(Former opinion reaffirmed, see 43 N.C. 131.) The opinion in this case, directing the bill to be dismissed, was delivered at December Term, 1851, 43 N.C. 131, and the petition to rehear was not filed until after June Term, 1852; but a decree has not been signed and passed. If that had been done, the petition to rehear would certainly come too late. Cooper Eq. (96) Pl., 91; Story Eq. Pl., sec. 421. Whether, when the decision is simply that the bill shall be dismissed, a decree to that effect will be considered as drawn, signed, passed and recorded as of the time when the case is decided, so as to preclude a petition to rehear, we will now determine, because the case has been fully argued upon the merits, and as *Page 66 we are satisfied there is no error, we prefer to put our present decision on that ground.
The opinion under review admits the conclusion of Judge Story, that when there is a change of domicil, the law of the actual domicil, and not that of the matrimonial domicil, will govern as to all future acquisitions of movable property, and the decision is put on the ground that there are peculiar circumstances which take the case out of the operation of that general rule. These circumstances are the indebtedness of Speight in this State, and his marriage in this State, whereby, according to our laws, he acquired rights in the property that his wife might afterwards acquire, which he could not relinquish or convey to a trustee for the separate use of his wife, without committing a fraud upon his creditors. For, although they had acquired no specific lien, yet the law protected them against any voluntary conveyance of the debtor, and our inference is "that his adopted State could not by a statute do that for him which he could not do himself, without being guilty of a fraud"; and we conclude that there is no principle in the doctrine of the comity of nations by which this State is called upon to stand by and see her citizens deprived of the right to collect their debts out of property within her jurisdiction, by an act which, if done by the debtor himself, would be deemed fraudulent and void. Nay, more, by which she is called upon to set aside her own laws for the purpose of carrying into operation a statute of another State, having this effect. And we go on to (97) challenge the production of any authority or any fair reasoning by which such a principle can be established, and the case ofOliver v. Townes, 14 Martin, 97, is cited as going farther than our decision in support of the rights of creditors who are citizens, in this: our case was a contest between a creditor and a volunteer: that was a contest between a creditor and a bona fide purchaser for full value.
Mr. Moore admits that he has not been able to find any authority opposed to our conclusion, and it was apparent from his very learned argument that he had pushed his researches to the extreme. But he assailed our reasoning, and denied that the conclusion was a legitimate deduction from the premises. He also relied upon certain analogies as opposed to our conclusion.
As to the reasoning, he admitted that the debtor could not, without a fraud upon his creditors, relinquish his marital rights in favor of his wife, but he insisted that it did not follow that the State of Mississippi could not do it for him by a general statute, and he took a distinction between the conveyance of the debtor and a statute. The one is the act of an individual, having a particular operation, in fraud of certain persons who are his creditors. The other is the act of a State, having a general operation. He says it is true a citizen of North Carolina *Page 67 cannot, as against his creditors, relinquish his right to the future acquisitions of his wife, but if North Carolina had in 1839 passed a statute to that effect, its operation would have extended to debts then existing; and if North Carolina could have passed such a law, it follows that the State of Mississippi could do it also. It seems to us this conclusion, in its application to the case under consideration, is a non sequitur. Admit that North Carolina could have passed such a law in regard to her own citizens and property within her own limits, does it follow that if she deems it inexpedient to do so the State of Mississippi can do it for her? (98)
North Carolina may pass a law that the estate of a deceased debtor shall be paid to his creditors ratably, without regard to the dignity of their debts. Suppose she passes no such law, but the State of Mississippi does, and a citizen of that State dies, leaving property in this State, how will creditors in this State be paid? Mr. Moore is compelled to admit that the administration of the assets will be according to the dignity of the debts, the law of Mississippi to the contrary notwithstanding. This admission sweeps off the whole of his reasoning, and shows the fallacy to consist in not distinguishing between the effect which a statute in Mississippi has in regard to creditors and property in this State, and that which it has in regard to creditors and property in that State.
By way of analogy, Mr. Moore put several cases and cited many from the books. Among others, he put this: A citizen of another State, where by law a wife is entitled to the whole of the estate as distributee, dies, leaving a widow there, and leaving children who reside in this State and are indebted to certain of our citizens. Will his administrator here be directed to pay over the property which is in this State to the widow, according to the law of the domicil of the intestate, or will he be directed to pay a part of it to the children here, according to our Statute of Distributions, because, in that way, our citizens who are the creditors of the children may secure their debts? Most unquestionably the widow would be entitled to the whole of the estate. But we are not able to perceive the analogy.
A more apposite case would be this: A citizen of our State becomes indebted here, and removes to a State, where by law, in the event of his death, his widow is entitled to one-half of his estate, in preference to creditors; he dies, leaving his debts here unpaid, and leaving (99) property here; will his administrator here be directed to apply the whole of the assets to the payment of his creditors, or to pay one-half to the widow, leaving debts unpaid?
Certainly there is nothing in the doctrine of the comity of nations that would induce our Courts to give a preference to the widow, in *Page 68 exclusion of our own citizens who are creditors. He also put this case: Suppose a citizen of Mississippi marries a lady there who has a slave in this State; the slave being a chose in possession belongs, by our laws, to the husband. Can his creditors here attach the slave for the debts of the husband, or in case of his death, would his administrator take the slave as assets for the payment of debts?
We are not now called upon to decide this question.
The counsel, throughout the entire argument, seemed to forget that in our case there are certain antecedents. Suppose the man lived here, contracted debts here, married here, and then removed, and the State of Mississippi then passed a statute securing to wives all property that they might become entitled to by "conveyance, gift, inheritance, distribution or otherwise," and the mother of the wife dies in this State, leaving her a negro, and the husband comes here and reduces him into possession, and dies, leaving the slave in this State. There you have our case.
We are entirely satisfied that the administrator of the husband is chargeable with the slave as assets for the payment of debts.
PER CURIAM. The petition to rehear must be dismissed with costs.
Cited: Robinson v. Lewis, 55 N.C. 26.
(100)