Damon v. Damon

28 Wis. 510 | Wis. | 1871

LyoN, J.

This action was brought by’ the plaintiff for the purpose of procuring a divorce from her husband, Calvin A. Damon, and the complaint contains averments of fact, which, if true, entitle her to that relief. The complaint also prays that alimony be adjudged to the plaintiff out of the estate of the husband, and contains allegations in support thereof, which, if true, entitle her thereto.

It is further charged in the complaint that, in 1868, the defendant purchased certain lands therein described, situated in the county of Dane, of Ellen H. and William P. Fitzgerald, for $2,100, and paid for the same from the avails of the sale of certain property in' the state of Massachusetts belonging to the plaintiff — such avails being $600,— and from his own earnings, “ and that no part of the purchase price thereof was paid by the defendant Asenoth A. Damon.'”

The complaint also contains the following allegations : “ That the defendants, fraudulently contriving and combining together to cheat and defraud this plaintiff, and to prevent her recovering of and from the defendant Calvin A. Damon support for herself and children, alimony, suit money, and the avails of the sale of ber property received by him as aforesaid, caused tbe said Ellen H. Eitzgerald and "William P. Eitzgerald to deed tbe said real estate so purchased and paid for by tbe defendant Calvin A. Damon, as ■ aforesaid, and hereinbefore described, to tbe defendant Asenoth A. Damon, and tbe defendant Asenoth A. Damon, in pursuance of said fraudulent purpose and design, accepted said deed and caused tbe same to be recorded on tbe 25th day of May, 1868, in tbe office of tbe register of deeds for Dane county, Wisconsin, in volume 80 of Deeds, on page 338.”

“ Tbe plaintiff further shows, that tbe defendant Asenoth A. Damon knew tbe plaintiff and defendant Calvin A. Damon, while they lived together as man and wife in tbe state of Massachusetts, and before then- removal to tbe state of Wisconsin, and knew tbe relation that subsisted between them.”

“ Tbe plaintiff further shows, upon information and belief, that- tbe defendant Asenoth A. Damon, prior to tbe purchase of tbe property of tbe said Ellen H. and William P. Eitzgerald by tbe defendant Calvin A. Damon, as hereinbefore stated, knew that tbe defendant Calvin A. Damon took tbe avails of tb® sale of tbe plaintiff’s property in Massachusetts, as hereinbefore alleged, and that be brought tbe same to Wisconsin, and at tbe time of said purchase knew that" tbe same was used in paying tbe purchase price of tbe real estate hereinbefore described.”

“ Tbe plaintiff further shows that tbe defendant Calvin! A. Damon has threatened that if this plaintiff in any way interfered with, or commenced proceedings against him, be woxdd dispose of all bis property, leave tbe country, and never return.”

“Tbe plaintiff further shows that she has now no property in ber own right, but is entirely dependent for tbe support, of herself and children, and their education, upon ber own exertions and tbe kindness of ber friends; that tbe present value of tbe property of tbe defendant Calvin A. Damon, as she is informed and believes, is about thirty-fivé hundred dollars.; that tbe real estate hereinbefore described, has been much improved since tbe same was purchased by tbe defendant Calvin A. Damon,, as before stated, and tbe same is now worth about three thousand dollars.”

The defendant Asenoth A. Damon demurred to this complaint, on the grounds, first, that it does not state facts sufficient to constitute a cause of action against her •; and, second’, that several causes of action have been improperly united therein; and she appeals to this court from an order of the circuit court overruling her demurrer.

Were the husband the sole defendant in this action, it is not claimed that there is any improper joinder of causes of action in the complaint. Although it is, perhaps, not absolutely necessary, in an action for divorce and alimony, to set forth the amount of the husband’s property, the particulars of its situation, and the sources from whence it was derived, yet it seems to be the usual practice in this country — though not in England— to do so. In England alimony is made the subject of a special application or petition, separate and distinct from the libel for divorce. But we think that ours is the better practice, in that it accords with the analogies of equity procedure by including in the same bill or complaint all of the allegations of fact upon which it may be necessary for the court to adjudicate for the purpose of a complete determination of all matters involved in the action.

This form of pleading is not a joinder of two distinct ca-uses of action. A claim for alimony is not the subject matter of a separate suit, but is only ancillary to, or an incident of, an ¡action for a divorce. Rockwell v. Morgan, 2 Beasley, 119; 2 Bishop on Marriage and Divorce, secs. 350 to 356; Van Duzer v. Van Duzer, 6 Paige, 366.

In the latter case a wife filed a bill against her husband and •two judgment creditors of the husband, to restrain the latter from selling the husband’s interest, as tenant by the courtesy initiate, in her real estate which belonged to her before her marriage; the husband being insolvent and worthless, and neglecting to provide for her and her children, an injunction had been granted, but the chancellor (Walworth) dissolved it, bolding that a court of equity had no power “ to seize upon property which formerly belonged to the wife, but in which the husband has without fraud obtained a vested legal interest in possession, by virtue of his marital rights; unless he has forfeited his right by a breach of the marriage contract, so as to entitle the wife to a decree of separation.”

These authorities would seem to dispose of the objection taken by the demurrer, that several causes of action are improperly united in the complaint.

The remaining question is, whether the complaint states a cause of action against the appellant. Or, stated in another form, the question is, whether, in an action by a wife for a divorce and for alimony, it is competent to join as a defendant therein, a party who knowingly and without consideration took a conveyance of the husband’s property before the action was commenced, but after the cause of action accrued, for the fraudulent purpose of defeating a recovery of alimony in such action ?

"We are of the opinion that this question must be resolved in the affirmative. We do not perceive how, in such cases, the court can fully adjudicate upon and enforce the rights of the wife to alimony, or to a portion of her husband’s estate, if she prevails in the action, unless the court has power to bring before it as a party any person who has taken a conveyance from the husband of the very property in question for the purpose of defrauding the wife of her rights. How else can the court compel him to surrender the property thus fraudulently acquired? The learned counsel for the appellant argues, and with much plausibility, that the wife must wait until she obtains her decree of divorce and for alimony, and then she may bring into court the fraudulent grantee of the property out of which her alimony is to be collected, and compel him to disgorge. But why delay until be has an opportunity to dispose of the property and leave the country? 1 It is urged that the power of the court in these divorce cases is limited; that it cannot exercise full equity powers, but only such as are conferred by tbe statute; and, inasmuch as tbe statute does not expressly provide that third parties may be made defendants in divorce suits, that therefore no person can be made a defendant in those actions other than a party to the marriage contract. We do not so understand the statute. We think that when the court is empowered to award alimony to the wife out of the husband’s estate; to adjudge to her property, or the value of it, that came to her husband by reason of their marriage; to sequester his personal estate, and the rents and profits of his real estate, to enforce compliance with its judgment; and to divide and distribute the whole estate between the parties— that the power to bring before it as a party defendant in the same action any person who is attempting fraudulently to keep the estate over which the court has such absolute control, away from the jurisdiction of the court and out of the reach of its judgment, must necessarily follow.

It is to be observed in this connection, that the statute provides that this class of actions “shall be conducted in the same manner as other actions in courts ; and the court shall have power to award issue, to adjudge costs, and to enforce its judgments, as in other cases.” R. S., chap. 111, sec. 15.

In an action for a divorce, the statute gives the court power to divide the estate between the parties. R. S., chap. Ill, sec. 29. Under this statute the court may divest the title of the husband to real estate, and vest it in the wife. Donovan v. Donovan, 20 Wis., 586. It is perfectly clear that in any other action having for its object the transfer of property from a defendant to the plaintiff, a person who holds the title to such property fraudulently, against the plantiff, is a proper party thereto. This is necessary to enable the court to enforce its judgment, if it adjudges a transfer of the property to the plaintiff. It seems to follow that in this case the appellant is a proper party to the action, to enable the court to “ enforce its judgment as in other cases,” should it adjudge a transfer to the plaintiff of tbe property wbicb tbe complaint alleges sbe bolds in fraud of tbe rights of tbe plaintiff.

So far as we are advised, it bas been tbe universal practice in this state, to bring in third persons as parties in actions for divorce and alimony, where it was necessary to do so in order to settle completely tbe rights of tbe parties in tbe estate of tbe husband; and tbe cases are quite numerous in which tbe same practice bas been adopted and judicially sanctioned in other states under statutes similar to ours. See 2 Bishop on Marriage and Divorce, sec. 299, and cases cited; also Brooks vs. Caughran, 3 Head, 464; and Questel vs. Questel, Wright (O.), 492. "We have seen no case which directly bolds a contrary doctrine.

By the Court. — Tbe order of tbe circuit court overruling tbe demurrer to tbe complaint, is affirmed.