Dawson v. Torre , 116 S.C. 338 ( 1921 )

June 30, 1921. The opinion of the Court was delivered by The case contains the following statement:

"This is an appeal from an order sustaining a demurrer to the complaint and dismissing the complaint.

"The summons was served on December 15, 1917. The complaint is for dower in lands in South Carolina, and alleges that the plaintiff-appellant, Mary S. Dawson, was married to the late Dr. John L. Dawson at Baltimore, Md., on December 24, 1894, Dr. Dawson being and having been for many years a resident of Charleston, S.C. and the plaintiff and her husband, after the marriage, resided in Charleston together as the place of their matrimonial domicile until the 10th of May, 1903, at which time the plaintiff and Dr. Dawson separated and lived apart; that on May 17, 1906, plaintiff filed a bill for divorce against Dr. Dawson on the ground of abandonment in the Circuit Court for Hartford County, in the State of Maryland, and a decree for divorce was granted by said Court on July 24, 1906, and the plaintiff has never remarried; that after the marriage and during the period of coverture the said Dr. Dawson was seized in fee and possessed of certain described pieces of real property in Charleston, S.C. and there died, a resident of Charleston, on February 23, 1917, and the terms of his will and his disposition of his property to certain of the defendants are set forth.

"The answers of the defendants who answered vary in form, but all set up the divorce granted by the Maryland Court as an affirmative defense. On February 16, 1918, the plaintiff demurred to this affirmative defense set up in the various answers on the ground that it did not state facts sufficient to constitute a defense. Thereafter, on April 11, 1918, the defendants, Della Torre and Lynah, executors and trustees, served a demurrer to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. Still later and five days before the hearing, to wit, on November 27, 1918, the defendant, Charleston Library Society, served an oral demurrer to the complaint. The specifications of all these demurrers are hereinafter set forth in this record.

"The main issue was whether or not the Maryland divorce operated as a bar to the plaintiff's right to dower in land in South Carolina of which Dr. Dawson was seized during the coverture.

"The demurrers were argued before Judge Shipp at Charleston, and on January 8, 1919, his decree was filed sustaining demurrer to and dismissing the complaint. From that decree this appeal is taken."

The issue is simple and entirely free from complications. The marriage was contracted in Maryland under the laws of that State. In Maryland marriages are contracted in contemplation of their possible dissolution for certain causes. The Maryland Court, after personal service on the deceased in Maryland, and upon what we must assume a proper showing that a cause existed, dissolves the marriage relation. While this was contracted in view of a possible dissolution, the South Carolina Court could not have dissolved it for any cause. The South Carolina Courts must, however, under the full-faith and credit doctrine, recognize the dissolution affected by the same authority that made it. It is hard to imagine a clearer case for the operation of the full-faith and credit doctrine than this. Something has been said about a collusive service on the husband. If true, it can do the plaintiff no good. She cannot profit by her own wrong. So far as this case is concerned and between these parties, the status, and everything connected with it, was absolutely destroyed, so far as this record shows.

The cases on the subject are many, and to review them would be unprofitable. It generally is unprofitable. InMcCreery v. Davis, 44 S.C. 195; 22 S.E. 178; 28 L.R.A. 655; 51 Am. St. Rep. 794, the divorce was void for want of jurisdiction, and the statements largely dicta. Marriage is frequently spoken of as a contract, but it is not. It has no element of a contract. It is a status. A man and woman may contract to assume the status of marriage, but, whether it be regarded here as a contract or a status, the result is the same. The contract was rescinded. The status was destroyed. Our statutes, both civil and criminal, recognize the fact that the relation may be destroyed absolutely. A divorce, meaning a valid divorce, of course, relieves the parties from the penalty of bigamy under the criminal law, and under the civil statute allows the parties to marry again. There is no limit to the number of remarriages in the statute. To allow an accumulation of dowers, founded on the same right, is a reductio ad absurdum. They are all good, or none. The Maryland divorce of a Maryland marriage destroys dower, and the judgment appealed from is affirmed.

Let Judge Shipp's decree be reported.