160 N.E. 37 | Ohio Ct. App. | 1927
On June 25, 1923, Irvin F. Snyder, as assignee of Job E. Renick, filed his petition in the probate court for an order to sell the real estate of his assignor. Florence F. Renick, wife of the assignor, was made a party, and the value of her inchoate dower was determined and paid to her; the real estate having theretofore been sold free of the dower. Second Natl. Bank v.Renick,
One of the assignments of error urged in this court is the failure of the common pleas to sustain the demurrer of the plaintiff to the reply of the *169 cross-petitioner. An inspection of the transcript shows that this question was raised in the probate court, but not in the common pleas. The ground upon which the demurrer was urged, however, went to the jurisdiction of the probate court, and that question was not waived by failure to have the demurrer again passed upon by the common pleas.
The probate court had jurisdiction. No one questions that that court has power to order the sale of real estate assigned by insolvent debtors, and no one questions the power of that court to determine and order paid the value of inchoate dower estates in such lands. The plaintiff's position was that before Grace F. Renick could maintain in the probate court her claim for dower she should first have secured in a direct action in the common pleas a decree setting aside the contract of separation and the quitclaim deed made in 1912. This position is untenable. So far as the quitclaim deed is concerned, it may be said, once for all, that it was wholly ineffective. If one can conceive of the wife transferring to her husband by quitclaim deed her inchoate right of dower, it must be apparent that she at once becomes reinvested with a like dower estate in the same property by virtue of the continuing marriage. The proposition is so well settled that dower vests by law and not by contract, that no authorities need be cited. If on March 6, 1912, Grace F. Renick transferred her dower estate by quitclaim deed to her husband, the law clearly, on March 7, 1912, reinvested her with dower, and the deed of the previous day was thereafter an absolute nullity. It required the action of no court to determine and decree its uselessness. *170
Neither was the wife bound to set aside the separation agreement as a preliminary to her asserting her right to dower. SinceHoagland v. Hoagland,
Upon the trial of the case in the common pleas an unusual state of facts developed. Job E. Renick and Grace F. Renick were married in 1902. Immediately prior to March 6, 1912, the wife confessed to the husband that she had been guilty of adultery. On the day mentioned the husband, having first cut the telephone wire leading from the family residence, and then by a trick deprived the wife of the use of the horse, which she might have used to leave the house to confer with friends or counsel, went with his attorney to the family *171 residence and there induced the wife to sign the separation agreement now relied upon. The evidence shows that she was not informed of her rights in the premises, nor given any opportunity to consult with others who might be informed. The contract of separation was therefore not entered into fairly. Not only was the method of securing the wife's signature unfair, but the amount allowed her by contract, in view of the fact that she was left with a group of children to support, was grossly inequitable. Our further view, however, is that regardless of the terms of the separation contract, and the manner in which it was secured, it was not in fact a contract of separation. The testimony fairly shows that the parties thereafter lived together as husband and wife. They resided in the same house. A child was born to the union a year after the so-called separation contract was signed. We accordingly follow the well-considered opinion of the common pleas in holding that the written agreement of March 6, 1912, was ineffective in so far as it attempted to bar the wife from dower in her husband's real estate.
On April 9, 1912, Job filed his petition for divorce in the common pleas of Pickaway county, in which he prayed for a divorce from Grace on account of the latter's adultery, and on June 22 filed a supplemental petition in the same case, setting out additional delinquencies of the same character. This supplemental petition was filed just about the time that the last child of these parties was conceived. Thereafter this action for divorce in Pickaway county was dismissed by the plaintiff, who some time later on went to the state of Nevada, in which *172
state on October 6, 1913, he filed his action for divorce, setting forth the same grounds for divorce that he had pleaded in the Pickaway county case. Constructive service was had upon the defendant, who made default. Whereupon the Nevada court, having upon testimony found the complaint true, including the averment that Job was a resident of Nevada, on December 22, 1913, decreed a dissolution of the marriage between Job E. Renick and Grace F. Renick, and decreed that each of said parties was "freed and absolutely released from the bonds of matrimony and all the obligations thereof." The cross-petitioner in the present action claims the right to attack this decree on the ground that Job was not in fact a resident of Nevada, notwithstanding the decree found him to be such resident. This right is asserted on the authority of Van Fossen v. State,
This principle was reasserted and emphasized in Bay v. Bay,
Granted, then, that the Nevada decree effectively dissolved the marital ties of Job and Grace Renick, what effect is to be ascribed to that decree on the *174 inchoate right of dower theretofore held by Grace in the husband's real estate in Ohio?
Vast difficulties have been experienced in different jurisdictions in determining the effects of a decree of divorce beyond the borders of the state of its rendition. The objection to a policy that permits a man to be deemed married in one jurisdiction and single in another is obvious.
Section 1, Article
Prof. Schofield, in his work on Constitutional Law and Equity (Volume 1, p. 153), says that the logical extension of the doctrine of the Haddock *175 case is that a decree of divorce that is not capable of being compulsorily enforced in every state of the Union is a nullity and unenforceable even in the state of its rendition. While this is a possible development of the Haddock case, and would, if adopted, avoid the present anomalous situation that renders a bigamist in one jurisdiction a law-abiding citizen in another, and a bastard in one state a legitimate child in another state, it is a position not yet taken by either the Supreme Court of the United States or by the Supreme Court of Ohio, and one not necessary to be taken in this case. So far as the Haddock case went it was to leave a state at liberty to give a decree obtained on constructive service in a state other than that of the matrimonial domicile as much or as little consideration as such state might desire.
Some of the states by statute recognize divorce decrees so rendered to be entitled to full force. Others, in the absence of a statute, give them such recognition as a matter of comity. In other states the decree is held to be a nullity. Ohio takes a middle course. Long before the Haddock case, Ohio courts had determined the public policy of this state to be that where one state had jurisdiction over one of the parties to the marriage, and undertook to dissolve the marriage, this state would recognize the power of such other state to so dissolve it, but while a decree of divorce so rendered would be recognized, because required by public policy, the state rendering it would not be permitted to project its jurisdiction into this state by constructive service and thereby affect property *176
rights arising in Ohio by operation of Ohio Law. Mansfield v.McIntyre,
In the case at bar the dower of Grace Renick in the real estate of Job vested by operation of law. The Nevada court had no power by constructive service to divest her thereof.
The argument that Grace has been guilty of some laches in failing to sooner assert her rights in the premises is not sound. She could not, as has been pointed out, maintain an action here to set aside the Nevada decree. She was under no obligation to avoid the contract of separation until that contract and such extrinsic facts as were necessary to give it vitality were set up to defeat her claim. She could not have maintained an action for her inchoate right of dower until the assignment of Job gave her a right to realize thereon. Nor does her delay in proceeding, or her actions otherwise, work an estoppel against the cross-petitioner. No creditor appears to have loaned Job a dollar on account of anything done by Grace or anything left undone by her. No language or conduct of her appears to have influenced any one now resisting her claims. Estoppel does not proceed from the conduct alone of the party against whom *177 it is urged. To be effective another must have been thereby misled to his prejudice.
The judgment of the common pleas is affirmed.
Judgment affirmed.
MIDDLETON and ALLREAD, JJ., the latter of the Second Appellate District sitting in place of SAYRE, P.J., concur.