195 Mo. 490 | Mo. | 1906
— On the 27th of November, 1883, the plaintiff and Mattie B. Scott intermarried.
On the 28th of November, 1884, Mary D. Smith, who was the owner of lots 4 and 5 in block 23, in the original town, now city, of St. Joseph, Missouri, by warranty deed of that date, duly executed, acknowledged and recorded, for the consideration of seven thousand dollars, conveyed said real estate to the said Mattie B. Buffington, nee Scott, “to have and to hold the aforesaid real estate and lots as and for her own separate property for her own use and benefit, free from the control of her husband, and for her separate use and benefit.”
On the 8th of February, 1886, a child was born, alive, to the said Mattie B. Buffington.
On the 27th of March, 1886, the following decree
“Mattie B. Buffington vs. "William H. Buffington,
BILL.
“This day came again the said complainant by T. C. "Whitside, Esq., her solicitor, and it appearing to the court that said defendant has had due notice of the pendency of this suit by service of the summons herein on him personally according to the statute in such cases made and provided, that the default of said defendant was taken, and the complainant’s bill of complaint herein taken as confessed by said defendant.
“And the court having heard the testimony taken in open court in support of said bill of complaint (a certificate of which evidence is filed herein), and now being fully advised in the premises, doth find that the complainant is an actual resident of Cook county and has been a resident of the State of Illinois, as alleged in the bill, and that the defendant has been guilty of the acts of adultery with Nan Cohen and a woman by the name of Starr, as charged in the complainant’s bill of complaint.
“On motion of said solicitor for the complainant, it is ordered, adjudged and decreed and this court, by virtue of the power and authority therein vested, and the statute in such eases made and provided, doth order, adjudge and decree that the bonds of matrimony heretofore existing between the complainant, Mattie B. Buffington, and the defendant, "William H. Buffington, be and the same are hereby dissolved and the same are dissolved accordingly.”
Afterwards, the said Mattie B. Buffington intermarried with one Harry Trimble, and by her deed, dated December 1,1887, for the consideration of thirty-six thousand and two hundred dollars, conveyed said
On the 15th of March, 1903, the said Mattie B. Trimble died, and on the 10th of April, 1903, this suit was instituted.
The petition is in two counts. The first count is in the nature of a bill in equity to set aside the decree of divorce, aforesaid, on the ground of want of jurisdiction in the circuit court of Cook county, Illinois, to render it, predicated upon the following substantive facts, alleged in this count of the petition, i. e., that by the statute of Illinois it is provided that “no person shall be entitled to a divorce in pursuance of the provisions of this act who has not resided in the State one whole year next before the filing of his or her bill or petition, unless the offense or injury complained of was committed within the State, or whilst one or both of the parties resided in this State.” That the said Mattie B. Buffington was not at the time of the institution of said suit, or the rendition of the decree therein, or ever, a resident of “Illinois, county of Cook, city of Chicago, but was a resident of Missouri,” and said William Buffington had not been guilty of adultery in the county of Cook, State of Illinois, as charged in the petition in said suit.
The second count is in ejectment in ordinary form, but at the close of the trial on the first count the plaintiff took a nonsuit without leave, as to that count, and no motion to set the same aside having been made or ruled upon in the trial court, that count was eliminated from the case; and the only questions that arise here on this appeal are upon the judgment on the first count in the petition.
The answer was a general denial and pleas of the Statute of Limitations, laches, and estoppel.
The evidence for the plaintiff tended to prove the allegations of the petition as to the residence of the said Mattie B. at the time of the divorce proceeding.
The judgment is for the right party and ought to he affirmed. The sole ground upon which the plaintiff conies into a court of equity for relief is, that the decree of divorce rendered by the circuit court of Cook county, Illinois, is void because that court was without jurisdiction to render it. If that be so, then the decree is a .nullity, and he does not need the assistance of a court of equity. Such a decree could not affect his legal rights in the property in question and its nullity could be shown in any action at law to which it •might, be necessary for him to resort to assert those rights.
Moreover, the plaintiff was personally served with process in the divorce suit, knew all about it from the beginning, and knowingly and willfully stood by the status which it established for seventeen years before this suit was brought without seeking to avoid it, during which time a child was born to his former wife, her property was sold and by her'conveyed to the plaintiff, who paid a large sum of money therefor on the faith of her legal title of record, and, after marrying again, she died: "Whatever may be the merits or demerits of the divorce decree, the plaintiff is in no position to ask the assistance of a court of equity, even if it could render him any. There is no equity in his bill. The question as to the legal rights of the plaintiff in the real estate aforesaid, if any he has, is not before ns for determination on this appeal, and, hence, as to them we say nothing. He certainly has no equity, and the judgment of the circuit court will be affirmed.
