145 Ind. 59 | Ind. | 1896
— This was an. action for partition, brought by appellant against appellee, asking that one-third in value of certain lands described in the complaint, and formerly owned by Jacob Hilbish, deceased, be set apart to her as surviving wife of said decedent, said lands having been conveyed by her said husband during their marriage, without her having joined in such conveyance.
The appellee answered in general denial, and also filed a cross-complaint, asking to quiet his title to the lands claimed by appellant.
The court, at the request of the parties, made a special finding of the facts in the case, from which it appears: That the appellant and her said former
“This agreement witnesseth, that said Jacob Hilbish and Susannah Hilbish, being husband and wife; and there being irreconcilable differences between them, by reason of which they have separated and do not contemplate again living together as husband and wife; and as a proper and just division of their property, the said Jacob has this day conveyed to the said Susannah Hilbish one hundred acres of land in section 4, T. 36, N. R. 6 E., in Elkhart county, Indiana. Now, therefore, the said Jacob Hilbish agrees to remove from said lands all incumbrances and deliver the same to the said Susannah Hilbish, together with all the crops, buildings, and appurtenances- thereunto belonging, free from all incumbrances; and when such incumbrances are removed the said Susannah shall accept the said deed and lands in full of all claim upon said Jacob, either for moneys heretofore loaned him, or other demands against him, and in full of all her. inchoate rights or contingent rights in his property as his wife or as his widow, if she should sxxrvive him; and in full of all her claims upon him for her future
The court further finds, that, in making said agreement said Susannah Hilbish was represented by Judge J. D. Osborne, as her attorney, and said Jacob Hilbish was represented by Judge H. D. Wilson, as his attorney, and said agreement was. fairly and intelligently entered into; that, on said day and prior thereto, said Jacob Hilbish was the owner of the lands described in the complaint,then of the value of $7,000.00, and the one hundred acres described in said agreement, then of the value of $9,000.00, and encumbered to the amount of $4,496.00; and was the owner of other lands in Goshen, Indiana, in Ohio, and Pennsyl
The full proceedings of the action for divorce in Daviess county, Missouri, are set out in the special findings, as are also the statutes of Missouri in relation thereto.
The conclusions of law made by the court on the special findings of facts were:
*65 “1. That the plaintiff is not the widow or surviving wife of said Jacob Hilbish, and is not entitled to recover on her complaint.
“2. That defendant is the owner of the land described in the complaint and cross-complaint, and that“ his title thereto should be quieted.
“3. And that defendant should recover of plaintiff his costs.”
The errors, assigned on this appeal and discussed by counsel, call in question the correctness of the conclusions of law.
It is first insisted by appellant that, “it is not found by the court that the apparent decree of the Missouri Court is a decree or judgment of any court, nor that it was ever rendered by that or any other court; nor that if such a judgment ever existed, it was still in force at the death of Jacob Hilbish.”
We confess that we are unable to understand this contention of counsel. The proceedings of the Missouri court are, as we have said, set out fully in the findings. In addition, as we have also shown, the court expressly finds that “a judgment and decree of divorce was rendered and entered of record by said court, in said cause * * * and that said judgment remains in full force.”
Moreover, counsel admit that the setting forth in the findings of the proceedings in the Missouri court,, and of the Missouri statutes “indicates that the trial' court had evidence before it from which, if not controverted or disproved, it might have found one way or the other on the question.” What further would counsel have?
It is said that the Missouri statute requires an affidavit of non-residence in case of publication of notice to defendants in divorce proceedings, or of serv
In 1 Black. Judg., section 240, the author, citing Bumstead v. Read, 31 Barb. 669, says: “Where the judicial tribunal has general jurisdiction of the subject-matter of the controversy or investigation, and the special facts which give it the right to act in a particular case are averred and not controverted, upon notice to all proper parties, jurisdiction is acquired, and cannot be assailed in any collateral proceeding.”
In 1 Freeman Judg., section 127, it is said, citing cases: “The position is taken that presumptions of regularity are applicable to proceedings of courts of record, not because of the particular means which those tribunals happen to employ, under the authority of the law, for the purpose of acquiring jurisdiction over the defendant, but because of the high character of the courts themselves; and that this character is-essentially the same in all cases, irrespective of the method employed in the service of process. Therefore,
Appellant’s authorities only go to show that a defendant brought in by notice of publication only, or by personal service in another state, which is equivalent to notice by publication, cannot suffer a personal judgment. If, however, such notice is given to a nonresident defendant in a divorce proceeding, as is provided by the statutes of the state, the judgment of divorce will be secure against collateral attack. Such judgment acts upon the marriage status of the parties; and the court having jurisdiction of the plaintiff has power, after notice given to parties in interest, to determine the status of such plaintiff. The court acts by virtue of the citizenship of the party before it. And the marriage relation of the plaintiff being dissolved, the parties are no longer husband and wife.
But it is further contended, by appellant, that even if the decree of divorce rendered by the circuit court of Daviess county, Missouri, should be held valid, still that court, not having acquired jurisdiction over the person or property of appellant, such judgment or decree could not affect any property rights which appellant might have in this State. And section 2660, R. S. 1894 (section 2499, R. S. 1881), that no act of the husband, without his wife’s assent, and no disposition of his property “by virtue of any decree, execution or mortgage to which she shall not be a party (except as provided otherwise in this act), shall prejudice or extinguish the right of the wife to her third of his lands or to her jointure, or preclude her from the recovery thereof, if otherwise entitled thereto,” is cited in support of such contention. Citing, also, Grissom v. Moore,
But appellant was a party to the decree of divorce, although, being served only with constructive notice, no judgment could be rendered against her. However, by sections 1060, 1061, R. S. 1894 (sections 1048, 1049, R. S. 1881), it is provided that “The divorce of one party shall fully dissolve the marriage contract as to both,” and also that “A divorce decreed in any other state, by a court having jurisdiction thereof, shall have full effect in this State.” It would seem, therefore, that appellant, not being the surviving wife of Jacob Hilbish, could not, according to the statutes of this State, have any rights in his property by virtue of any marriage relation with him during his life time. Fletcher v. Monroe, ante, 56. The Missouri court did not attempt any adjudication upon her rights or property in this State. But that court, after jurisdiction duly had, did determine the status of her former husband, Jacob Hilbish, and did decree a divorce to him, thus severing the marriage bond that united him to appellant. By force of our statutes, above quoted, it would seem that the same consequences followed that would have followed if the decree had been rendered in this State.
But even if the property rights of the parties were not fixed by the decree of divorce, still, we think, that the post-nuptial contract, shown in the special findings, would be sufficient to support the conclusions of law in favor of appellee. By that contract, the appellant received one hundred acres of land, worth $9,-000.00, as in full of all claims of appellant, present or prospective, upon her husband or his estate, including any inchoate or contingent interest she might have as his surviving wife. This contract was found by the parties at the time to be her fair share of the estate,
In Hollowell v. Simonson, 21 Ind. 398, it was said: “We understand it to be well settled,o upon ample authority, that a relinquishment of dower by the wife, the husband being then alive, is a good and valuable consideration for a conveyance by the husband, or procured by him, to the wife, of property which may be considered but a fair equivalent; and that the same will be viewed as valid, or not, as it may be shown to be fair or fraudulent, and the comparative value of the respective estates and interests may be taken into consideration. Levinz, 146; McCann v. Letcher, 8 B. Mon. 326; Ward v. Shallet, 2 Vesey, Sen. 16; Atherley Marriage Settle., 162.”
This statement of the law is quoted and approved in Brown v. Rawlings, 72 Ind. 505, where it is held that an agreement by a husband to convey certain lands to his wife in consideration that she would relinquish her inchoate interest in his lands, which she did, is valid, even though such agreement is not in writing.
And in Jarboe v. Severin, 85 Ind. 496, this court said: “The release by a wife of her inchoate interest in her husband’s real estate may be a valuable consideration. Hollowell v. Simonson, supra; Brown v. Rawlings,
In Dutton v. Dutton, 30 Ind. 452, Chief Justice Ray, speaking for the court, it was said that the following instruction fairly stated the law and should have been given: “That a parol agreement made between husband and wife in view of separation, and fully executed on the part of the husband, wholly for a consideration which, in the light of all the circumstances of the parties at the time the contract is made, is fair, reasonable, and just, the contract will be upheld.”
That such a contract between husband and wife, when fair to all parties, will be upheld in equity. See Sims v. Rickets, 35 Ind. 181; 9 Am. and Eng. Ency. of Law, 792; 14 Am. and Eng. Ency. of Law, 552, and authorities cited in notes.
The contract, in the case at bar, was found by the court to have been made in view of all the property of Jacob Hilbish, and that “it was estimated and considered by the parties thereto that said one hundred acres of land, described in said agreement, was a. reasonably fair provision for said Susannah, as the wife of said Jacob Hilbish, at that time.”
The contract was in writing, made with the advice of eminent counsel, was “in view of separation,” was “fair to all the parties,” was received by her in full of all demands against him, and, “in full of her inchoate rights or contingent rights in his property as his wife or his widow.” The contract has never been rescinded; she still holds the land conveyed to her by virtue of
We see, therefore, no reason why this contract and deed of settlement should not be upheld, without considering the question, if any there be; as to the effect upon appellant’s rights of the decree of divorce, granted to her husband in Daviess county, Missouri. The second and third conclusions of law, being in favor of appellee, were clearly correct, and quite sufficient to sustain the judgment of the court.
“If the ultimate judgment deals' justly with the parties, gives to each his legal rights, and is sustained by the facts appearing in the special finding, an error in one of the conclusions of law will not justify a reversal.” Slauter v. Favorite, 107 Ind. 291; Waters v. Lyon, 141 Ind. 170.
Judgment affirmed.