192 Iowa 705 | Iowa | 1921
The name of L. M. Kratz, administrator, was stricken from the petition, on motion of defendants, as having no interest. We do not understand that any complaint is made of this.
About 1881, the mother of plaintiffs, Christiana Pollock, was married to Alexander Cain. They lived together about 11 months, when she obtained a divorce from Cain, on the ground of cruel and inhuman treatment. The plaintiff Rudie Cain, now about 40 years of age, is a son by this first marriage. The other four plaintiffs are children of Christiana by her second husband, Pollock. Rudie Cain was about 9 months old at the time of the first divorce. Soon after that divorce, Cain married another woman. Cain was a witness for plaintiffs herein. He testifies to two or three circumstances which he says occurred during his married life with Christiana which would tend to show that she was of unsound mind at that time. He testifies
In 1895, James Pollock and his wife, Christiana, executed a deed to defendant Milburn for 50 acres of the land in controversy. At the time of the execution of this deed, Christiana was an inmate of the asylum. It was acknowledged by her before the superintendent of the asylum, who was a notary public. James Pollock executed a mortgage to Milburn, to indemnify him against any claim that might be made by Christiana for her distributive share. It is claimed by plaintiffs that this deed was void as to her. There might be force in their contention, but for a decree of divorce subsequently granted her husband, wherein it was decreed that said “Christiana Pollock has no homestead or dower right in and to any property accrued or conveyed by this plaintiff, James Pollock.”
In 1896, James Pollock began a suit for divorce against his wife, Christiana, on the ground of cruel and inhuman treatment. Original notice of this suit was properly served upon her, as the statute requires. A guardian ad litem was appointed, and
The petition for divorce in that case, verified by plaintiff, alleges that the acts of cruelty complained of occurred in the years 1884, 1888, 1889, 1890, 1891, and 1892. The petition asks for general equitable relief, and for the custody of the four children, who were quite young at that time. The decree did not specifically award James the custody of the children, but it does say that the plaintiff therein was entitled to the other and further relief therein prayed. We assume that James Pollock took charge of the children, because Mrs. Hynds, the only one of the children who testified in this case, says that her father got a housekeeper to look after the children when her mother was taken away; she says that she went to see her mother twice after she was taken away, and before she died, — the last time, the fall before her mother died. Mrs: Hynds was three or four years old when her mother was taken away, and the other children were all small. She says that her father told all the children about the divorce, at about the time he got it. She says further that she and the other children knew for a great many years that her father had sold this land in controversy, and that none of them ever objected to it; but she says they didn’t understand it until afterwards^ It will be observed that the times of the alleged cruelty were all before Christiana was adjudged insane. It is appellees’ contention that, therefore, the cause of action for a divorce had fully matured, and accrued before Christiana was declared insane. The evidence taken in the divorce case was not preserved, and it is not shown in this case what the evidence was.
James Pollock died in 1912. Christiana died April 17, 1918, both intestate. This suit was brought within a year thereafter — March 10, 1919. On May 5, 1899, or about two years after the divorce, and while plaintiffs were still young, James Pollock married another woman, who is now living, as is a child which was born to them after such marriage. As before stated, Cain married another woman, soon after Christiana divorced him, and Cain’s said second wife died about six months before the trial of this case. It is conceded that, on the first day of May, 1895, James Pollock executed a mortgage to Miller, on the lands in controversy. It is further conceded that, in 1900, nearly two years after James Pollock had married the second time, Pollock and his second wife, Katie, conveyed, by warranty deed, 70 acres of the land in controversy to James W. Good; that, in 1903, Good conveyed to Quass; that thereafter, Quass sold the premises, in 1905, to Nora B. Nelson; and that thereafter, the said Nelson sold and conveyed the premises, in 1916, to defendants Morris. These conveyances were for the full value of the land, as was the conveyance to Milburn by
Lawrence v. Nelson, 113 Iowa 277, sustains appellants’ contention that, in a proper case, a decree of divorce may be set aside for fraud, after the death of the other party, where property rights are involved. In that case, that the widow was entitled to a pension gave her sufficient property interest to entitle her to annul a fraudulent divorce. To like effect see 22 Cyc. 1133; Lawrence v. Nelson, 57 L. R. A. 583; Willis v. Sharp, 5 L. R. A. 637. At this point, appellees cite Willis v. Robertson, 121 Iowa 380, 384. Their contention is that, if James Pollock was guilty of fraud in procuring the divorce, and thereby undertook to defeat his wife of her inchoate interest in his real estate, his heirs are estopped to take advantage of such fraudulent act, because the title, which they now seek, comes directly from him, and they will not be permitted to take advantage of his wrongful act, and thereby deprive the present owners of the real estate, who purchased it for value. It was said in the Willis case:
“Moreover, if there were fraud, Anthony Robertson par
The appellants allege further that the court, in granting such divorce, was without jurisdiction, because the court could not grant a decree when the party defendant was insane. The pleading in regard to fraud is in the nature of a conclusion. We have set out the evidence fully. It appears that the proceedings were, in all respects, regular and legal, and it appears to us that no fraud has been established.
Appellees cite Mohler v. Estate of Shank, 93 Iowa 273. It was there held that the guardian of one insane could not maintain an action for divorce in behalf of his ward, and that a decree upon his application was void. The weight of authority is clearly against the proposition advanced by appellants. Appellees contend that the divorce was valid, and, being without fraud, was and is binding upon Christiana and her heirs. The first case cited is Douglass v. Douglass, 31 Iowa 421. The ground for divorce in that case was desertion. The divorce was granted.
“In this country, it is a well established rule that a proceeding for divorce may, be instituted against an insane spouse for a cause of divorce accruing while he or she was sane. His or her subsequent insanity is not, under modern laws, regarded as a bar to such proceedings, the conflict on this point being practically confined to a few early English cases which later were either reversed or overruled.”
Many cases are cited in the note, to sustain the text. See, also, 9 Ruling Case Law 358; Harrigan v. Harrigan, 135 Cal. 397; 19 Corpus Juris 76, 77; 14 Cyc. 654, and cases; State v. Murphy, 29 Nev. 149 (85 Pac. 1004). We are of opinion that the divorce was properly granted, and that no fraud has been established. This being so, the decree is binding upon these plaintiffs.
3. Other circumstances in the record, which we shall not stop to again refer to, satisfy us that the equities are with the
One or two other points made by appellees may be briefly noticed. One of these is that, where the court is advised of the circumstances, and the guardian ad litem files answer and appears for his ward, the judgment of the court is binding upon such incompetent, and all persons claiming by, through, or under him. Harris v. Bigley, 136 Iowa 307; Wood v. Wood, 136 Iowa 128; Buchan v. German Am. Land Co., 180 Iowa 911, 914. The correctness of the findings of the court in the divorce case cannot be reviewed in this case, which we are now considering. They were fairly before it, and embraced within its finding; the decree is unassailable by these proceedings, unless fraud be proven. Harris v. Bigley, supra; Wood v. Wood, 143 Iowa 440; Buchan v. German Am. Land Co., supra.
It seems unnecessary to spend any time in discussing the deed from James and Christiana Pollock to the Milburns. It will be remembered that that deed was made in 1894. The decree of divorce, with the provision as to property, was rendered some two years after that. As to the decree disposing of the property of the guilty party, in addition to the cases cited in Pollock v. Milburn, supra, see Hamilton v. McNeill, 150 Iowa 470. Though the point is not raised, it might be a matter of importance that, after Christiana Pollock secured her divorce from her first husband, Cain, he married another woman, and after James Pollock secured his divorce from Christiana, he married again, and has a wife and child now living. Brett v. Brett, 191 Iowa 262.