83 Neb. 789 | Neb. | 1909
Defendant John W. McMichael and plaintiff were husband and wife from March 26, 1898, to July 9, 1906. The district court for Saunders county granted the wife a divorce July 9, 1906, restored her maiden name of Ida A. Kimmerly and allowed her alimony in the sum of $1,000. The present suit was brought in the district court for Grant county. The subject of litigation is a house and lot in Hyannis worth between $500 and $1,200. Plaintiff deeded the property to her husband March 16, 1904. When they were bound by the marriage relation January 23, 1906, the husband attempted by means of a deed in which his wife did not join to convey the property to his codefendant Perry A. Yeast. The trial court found that at the time of the attempted transfer to Yeast the real estate was the homestead of the McMichaels, canceled
Tiie principal objection to the decree is that it has no support in the pleadings. It is strenuously argued by defendants that the decree fails to respond to any allegation or prayer of the petition; that it grants, plaintiff relief unasked; that it subjects the property to the decree for alimony under a petition to quiet plaintiff’s title; that plaintiff pleaded no interest in the property as a family homestead; and that she did not pray for the protection of any homestead right. All these propositions are included in a single inquiry into the sufficiency of the petition to support the decree.
The petition is not skillfully drawn, but one paragraph contains an averment that plaintiff and her husband made the house and lot in Hyannis their home, and lived and resided there March 16, 1904, and for a long time prior thereto. In another paragraph it is alleged that the real estate described in the petition was March 16, 1904, “and. a long time prior and at all times since, the homestead of. this plaintiff.” It is true the record shows that plaintiff pleaded she owned the property in her own right; that she bought it with her own money; that it was her separate estate; that she prayed for relief accordingly; that she offered proof in support of such averments; and that the trial court found against her on this branch of- the case. It does not. follow, however, that she thus lost her right to a decree canceling the deed which was executed by her husband in violation of her homestead interests, if her petition and proof Avarrant such relief. The averments of the petition as to the homestead were not attacked by motion or demurrer, but were separately denied in different paragraphs of the answer. Defects in plaintiff’s allegations did not mislead or prejudice defendants. They understood that plaintiff had asserted her homestead rights as they existed March 16, 1904, when plaintiff, transferred the title to her husband, and as they existed
After proof has been adduced on both sides of a controverted issue and a final decree entered, the petition, when not assailed by motion or demurrer, should be liberally construed by the reviewing court and sustained, “if the essential elements of plaintiff’s case may be implied from its terms by reasonable intendment.” Sorensen v. Sorensen, 68 Neb. 483; Western Travelers Accident Ass’n v. Tomson, 72 Neb. 674; Chicago, R. I. & P. R. Co. v. Kerr, 74 Neb. 1; Bennett v. Bennett, 65 Neb. 432; Omaha Nat. Bank v. Kiper, 60 Neb. 33; American Fire Ins. Co. v. Landfare, 56 Neb. 482. Under the rule stated, plaintiff’s petition, as it appears in the record presented by defendants, must be held sufficient to support the decree. After judgment undue importance should not be attached to technical objections to a petition in a suit in equity fairly tried and correctly decided, where the complaining parties understood the issue, adduced proof thereon and submitted the controversy to the court without attacking the pleading by motion or demurrer.
The decree is said to be erroneous because it grants plaintiff relief for which there is no prayer. There is a
It is asserted the decree must be reversed on the ground that it invades property rights adjudicated in defendants’ favor in the suit for divorce. It was therein decreed that “plaintiff have and recover from defendant as alimony in lieu of her interest in property of defendant the sum of $1,000.” There is no conflict whatever between the decrees. In the present case the trial court did not award plaintiff any additional property or take any from McMichael, but restored to him the title to the homestead. Yeast’s deed was canceled, but he was not a party to the divorce suit and the judgment therein settled no property rights or controversies between him and plaintiff. Under a statute of this state, alimony may become a lien on the homestead, though the title thereto is in the husband when the divorce is granted. Best v. Zutavern, 53 Neb. 604; Fraaman v. Fraaman, 64 Neb. 472. Plaintiff’s right to assert and enforce such a lien and to a decree canceling a deed executed in utter disregard of her homestead interests was not decided against her in the suit for divorce. The validity of the deed through which McMichael attempted to convey the family homestead in violation of law was neither presented nor adjudicated in the decree for alimony. The plea of res judicata cannot be sustained.
Defendants pleaded in their Answer that McMichael deeded the house and lot in Hyannis to Yeast in consideration of the settlement and release of a debt of $600. It developed during the trial that this debt was secured by a mortgage on the property described in the deed. The
There is no prejudicial error in- the proceedings of the district court, and the judgment is
Affirmed.