113 Kan. 146 | Kan. | 1923
The opinion of the court was delivered by
This action was brought by Mary M. Dutton against her former husband Ralph L. Dutton, Rose Miller Dutton and F. J. Miller, in which she asked to have certain property in the city of Wichita adjudged to be her homestead and that she have judgment canceling an attempted conveyance of the property and the modification of a postnuptial agreement which had been made
In his answer Dutton admitted the execution of the contract and averred that it settled all property rights and interests between the parties. He alleged that he had paid the $24,000 mentioned in the contract and had fully complied with its terms. The decree of di
Rose Miller Dutton filed a separate answer and cross-petition, denying the allegations in the petition, and also stated that the facts were insufficient' to constitute a cause of action against her. In respect to the divorce, she alleged that after the entry of the decree of divorce Mary M. Dutton filed a motion in the Missouri court alleging that that court had no jurisdiction to try or determine the divorce suit, setting up the matters which are now stated in the petition in this case, with respect to the divorce, but that upon the final hearing of the motion and upon evidence offered, the Missouri court denied the motion and the judgment of that court thereby became final. She also asked rental upon the premises in question during the time the same have been occupied by the appellant in the sum of $1,100. Upon the petition and the opening statement, in which counsel for the plaintiff stated that they were seeking to obtain the homestead in addition to what had already been obtained under the contract, the court held that the plaintiff was not entitled to recover against the defendants or any of them. Thereafter, upon evidence introduced upon the cross-petition of the defendant, Rose M. Dutton, the court found that the reasonable rental value of the premises occupied by her was $75 per month, and awarded her judgment in the sum of $780. Plaintiff appeals.
No error was committed in the ruling of the trial court. While plaintiff alleged that.fraud was committed in the execution of the postnuptial contract settling the property rights of the parties, she did not repudiate it or ask for its rescission. Her attitude was that the contract was binding as to the money and property she had received but that she desired to have a larger share of the property than was agreed upon and received when the division was made. To rescind the contract it was necessary for her to restore, or offer to restore, the money and property received under it. She could not affirm in part and repudiate in part, could not claim or retain advantages under the contract and evade its disadvantages. (Bell v. Keepers, 39 Kan. 105, 17 Pac. 785.) In Aultman v. Miller, 52 Kan. 60, 34 Pac. 404, it was said:
“It is true, that where grounds for rescission exist and the party desires to avail himself of them, he must act with reasonable promptness in returning the property which he has received under the contract; and it is also true, that it must be rescinded in toto, if at all.”
Some reliance is based upon the claim that the property she is seeking to have set aside to her in addition to that given under the contract was a homestead. The title to that property stood in the name of another, but if it be assumed that the equitable ownership was in her former husband she had in a writing relinquished all rights of every kind she had in the property held by him at the time the division was made or which he might thereafter acquire.
Nor is she in a position to attack the divorce granted to her former husband by the Missouri court. In the first place, in her contract she -recited that the conditions and circumstances existing between her and her husband warranted the granting of a divorce, that by reason of these it was impossible for them to live together as husband and wife, that the health and happiness of each made it necessary that there should be a separation and possibly a divorce, but that separation was inevitable. Her attack upon the service that was obtained in the divorce proceeding on the ground that he was not in fact a resident of Missouri, and that the court was without jurisdiction, has' been determined against her. That matter was adjudicated in the Missouri court after the plaintiff had presented evidence as to his actual residence as well as to the sufficiency of the service, and the judgment then made stands as a finality. The decree of that court is not open to collateral impeachment on the ground of fraud and is binding upon the parties. It operated to settle all the rights of the parties, although as a matter of fact the property rights as between the parties had been settled by the agreement made prior to that time. The judgment of the Missouri court effectually ended the marriage relation and absolved each party from every marital right and duty, (McCormick v. McCormick, 82 Kan. 31, 107 Pac. 546.)
The judgment of the district court is affirmed.