55 Cal. 384 | Cal. | 1880
This appeal is from a judgment and order denying a motion for a new trial in an action of ejectment. The appellant claims title under and from Mrs. Amanda J. Bingham, and the respondent claims under title deraigned from James S. Chandler.
The land was unsurveyed, and belonged to the Government of the United States until February, 1864.
In 1855 the said James S. Chandler and the said Mrs. Amanda J. Bingham were married to each other, and settled upon the land in controversy, and occupied the same in connection with other lands until February, 1864, about which time it was surveyed by
On the 21st day of April, 1864, the said James S. Chandler filed a complaint for a divorce against his wife Amanda J. Chandler, (now Amanda J. Bingham) in the Court of Common Pleas of the State of Indiana, within and for Allen County of that State, and on the 23rd day of J une, 1864, the said Amanda Chandler appeared, in said court by her attorney, and answered the complaint so filed by a general denial, and during the same term of said court the bonds of matrimony then existing between said James S. Chandler and said Amanda J. were dissolved. It was proved by the respondent, against appellant’s objection, that the attorney who appeared for the said Amanda J. in the suit for a divorce in the State of Indiana had no authority from her to appear for her in that proceeding, and that in fact she had no knowledge of the proceedings.
On the 25th day of October, 1864, the said Amanda J. Chandler commenced a suit for a divorce against the said James S. Chandler in the District Court of the Sixth Judicial District of the State of California, within and for the County of Yolo, and for cause of action against James S. Chandler alleged adultery with one Sarah Chandler, and alleged no other cause of action. These proceedings were pending until the 18th day of March, 1867, at which time a decree of divorce was granted in said suit, but the decree is silent as to any disposition of the community property.
During the pendency of the suit in Yolo County, one Francis Marion Elliott obtained title to the land in controversy from the Government of the United States, obtaining a patent therefor bearing date June 15th, 1876, and during the pendency of the same suit, May 15th, 1865, the said Francis Marion Elliott sold the premises to the said Amanda J. Chandler.
After the decree of divorce in Yolo County was entered, and on the 14th day of May, 1867, the said Amanda J. married one John Bingham, her present husband.
Continuously from May, 1865, until 1873, the said Amanda
In September, 1871, Mr. and Mrs. Bingham mortgaged the land for the sum of §4,000, which mortgage was placed upon the records of the county. The land was assessed to them, or to one of them, continuously from 1865 until 1873, and the fact of such assessments appeared on record. September 27th, 1873, the said Mr. and Mrs. Bingham sold the land to the defendant, and continuously since that time he has held exclusive possession of the same.
On the 28th day of May, 1877, said James S. Chandler quit-claimed said land to the plaintiff, and this suit was commenced October 4th, 1877.
The Court found that the plaintifE was seized in fee and entitled to the land in controversy, and that the defendant withheld the possession thereof from the plaintifE, and judgment was accordingly entered in his favor.
Whether the Court erred or not, depends upon the effect which should be given in this action to the judgment of divorce obtained by the plaintiff’s grantor in the State of Indiana. That judgment is not void. At most it is only voidable. Conceding that it is voidable, can the party who obtained it, or any one who occupies no better position in 'regard to it than the party who obtained it, attack and avoid it in a collateral action?
If it be voidable, it is solely so because the plaintiff’s grantor obtained it by fraud. But is it voidable ? Respondent’s counsel say that it is, because “the Court never acquired jurisdiction over the person of Amanda J. Chandler; the attorney who filed her answer did so without her knowledge or authority.” That might be sufficient to enable her to avoid the judgment if she chose to do so. But suppose that she does not. Suppose that she should choose to treat the attorney’s appearance for her as if it had been authorized by her. Might she not ? And if she did, would not that amount to a ratification of his action ? He ostensibly appeared for her, and if she chooses to accept the result of his services while acting for her, who has a right to deprive her of it? Not the husband, at whose instance the attorney entered an appearance for her, nor the plaintiff in this action,
If the plaintiff in that divorce suit were the plaintiff in this
The exception to the ruling of the Court upon the defendant’s objection to the introduction of evidence to prove that the attorney who appeared for the defendant’s grantor in the action brought by the plaintiff’s grantor in Indiana for a divorce, did so without being authorized so to do by defendant’s grantor, must be sustained; and for that error and the insufficiency of the evidence to justify the decision of the Court, the judgment and order denying a new trial must be reversed.
Judgment and order appealed from reversed.
Myrick, J., and Thornton, J., concurred.