Henry Castro and others v. John H. Illies; Angelo Causici and others v. John H. Illies, 22 Tex. 479

Wheeler, Ch. J. The objection to the plaintiff’s evidence of title, that the mortgaged lands, included in the decree of foreclosure of the 25th of June, 1852, were not exhausted by the order of sale issued thereon, and found insufficient to satisfy the judgment, before execution was issued and levied on other lands, is not supported by the record. On the contrary, it appears that all the mortgaged lands included in the decree, and all which, by the judgment of this court,-were subject to seizure and sale under the decree, were first sold. The judgment was not superseded, upon prosecuting the writ of error.

It was, therefore, an authority for the issuance of execution; and it cannot affect the title of the purchaser at the sale, that property was not sold, under the decree, to which the defendant in execution had no title, and upon which the decree could not legally operate, or which was not legally subject to seizure and sale on execution under the decree.

It cannot be questioned, that the judgment was an authority for the issuance of execution, or that it conferred on the officer competent authority and power to sell; and neither in the issuance of the executions, nor in the manner of executing the power conferred by them, is it perceived that there was any illegality or error, affecting the title of the purchaser, or which can be ground of objection or complaint by the appellants. (Martin v. Rice, 16 Tex. Rep. 157; Kendrick v. Rice, Id. 254; Hancock v. Metz, 15 Id. 205; Mosely v.

Gainer, 10 Id. 393.) The ground mainly relied on for a reversal of the judgment, relates to the charge of the court, and the refusal of instructions concerning the effect of the marriage contract of the 3d of November, 1813.

It may be conceded, for the purposes of this case, (and the examination of the question is therefore unnecessary,) that the intei’pretation of the contract, claimed for the appellants, is correct, according to the law of the place where the contract was consummated; that is, that by the celebration of the marriage, under the contract, there was a separation of property of the spouses, and that Mr.

Castro became indebted to his wife in the estimated value of her property; and it may be further conceded, that the contract furnished the rule of property, personal and real, as to all after acquisitions in the country of their matrimonial domicil; and as to movable property elsewhere, if such be deemed to have been the intention of the contracting parties. But does it govern the acquisition of real property in this State, after, by their removal here, the parties have subjected themselves, and their rights of property acquired here, to the laws of this State ?

Does it take such property out of the operation of the law of community of this State ? Is it to be held and considered as affecting the rights of our citizens, contracting with them in reference to their property, acquired or to be acquired in this State, and without any record, or other notice of their marriage contract ? In the absence of an express contract, it is not questioned that the marital rights of persons, married in other countries, who have removed and become domiciled here, are to be governed, as to all after acquisitions of property here, by the law of this State.

Such is the law, by positive enactment. (Hart. Dig. Art. 2419.) But it is insisted, that the contract in question, from its date, became the law, and furnished the rule of property of the parties to it; adhering to, and following them into any country to which they might remove; that it accompanied them in their removal to this State, and here negatives and displaces the law of the State contravening its provisions.

Is it correct to suppose that this contract has possessed the invincible force, and legal ubiquity, which is ascribed to it, while the evidence of it has remained in the original archive in Paris, until it became necessary to invoke its presence here, for the purposes •of this controversy?

The general rule, irrespective of the question of the effect of a change of domicil, is undoubted, that where there is an express nuptial contract, “if it speaks fully to the very point,” it will generally be admitted to govern all the property of the parties, not only in the matrimonial domicil, but in every other place, under the limitations and restrictions which apply to other cases of contracts, that they are not in contravention of the laws or policy of the country where they are sought to be enforced, or with the rights of its own citizens. “ It will act directly on “movable property, everywhere; but as to immovable pro“perty, in a foreign territory, it will, at most, confer only a “right of action, to be enforced according to the jurisprudence urei sitce.” (Story on Conflict of Laws, §§ 143, 184; Le Breton v.

Miles, 8 Paige’s Ch. Rep. 261.) But “where there is a “change of domicil, the law of the actual domicil will govern as “to all future acquisitions of movable property; and as to all “immovable property, the law rei sitce.” (Story on Conflict of Laws, § 187.) “Where there is an express contract, that “governs as to all acquisitions and gains before removal. “Where there is no express contract, the customary law of the “matrimonial domicil governs in like manner. But in both “ cases, all acquisitions and gains, made after the removal, are “governed by the law of the actual domicil.” (Id. § 177; Saul v.

His Creditors, 5 Mart. Rep. N. S. 569.) Such are the doctrines maintained by the Supreme Court of Louisiana, where questions of this nature, according to Judge Story, have arisen and been discussed more frequently and learnedly than in any common law country.

The learned commentator upon the Conflict of Laws, after reviewing the writings and ojDinions of foreign jurists upon the subject, commends the doctrines maintained by the court in Louisiana, as those which will most probably form the basis of American jurisprudence upon this subject. “They have,” he adds, “much to commend them, in their intrinsic convenience “ and equity; and they seem best to harmonize with the known “principles of the common law in other cases.” (Story’s Conflict of Laws, § 183.) The decisions of that learned court, upon this subject, are especially entitled to weight with us, for the further reason, that their former law, and their legislation upon this subject, have been the same as our own. (Hart.

Dig. Art. 2419; Civil Code Revised, 2370; Saul v. His Creditors, 5 Mart. Rep. N. S. 569.) The principles we have extracted from the text of Judge Story, and the cases from which he has deduced them, are decisive of the question we are considering, adversely to the doctrine contended for on behalf of the appellants, at least, as to the real property here in question. The reasoning of the court in the case of Saul v.

His Creditors, would go far to maintain, that whore there has been a change of domicil, after the making of an express nuptial contract, the law of the after acquired domicil will govern, as to all after acquired property; unless, where the contract was made with reference to that law, or in view of a change of domicil, or such an event was in the contemplation of the parties, or the intention was in some way manifest, that the contract should govern, as to the rights of property of the parties, wherever they might reside.

The court adopt the generally received opinion among jurists, that,the law of the matrimonial domicil governs the rights of married persons, where there is no express nuptial contract; because they are presumed to have had in view, and to have contracted marriage with reference to that law. But they do not consider this tacit contract a satisfactory ground for holding, with some foreign jurists, that it follows them wherever they go, especially where it is applied to property acquired after a change of domicil of the parties.

The presumption, as to their agreement, cannot be extended, so as to give a greater effect to those laws than they really had. The extent of the tacit agreement depends on the extent of the law, and as that was limited by the jurisdiction of the power by which it was enacted, the tacit agreement of the parties must have a like limitation. “ In a word, “ the parties are presumed to have agreed that the law should “bind them, as far as that law extended, but no farther.” The tacit contract is to be construed, precisely as if the laws of the place were inserted in it.

If the law of community existed in the State where the marriage took place, this law regulates the property which the parties acquire in that State, hut does not regulate that which they acquire in another country, to which they remove. The insertion of this law in a nuptial contract, would he nothing more than a declaration, that while residing within that State, there should be a community of acquests and gains. Such an agreement could not have the same force, as one which expressly declared there should he a community of acquests and gains, between the parties, wherever they went. (Saulv.

His Creditors, 5 Mart. Rep. N.S. pp. 603, 604, 605.) Such is the course of reasoning by which the court arrive-at the conclusion, that the law of the matrimonial domicil does not follow the parties, and regulate their rights of property, acquired after a change of domicil. This was not the case of an express contract.

But the reasoning would seem to lead to the conclusion, that where there is one, and it does not expressly provide, or the intention he not manifest, that it is to apply to and govern ail after acquired property, wherever the parties may reside, it will net he admitted to have that effect'upon such property as they acquire in the country to which they subsequently remove. However that might he, as to after acquired personal property, there cam he, it would seem, no doubt that such is the rule as to real property, situated in the country to which the removal takes place.

The cases in Louisiana, in which this subject has been discussed, arose and were determined, upon a full examination of the whole doctrine, upon principle and authority, upon the law as it stood before the adoption of the revised Code, which contains substantially the same provision as our statute of the 20th of January, 1840. (Hart. Dig. Art. 2419; 5 Mart. Rep. N.

S. pp. 573-4.) The Code is deemed indisputably to furnish the rule for all future cases in that State. (Ibid.) Hence, if the present case were before that learned court, it would doubtless be held, that the law of community existed between the parties to this contract, in respect to the property here in question. It is to be observed, that in this contract, there is no stipulation that its provisions shall govern as to property thereafter acquired, in whatever country the parties may reside.

There is no reference to property to be acquired in any other country, nor to the laws of any other country than that in which the marriage was contracted. But there is an express reference to the law of that country, and a declaration of intention to he governed by its provisions, with certain modifications therein expressed. The inference would seem to be, that the parties did not contemplate a change of domicil, and did not contract with reference to their after acquisitions, in case of removal to another country.

They, it would seem, did not intend to provide a rule of property for their government, after such removal. They do not appear to have had in contemplation that state of the case, or to have intended to provide for it. Their contract does not speak to that point; hut it does expressly adopt, with certain modifications, the law of the country of their residence; and the ease does not seem materially to differ from the case supposed, of an incorporation into a nuptial contract, of the law of the place where it was made.

So considered, it would govern their after acquired properly there, hut would have no influence, it is supposed, beyond tbe jurisdictional limits of tbe laws of that country. The case of Le Breton v. Miles, 8 Paige’s Ch. Rep. 261, cited by counsel for the appellants, is not opposed to this view of the law. There the contract was made between natives of Prance, residing at the time in New York, but with express reference to the law of Prance, and to an intended residence there.

The laws of Prance, in force at the time of the consummation of tbe marriage, therefore, very properly applied to and governed their rights of property under the contract. Tbe case of Decouehe v. Savetier, 3 Johns. Ch. Rep. 190, also cited by counsel for the appellants, does not in tbe least militate against tbe view taken by tbe court in Louisiana.

That was upon an express nuptial contract, which contained tbe following provision: “ That there shall be a community of property between them,” (tbe parties to tbe contract,) “according to tbe custom of Paris, which is to govern tbe disposition “of tbe property, though the parties should hereafter settle in “ countries where the laws and usages are different or contrary.” And tbe wife, in that case, did not accompany her husband, who abandoned her, and came to reside in New York, where be acquired a personal estate, which was disposed of by tbe court, according to tbe law and express terms of the contract.

Here, as we have seen, tbe contract contains no similar stipulation or provision, and the property in question is not personalty, but realty, in respect to which the law r&i sitce, is held to govern. It would he extremely difficult, we apprehend, upon the ground of this contract, to deny to Mrs. Castro her community rights and interest in the property acquired by her husband, since their removal to this State.

Her claims, it is believed, could not he successfully resisted, upon any recognized principle in the law of this country, which may he invoked to determine the marital rights of persons, who have subjected themselves, and their rights, in the acquisition of property, to the influence of our laws.

But whatever may be the rights of the parties to the contract, as between themselves and their representatives in the succession to their property, we think it clear, that the contract in question cannot have the effect to govern their rights in their real property, acquired and situate here, to the prejudice of the rights of other citizens, who have contracted, on the faith of the property, and without notice of a contract giving it a different status from that of other parties, or establishing a rule for its government, variant from the law of the land.

If the contract he the law for the parties to it, in this State, it is not the law for other citizens of the State; and, until notice, cannot he invoked to the prejudice of their rights. (Hart. Dig. Art. 2414; Hall v. Harris, 11 Tex. Rep. 300; Young v. Templeton, 4 La. Ann. Rep. 254.) We conclude, therefore, that the legal presumption applies with its full force, that the property was community property, acquired with the funds of the community ; and that the conveyance to Mrs.

Castro, or to her use, carried with it this legal presumption, which it devolved on her to repel, by clear and satisfactory proof, that it was purchased with her own individual money or means. But it is not perceived that the ease would he materially different, whether the law of the State, or the contract, he deemed' to govern the rights of property of the parties. If the latter, it is conceded, that the doctrine of tacit mortgage cannot he invoked to aid the claims of the appellants. (Hall v. Harris, 11 Tex.

Rep. 300.) And if the parties are to he deemed to he separate in their property, “as if they were simply two friends inhabiting the same house,” still the conveyance, by one to the other, would be liable to be impeached for fraud. And if the contract, per se, afforded evidence of a valuable consideration passing from Mrs. Gastro for the conveyance of the property, as the court instructed the jury that it would, and the conveyances were binding, as between the parties to them, still, if made in fraud of the rights of creditors of the party making them, they might be avoided as to them.

It is not enough, that a conveyance be upon good consideration; it must be bond fide, also; and not made to hinder, delay, or defraud creditors. Whether the conveyances were so made and intended, was the material issue submitted for the decision of the jury. It was fairly left to their decision, by the charge of the court. And in view of all the circumstances surrounding the transactions; the embarrassed circumstances of Mr.

Castro, commencing, it seems, as early as 1847; his heavy indebtedness to the appellee ; his property consisting principally in lands, which, from the evidence, it would be reasonable to conclude, were not easily available to pay a debt of twenty thousand dollars, which, it seems, the appellee was seeking to enforce or secure before the date of the first conveyance, and about which litigation had already commenced; in view of all the facts disclosed by the evidence, and the nature and surrounding circumstances of the transactions, we cannot say the evidence was not sufficient to warrant the verdict.

In reference to the objection, that there is no evidence of a knowledge of the imputed intent, on the part of the beneficiaries, it will suffice to say that, from the relations of the parties, it is scarcely to be supposed that the circumstances and intentions of the grantor were not known to the beneficiary. The court did not err in refusing to give the instructions asked, respecting the consideration of the conveyances, in the terms in which they were propounded. The instruction given was sufficient upon that subject. Nor was there error in refusing the eighth and final instruction asked.

The contract had been admitted in evidence, and was before the jury for their consideration ; and the court might very properly decline to call their especial attention to a particular part of the evidence, by instructions as to the weight to which it was entitled, or the purposes for which it might be considered by them. It was in evidence before them, for their consideration, in connection with the other evidence in the case, and that was sufficient. We are of opinion that there is no error in the judgment, and it is affirmed. Judgment affirmed.