17 Or. 499 | Or. | 1889
This was a suit to partition certain lands described herei.n.,
The defendant denied that the. respondent had any interest in said lands, and alleged that she, was th,e owner in, fee-simple, and, entitled to t,he. possession of- the whole
The court below, after a trial of said cause, rendered a decree therein, granting the prayer of plaintiff for partition, except as to the 160 acres of land mentioned therein, and partition was ordered and made on June -26, 1888, and confirmed by the court.
The defendant Timmerman derived her title to the premises in dispute in this wise: “On the fifteenth day of March, 1880, the plaintiff’s husband, A. J. Houston, for value, made and delivered his promissory note to the defendant Timmerman for the sum of $3,400, with interest at the fate of ten per cent per annum from date; that the said A. J. Houston failing to pay said note, the defendant, Timmerman, commenced suit on the twenty-sixth day of September, 1884, and caused service of summons to be made upon him on that day; and that on October 27,1884, the defendant, Timmerman-, recovered judgment against the said A. J. Houston for the sum of $5,463.87, which, on the same day, was duly docketed in the judgment lien docket, and thereupon became a lien upon all
It will be noticed that the suit of the .defendant Tim-merman to recover the amount due on the note against A. J. Houston, who was then the husband of the plaintiff herein, was commenced after the suit of the plaintiff for divorce against her husband, and that a judgment was recovered and docketed before a decree in the divorce suit was rendered, and in which one third of the real estate then owned by the husband was decreed the plaintiff. It is true, there was no direct proof of the date of the service of the summons in the divorce suit, but as this will not affect the result reached, it is immaterial. The contention is, that the defendant Timmerman was a -purchaser pendente lite. There is, however, a preliminary question to be first disposed of, namely, that the appeal
An examination of the statutes of the two states from which the authorities were read, to the effect that an appeal might be taken before a.final judgment or decree was entered, show that appeals in those states may be taken from interlocutory judgments or decrees, which not being the case under our code, they fail on application. (See Freeman on Partition, secs. 519, 527.)
But to return: among the ordinances of rules adopted by Lord-Chancellor Bacon “ for the better and more regular administration of justice” was one which provided that where a person “comes in pendente lite, and while the suit is in full prosecution, and without any color of allowance, or privity of the court, there regularly the decree bindeth.” Chancellor Kent said that a “Us pendens duly prosecuted, and not conclusive, is notice to a purchaser so as to affect and bind his interest by the decree.” Strictly speaking, .however, the doctrine of Us pendens is not - founded upon notice, but upon reasons of public policy, founded upon necessity. “It affects him,” said Lord-Chancellor Cranworth, “not because it amounts to notice, but because the law does not allow litigant parties to give to others, pending the litigation, rights to the property in dispute so as to prejudice the opposite party. . . . . The necessities of mankind require that'the decision of the court shall be binding, not only on the litigant parties, but also on those who derive title under them by alienation made pending the suit, whether such alienees
The doctrine of Us pendens was introduced in analogy to the rule at common law in a real action, “ Where, if thé defendant aliens after pendency of the writ, the judgment in the action will overreach such alienation.” (Sorrie v. Carpenter, 2 P. Wms. 482.) And this may account for the leaning in some of the courts to restrict the application of the rule of Us péndéñs to actions or suits affecting title to real property. (McLaurine v. Munroe, 30 Mo. 469; Winston v. Westfelt, 22 Ala. 760; 58 Am. Dec. 278; Baldwin v. Love, 2 J. J. Marsh. 489; Murray v. Settleburn, 2 Johns. Ch. 441.) But it is hardly considered well settled that it may hot with equal propriety be applied to the sales of chattels. Two things, however* seem indispensable to give it effect': 1. That the litigation must be about
Now, the divorce suit of the plaintiff was not brought specifically to recover the one third of the real estate of her husband-, as was decreed in the divorce proceeding. The land was not the subject-matter of the litigation, and the subject of the suit was not to recover title that belonged to the plaintiff. It was incidental and collateral to the divorce proceeding. The .court has ño jurisdiction to affect the title of the husband to his lands,.or decree that one third of them shall be set apart for her in her own right and title, independent of a decree for divorce. Nor has the plaintiff any title on which to base a suit to recover any portion of the same, except as it comes by force of the statute upon a decree for divorce.
A proceeding in divorce is partly in personam and partly in rem; and in so far as it is to affect the marriage status, it is to change a thing independent of the parties, and is a proceeding, not against the parties in personam, but against their status in rem. (Am. & Ehg. Fney. of Law, tit. Divorce, 751.) The matter upon which the jurisdiction acts is the status; the marriage is the thing which the suit is brought to dissolve, — it is the subject of the litigatioñ, — but as incidental to it, the court may grant temporary alimony pendente lite, or permanent alimony when a decree for divorce is rendered. And the general rule is, that bills for alimony do not bind the property of the defendant with lis pendens. (1 Story’s Eq. Jur., see. 196; Brightman v. Brightman, 1 R. S. 112; Isler v. Brown, 66 N. C. 556; Almond v. Almond, 4. Rand. 662; 15 Am. Dec. 781.)
Our statute provides: “ Whenever a marriage shall be declared void or dissolved, the party at whose prayer such decree shall be made shall in all cases be entitled to the undivided one-third part in his or her undivided right in fee of the whole of the real estate owned by the other at the time of such decree; and it ... . shall be the duty of the court to enter a decree in accordance with this provision.” (Code, sec. 499.)
It is “whenever a marriage shall be declared dissolved” that the statute operates, — not before, or pendente lite,— and the court then becomes authorized and it is its “duty” “to enter a decree” for the undivided one-third part in fee of the whole of the real estate “-owned by the defendant at the time of such decree” for a divorce.
It must be manifest, then, that the primary object of the suit is to affect the marriage relation, — its status, — that it is the specific matter in controversy to be affected, and that it is only when the status is changed by a decree of divorce that the statute operates to divest title “owned” by the defendants, and that it then becomes the duty of the •court to enter a decree in accordance with its provisions. Nor do the cases cited by counsel sustain his contention. In Folerton v. Willard, 30 Ohio St. 586, the suit was of “double aspect,” as said by the court, and was brought to protect her equitable right in.property, which was the subject of dispute. This property was bought