Baird v. Baird

188 P. 699 | Or. | 1920

JOHNS, J.

1. We have read the 346 pages of nauseating testimony in this suit and have not found it either interesting or instructive. It reflects no credit upon either of the litigants. Under the existing facts, this is a case in which the findings of the trial court are entitled to much consideration. The judge saw and heard the witnesses testifying, and much of their credibility depends upon their conduct and appearance on the witness-stand. The -plaintiff frankly admits that early in their married life he slapped and kicked the defendant, that he does not have any regret for what he did, and that he thinks it had a good effect. Snch conduct and attitude do not favorably impress this court. Nothing is to be gained by quoting from or analyzing the testimony. Much of it is not fit to appear in print. All things considered, we approve the ruling of the Circuit Court in granting a divorce to the defendant.

2. Section 511, L. O. L., provides:

“Whenever a marriage shall be declared void or dissolved, the party at whose prayer such decree shall be made shall in all cases be entitled to the undivided third part in his or her individual right in fee of the whole of the real estate owned by the other at the time of such decree, in addition to the further decree for maintenance provided for in Section 513; and it shall be the dtity of the court in all such cases to enter a decree in accordance with this provision.”

This is imperative, and where the question is raised, as in this case, by a cross-appeal, this court is bound by the terms of the statute. Under it the defendant is entitled to and should have an undivided one-third interest in the Tillamook County lands described in the complaint.

Although the testimony is somewhat conflicting, yet in equity and good conscience the defendant is not entitled to $425 or any other sum as a property settlement, and the plaintiff should not be required to pay her any alimony, but the judgment against him for the sum of $100 as attorneys’ fees is approved.

3. Based on the statute above quoted, the defendant contends that she is entitled to an undivided one third of the plaintiff’s undivided half interest in the Indiana farm. That land is beyond the jurisdiction of this court. Under similar facts in a divorce decree rendered in King County, Washington, this point was decided by the United States Supreme Court in the case of Fall v. Eastin, 215 U. S. 1 (54 L. Ed. 65, 17 Ann. Cas. 853, 23 L. R. A. (N. S.) 924, 30 Sup. Ct. Rep. 3), where it was held:

“While a court of equity acting upon the person of the defendant may decree a conveyance of land in another jurisdiction and enforce the execution of the decree by process against the defendant, neither the decree, nor any conveyance under it except by the party in whom title is vested, is of any efficacy beyond the jurisdiction of the court: Corbett v. Nutt, 10 Wall. 464 (19 L. Ed. 976).

“A court not having jurisdiction of the res cannot affect it by its decree nor by a deed made by a master in accordance with the decree.”

The opinion there goes on to say:

“In such case the decree is not of itself legal title, nor does it transfer the legal title. It must be executed by the party, and obedience is compelled by proceedings in the nature of contempt, attachment or sequestration. On the other hand, where the suit is strictly local, the subject matter is specific property, and the relief when granted is such that it must act directly upon the subject matter, and not upon the person of the defendant, the jurisdiction must be exercised in the state where the subject matter is situated: 3 Pomeroy’s Equity, §§1317, 1318, and notes.”

With the modifications above indicated, the decree of the Circuit Court is affirmed, neither party to recover costs in this court.

Modified and Affirmed.

McBride, C. J., and Bean and Bennett, JJ., concur.