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this system we have had all kinds of laws 4. Property conveyed by a husband to his enacted by congress and by state legislatures,

wife, the conveyance to be void if she abandons

or refuses to take care of him, cannot be reand the courts have freely exercised the pow

covered because of a breach of such conditions er of subjecting them all to the test of the after a decree of divorce has been granted. constitution. But it is safe to say that never before in any court of last resort has a stat

Appeal from circuit court, Hancock counof

ty; Charles G. Offutt, Judge. fact with respect to the existence of the conditions necessary to give it operation, or

, on the ground that the judgment of the law

mind, against Gussie M. Walker and others, making body was improperly or unwisely ex

to quiet title to real estate. From a judgercised, or that the professed motives for its

ment in favor of defendants, plaintiff apenactment were not the real ones.

peals. Affirmed. It is too plain for concealment that these Richard A. Black and Saml. A. Wray, for are the grounds upon which the statute in appellant. E. W. Felt and Marsh & Cook, question has been set aside. Whether the for appellees. conditions which are necessary to put this law in operation exist only in one county, or JORDAN, J. Thomas Walker, as guardian in twenty counties, is a fact that does not

of William C. Walker, a person of unsound appear on the face of the statute.

It is as

mind, filed his complaint in three paragraphs; certained only through an independent ex

and on the 15th day of December, 1896. intraneous inquiry conducted by the court on

stituted this action against Gussie M. Walker, appeal, and, even after it is concluded, no

William C. Dudding, and William H. Moore, one professes to know or ventures to assert

the appellees in this appeal, whereby he anything with respect to the localities where

sought to set aside a certain antenuptial conthe conditions existed,--whether few or many

tract, together with certain deeds executed at the date of the enactment of the law,-and

by his said ward prior to his being adjudged much less as to the places where the con

a person of unsound mind, and to quiet the ditions may exist 10 years hence. It cannot

title to the real estate described in the combe denied that the law on its face includes

plaint. Copies of the deeds involved in the every county but one, and is operative in

action are filed as exhibits. The material every locality where the conditions exist or

facts disclosed by the first paragraph of the may exist in the future, and that the only

complaint, and the exhibits filed therewith, objection ever made to it was that, as matter

may be summarized as follows: Some time of fact, these conditions do not exist in a

in 1896 (the exact date is not stated) William sufficient number of places to give the stat

C. Walker, the ward, was adjudged by the ute the character of a general law, and there

court to be a person of unsound mind, and fore it must be a local law, the declaration

plaintiff was appointed his guardian. On of the legislature to the contrary notwith

and prior to May 28, 1894, said Walker was standing. If the courts may do that in this

the owner in fee simple of the lands mencase, they may do it in every case, and hence

tioned in the complaint. Prior to March 16, I repeat what has been already stated, that

1894, Walker's wife died, and, after living such a principle subjects the action of the

as a widower for some time, he became delegislature, in all cases, to the control of an

sirous of again marrying, and formed the acother department of the government. The

quaintance of Gussie M. Wachestetter, who order appealed from should be reversed.

was his junior by many years, and whose

character, as is averred, at that time was PARKER, C. J., and HAIGHT and VANN,

bad. Soon after becoming acquainted with JJ., concur with GRAY, J., for affirmance.

this woman, William C. Walker, who was BARTLETT and MARTIN, JJ., concur with

then an old man, as is alleged, feeble in body O'BRIEN, J., for reversal.

and mind, invited her to come to his home

and reside, which she did, and there lived as Order affirmed.

a member of his family for about a month, during which time he proposed to her that

she marry him, which proposition she acceptWALKER et al. v. WALKER et al.

ed; and accordingly, on the said 16th day of (Supreme Court of Indiana. April 21, 1898.)

March, 1894, they were married at Hancock APPEAL-SưFFICIENCY OF ANSWER-DIVORCE-EF

county. Ind., and became husband and wife. FECT AS TO PROPERTY RIGHTS-CAPACI

During the time said Gussie M. resided in the TY OF PARTIES TO MARRY.

family of William C. Walker, prior to his 1. An answer directed to an entire complaint marriage to her, it is charged that he was must, in order to withstand a demurrer, be

under her influence and control, and by good as to all the causes of action stated in the complaint.

means thereof she wrongfully caused and 2. A decree of divorce adjudicates all prop induced him to execute an antenuptial conerty rights or questions growing out of or con tract, whereby he agreed and promised to nected with the marriage. 3. A decree of divorce affirms the capacity of

convey to her 80 acres of his land, being a the parties to enter into the marriage con

part of the real estate in suit; and it is altract.

leged that, in consideration thereof, she

agreed to marry him and live with him as a that the defendants Dudding and Moore, at true and loving wife, and to care for him as the time of the conveyance of said real estate long as he should live. After their said mar to them, knew of the provisions and stipriage it appears that Walker and his wife ulations contained in both the antenuptial moved onto the land in controversy, and she contract and the deed of Walker to his said then began to persuade and to induce him to wife, and knew that she had violated the convey the same to her, and finally procured same, and a disaffirmance of the deed by the him, on the said 28th day of May, 1894, by guardian is alleged, and the prayer is that warranty deed, to convey to her the lands in the antenuptial contract and the deeds in dispute. The real estate so conveyed to her controversy be set aside, and that the title to embraced the 80 acres mentioned in the ante the lands be quieted in the plaintiff. The nuptial contract, and the 36 acres in addi facts averred by the second and third paration thereto. It is also alleged that at the graphs are in the main similar to those altime William C. Walker executed this deed leged in the first, except in the second it is to his wife he was old and weak in both body charged that the plaintiff's ward, at and beand mind, and that she procured him to exe fore the execution of the antenuptial concute the same by means of promises, persua tract, and at the time of his said marriage to sions, and threats. The deed recites that it the defendant Gussie M. Walker, was a peris executed by the husband to his said wife son of unsound mind, and so continued to in consideration of love and affection, and is the commencement of this action. The third made in pursuance to the antenuptial con paragraph avers a breach of the antenuptial tract existing between the parties, and that contract on the part of the wife, and also her the purpose of said conveyance was to rest failure to comply with the provisions and at the time in the wife the real estate there. stipulations contained in the deed of conveyby conveyed; and the deed further provided ance to her, and it is therefore sought to set that, in consideration of the 36 acres con aside each of these instruments. Feyed in addition to the 80 acres, the grantee, Appellees unsuccessfully demurred to each or wife, in the event of the death of the para graph of this complaint, and thereafter grantor, her husband, was not to be entitled filed a joint answer in four paragraphs, all to claim or receive any sum or consideration of which except the fourth were subsequentout of the estate of the grantor, as his | ly withdrawn, and the latter is the only one widow or otherwise. It is further provided appearing in the record. This paragraph of therein that, in the event the grantee should answer, after admitting the execution of the not live with the grantor, or should abandon antenuptial contract and the deeds in conbim without just cause, and refuse to take troversy, proceeds to allege that while the care of him, as stipulated in the antenuptial said William C. and Gussie M. Walker were contract, then the conveyance was to be void husband and wife, and while they were livand the title to the real estate was to vest in ing together as such, under and in purthe grantor.

It was also provided in the suance of the terms of said antenuptial condeed that the antenuptial contract was to be tract and deed, all of which terms and concontinued in force, except as modified by the ditions, it is averred. have been faithfully stipulations in said deed. It is alleged that, complied with and performed on the part a short time after the execution of this deed of the said wife, she and her said husband, to his wife, Walker became of unsound mind, William C. Walker, for and in consideration and has so continued, and while in said con of $4,000, sold the land set out in the comdition, on December 3, 1894, his wife sold plaint to the defendants Dudding and Moore, the real estate to the defendants Dudding and by warranty deed, in which her husband and Moore, and by warranty deed, in which joined, conveyed the said realty to these dehe as her husband joined, conveyed the same fendants, who took possession thereof, and to these parties, who have ever since held it, have ever since held it in fee simple as their and now claim to be the owners thereof. It

own. It is averred that at the time these is charged that the consideration for the con lands were sold and conveyed to said defendFeyance of the said real estate, paid by Dud ants the antenuptial contract was voluntarily ding and Moore, was received by the wife, surrendered by the said William C. Walker and no part of the same was ever paid to the and wife to the defendants, and delivered up busband. It appears, however, by the stip to them for cancellation, and was subseulations and terms of the deed of Walker and quently destroyed; that after the said conwife to these defendants, that the land was veyance by Walker and wife, at the Decemconveyed to them subject to certain incum ber term, 1895, of the Hancock circuit court, brances therein mentioned, which they agreed the said William C. Walker instituted an to pay and satisfy. It also appears that, action in said court against his said wife, after the execution of the deed to Dudding Gussie M. Walker, for a divorce; that she and Moore by Walker and wife, she deport appeared to this action by her attorney, and ed herself in an unchaste manner, and fail filed her answer in general denial, and that ed to comply with the terms of the ante such proceedings were had between the parnuptial contract, or with the terms of said ties in said divorce suit in said court that on deed of conveyance, and finally left and aban- the 5th day of March, 1895, the court rendoned her said busband. It is also alleged dered its decree in favor of the plaintiff.

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William C. Walker, granting him a divorce from his said wife; that said decree was absolute, and not appealed from, and still remains in full force and effect; that after the execution of the deeds in dispute, and after said divorce was decreed in favor of Said William C. Walker, he was adjudged to be a person of unsound mind, and the plaintiff was appointed as his guardian. It is alleged that, by reason of said divorce decree, the rights of plaintiff's ward in respect to said deeds of conveyance, and the rights and interest of his ward in and to the real estate in controversy, have been adjudicated and forever set at rest, and that the plaintiff is not entitled, by reason of the facts alleged in said answer, to maintain the action, etc. Plaintiff demurred to this paragraph of the answer for insufficiency of facts, which the court overruled, and thereupon the plaintiff refused to further plead in the action, but elected to stand by his demurrer, and judgment was accordingly rendered in favor of the defendants. After the rendition of this judgment, and before the case was appealed to this court, plaintiff's ward died, and appellants, who are his children and grandchildren by a former marriage, and his only heirs at law, prosecute this appeal against the appellees, and assign that the court erred in overruling the demurrer to the fourth paragraph of the defendants' answer. The first paragraph of the complaint apparently proceeds upon the theory that the execution of both the antenuptial contract and the deed of conveyance by Walker to his wife were wrongfully procured by the means of her undue influence over her husband. There is no express charge made in this paragraph that plaintiff's ward, at the time he executed either of said instruments, was of unsound mind, but it seems from the averments that his mind became unsound after he conveyed the land to his wife, but before it was sold and conveyed to the defendants Dudding and Moore. The theory of the second paragraph is that Walker, at and prior to the marriage in controversy, was of unsound mind, and continued to be in such mental condition when he executed the antenuptial contract and the deeds involved in this suit. The theory of the third paragraph seems to be that the wife, being bound by the provisions and stipulations contained in the antenuptial contract, and by those embraced in the deed whereby the real estate was conveyed to her by her husband, failed to comply with or carry out these provisions, and thereby the title to the land had been forfeited. Counsel for appellants assert that the only question for our consideration in this appeal is, does a judgment divorcing a husband and wife settle all questions of property rights between such divorced parties? The answer here involved was directed to the entire complaint, and, upon the assumption that each paragraph thereof was sufficient in stating a

cause of action, it must, in order to withstand the demurrer, be good as an answer to all. Appellants insist that, so far as this pleading attempts to answer the second paragraph of the complaint, it is certainly bad, for the reason that it is alleged therein that William C. Walker, at the time of his marriage to the appellee Gussie M., was a person of unsound mind, and so continued until the commencement of this action; COInSequently, by reason of section 7290, Burns' Rev. St. 1894 (section 5325, Rev. St. 1881), which declares a marriage to be void when either party thereto at the time thereof is insane, they contend that said marriage was an absolute nullity, and all contracts between the parties thereto, growing out of or connected with it, likewise void. The subjectmatter involved in this action under each paragraph of the complaint is the real estate, the title to which the plaintiff seeks to have quieted as against all of the defendants. The appellees Dudding and Moore claim title to the land through the deed of conveyance executed to them by their co-appellee and her husband, William C. Walker. The title to this land, which Gussie M. Walker claimed to have, before she and her husband conveyed it to her co-appellees, was founded on the deed which her husband made to her in consideration of love and affection and in pursuance of the antenuptial agreement. It is evident that before the plaintiff can prevail in quieting title to the land in this action he would be compelled to avoid the deed of the ward to his said wife. By a long line of decisions, beginning with the case of Fischli v. Fishchli, 1 Blackf. 360, the doctrine has been generally affirmed and settled in this jurisdiction that a decree of divorce by a court having jurisdiction of the subject-matter and the parties is deemed and held to be an adjudication between the divorced parties of all property rights or questions growing out of or connected with the marriage. As a general rule, all such questions, unless excepted therefrom, are considered as put at rest by the judgment, and the parties thereto are precluded thereby until it is set aside in a proper proceeding. Muckenburg v. Holler, 29 Ind. 139: Rose v. Rose, 93 Ind. 179; Behrley v. Behrley, 93 Ind. 255; Hills v. Hills, 94 Ind. 436; Stultz v. Stultz, 107 Ind. 400, 8 N. E. 238; Nicholson v. Nicholson, 113 Ind. 131, 15 N. E. 223; Thompson v. Thompson, 132 Ind. 288, 31 N. E. 529: State v. Parrish, 1 Ind. App. 441, 27 N. F. 652. Such a decree, also, as between the divorced parties, conclusively settles the fact that they were duly married to each other, which, of course, implies the capacity of each to enter into the contract of marriage; or, in other words, the decree necessarily affirms the marriage, but frees the parties from the bonds thereof, and no proceeding can be maintained as long as it stands, to have the marriage, as originally contracted, declared void. The decree also precludes the parties

as to all matters which might have been leg Walker seems to have asserted an absolute itimately proven in support of the charges or claim of title to the land, and had sold the defenses in the action. 2 Bish. Mar. & Div. 8 same to her co-appellees for $4,000, which 766; 5 Am. & Eng. Enc, Law, p. 847; Prescott amount, it is alleged, was received by her; v. Fisher, 22 Ill. 390; Patton v. Loughridge. and, for aught that appears, she was still, 49 Iowa, 218.

at the time the divorce was granted, in posIn the light of the well-settled principles session of this amount of money received in to which we have referred, we may proceed consideration of the sale of said real estate, to determine the sufficiency of the answer.

and asserting a claim of title thereto. The It is apparent from the facts that the right fact that she had acquired a part of her huswhich Mrs. Walker claimed to the property band's estate in advance of the divorce achere involved grew out of or was connected tion was a matter which the court in that with the marriage, the relations of which suit had a right to consider as against any were terminated by the judgment in the suit claim for alimony made therein by her, eiinstituted by the husband for a divorce. The ther for the purpose of defeating such claim settlement of the lands by him upon her was entirely or to reduce the amount thereof. made, as we have seen, in pursuance of the Burns' Rev. St. 1894, § 1057 (Rev. St. 1881, antenuptial contract, and for the purpose of $ 1015; Horner's Rev. St. 1897, § 1015); Festing the title to the property in her at Morse v. Morse, 25 Ind. 156; Stultz v. Stultz, the time of the conveyance. She was to take supra. it, as the deed stipulated, in lieu of any claim The fact that the divorce was granted on or right by her in or to her husband's estate, the grounds of the misconduct of the wife, as his widow or otherwise. The answer and that the property by which she acquired discloses that the husband instituted the ac the money held by her at the time of the tion for a divorce in a court having juris- divorce suit may have been settled upon her diction; that the wife appeared to the suit by the husband by reason of her wrongful and filed her answer; that such proceedings acts in taking advantage of his alleged were had therein as resulted in the court mental infirmities, can make no material difawarding a judgment in favor of the hus ference in respect to the rule that the divorce band divorcing him and his said wife. All decree must, as long as it stands, be held to this occurred after the conveyances men have adjudicated all property rights aristioned in the complaint had been made, and ing out of or connected with the marriage, before the husband was adjudged to be a and that it confirmed in the wife the right to person of unsound mind and placed under the property or the money claimed by her guardianship. These facts the demurrer con at the time of the granting of the divorce. ceded to be true, and they fully, in our judg. Behrley v. Behrley, supra, and cases there ment, when tested by the rule affirmed by cited; Glaze v. Bank, 116 Ind. 492, 18 N. E. the authorities, preclude the plaintiff from 450. Where the wife proves recreant to her successfully maintaining this action. It is marriage obligations, and has destroyed the evident that, in the face of this decree, nei marital union by acts of adultery or other ther the divorced husband, nor any one rep gross misconduct, and her husband is thereresenting him, would be permitted to ques by entitled to a decree of divorce, the court tion or assail the validity of the marriage granting the same has the discretionary between him and his divorced wife. Under power, and, under proper circumstances warthe circumstances, the decree must stand ranting the same, will generally exercise it, and be accepted as precluding or estopping and allot to the injured husband such a porelther Walker or his guardian from assert tion of the property or means which he had ing, as against his wife, in a collateral pro settled upon the wife as will place him in ceeding like this, that he was insane, either the position, to some extent at least, which at the time of the marriage, or at the time he would have occupied had the union conbe sued for and obtained the divorce. Plain tinued. 2 Bish. Mar. & Div. § 509a; Stultz tiff's ward must, consequently, be consider v. Stultz, supra. All such matters, under ed to have been sane when he instituted his the firmly-established rule, must be deemed action and secured the divorce, and there to be by the judgment res adjudicata, and fore fully competent to have demanded and neither the divorced husband, nor those procured to be properly adjusted and adju- | claiming to represent him, will be permitted dicated in that suit all matters of property to bring such property questions again into rights arising out of the marriage, and in issue as against the divorced wife or those controversy between him and his said wife. claiming through her. The role which preHe is presumed to have known that, when cludes the parties in this respect is a saluthe marriage relations between them were tary one, as it certainly would not be proper dissolved by the divorce, she could no longer after the divorce to leave open and unsetlive with him as his wife, nor care for him tled questions in regard to property which as such, as the complaint charges she agreed the wife might have received from the hus. to do, in consideration of his settling upon band during the marriage. It must follow, her the property in dispute. Before the ac therefore, from what we have said, that the tion for a divorce was commenced, Mrs. paragraph in controversy was substantially

sufficient as an answer to the complaint as an entirety, and the court did not err in overruling the demurrer. The judgment is affirmed.



Rights OF SURVIVING HUSBAND. 1. Delivery of a deed being essential to its execution, where the maker dies before it is delivered the deed is void.

2. Where a father made a deed to his son, but did not deliver it, and in his will stated that he had conveyed the land to his son, and directed a deed to be delivered at his death, the word “conveyed" is not conclusive that the deed had become effective by delivery, and the deed and will must be construed together, so that a provision in the latter making a legacy a charge on the land will be enforced.

3. An objection to evidence as incompetent, irrelevant, and immaterial is too general to present any question.

4. Where a father bequeathed to his daughter a legacy, and made it a charge on land, and the daughter died before it was all paid over, a mortgage on the land, in which her mother joins, and foreclosure thereof, will carry the mother's interest in the balance of the legacy, which she had as heir to her daughter, under Rev. St. 1891, § 2650 (Rev. St. 1881, $ 2489).

5. Under Rev. St. 1894, § 2650 (Rev. St. 1881, $ 2489), giving the husband all his deceased wife's estate provided it does not exceed a certain sum, to entitle the husband to claim the whole the burden is on him to show that the estate was less than the amount specified.

6. Where the wife died possessed of a legacy which was a charge on land, and her mother had disposed of the interest by mortgage which she had therein as her daughter's heir, the husband cannot claim the entire legacy, though, in an action to enforce the lien, the mother disclaimed all interest.

7. Presumptions are in favor of intestacy.

Appeal from circuit court, Wabash county; H. B. Shively, Judge.

Action by Thomas W. Moore against the Mortgage Trust Company of Pennsylvania and others. From a judgment for plaintiff, defendant trust company appeals. Reversed.

McConnell & McConnell, for appellant. Royce & Cook and Pettit & Stitt, for appellees.

survived the grantor. It is further alleged that the deed so made was never in any manner delivered to said grantee, but was retained by said grantor until his death, in February, 1889, during which time he remained the owner and continued in possession of said land; that on the 12th day of February, 1889. said John Makemson executed his last will, containing, among other provisions, the following: "Item 8. I have conveyed to my son William G., by deed,” the land above referred to, “upon certain conditions therein mentioned, which said deed I retain until my death, and at my death to be delivered to him. This is to be in full of his interest in my estate, and he is to pay my daughter, Alice Moore, twenty-two hundred dollars, and I charge said land with the payment of said sum.” “Item 10. I will to my daughter. Alice Moore, the sum of twenty-two hundred dollars, which I have herein directed to be paid to her by my son William. "Item 12. I expect to pay my daughter, Alice, on the twenty-two hundred dollars due her from my son William herein provided. the principal of the two notes executed to me by Harvey Oram, bearing date August 11tb. 1887, each calling for the sum of $766.66, if I collect the sum during my lifetime; but, in case said notes are not collected during my life, then I bequeath them to my son William at my death, who is to collect said notes, and pay the amount collected on the twenty-two hundred dollars which he is to pay to said Alice, as herein directed. Item 13. The lands described herein as being conveyed to my son William and my son Homer, by deeds, which said deeds I retain during my life, comprise my old home farm. During my lifetime I am to receive from said lands full maintenance and support, each of my said sons contributing an equal amount. Beyond this amount, my said sons are to receive the rents and profits of said lands as their absolute property. To secure my said support and maintenance, I retain said deeds during my lifetime; at my death, said deeds to be delivered to my said sons, each of them being bound, however, to perform the conditions contained in said deeds." After the death of John Makemson, it was alleged said deed to William G. was delivered and recorded, and said will was duly probated; that William G. paid to Alice Moore, on the charge in said will against said land, $1,466.66, but that no other sum was ever paid thereon, although demanded of said William by said Alice: that said William sold and conveyed said lands to Homer E. Makemson, subject to said charge and lien, said Homer agreeing and undertaking to pay the same. leged also that said Alice had died, leaving said Thomas as her only heir, and that no debts remained against her estate; that he, said Thomas, had demanded from William and from Homer the balance of said charge. Sarah A. Makemson, the mother of said

HACKNEY, J. This was a suit by Thomas W. Moore against his co-appellees and the appellant, the Mortgage Trust Company of Pennsylvania, to enforce a lien upon real estate created by the deed and last will of John Makemson. The sufficiency of the complaint is the first question presented. It alleged that John Makemson, on the 3d day of July, 1888, his wife joining, made a deed for 100 acres of land in Kosciusko county, to his son William G. Makemson, said deed containing a condition that the grantee should execute his note to the grantor's wife for a stated Bum per annum during her lifetime, if she

It is al.

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