Putnam's Handy Law Book for the Layman Part 9

In this country marriage is regulated largely by the states, though a movement has been started to make marriage and divorce a matter of national regulation.

As marriages are of higher character than other contracts relating to the ordinary dealings of men, even those that are prohibited by law are for reasons of public policy not always void. They are therefore not void, simply because the formalities prescribed by statute in obtaining the license and solemnizing the marriage have not been observed, when the parties afterward live together like other married people.

A marriage ceremony is not void though performed by one outside his jurisdiction, or not having a license obtained at the proper place.

Persons who improperly grant licenses and solemnize marriages may themselves suffer legally, but their wrongful action cannot be visited on others. The principle still prevails in most states that a marriage which is good by the common law, though contrary to statutory forms unless there is an express prohibition, is a valid marriage. In a few states a common law marriage is invalid.

A marriage that is valid by the law of the state where it was made, is valid everywhere. Nevertheless, the courts have great difficulty in applying the principle. Suppose that the resident of a state, for the purpose of evading its marriage laws, should go into another state and have the marriage solemnized, and then return, is the marriage valid in that state? No, but to lessen the rigor of the rule, the courts hold that both parties must have intended to evade the law, if, therefore, one of them was innocent the marriage was valid.

After marriage the husband's domicile becomes that of his wife, and her refusal to follow him without good cause, would be in law a desertion. It is said that a promise before marriage not to take her away from her mother and friends will not justify her in refusing to go with him. If, however, she had immediately after marriage, determined to separate from him and to take legal steps to that end, she could legally remain.

A married woman by the common law is answerable personally for her crimes as though she were unmarried, unless they were committed in her husband's presence. When together the law presumes she acted from his coercion, he therefore must be the sufferer, while she escapes. This rule though does not apply to the gravest crimes; for these both are liable. Like so many other legal rules the difficulty is in applying it. How near to the husband must she be when committing a wrong to render him liable and escape herself. In one of the cases a married woman was properly indicted for unlawfully selling intoxicating liquors. At the time of selling them she was alone in the room, though she had sold them by her husband's order.

As the law regards husband and wife as one person, many peculiar things flow from this relation. Thus one cannot steal from the other; but either is criminally liable for an a.s.sault committed on the other.

By statute in some states the right of either party to sue the other for wrongs has been greatly extended; nor is the husband liable for wrongs committed by his wife unless he partic.i.p.ated in them. For example, in some states he is not liable for slanderous words spoken by her in his absence; in other states his liability continues. On the other hand, a wife who can manage and control her separate estate may in turn be liable for the wrongs of her husband while he is acting with authority as her agent.

A husband has a right of action for damages against any person who alienates his wife's affections. Nor can he be defeated by showing that he and his wife did not live happily together. Such facts though may be used to prove that her society was worth less than it would have been had they lived happily, in fact, by money valuation was not worth three cents. A husband forfeits his right to sue others for entertainment when his own misconduct justified and actually caused the separation, otherwise his remedy is complete against all persons whatsoever who have lent their countenance to any agreement for breaking up his household. On the other hand, this is a one-sided rule in some states; in others a wife has the same right to sue for the alienation of her husband's affections as he has for the alienation of hers.

By statute great changes have been made in the way of permitting married women to retain their property and manage it, and to do business. Formerly, all the personal property of a married woman went immediately by law to her husband, and he became responsible for her debts. She still retained her real estate and the management of it.

Now, very generally, she also retains her personal property, also the income, very much as if she were unmarried. She often appoints him as her agent to manage her property, and when thus acting he is responsible to others and to her like any other agent. He may contract for erecting any building or improvement on her land, but should he contract in his own name for such improvement she cannot be held therefor, nor can any one who has done work or furnished materials put a lien thereon for them. It may be added that his right to act as her agent is never implied solely from the marital relation.

A wife may act in a representative capacity as agent for her husband, or for other persons, and may execute a power conferred on her by deed or will. She may also be appointed to act as executor, administrator or guardian, though under the common law theory her husband's consent was needful to her acceptance of any of these undertakings.

The common law relations of husband and wife have been greatly changed by statute since about 1844. "It is now," says Peck, "the usual rule of law throughout the United States, established in each state by its own statutes that the wife retains t.i.tle to the property owned by her before marriage or acquired by her during the marriage, and the right to manage, use or sell it, without the concurrence of her husband.

The right to contract, and to sue and be sued, naturally follows from her ownership and control of her property; in most of the states these rights are expressly conferred by statute; and in some they have been held to result by necessary implication."

The husband is generally relieved from liability for her debts or for her torts, except for such debts as are for her support or that of the family, or are within her express or implied agency to act for him.

The common law estate of dower and curtesy are retained in some of the states, in the larger number they are materially modified by statute, or wholly abolished and replaced by a right of succession to each other's property as defined by statute.

The distinctive duties resting on a husband are to provide a home, to support his wife and children, to protect her and them from injury or insult. Thus a husband has the same right to protect his wife, to a.s.sert and maintain her rights, even to kill a person, if necessary in her defense, that he would have in his own behalf.

The duty of a husband to provide a home implies his right to select and fix the marital abode. The wife must live with him, and a refusal on her part to live in the home provided by him would const.i.tute her a deserter. But he must select a home in good faith and in reasonable accordance with his means and their accustomed mode of life.

It is his duty to maintain order and law in his household. He is therefore liable to prosecution should his wife carry on the illegal sale of liquor, or in other ways defy the law.

A husband cannot chastise his wife, but he may use force to restrain her from committing a violent criminal wrong. Says a competent author: "That depends rather on the right of every one to use reasonable efforts to prevent violence and crime than on any peculiar power of the husband over the wife, and it would also justify like restraint of the husband by the wife."

It is the duty of the wife to a.s.sist in the maintenance of the family by such reasonable labor as the necessities of the family and their circ.u.mstances in life and financial position require; while the husband has no right to require her to do more than to care for the house and the family in the customary and proper manner. He cannot compel her to engage in business, to work for wages, nor to work for him in his business. The services of any kind which either may render to the other, or for the family, are rendered in consideration of the marriage relation, and of the mutual benefit received therefrom and neither has any right of action against the other for them.

It should be noted that the legislative revolution for the benefit of married women has chiefly affected the property relations of husband and wife, while their personal rights remain quite as before. Probably no single rule of the common law was so bitterly resented and so difficult to defend, as the vesting in the husband of the sole guardianship of their children. By statute in many states both parents are made guardian of them, and if they separate, the welfare of the children is regarded as the decisive question in fixing their guardianship, rather than the superior right of either parent.

A husband and wife by the modern law may agree to live separately. The arrangement in some states is effected through a trustee, in others this may be done by the parties themselves. By this the parties may agree on the disposition and division of their property when this can be done freely and intelligently. A separation agreement made through fear of her husband cannot be sustained.

A wife who voluntarily enters into an agreement of separation covering all property rights cannot, after her husband's death, have it set aside and then claim her rights in his estate, except in some states where community rights exist. On the other hand, her right to share in her husband's estate is not lost though she lives apart from him by agreement, unless this shows a clear intention to relinquish all claims to his estate.

The husband must support his wife. This is the law everywhere. While they live together the law presumes that he has given her authority to purchase necessaries on his credit, and therefore a tradesman can recover who shows that they were thus living and that the things furnished befitted their condition in life. When she is living apart from her husband the presumption is the other way, and a tradesman cannot recover without proof of the fact of her husband's authority to let her have the goods. But when she is living apart from him for good cause, and would starve if the things needful to sustain life did not come from some source, she has an absolute right to pledge her husband's credit for them.

What are the things for which she may pledge her husband's credit?

Those required to sustain life and preserve decency, besides other things to maintain her in her social condition. Wearing apparel, furniture, jewelry, even legal expenses incurred in regaining her conjugal rights have been included.

Besides agreements to live separately, the law for several causes permits absolute separation. These are prescribed by statute, and vary greatly in the different states. Adultery is a cause recognized in all of them, for which an absolute divorce can be granted. Cruelty is another cause, almost as general, though more difficult to define.

Actual violence is not necessary to const.i.tute cruelty, threats of violence with an intention to do bodily harm will suffice. Again, the cruelty must be unmerited. If she has justly provoked the indignation of her husband, then his cruelty presents a different aspect.

Nevertheless, if his cruelty bears no relation to her wrongful beginnings, she still has good ground for separation.

Desertion is a general ground of divorce, the law in every state prescribing a period of time, quite often three years. The period must be continuous. An offer to return made by the deserted spouse in good faith at any time before the separation has run for the statutory period will bar a divorce, but not if the offer is made afterward.

Again, a husband who drives his wife away from him by his misconduct deserts her as clearly as if he had left her. To cease living together for the time fixed by statute is not desertion unless this was done intentionally. For example, separation on account of business, sickness, etc., is not desertion. Not only must there be an intention to leave the other party, this must be without consent.

Another cause for divorce, quite generally recognized, is habitual drunkenness. This must be of a gross and confirmed nature. While other causes exist the most general have now been mentioned. In some states there is a more general ground, any reason rendering married life a failure. Of course, much depends on the discretion, mental and moral make-up of a judge in applying the facts to a cause for separation that is so general. An agreement in advance to make a cause of divorce is everywhere condemned by the law.

Divorces are of two kinds: from the bond of marriage, often called absolute divorces, which put an end to the marriage relation and render the parties single; and divorces from bed and board, limited divorces, more accurately called judicial separations, in which the marriage relation is not dissolved, but the injured party is given the right to live separate from the other. In more than half of the American states no distinction is made between kind of divorce, all divorces are absolute, from the bond of marriage.

The legal effect of divorces is still a grave matter. When a divorce has been legally granted by a state, the courts of every other state for obvious reasons recognize and try to uphold the decree or judgment, though not all of them, and consequently strange results follow. Thus a person who was married and living in New York leaves his wife for good reason and goes to Connecticut. After acquiring a legal residence there and proper standing in a court, he applies for a divorce, the proceedings are regular in every respect and a divorce is granted. He marries again and takes his wife to New York for a visit.

There he is sued by the first wife for support, moreover, by the laws of New York he is an adulterer. In New York he is still married to the first wife, in Connecticut to the second. If children are born of the second marriage they are legitimate as long as they live in Connecticut, illegitimate should they go to New York. One of the latest legal writers on this difficult subject says: "Foreign divorce judgments granted in states where the plaintiff had obtained an actual, bona fide residence, will doubtless continue to be recognized by the great majority of our states, but the states of New York, California, Maryland, Ma.s.sachusetts, Vermont, South Carolina, Pennsylvania, and possibly some other states, which have adopted the extreme New York doctrine, are permitted by the rule established in the Haddock case--a decision by the Supreme Court of the United States--to continue to refuse recognition of divorce judgments in other states."

=Innkeeper.=--An innkeeper's house is a public place to which travelers may resort. He cannot therefore prohibit persons who come under that character in a proper manner and at suitable times from entering, so long as he can accommodate them. He is not obliged to receive one who cannot pay for his entertainment. Indeed, he must exclude some persons who apply, notably thieves. He can refuse to admit all whom he has reason to believe will disturb the peace and safety of his guests; and can afterward exclude all who, though admitted, prove to be noisy and disturbers of the comfort and safety of others. And if having a stable he is under the same obligation to receive and care for horses as he is to receive the person to whom they belong. Again, he is not required to provide a guest with the precise room he may select, but only reasonable and proper accommodations. If he refuses to do so he is liable in law to the applicant.

In caring for the baggage of a guest, the law is not as well settled as it might be. A competent writer has said: "They are insurers of the property of their guests committed to their care, and are liable for its loss, unless caused by the act of G.o.d, a public enemy, or the neglect or fault of the owner or his servants." This strictness of liability, it is said is necessary to protect travelers against any collusion between the innkeeper and his servants, and to compel him to take care that no improper persons are admitted into his house. His charge for the entertainment of his guests is sufficient to cover this risk; he also has a lien on their property entrusted to his care to indemnify him against loss.

By statute in many states innkeepers are exempt from loss by fires which are in no way caused by their own negligence or that of their servants. If a horse dies while in the innkeeper's charge, he is liable unless he can show facts that excuse him.

If the goods of a guest are stolen by the innkeeper's servants or domestics, by another guest, or by someone outside the inn, the innkeeper must make rest.i.tution, for it is his duty to provide honest servants, and to exercise an exact vigilance over all persons coming into his house as guests or otherwise. His responsibility extends to all his servants and domestics, and he is bound in every event to pay for them if stolen, unless they were stolen by a servant or companion of the guest. Illness or absence of the innkeeper does not excuse him.

An innkeeper is not liable for the loss of a guest's property when this loss is due to the fault or negligence of the guest himself. Thus an unnecessary display of money or valuables, or leaving them where they would tempt thieves, may be negligence. But failure to lock or bolt his door is not necessarily negligence on the part of a guest. It is only evidence of negligence. Nor is an innkeeper exonerated when a theft is committed by a fellow guest with whom the owner of the property stolen had consented to occupy the same room.

An innkeeper may make needful and reasonable regulations that are to be observed by his guests to secure the safety of his property. When they are made and brought to the knowledge of a guest he is bound by them. By contract, custom and statute the responsibility of an innkeeper may be changed. In many states by statute an innkeeper avoids liability for the valuables of his guest unless they are deposited with him. These statutes are construed strictly in favor of the guest. Nor can an innkeeper even by these exempt himself from everything, for if a guest were required to deposit all he had to secure such protection, he would be in a strange fix. Said a Georgia court: "Is the guest to deposit his valise there, and go and send for it to get out a clean shirt?"

If a guest goes away, leaving his valise or other things with an innkeeper, he is not required after a reasonable time to observe such diligence in keeping them as he receives nothing in the way of compensation for so doing.

Keepers of lodging and boarding houses are not innkeepers, nor subject to their liabilities. The proprietor of such a house does not hold himself out to the world as prepared to supply accommodations for all who may apply, nor is he required to receive any persons unless he chooses to do so; an innkeeper's freedom is restricted in this respect. A house may have a double character of boarding house and inn. With transient persons who, without a definite contract, remain from day to day it is an inn; with those under definite contract it is a boarding house.

=Land License.=--A license is an authority to do something on another's land without acquiring ownership therein, and may be given orally, or it may be simply a permission to use or occupy. A license may be executory, relating to a future act, or it may relate to an act already done or executed. An executory license may be revoked at any time. Thus A laid a water pipe by permission across B's land who afterward rendered the pipe useless by cutting it. A had no redress, for B was acting within his rights. A ought to have obtained written authority for such action. He could, however, remove the pipe or any other improvement he had made on the strength of the license granted to him.

A license may be to do many things on another's land. Thus one may have a license to flood land, erect buildings, pa.s.s overland, maintain a ditch, cut timber, use land for railroad purposes. A common form of license is a ticket of admission to enter another's land to witness a spectacle or similar purpose.

No formality is needed to create a license. It may be in writing or be oral, or implied from the relations or conduct of the parties, as where a land owner a.s.sents to the doing of certain acts on his land. A person by opening a place of business licenses the public to enter therein for the purpose of transacting business. And a license to do a particular act necessarily involves any act essential thereto.

A license is usually revocable at the pleasure of the licensor, even though it be in writing and under seal, or a consideration has been given. If the licensee has expended money and made improvements on the faith of the license, can it be revoked? On this question the courts divide. The more general opinion seems to be that a license coupled with a grant or interest cannot be revoked. Or, if a license has in effect been so used as to become an eas.e.m.e.nt it remains a burden on the land though sold to a purchaser, unless he had no knowledge of it. A license cannot be a.s.signed by the licensee to another.

Again it is said that the revocation only affects the future exercise of the privilege, and does not prevent the licensee from removing structures or other movable articles placed by him thereon relying on the license, provided he does this within a reasonable time after the revocation. Even should the owner of land sell, the sale would not operate as a revocation to one to remove trees that he had already cut under a contract of sale and removal.

If a person grants a license to another to come on his land, he owes no duty to him except the negative one of not wantonly injuring or exposing him to danger. Merchants invite the public into their stores to buy wares, but those who accompany them without any intention of purchasing are not invitees, they are mere licensees. The duty of the storekeeper to one who enters his premises by mere license is not to keep the premises in a non-hazardous state, but only to abstain from acts willfully injurious to him.

=Lease.=--A lease is for the use of land, usually for a few years or shorter period. The lessor is more generally known as the landlord, and the lessee as the tenant. The lease may be oral, though the better way is to put the agreement in writing. If it be for a house or other building the lessee should insist on this, otherwise he would fare much worse should the building be destroyed by fire. Doubtless many do not know that, unless the lessee makes a specific agreement relieving himself, he is liable for the rent of a building, just the same if it is burned down as if he were still the occupier. This is the common law, which has been changed in some states by statute.

If the lease is for more than a year, or other short period, the Statute of Frauds, so called, requires that it must be in writing. If the time be less, a verbal lease may be made, even though the lessee does not take immediate possession of the premises. If on the other hand, it exceeds the statutory period, it is not absolutely void, but continues during the joint wills of both parties, and may therefore cease at the will of either party. If the landlord wishes to terminate it, he must give the tenant notice to quit; should he disregard the law and take immediate possession he would be a trespa.s.ser.

When the terms of a lease are in doubt, they are construed in favor of the tenant. A lease to a specified day continues during the whole of it, though custom or statute may prescribe a different rule. A term may also continue during the option of either of the parties to be ended on notice by the party exercising the option.