McCreery v. Davis

Citations

• 44 S.C. 195
• 28 L.R.A. 655
• 22 S.E. 178
• 1895 S.C. LEXIS 74

Syllabus

<p>1. Marriage. — The marriage relation considered, and held to be in this State, as at common law, not simply a status, but a relation springing from a civil contract, with incidents and limitations attaching by the law of the land to the marriage contract when entered into, notwithstanding that under this same law it is made to differ in many particulars from other civil contracts.</p> <p>2. Ibid. — Foreign Divorce — Jurisdiction—Dower—Specific Performance. A citizen of this State married a woman of New York in that State, and forthwith brought her with him to his South Carolina home, where they lived together as man and wife for a few years, when the wife left him and took up her residence in the State of Illinois, and there in time obtained a decree of divorce from the proper court in Illinois on the ground of cruelty, the husband being at his home in South Carolina, and served only by publication, and not appearing to the action. Held, that this judgment of the court of Illinois would not be recognized in the courts of South Carolina, where divorces are not allowed for any cause, and that the Constitution of the United States, and the act of Congress in pursuance thereof, do not require such recognition, as the court in Illinois never acquired jurisdiction of the person of the husband. Therefore, this wife has an inchoate right of dower in lands owned by the husband during coverture, whether purchased before or after the Illinois decree of divorce, and a purchaser of such lands from the husband will not be decreed to specifically perform his contract where the tendered deeds have no renunciation of his wife's dower endorsed thereon.1</p> <p>3. Divorce in South Carolina. — Under the Constitution of South Carolina, the legislature cannot grant a divorce, but it may be granted only by the Court of Common Pleas, and by that court only in such cases as may be prescribed by law. And the law having prescribed no cases in which the courts may grant divorces, none can b