BURNETT v. Hatch

266 P.2d 414, 200 Or. 291, 1954 Ore. LEXIS 178

• Court: Oregon Supreme Court
• Decided: January 27, 1954
• Status: Published

Opinions

PERRY, J.

This is a suit brought by the plaintiffs to quiet their title in and to certain real property described us follows:

“Lots Twelve (12), Thirteen (13), Fourteen (14), Fifteen (15), and Sixteen (16), Block 7 of Central Point, Jackson County, Oregon.”

The defendant appeared, alleging an interest in the real property above described, and the trial court determined upon plaintiffs ’ motion for a judgment on the pleadings that the defendant had no interest in or to the said real property, thereupon quieting the title in the plaintiffs free and clear of defendant’s claims. From this adverse ruling the defendant has appealed.

The plaintiffs’ complaint is in the customary form, alleging that they are the owners in fee simple of the real property described therein, and in sole possession thereof, subject to a mortgage executed by the plaintiffs to C. E. Gilkey and Grace Gilkey, husband and wife, on the 27th day of June, 1951, and duly recorded, and calling upon defendant to set up any claim, or claims, she may have in or to the real property.

The defendant answered, denying the plaintiffs’ ownership, admitting the mortgage to C. E. Gilkey and wife, and by what she terms an “answer and counterclaim” (but which in fact is no more than an answer), sets forth the following facts: That she was prior to March 31, 1952, the wife of one Hugh Rae Hatch, also known as H. R. Hatch, having obtained a divorce from the said Hatch on that date; that the decree of divorce awarded to her, as her separate property, the property described in plaintiffs’ complaint; that her husband had conspired with one Morris Bailey to convey the property to the said Morris Bailey to defraud the defendant of her rights in the property, and that in accordance with the conspiracy, conveyance was made on April 28,1946, and duly recorded; “that at the special instance and request of Hugh Rae Hatch a portion of the purchase price of said premises was paid from the personal funds of Eva M. Hatch”; that after the conveyance to Bailey, defendant’s husband left the state of Oregon and has since evaded service of process and attempts to contact him; that the plaintiffs and their predecessors in title took the conveyance to the property with full knowledge of the defendant’s rights; that on September 15, 1945, a judgment was entered in the divorce suit in favor of the defendant for the sum of $200 as temporary support money, and for the further sum of $100 as attorney’s fees, that had not been paid or satisfied.

The plaintiffs filed an answer to the so-called counterclaim (which in fact is a reply to the defendant’s answer), and admitted that Hugh Rae Hatch and the defendant had been husband and wife, and for a portion of the time that this relationship existed Hugh Rae Hatch had been the owner of the land in question, in which defendant had a dower right; that Hugh Rae Hatch had commenced a suit for divorce against the defendant Eva M. Hatch, and that subsequent to the commencement of the divorce suit the husband had conveyed the property to Morris Bailey, and subsequently through other hands to these plaintiffs; and admitted that there had been entered a judgment in favor of Eva M. Hatch in the sum of $200 as temporary support money, and the sum of $100 as attorney’s fees, on September 15, 1945. Plaintiff also admitted that in the final divorce decree of March 31, 1952, the trial court had awarded to the defendant as her separate property the property in question. By way of a further answer, plaintiffs alleged that the complaint as filed by the defendant’s husband, Hugh Rae Hatch, in the divorce suit did not describe any of the real property, and particularly the property in question, nor did the answer in the divorce suit as filed by the defendant describe the real property or pray for an award of such real property as alimony (a copy of plaintiff’s complaint and of defendant’s answer in the divorce suit is incorporated by reference in the answer of the plaintiffs ’ in the suit before ns); that on the 31st day of March, 1952, the date of the trial of the divorce suit, by leave of the trial court an amendment was made in the defendant’s answer describing the real property in question, and on that date a decree was entered granting the defendant a divorce from Hugh Rae Hatch and setting off to her as her sole property the property in question (all of which is shown by the decree, a copy of which was incorporated by reference and made a part of the plaintiffs’ so-called answer to the counterclaim) .

Subsequent to the filing of the plaintiffs’ so-called answer to the counterclaim, the defendant filed a so-called “reply to answer to the counterclaim” (which in fact, if allowed by the Code of this state, should have been designated as a “rejoinder”). By this pleading defendant admitted all of the pleadings in the divorce case, including the allegation that the real property in question was not described in the original pleadings in the divorce suit until defendant’s cross-complaint was amended by interlineation at the time of trial thereof.

The defendant contends that, having denied plaintiffs’ title, it was incumbent upon plaintiffs to offer proof sufficient to sustain their title. However, the defendant, as shown above, admitted that the legal title had been in her husband and was transferred by him to one of plaintiffs’ predecessors in title and through them to the plaintiffs. Having admitted the existence of the legal title in the plaintiffs, the burden of showing a superior right and title to the property rested with the defendant, and if her pleadings fail to show such lawful right, she cannot complain. Durkin v. Ward, 66 Or 335, 133 P 345; 44 Am Jur 68, Quieting Title, § 83.

The defendant also contends that by reason of her advancing, at the request of her husband, some funds which were used in the purchase of the real property, and the husband having later “fraudulently transferred” this property, a resulting trust was created therein for her benefit. The allegation upon which the defendant relies reads as follows:

“That this defendant was the wife of Hugh Rae Hatch, also known as H. R. Hatch; that during the marriage of said parties, said Hugh Rae Hatch took title in his name to the lots set forth in paragraph one of the plaintiffs’ complaint; namely, Lots 12 through 16, Block 7, to Central Point, Jackson County, Oregon, and that at the special instance and request of Hugh Rae Hatch, a portion of purchase price of said premises was. paid from the personal funds of Eva M. Hatch.”

This court is committed to the proposition “that, where the purchase price is furnished by the wife and title to the property taken in the name of the husband, a resulting trust is presumed in favor of the wife.” Rhodes v. Peery, 142 Or 165, 173, 19 P2d 418. The plaintiffs contend that this does not describe “an aliquot share or specific portion” of the property or that payment has been made out of “commingled or indistinguishable” trust funds. However, the pleading was not attacked either by demurrer or by a request that it be made more specific, definite and certain. So whether or not a trust in the property did in fact exist is a question to be determined by the trial court from the facts disclosed upon a trial of this matter.

The defendant also contends that the trial court was in error because the transfer of the real property by defendant’s husband to one Morris Bailey was made pending the divorce case for the purpose of defrauding her and was accepted by the grantee with knowledge of that purpose. The pleadings of the divorce suit (admitted by all parties) show that at the commencement of the suit the defendant was asking solely for a money judgment, and if any fraud was committed upon her it would be the prevention of the enforcement of such money judgment as she might receive by way of the decree. However, no money as alimony in gross was recovered in a judgment by her, and in such a situation the cases of Griffith v. Griffith, 74 Or 225, 145 P 270; Weber v. Rothchild, 15 Or 385, 15 P 650; and Barrett v. Barrett, 5 Or 411, are not applicable.

We need not determine at this time whether or not the doctrine of lis pendens is applicable in divorce cases [see 166 ALB, 406] as we are of the opinion that if the doctrine is to apply the better rule requires that it is incumbent upon a party to fully describe in a pleading the real property claimed and request that the property, or an interest therein, be set apart to the claimant.

There is also another issue of fact raised by the pleadings in paragraph IV of defendant’s affirmative answer which reads as follows:

“That Eva M. Hatch on the 31st day of March, 1952, secured a decree of divorce on her cross complaint against Hugh Bae Hatch, which decree awarded to her as her separate property the above described Lots 12 through 16, Block 7, of the City of Central Point, Jackson County, Oregon.”

This allegation in effect charges that Hugh Rae Hatch was the owner of the real property on March 31,1952, and that his interest therein, if any, was by the decree of the court transferred to the defendant. Therefore, if the plaintiffs are in fact the holders of only the legal title, and the equitable title rested in Hugh Rae Hatch at the time of the divorce decree, the defendant by the decree became the owner of that equitable interest.

The plaintiffs contend, however, that the decree of the divorce court was void by reason of the fact that no notice was given to Hugh Rae Hatch, the plaintiff in the divorce suit, of the proposed amendment as allowed by the court.

While it is true that divorce suits are commenced in a court of general jurisdiction, a circuit court when acting in such matters is “exercising a special power conferred upon it by statute, and not according to the course of the common law”, and is “a court of special and inferior jurisdiction, such jurisdiction being limited by the terms of the statute conferring the power. Northcut v. Lemery, 8 Or 316, 322”. Garner v. Garner, 182 Or 549, 555, 189 P2d 397. When, however, the necessary jurisdictional facts are established, the force and effect of such a judgment is that of a valid judgment established in a court of general jurisdiction. 49 CJS 851, Judgments § 428; Steiwer v. Steiwer, 112 Or 485, 230 P 359; Shaveland v. Shaveland, 112 Or 173, 228 P 1090.

Generally, the existing elements of a court’s jurisdiction are, (1) that the court has been granted the authority to exercise its powers in relation to the nature of the relief sought, (2) that the proper parties are, in contemplation of law, present in court, and (3) that if a particular thing is to be effected by the court’s action, this thing must be within the territorial limits of the court. Dippold v. Cathlamet Timber Co., 98 Or 183, 189, 193 P 909.

It must be conceded that the circuit court of Jackson county was granted the power to hear and determine the matter of a change in the marital status of Hugh Eae Hatch and Eva M. Hatch, the defendant in the case before us, and as incidental thereto, to provide a money judgment for the support of the defendant (§9-914, OCLA, as amended by Oregon Laws 1947, ch 228), and, also, to provide for a change of interest in the real property of the party in fault (§ 9-912, OCLA as amended by Oregon Laws 1947, ch 557). The pleadings show that both Hugh Eae Hatch and the defendant herein personally appeared in the divorce suit, and' that the property involved by the decree was in Jackson county, Oregon; thus all of the necessary jurisdictional facts appear. The contention of the plaintiffs then resolves itself into whether or not the failure to give notice of the proposed amendment to the other party before the amendment was made in the divorce suit is jurisdictional so that that portion of the decree is void not merely voidable. Section 1-1006, OCLA, reads as follows:

“The court may, at any time before trial, in furtherance of justice, and upon such terms as may be proper, allow any pleading or proceedings to be amended by adding the name of a party, or other allegation material to the cause; and in like manner and for like reasons, it may, at any time'before the cause is submitted, allow such pleading or proceeding to be amended, by striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect, or when the amendment does not substantially change the cause of action or defense, by conforming the pleading or proceeding to the facts proved.”

and § 9-107, OCLA, provides that this statute shall be applicable to suits in equity.

From the above it is seen that the matter of allowing amendments and the terms upon which they may be proper, before submission of the cause, insofar as the amendment “does not substantially change the cause of action or defense”, rests in the sound discretion of the trial court, and it is only upon an abuse of this discretion that this court will reverse. Klingbeck v. Mendiola, 138 Or 234, 6 P2d 237; Filkins v. Portland Lumber Co., 71 Or 249, 251, 142 P 578.

It is unquestionably an abuse of discretion for a court to permit a material amendment without notice to and in the absence of an adverse party. “It can hardly be said that a material amendment of a pleading, made in the absence of an adverse party and without notice to him, would be in furtherance of justice.” Avery v. Jayhawker Gasoline Co., 101 Olda 286, 225 P 544, 546. And the abuses of discretion of the trial court, if it should be considered such under the facts as set forth in the pleadings in this case, could be corrected only in a direct proceeding on appeal. Ulrich v. Lincoln Realty Co., 175 Or 296, 304, 152 P2d 255; Ralston v. Stone et al., 113 Or 506, 519, 232 P 631.

The plaintiffs herein were not parties to the divorce suit, and they could not be injuriously affected by the judgment-in that case, it being their contention that prior to the decree being entered therein Hugh Rae Hatch had parted with all of his right, title and interest in and to the real property in question. The only party affected would be Hugh Rae Hatch, if, as the answer alleges, he is in fact still the owner of an interest in the real property. Ulrich v. Lincoln Realty Co., supra.

Hugh Rae Hatch was cognizant of the fact that he had commenced a divorce proceeding in the circuit court to which an answer and cross complaint had been filed alleging that he was the owner of real property in Jackson county, Oregon; that the trial of the issues would be heard on a day certain; and a duty was imposed upon him to keep apprised of this fact. 52 Am Jur 32, Trial, § 10. He also knew that the trial court had power to permit amendments at the time of the trial so that an inadequate description could be made more definite and certain. Justice Lord, speaking in Wright and Jones v. Edwards, 10 Or 298, 305, said:

“ * * * It is true that vagueness, inaccuracy, or mistake in the description of lands will not vitiate the proceeding and render the sale a nullity when collaterally assailed, and rights of property have attached. The courts very properly hold, when jurisdiction has attached by the statement of proper facts, although defectively alleged, and by some inadvertence the lands are imperfectly described, the sale cannot be collaterally attacked * *

The case of Henderson v. Henderson, 85 Cal App 2d 476, 193 P2d 135, appears to be very closely in point. This was a collateral attack on a decree in an annulment suit which awarded certain real property to the wife. The description of the real property in the complaint was as follows: “Equity in real and personal property, situated in Shasta County, California, and standing in the joint names of the plaintiff and defendant herein.” It was urged that the judgment was void because all description of the real property was different from that in the complaint. The court said that the description was sufficient to enable an officer upon execution to identify it and sufficiently certain to give the court jurisdiction over it. The court continued:

“Counsel for appellant cites cases such as Flores v. Smith, 47 Cal. App. 2d 253, 117 P.2d 712, holding that where a default judgment describes real property differently than it is described in the complaint the judgment is erroneous and will be reversed on appeal or other direct attack. These cases are not in point where the attack is collateral. ‘A mere erroneous decision on a question of law * * * does not make the judgment void, if the court had jurisdiction of the subject matter and of the person of the defendant.’ Wells Fargo & Co. v. City and County of San Francisco, supra, 25 Cal.2d 37, 40, 152 P.2d 625, 627. Nor are such eases as Petition of Furness, 62 Cal.App. 753, 218 P.61, where the description in the complaint and the description in the judgment on their face refer to different parcels, in point. Here the judgment refers to the same property described in the complaint, real property in Shasta County held in joint tenancy by the parties. The presumptions are in favor of the validity of the judgment and any facts consistent with its validity will be presumed. Wells Fargo & Co. v. City and County of San Francisco, supra, 25 Cal.2d 37, 40, 152 P.2d 625. As said in Scarf v. Aldrich, supra, 97 Cal. 360, 368, 32 P. 324, 327, ‘the defective description in the petition and order to show cause did not affect the jurisdiction of the court, or the validity of the sale by the correct description # * (193 P2d 138)

See also Annotations, 111 ALR 1200.

Our decision in Mumper v. Matthes, 186 Or 357, 206 P2d 86, bears on the question. The case involves an administrator’s sale in which the description of the land to be sold omitted the fourth boundary line and the description of the easterly boundary line was unintelligible, (p. 370). The sale was held to be void on collateral attack, but the opinion points out on page 370 that “No attempt was made to correct the error, either in the petition, the order for sale, the published notice of sale, or the order confirming the sale.” The case is, therefore, distinguishable.

Also, the evidence in the divorce case as disclosed by the pleadings in this suit shows that Hugh Rae Hatch owned but this one piece of property in Jackson county.

We are of the opinion, under the alleged and submitted circumstances as shown by the exhibits of the proceedings in the divorce case, that if the divorce court abused its discretion in the matter of allowing the amendment, the judgment was at most voidable and not void.

In passing, we feel that we should note that the answer of the defendant alleges a judgment of temporary suit money and attorney’s fees recovered and unpaid in the divorce suit prior to the transfer of title of the real property by Hugh Rae Hatch, which allegation is admitted by the plaintiffs. This judgment became a lien upon the real property by reason of subd (4), §9-913, OCLA, (now subd (5) as set out and amended by ch 142 §1, Oregon Laws 1945), passed subsequent to our decision in the case of State ex rel. v. Tolls, 160 Or 217, 85 P2d 366, 119 ALR 1370.

The above cause will be reversed and remanded that the trial court may determine the interest, if any, of the defendant in the real property arising out of any interest Hugh Rae Hatch may have had therein on the 31st day of March, 1952, and for such other proceedings as are not inconsistent with this opinion.