21 Or. 9 | Or. | 1891
Lead Opinion
The plaintiff’s right in this case depends upon the construction to be given section 499, Hill’s Code, which is as follows: “ 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 individual right in fee of the whole of the real estate owned by the other at the time of such decree, in addition to the further decree for maintenance provided for in section 501; and it shall be the duty of the court in all such cases to enter a decree in accordance with this provision.”
Bamford v. Bamford, 4 Or. 30, is the earliest case in this court in which this section of the code received a construction. It was there held that m a suit for divorce when the complaint contains no allegations concerning property, and the decree contains nothing on the subject, the party in whose favor a decree is granted does not acquire either a legal or equitable right to the property of the adverse party by the decree; and it was further held in that case, that when real property is transferred from one party to another by a decree granting a divorce, the judgment roll should contain a description of the land transferred, and that the investigation concerning property must be had in the same suit.
In Wetmore v. Wetmore, 5 Or. 469, it was held that whenever a marriage contract shall be dissolved, the party at whose prayer such decree is obtained is entitled peremptorily under section 495, civil code (499 Hill’s Code), to the undi
The next case in which the question arose in this court was Hall v. Hall, 9 Or. 452. It was a suit for a divorce. The court in that case granted a divorce to the respondent, and then proceeded to render a decree in her favor in general terms for the undivided one-third of all the real property then owned by the appellant under section 499 of the code. There was no allegation in the complaint, or in any of the pleadings, as to the existence of such property, nor any claim for such relief; nor did the decree find that the appellant owned any such property or described any such. The appellant claimed that this part of the decree was erroneous. WatsoN, J., also delivered the opinion in this case, in which he observed: “After as thorough an examination as we have been able to give the subject, we are not satisfied that the principles enunciated in Bamford v. Bamford are incorrect, and we feel constrained to acknowledge its authority as decisive of the question before us.” The decree, so far as it attempted to affect the real property of the appellant, was therefore reversed, and in all else affirmed.
Finally, in Houston v. Timmerman, 17 Or. 499; 11 Am. St. Rep. 848, the subject is incidentally alluded to by Lord, J., although the question now under consideration was not before the court.
Under this state of opinion in this court, I think Bamford v. Bamford, supra, Wetmore v. Wetmore, supra, and Hall v. Hall, supra, controlling, and that they ought to be adhered to and followed. They have stood unquestioned for many years, have become rules of property, and it is doubtful whether they ought now to be overruled even if the court as now constituted should be of the opinion that the other is the better construction of the statute. But it is believed by the writer that these cases lay down the correct rule. I think it would be an anomaly in chancery practice to require or allow the court to make a decree that shall have the effect to divest the title to real property out of one of the parties to the suit and transfer it to another when the pleadings are entirely silent as to such property. Such a practice would necessarily introduce such a degree of uncertainty in relation to the title to real property affected, as would in the course of a few years become very embarassing. Besides this, according to well-settled principles of chancery practice, a decree which is to operate on the title to real
The plaintiff alleges that she was under duress, and for that reason did not set up in her complaint a claim to the property now in controversy. It is believed that this allegation is not supported by the evidence, but if it was, her remedy was to apply in that case to the court to be relieved from the decree as soon as the alleged duress was removed, which, in this case, according to her evidence, was when the decree was entered. We are the better' satisfied with the conclusions reached for the reason that when the divorce proceedings were commenced, the defendant deposited in one of the banks in the city of Pendleton a deed to the plaintiff for about twelve hundred acres of land, to be delivered to her when the decree was rendered, which deed she accepted and retained after the entry of such decree. The evidence also shows that plaintiff received personal property and money to the amount of two thousand dollars or more. She brought nothing to her husband at the marriage, only lived with him for a few years, and was not troubled with the cares of a family, and it appears to us she has not been unfairly dealt with.
In reaching the conclusion above indicated, it is proper to add that the case of Weiss v. Bethel, supra, so far as the same varies from the doctrines of this case, is overruled.
The decree appealed from must be affirmed.
Concurrence Opinion
(specially concurring.) — Upon the merits I concur in the result; but I am not prepared to say that a party applying for a divorce acquires no rights under the statute, where there is an omission or failure to allege in the complaint the real property owned by the defendant, and that
