McKee, J. I dissent. The case arises out of an equitable action brought by the plaintiff against the defendants to obtain a decree declaring an alleged conveyance of real estate, purporting to have been executed June 27, 1874, by the defendant, Fannie P. Lawrence, by her attorney in fact, Edwin A. Lawrence, to be a mortgage, given to secure payment of the following promissory note:—
[136]“4,550. San Francisco, June 27, 1874.
“ Sixty days from date, for value received, we jointly and severally promise to pay to the order of Ferdinand Reis forty-five hundred and fifty dollars in U. S. gold coin, with interest at the rate of one and one quarter per cent per month till paid.
[Signed.] Fannie P. Lawrence,
“ Formerly Fannie L. Hutchinson, by her attorney in fact, Edwin A. Lawrence.
“E. A. Lawrence.”
Neither the individual indebtedness of the defendant Fannie, nor the joint indebtedness of her and the defendant Edwin, constituted any part of the consideration of the note. It was given solely for the individual indebtedness of the defendant Edwin A. LaAvrence. But both the note and deed were made and delivered by the latter under a pretended power of attorney, whereby the former attempted to constitute and appoint her father, the said EdAvin, her attorney in fact, Avith authority to' sell, convey, or mortgage her real estate, on such terms and conditions as to him might seem fit. Ratification of the conveyance made by him under the power was also attempted by her, by a formal deed dated September 18,1874, Avhich Avas signed “ Fannie P. LaAvrence,” and subsequently by another deed dated in October, 1874, and signed by the same name. But at the times and dates of those transactions the defendant Fannie was a married A\\roman, the laAvful Avife of one Hiram Hutchinson; and the real property described in the several instruments in writing was her separate property; and neither the poAver of attorney nor any of the pretended deeds Avere executed or acknowledged by her in any manner or form, to make it her act and deed, or to give any power or authority over or concerning her separate real property. It was supposed, however, that her status as the wife of Hiram Hutchinson had been changed by a decree of divorce.
The record shows that she was married to Hutchinson in the city of San Francisco, in the year 1871. There the parties Avere domiciled, and there, the wife at least, continued to be domiciled until some time in the year 1873, when she went to Salt Lake City, in the Territory of Utah, for the sole purpose of obtaining a fictitious domicile on which to commence proceedings against [137]her husband for a divorce. The husband appears to have been, at that time, domiciled in the city of Bew York. After remaining long enough in Salt Lake City to obtain a fictitious domicile under the laws of the Territory, the wife commenced proceedings for divorce by filing a complaint against her husband in the Probate Court of Salt Lake City, and causing a summons to be issued thereon; and after publication of the summons was had for a sufficient length of time under the statute of the Territory, a decree of divorce was entered in the case in her favor, and against her husband, who neither appeared in the proceedings, nor authorized an appearance for him by-attorney or otherwise; and immediately after obtaining that decree the plaintiff therein returned to California.
A decree of divorce rendered in a State or Territory other than that in which the marriage of the parties was celebrated is void beyond the limit of the State or Territory where it was rendered, unless one of the parties to the proceedings for divorce had an actual bona fide domicile in the State or Territory. If neither of the parties were actually and in good faith domiciled in the State or Territory in which the decree was rendered, the decree is void in all other States and Territories. (Hinds v. Hinds, 1 Iowa, 36; Kerr v. Kerr, 41 N. Y. 272; Hoffman v. Hoffman, 46 N. Y. 30; Cheerer v. Wilson, 9 Wall. 108; Cox v. Cox, 19 Ohio St. 502; Sewall v. Sewall, 122 Mass. 156; Hood v. State, 56 Ind. 263; People v. Dawell, 25 Mich. 247; Litowich v. Litowich, 19 Kan. 451.)
But the decree in this case was absolutely void, because, although the legislature of Utah had by statute authorized any Probate Court of the Territory to grant a divorce to'any applicant residing in the county in which an action for divorce might be brought, yet the Supreme Court of the Territory in Cast v. Cast, 1 Utah, 122, decided that the statute, conferring upon the Probate Courts jurisdiction in divorce cases, was opposed to the organic law of the Territory and void; therefore the Utah decree of divorce was rendered by a court that had no jurisdiction of the subject-matter, nor of the persons to the action of Hutchinson v. Hutchinson, and the decree rendered therein was wholly void.
It is, however, claimed that the Congress of the United States [138]by an act passed June 23, 1874, “ validated and confirmed all judgments and decrees rendered before that date by the Probate Courts of the Territory of Utah, which had been executed, and from which no appeals had been taken”; and that the decree under consideration was ratified and confirmed by that act.
Decrees of divorce are not enumerated in the statute. But it is said that they are comprehended by the phrase “ all executed judgments and decrees from which no appeal has been taken.” But the decree under consideration was not an existing or executed decree at the time of the passage of the act, because it had been adjudged by the Supreme Court of the Territory in which it was rendered absolutely void. Being no judgment, how could the legislature declare it to be a judgment? That which courts have adjudged void cannot be declared valid by legislation. A legislature can no more impart a binding efficacy to judicial proceedings which are void than it can take from a citizen his property and give it to another. Indeed, as has been said, to do the one thing is to accomplish the other, and therefore I understand it to be a principle of constitutional law, recognized by all courts, that the legislature can never by retrospective proceedings cure a defect of jurisdiction in the proceedings of courts. (Nelson v. Rountree, 23 Wis. 367; Griffin v. Cunningham, 20 Gratt. 109; Pryor v. Downey, 50 Cal. 388.) The reason is manifest. Such proceedings being utterly void, they would acquire vitality as judicial acts, if at all, by the legislative act exclusively, and the curative act must therefore be in its nature a judgment. (McDaniel v. Correll et al. 19 Ill. 226; Denny v. Mattoon, 2 Allen. 361; State v. Doherty, 60 Me. 504.)
But Congress had no power to render judgment in an action between parties that have never been before it. By the Constitution of the United States the judicial powers of the United States are vested in one Supreme Court, and in such inferior courts as Congress may, from time to time, ordain and establish. And the powers of the courts thus ordained and established extend to all possible cases in law and equity, or admiralty and maritime jurisdiction between citizens of domestic States and citizens and subjects of foreign states. With these courts, in the exercise of the judicial powers vested in them by law, Congress cannot interfere. It cannot dispense with them in States or [139]Territories, nor assume any of their functions, not even in the summons and selection of jurors, as the Supreme Court of the United States held in Clinton v. Englebrecht, 13 Wall. 434.
The Utah decree of divorce was, therefore, a nullity. (Davis v. Commonwealth, 13 Bush, 318; The State v. Armington, 25 Minn. 29; Litowich v. Litowich, 19 Kan. 451.) Being null, the status of the defendant Fannie ivas, at the times of the transactions under consideration, that of a married woman. As such, however, she was enabled by the laws of the State to alienate or encumber her real property, by herself or her legally authorized agent, in the mode prescribed by the law, but not otherwise. The law which removed her disabilities made her a femme sole, with capacity to act within the limits of the powers conferred upon her; but outside those limits she is still under disability to act. She has no power to change or transfer her real estate in any other mode than that prescribed by the law which conferred upon her power to deal with it at all. Any attempt by her to dispose of it otherwise than as the law directs, the law itself pronounces invalid and void. (§ 1487, Civ. Code; Morrison v. Wilson, 13 Cal. 495; Camden v. Vail, 23 Cal. 633; Maclay v. Love, 25 Cal. 368; Landers v. Bolton, 26 Cal. 393; Smith v. Greer, 31 Cal. 477.) The instruments in writing by which it is sought in this case to charge the separate real property of the wife were, therefore, void, because not executed in the mode prescribed by the law; there was neither in fact nor in law a transfer of her estate; that being so, can she be divested of her title by the courts? Can void transfers of her real estate be made valid? It is claimed that that may be done by the equitable doctrine of estoppel.
Equity, however, does not overturn, but follows the law. It never attempts to breathe life into a legal nonentity. Hence courts of equity have never attempted to divest a married woman of the title to her land by an estoppel in pais. “That,” says the Supreme Court of Indiana in Behler v. Weyburn, 59 Ind. 143, “would be overturning the statute which prohibits all modes of encumbering or conveying her land save the one provided for.” The same question Avas involved in the case of Lowell v. Daniels, 2 Gray, 161, in which the court said: “This raises the material question at issue betAveen the parties, whether [140]a married woman and her heirs may be barred of her estate by an estoppel in pais? She can make no valid contract in relation to her estate. Her separate deed of it is absolutely void. If she were to covenant that she ivas sole, ivas seized in her own right, and had full power to convey, such covenants would avail the grantee nothing. She could not be estopped by them. The law has rendered her incapable of such a contract, and she finds in her incapacity her weakness.....And we think a married woman cannot do indirectly what she cannot do directly; cannot do by acts in pais what she cannot do by deed. She cannot by her oavii act enlarge her legal capacity to convey an estate.
“ This doctrine of estoppel in pais Avould seem to be stated broadly enough Avhen it is said that such estoppel is as effectual as the deed of the party. To say that one may, by acts in the country, by admission, by concealment, or by silence, in effect do AAdiat could not be done by deed would be practically to dispense Avith all the limitations the law has imposed upon the capacity of married Aromen to alienate their estates. Ho case at laAAr has been cited, nor have Ave found one in Avhich it has been held that the estate of a party has been barred by an estoppel in pais, aaIio Avas incapable of conveying by deed.”
To the same effect Avill be found the cases of Todd v. The Pittsburg and Fort Wayne Railroad Company, 19 Ohio St. 514; Drury v. Foster, 2 Wall. 24; Petit v. Fretz, 9 Casey, 118; Glidden v. Strupler, 52 Pa. St. 400; Rumfelt v. Clemens, 46 Pa. St. 456.) Says Mr. Justice Agnew in the case last cited: “There is no such doctrine in equity as that an estoppel in pais shall work a transfer of the legal title to lands belonging to a married Avoman. If there Avere it AAnuld be a flat denial of a legislative policy, founded on the most important reasons, entering into the very constitution of society, and social order must lie at the feet of chancery.”
I do not deny that a married woman may be estopped in cases of pure torts (Oglesby v. Pasco, 79 Ill. 164), or in cases of fraud Avhere innocent parties, induced by the intentional and fraudulent conduct of the wife, may have acquired rights of property upon the faith of ownership in the husband. (Drake v. Glover, 30 Ala. 382; Connolly v. Branstlor, 3 Bush, 702.) Fraud of course vitiates every contract. “But even this doctrine when [141]applied to married women is,” said Mr. Justice Baldwin, in llorrison v. Wilson, supra, “ limited under statutes like ours to this: that the contract of a married woman effected by fraud cannot be enforced; but not that a fraudulent representation will divest a femme’s title in the face of a statute declaring a different and exclusive mode of divestiture,” and a fortiori she will not be divested of the title where she has not been guilty of fraudulent representation. And that is this case; there was no fraudulent representation by the femme covert, for the person with whom her father negotiated for a loan of the money involved in the case testified at the trial that the father produced the power of attorney, note, and conveyance upon which he wanted to borrow the amount of the note, and represented that his daughter had been divorced from her husband in Salt Lake City, and had resumed her maiden name, and that the power of attorney ivas in all respects regular. Yet the money was not loaned upon these representations. The plaintiff took the advice of his counsel upon the validity and sufficiency of the securities, and acting upon that advice lent his money to the father upon the faith of the securities. In the transaction there was no fraud. All the parties to it, including the attorneys of the plaintiff, believed that the decree of divorce was valid. The woman believed it, and resumed her maiden name; the plaintiff believed it, and lent his money. There Avas no attempt at deception or fraud. Each one had the same means and opportunity for knoAvledge and judgment as to the subject of the divorce; and the opinion Avliich was entertained in relation to it Avas simply a mistake of laiv. But an estoppel in pais does not arise out of a mistake. It can arise only out of such proof as Avould be sufficient to maintain an action for deceit or false representation. (Real Estate Co. v. Balch, 45 N. Y. 529.)
“ In order to constitute an equitable estoppel Avith respect to the title of property it must appear that the party to be estopped has made admissions or declarations, or done acts, with the intention oj deceiving the other party Avith regard to the title, or Avith such carelessness, or culpable negligence, as to amount to a constructive fraud; and, that at the time of making the admissions or declarations, or doing the act, he Avas apprised of the true state of his own title, and that the other party Avas not only des[142]titule of all knowledge of the true state of the title, but also of all convenient or ready means of acquiring such knowledge.” (Davis v. Davis, 26 Cal. 23.)
Rone of these elements are to be found in this case. The simple facts are that the defendant Fannie obtained a decree of divorce from her husoand, which she believed, in common with her father and the plaintiff and his attorneys, was valid; that upon that belief she resumed her maiden name and signed it, in good faith, to all the papers in the transactions in question. It is not found, nor is it claimed, that she represented herself as an unmarried woman, or signed her maiden name to the papers knowingly and intentionally, or fraudulently. Her representation and signatures were simply mistakes by her and by all concerned, the results of which she could not ratify by instruments in writing which were also void. (§§ 2310, 2312, 2314, Civ. Code.) But if her acts had been wrong in the abstract, or if she had acted in bad faith, the wrong could not make her contract good by way of estoppel. “ We do not see,” says the Supreme Court of Pennsylvania, in Keen v. Colemam, 39 Pa. St. 302, “ how there can be an estoppel involved in the very acts to which the incapacity relates that can take away the incapacity. If a legal incapacity can be removed by a fraudulent representation of capacity, then the legal incapacity would have only a moral force, which is absurd.” (See also Wilson S. M. Co. v. Fuller, 60 How. Pr. 480; Hoffman v. Hoffman, 46 N. Y. 30; Kerr v. Kerr, 41 N. Y. 272; Cheever v. Wilson, 9 Wall. 108; Cox v. Cox, 19 Ohio St. 502; Sewall v. Sewall, 122 Mass. 156; Hood v. The State, 56 Ind. 263; People v. Dawell, 25 Mich. 247; Litowich v. Litowich, 19 Kan. 451; Van Fossen v. The State, 37 Ohio St. 320; Hinds v. Hinds, 1 Iowa, 36.)
The cases of Patterson v. Lawrence, 90 Ill. 174, and Richeson v. Simmons, 47 Mo. 20, referred to in the prevailing opinion have no application, in my judgment, to the case in hand. The first was an action founded upon an actual fraud, and the second upon a sjiecial contract by the trustees of a married woman, acting under a deed of trust. Neither of them involved the question of the disability or capacity of a married woman to contract in the face of a statute which established the mode of contracting.