continuance in the marriage state, has become intolerable or vexatious to them, and of evil example to others. The *lex loci,*therefore, by which the conduct of married persons is to be regulated, and their relative duties are to be determined, and by which the relation itself is to be, in certain cases *267annulled, must be always referred, not to the place where the contract was entered into, but where it subsists for the time, where the parties have had their domicile, and have been protected in the rights resulting from the marriage contract, and especially where the parties are, or have been, amenable for any violation of the duties incumbent upon them in that relation. (b)

The laws of Vermont, which authorize the Supreme Court of that state to proceed in suits for divorce instituted in favor of persons resident for a time, but having no settled * dom- [ * 266 J icile within the state, against persons resident and domiciled in other states, who are not, and never have been, amenable to the sovereignty of the state of *Vermont,*upon allegations of offences not pretended to have been committed within the territory of the state, or contrary to the peace, morals, or economy of the society there, or in violation of any contract subsisting, or which has ever been recognized there, — in short, where no jurisdiction of the parties, or of the subject matter, can be suggested or supposed, — are not to be justified by any principles of comity which have been known to prevail in the intercourse of civilized states. I must be permitted to say, the operation of this assumed and extraordinary jurisdiction is an annoyance to the neighboring states, injurious to the morals and habits of their people; and the exercise of it is, for these reasons, to be reprobated in the strongest terms, and to be counteracted by legislative provisions in the offended states.

But the proceedings in the suit, and the decree of divorce offered in evidence in the case at bar, are not within the reach of this cen sure, or liable to be impeached upon either of the objections which have been considered by this Court. We receive- the evidence, therefore, as conclusive, and as proving undeniably the material fact in issue between the parties, *viz.,*that the marriage which had been between *Matthew Barber*and the demandant was dissolved in due course of law, and with the sanction of a competent tribunal.

The result, this fact being ascertained, is to be determined by the laws of this territory exclusively where the real estate is situate ol which the title is brought in question by this action. The title of the tenant, under his execution against *Matthew Barber,*ceased, and was defeated, by the event of the dissolution of the marriage, upon which his interest in the real estate of the demandant depended: the title of the demandant remained, thereupon, entire to her, discharged of the encumbrance ; and this action is maintained foi *268the demandant, who must have judgment to recover the demanded premises with costs.

ADDITIONAL NOTE.

[See *Dejarnet*vs. *Dejarnet,*5 *Dana,*499. — *Bradshaw*vs. *Heath,*13 *Wend.*407. — *Starr*vs. *Pease, 8 Conn.*541. — *Wheeler*vs. *Hotchkiss,*10 *Conn.*225. — *Babcock*vs *Smith, 22 Pick.*61.—F. H.]

(1)

*Stat.*1783, c. 57.

(2)

 2 *Black. Comm.*433. — *Co. Lit.*351.

(a)

*[Roberts*vs. *Whiting,*16 *Mas.. Rep.*186.— *Chapman*vs. *Gray,*15 *Mass Rep*439. — Ed.]

(3)

 3 *Black. Comm.*183. — *Fitz.*N. *B.*446, 470.— *Co. Lit.*351.

(4)

1 *Johns. Rep.*424.

(5)

*Stat.*1785, c. 69.

(b)

*[Inhab. Hanover*vs. *Turner,*14 *Mass. Rep.*227. — *Jackson*vs. *Jackson,*1 *Johns*424. *—I'awling*vs. *Wilson,*13 *Johns.*192.— *Borden*vs. *Fitch,*15 *Johns.*121. — Ed.