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BARRETT V. FAILING, 111 U. S. 523 (1884)

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U.S. Supreme Court

Barrett v. Failing, 111 U.S. 523 (1884)

Barrett v. Failing

Argued April 16-17, 1884

Decided May 5, 1884

111 U.S. 523


A divorce from the bond of matrimony bars the wife's right of dower unless preserved by the lex rei sitae.

Under § 495 of the Oregon Code of Civil Procedure, as amended by the statute of December 20, 1865, providing that whenever a marriage shall be declared void or dissolved, the party at whose prayer the decree shall be made shall be entitled to an undivided third part in fee of the real property owned by the other party at the time of the decree, in addition to a decree for maintenance under § 497, and that it shall be the duty of the court to enter a decree accordingly, a wife obtaining a decree of divorce in a court of another state having jurisdiction of the cause and of the parties acquires no title in the husband's land in Oregon.

This is a bill in equity filed in the Circuit Court of the United States for the District of Oregon by Mary E. Barrett, a citizen and resident of the State of California, against Charles D. Failing and Xarifa J. Failing, his wife, citizens and residents of the State of Oregon.

The bill alleged that on September 25, 1866, the plaintiff was, and for more than two years theretofore had been, the wife of Charles Barrett, and was a citizen and resident of the State of California; that on that day, she commenced a suit for divorce against him for his misconduct in a district court of the State of California for the Fifteenth Judicial District, that court having jurisdiction thereof and being authorized to grant divorces according to and by virtue of the laws of that state; that he was duly served with process, and appeared and made defense, and that on April 18, 1870, the plaintiff being still a citizen of that state, that court rendered a decree in her favor, dissolving the bond of matrimony between him and her. The bill further alleged that at the time of the commencement of that suit, Charles Barrett was not the owner of any real estate in the State of California, but was the owner in fee simple chanroblesvirtualawlibrarychanroblesvirtualawlibrary

Page 111 U. S. 524

of certain land (particularly described) in Portland, in the State of Oregon; that on February 4, 1868, he fraudulently conveyed this land to his daughter, the female defendant, without consideration and with intent to defraud the plaintiff of her just rights in it and for the purpose of preventing her from asserting her claim thereto or interest therein; that at the time of the commencement of the suit for divorce, the plaintiff did not know that he was the owner of this land; that he died in Oregon in July, 1870, and that by the laws of the State of Oregon and under and by virtue of the decree of divorce, the plaintiff became and was entitled to one-third of this land.

The bill prayed for a decree that the plaintiff was the owner in fee simple of one-third of this land, and that the defendants held it in trust for her, and for a conveyance, a partition, an account of rents and profits, and further relief. The defendants filed a general demurrer to the bill, which was sustained by the circuit court, and the bill dismissed. See 3 F.4d 1. The plaintiff appealed to this Court.

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