holding them to be merely directory and a marriage of one of the parties within the prescribed time valid.2 Another form of prohibitory statute forbids the marriage of the guilty party to the divorce during the lifetime of the other party,3 more particularly where the divorce was granted for adultery, and sometimes have an additional clause that persons so marrying shall be guilty of bigamy,5 or making such marriage a felony. Marriage in violation of this class of statutes has generally been held to be invalid."

The New York courts hold that the marriage of the guilty party to a divorce action for adultery, contrary to a prohibitory statute, is void. But, under a statute declaring that "every person having a husband or wife living" who shall marry again shall be adjudged guilty of bigamy, they have adopted the peculiar doctrine that, for the purpose of this statute, one marrying contrary to the prohibitory statute is regarded as having a husband or wife living.9

It is to be noted in this connection that the only statutes on this subject in some states, forbid remarriage during the time allowed to appeal from the judgment decreeing divorce and until the determination of such appeal if taken. Under this form of statute, a remarriage of one the parties is generally held void, the courts in most instances holding that the decree of divorce is not complete and does not take effect until the end of the prescribed period.10

In the Wisconsin case, the plaintiff secured a divorce in Illinois under a statute which provided that neither party could marry unless with each other, within one year, and declared such a marriage void and provided punishment by imprisonment for violation. The plaintiff and another resident of Illinois were married in Indiana in compliance with the laws of that state within the year, then later went to Wisconsin and lived as husband and wife until the death of the husband for which the plaintiff now made claim for damages. The Wisconsin court held the marriage invalid, on the ground that Wisconsin, having a statute similar to the one in Illinois which made marriage invalid whether contracted within the state or without, had

"Conn v. Conn, 2 Kan. App. 419 (1895); contra, Warter v. Warter, 15 Prob. Div. (Eng.) 152 (1890); Mason v. Mason, 101 Ind. 25 (1884), marriage voidable, but see for effect if decree of divorce is opened; State v. Yoder, 113 Minn. 503 (1911), marriage voidable but sufficient for prosecution for bigamy.

West Cambridge v. Lexington, 1 Pick. (Mass.) 505 (1823); Elliot v. Elliot, 38 Md. 357 (1873).

"Commonwealth v. Lane, 113 Mass. 458 (1873); Cropsey v. Ogden, 11 N. Y. 228 (1854).

"White v. White, 105 Mass. 325 (1870); Williams v. Oates, 5 Ired. (N. C.) 535 (1845).

"Calloway v. Bryan, 51 N. C. 569 (1859); State v. Sartwell, 81 Vt. 22 (1908). 7See notes 3, 4, 5, and 6 for cases holding marriages invalid; contra, Adams v. Adams, 2 Ches. Co. Rep. (Pa.) 560 (1885); Park v. Barron, 20 Ga. 702 (1856), marriage not void for statute doesn't say so, but may be prosecuted for bigamy. Cropsey v. Ogden, supra, note 4.

People v. Faber, 92 N. Y. 146 (1883).

10Griswold v. Griswold, 23 Col. App. 365 (1913); Dudley v. Dudley, 151 Ia. 142 (1911); Wilhite v. Whilhite, 41 Kan. 154 (1889), interpreting the Oregon statute; Eaton v. Eaton, 66 Neb. 676 (1902); McLennan v. McLennan, 31 Or. 480 (1897); State v. Fenn, 47 Wash. 561 (1907).

the same declared public policy with reference to prohibited extraterritorial marriages. The court declared also that the Illinois statute must be deemed imported into the plaintiff's divorce decree and that a statute of Wisconsin required that its courts give full faith and credit to divorce decrees rendered in other states.

This case presents the question of what extra-territorial effect such statutes have. The simplest case arising in this connection is the effect of a marriage contracted in a foreign jurisdiction when the question is determined by the courts of the domestic forum. Where the statute merely prohibits the marriage it will generally be held good though contracted in another state, since the statute is deemed merely directory and a marriage within the state would be good."1 If a marriage under such statute, when contracted within the state, is held void, there seems to be a conflict as to the effect that will be given a marriage contracted in a foreign state contrary to the prohibition. The general rule is that the "lex loci contractus" governs and a marriage valid in the state where contracted is good everywhere, 12 and this applies even where the parties are married in the foreign state to avoid the statute.13 This rule is based on the ground of comity and the general rules of contract. Exceptions are made to this rule, however, when such marriage is contrary to natural laws or to the public policy of the domestic forum.1 Thus it is sometimes held that the legislative intent is to declare the early marriage of divorced parties contrary to the public policy of the state and a marriage outside the state will be held void.15 Some courts make a distinction as to the formalities and the essentials of the marriage contract, holding that in the former the "lex loci contractus" governs; in the latter the “lex domicilii."'16 Under this doctrine, prohibitory statutes are held to affect the capacity of the parties which is one of the essentials of the contract and will make a foreign marriage invalid.1 Again where the courts hold that the statute has the effect of suspending the decree of divorce, a marriage contrary to it will be bigamous and come within the first exception to the general rule as being contrary to natural laws. Not all of the courts have, however, recognized the general rule that the "lex loci contractus" governs, some holding that to give effect to a marriage in a foreign state in violation of its own statutes would be to make its own laws on the subject of no effect.18

14

"Crawford v. State, 73 Miss. 172 (1895); contra, Lee v. Lee, 150 Ia. 611 (1911); Phillips v. Madrid, 83 Me. 205 (1891); Frame v. Thorman, 102 Wis. 653 (1899). 12Bishop, Marriage, Divorce and Separation, sec. 838; Est. of Wood, 137 Cal. 129 (1902); West Cambridge v. Lexington, supra, note 3; State v. Shattuck, 69 Vt. 403 (1897).

13Medway v. Needham, 16 Mass. 157 (1819); contra under different statute, Whippen v. Whippen, 171 Mass. 560 (1898).

14Wilson v. Cook, 256 Ill. 460 (1912); State v. Fenn, supra, note 10; Lanham v. Lanham, 136 Wis. 360 (1908).

15 Wilson v. Cook, supra, note 14; Succession of Gabisso, 119 La. 704 (1907); Pennegar v. State, 87 Tenn. 244 (1888); Lanham v. Lanham, supra, note 14. 16 Brook v. Brook, 9 H. of L. Cases (Eng.) 193 (1861).

17See Story, Conflict of Laws (8th ed.), sec. 124; Williams v. Oates, supra,

note 5.

18Warter v. Warter, supra, note 2; Williams v. Williams, supra, note 5; Est. of Stull, 183 Pa. St. 625 (1898); Pennegar v. State, supra, note 15.

The Wisconsin case goes a step farther and in a choice between the recognition of the law of divorce of one state and the law of marriage of another, recognizes the law of the state granting the divorce. This presents the question of the effect of such statutes when determined by the courts of a state other than that passing the statute. In general, it may be said that the same rules apply as where the domestic court decides.

In New York a statute forbids the marriage of the guilty party to a divorce action for adultery, during the lifetime of the other party.19 While a marriage within the state contrary to the prohibition has been held void,20 and also to be bigamous," yet it has been held that a marriage in a foreign state is valid on the ground that the legislature did not intend that the statute should have any extra-territorial effect.22 This rule has been applied where the foreign marriage was to evade the statute23 and where the statute of the state where the marriage was contracted provided that where either of the parties had a "former husband or wife living" at time of such marriage, the same would be invalid.24

There seems to be a tendency of the courts to hold statutes merely prohibitory and doubtful of meaning, to be directory or to make the marriage voidable, especially where the impediment is such as might not have been known by both parties, and when public policy does not dominate.25 Two conflicting aspects of public welfare confront the courts in the interpretation of these statutes; one is that annulment often affects the rights of innocent parties and bastardizes the issue, while, on the other hand, to hold such a marriage valid abrogates the whole effect of the statute. Where the former aspect has been present in the first instance of interpretation of such statutes, the courts apparently have been influenced to hold that of the two, this phase of public welfare dominated. In many jurisdictions, the issue of invalid marriages are legitimated by statute, and it would seem that in these jurisdictions the tendency would be to hold the marriage invalid.26 It seems hardly plausible that the legislatures intended nothing by this legislation and the holding of some courts that such statutes are intended to so restrict the effect of the decree of divorce as to make one or both parties incapable of marriage, does not seem unreasonable. Granting, as some courts do, that a marriage in violation of a prohibitory statute is void, what extra-territorial effect shall such statutes have? These statutes seem to be a valid attempt on the part

19Sec. 8 of Dom. Rel. Law, amended by Laws of 1915, Ch. 266, in effect Apr. 12, 1915, to allow remarriage of the parties to the divorce action. See sec. 1450 of Penal Law for solemnization of unlawful marriage as a crime.

20Cropsey v. Ogden, supra, note 4, holding also that the statute has retroactive effect.

21 People v. Faber, supra, note 9.

22Van Voorhis v. Brintnall, 86 N. Y. 18 (1881). But see Earle v. Earle, 141 App. Div. (N. Y.) 611 (1910).

23 Thorp v. Thorp, 90 N. Y. 602 (1882).

24 Moore v. Hegeman, 92 N. Y. 521 (1883).

25 Schouler, Domestic Relations, sec. 14.

26 See L. R. A. 1916 C for cases under such statutes, and also Est. of Stull, supra, note 18. But see State v. Yoder, supra, note 2, where marriage held voidable.

of the legislatures to govern the marital status of its own citizens, but it is difficult to see what value such legislation can have, if the parties may merely go outside the state to marry. The rule laid down by an English case that the forms of the marriage contract are governed by the "lex loci contractus" and the essentials by the "lex domicilii",27 seems more logical, at least where the parties intend to return to the domestic forum to live. As stated in an overruled New York case, "No other rule will enable a state to make its own laws of marriage and divorce effectual and place the relation beyond the legislation of others." On the other hand, without statutes to protect the innocent victims of invalid marriages, much injustice will be done.

28

The doctrine of the Wisconsin case attacks the problem from the view point of the foreign state and says a statute prohibiting the remarriage of divorced persons becomes a part of every decree of divorce granted in such state, and this being so, it should be given full faith and credit in another state as any other judgment would be. Then if such statute was determined by that state to make a marriage contrary thereto void, it should be held so in all other jurisdictions.29 Ralph L. Emmons, '18.

Estoppel: Property left in the possession of another by the owner. -In the case of Alexander v. Busch, 166 Pac. (Okla.) 900 (1917), one Smith executed and delivered to the Cushing State Bank his note and chattel mortgage, Alexander signing as surety. In order to protect his interests, Alexander took possession of the goods which are here sought to be replevied by one Sanders, who had been the owner thereof for a long time prior to the execution and delivery of the note and mortgage. As it did not appear from the evidence that Sanders had

27 Brook v. Brook, supra, note 16.

28 Marshall v. Marshall, 2 Hun. (N. Y.) 238 (1874).

29"An Act On the Subject of Marriages in Another State or Country in Evasion or Violation of the Laws of the State of Domicile," was approved by the Conference of Commissioners on Uniform State Laws in August, 1912, and recommended for adoption in all the states. It provides:

"Sec. 1. Be it enacted, etc., That if any person residing and intending to continue to reside in this state who is disabled or prohibited from contracting marriage under the laws of this state shall go into another state or country and there contract a marriage prohibited and declared void by the laws of this state, such marriage shall be null and void for all purposes in this state with the same effect as though such prohibited marriage had been entered into in this state.

"Sec. 2. No marriage shall be contracted in this state by a party residing and intending to continue to reside in another state or jurisdiction if such marriage would be void if contracted in such other state or jurisdiction and every marriage celebrated in this state in violation of this provision shall be null and void."

Sec. 3 of the act puts certain restrictions upon the issuing of marriage licenses to parties mentioned in sec. 2, and sec. 4 provides penalties for violation of the provisions of sec. 3, and also a penalty for one who knowingly celebrates such a marriage.

This uniform act has been adopted by five states: Illinois, Louisiana, Massachusetts, Vermont and Wisconsin. It would seem that the Commissioners should go a step further and recommend a statute protecting the rights of innocent parties to such invalid marriages and children born of the same, since the inability to reach this result by holding such marriages invalid, has apparently kept some courts from laying down the doctrine codified in this statute.

done anything more than merely leave the disputed property in the possession and under the control of Smith, Sanders successfully maintained his suit, as these circumstances were deemed insufficient to create an estoppel as against the true owner.

On the other hand, in W. P. Fuller & Co. v. Adams, 166 Pac. (Wash.) 623 (1917), where a mother allowed her son to use personal property in a business conducted in his own name, she was estopped to claim the property was merely loaned to him as against a creditor of the son. The creditor garnisheed the property in the hands of the sheriff, the property in question remaining in the sheriff's hands at the conclusion of chattel mortgage foreclosure proceeding, and it was held that the creditor could reach the property in this way, though it belonged to the mother.

It is clear law that the mere possession and control of personal property in another than the owner thereof will not estop the true owner from asserting his title as against a person who has dealt with the possessor as owner on the faith of his possession. Moreover, it is immaterial that the person dealing with the one in possession may have acted in good faith,2 for it has always been a fundamental doctrine that, in general, one cannot convey a better title to personal property than that which he himself possesses, or, to quote from Lemp Brewing Co. v. Mantz,3 "The application of the doctrine that 'whenever one of two innocent persons must suffer by the acts of the third, he who has enabled such third person to occasion the loss must sustain it,' must be founded on something more than the bare possession of personal property * * * * ""

A different proposition is presented, however, where the true owner has clothed the person assuming to dispose of the property with the apparent title to it. In such a case, the true owner is estopped to assert the fact of his ownership as against one dealing in good faith with the person in possession.*

Such an estoppel was worked out as against the owner who left his property in the possession of another for a period of a year, with permission to use the same, and an innocent third party took a mortgage on the property.5 Likewise, where the owner of a wagon permitted the name and occupation of another to be painted on the wagon and such other person sold the wagon to a purchaser acting in good faith, he was not permitted to claim the property as against such purchaser.6

It appears that two things must concur in order to create the aforementioned estoppel, that is, (1) the owner must clothe the person assuming to dispose of the property with apparent title to or authority

110 R. C. L. 777; Kershaw v. Merritt, 194 Mass. 113 (1907); Lemp Brewing Co. v. Mantz, 120 Md. 176 (1913).

Barnard v. Campbell, 55 N. Y. 456 (1874).

'Supra, note 1.

'National Bank v. Logan, 74 N. Y. 568 (1878); Avery & Sons v. Collins, 62 Tex. Civ. App. 313 (1910); Delfosse v. Metropolitan National Bank, 98 Ill. App. 123 (1901); Smith v. Clews, 105 N. Y. 283 (1887).

Davis v. Wewoka First National Bank, 6 Ind. Ter. 124 (1905).

6O'Connor v. Clark, 170 Pa. 318 (1895).