Fall v. Fall

106 N.W. 412, 75 Neb. 104, 1905 Neb. LEXIS 378

• Court: Nebraska Supreme Court
• Decided: December 6, 1905
• Docket: No. 13,737
• Status: Published

Opinions

Sedgwick, J.

This controversy relates to a quarter section of land in Hamilton county. The plaintiff bases her right in the land upon a decree of the superior court of King county in the state of Washington. In 1876 the plaintiff and Edmund W. Pall intermarried in the state of Indiana. Afterwards they removed to this state and became the owners of the quarter section of land now in controversy. After residing here for some years they removed to the state of Washington, and, being residents there, an action for divorce was begun by the plaintiff’s then husband. In this action she answered, denying that any cause for divorce existed against her, and in her cross-petition she asked that it might be found that she was entitled to a divorce, and that a decree in her favor be rendered accordingly. The court decreed a divorce in her favor and also by the decree gave her the land in dispute herein. Under this decree the plaintiff took possession of the land in October, 1895, and has ever since been in the actual possession and occupancy of the land. Afterwards her former husband, the said Edmund W. Pall, conveyed the land in question to the defendant Elizabeth Eastin. The plaintiff brought this action; setting out a full statement of the rights which she claimed in the land and the facts which she claimed supported these rights, and prayed, among other things, that her title in the land be quieted and “for all other proper and equitable relief.” Much is said in the pleadings and evidence in regard to the conveyance from Edmund W. Pall to the defendant Elizabeth Eastin, who is his sister, it being claimed, upon the one side, that the land was purchased by Mrs. Eastin in good faith and for full consideration, and, on the other, that the sale was fraudulent. But as Mrs. Pall took possession of the land under the decree before the conveyance to Mrs. Eastin, the latter would, of course, be charged with constructive notice of the rights of the plaintiff, and, as against the plaintiff, would take no further or greater rights than those of her grantor in the conveyance. We will first inquire as to the effect of the decree, and the rights, if any, that the plaintiff took thereunder in the land in question.

1. At the time the divorce proceedings were pending in the state of Washington, and when the decree was rendered therein, the statute of that state provided: “In granting a divorce, the court shall also make such disposition of the property of the parties as shall appear just and equitable, having regard to the respective merits of the parties, and to the condition in which they will be left by such divorce, and to the party through whom the property was acquired, and to the burdens imposed upon it for the benefit of the children, and shall make provision for the guardianship, custody, and support and education of the minor children of such marriage.” 2 Codes & St. sec. 5723, p. 1598. It is contended that the decree entered in pursuance of this statute in the state of Washington could have no extraterritorial effect upon real estate situated in another state, or the rights of the parties therein, and this appears to be the gist of the whole contention between the parties. It is clear that the statute in question gives to the court in divorce proceedings complete equitable jurisdiction over the property of the parties situated within the state. The language is apt and pertinent for that purpose. A court that makes a just and equitable disposition of the property of parties litigant in an action is a court of equity and the distribution of the property is, at least in part, the subject matter of the litigation. If, indeed, there could be any doubt in other jurisdictions as to the intention of the legislature in enacting this law, and the force and effect thereof in conferring equitable powers upon the trial court, that doubt has been resolved by the supreme court of that state. In Webster v. Webster, 2 Wash. 417, the court, in construing this statute, said:

“This statute, however, provides that when coverture is to be broken, and the marriage relation dissolved, the parties shall bring into court all their property, and a complete showing must be made. Each party must lay down before the chancellor all that he or she has, and, after an examination into the whole case, he makes an equitable division. * * * We are clearly of the opinion that par. 2007 of the code confers upon the court the power, in its discretion, to make a division of the separate property of the wife or husband.”

And, indeed, the parties themselves so considered it. The plaintiff in that case set out a description of the land here in Nebraska, with* other property owned by the parties, alleged its value, and asked the court to make an equitable disposition of it under this statute; and the plaintiff here, who was the defendant in that action, also in her cross-petition described this land, and asked the court to determine the rights of the parties to all the property which they owned, including this land in question. The findings and decree of that court were full and covered all of the issues in the case presented by the pleadings, and adjudged the issues so determined in favor of the defendant in that action, who is the plaintiff here. It may be further observed that in that case it was alleged in her cross-petition, by this plaintiff, that the parties to that action had, by their joint efforts as husband and wife, accumulated the property which they held, including the land in question here; and the court especially found that that allegation of her cross-petition was true, and that the property which Mr. Pall had already used for his personal benefit, together with that given him by the decree, was his equitable part of all the property of both parties. The same allegations are embraced in the petition in this case, and the trial court found especially that they were true, and that the plaintiff had contributed equally to the accumulation of the property, including this land in dispute. The findings of fact of the trial court in this case are also quite comprehensive. These findings were not questioned in the oral arguments, nor do the briefs point us to any failure of the evidence to support them. We will, therefore, in the further consideration of the case, consider these findings as the established facts in the case.

Giving full faith and credit to the decree of the Washington court, as the federal constitution requires us to do, the question is what rights in the land in question the plaintiff derives from that decree. It is suggested in the brief that, “on a cause of action which is purely local, a judgment respecting property that is not within the jurisdiction of the court rendering the judgment should not be enforced by* the courts of another state where the property is situated.” In pursuance of this argument a quotation is made from 2 Black, Judgments, sec. 933, where it is said that, if a judgment in an action for divorce goes further than to determine the status of the parties, and assumes to adjudicate other matters, no personal liability can be imposed on the defendant, “unless there is jurisdiction of his person acquired by a proper service of process.” We do not quite understand -why this argument is made. In this case the defendant here was the plaintiff in the divorce proceedings and, of course, there could be no question of jurisdiction of his person.

It is contended in the briefs that the decree of the Washington court and the proceedings afterwards had in that court pursuant to the decree did not and could not have the extraterritorial effect to transfer any title, either legal or equitable, in the land situated in this state to the plaintiff in this action, and that she cannot maintain this action without such title. Thé foundation for this contention is that, under our statute, in an action to quiet title the plaintiff must allege and establish on the trial either a legal or equitable title. It is essential that “he have title, and the relief must be obtained on the strength of his own title, and not on the weakness of his adversary’s.” But this suggestion, of course, assumes the proposition that is being discussed. The question under consideration is whether the plaintiff obtained any title, either legal or equitable, in this land by virtue of that decree. Thus, in Blodgett v. McMurtry, 39 Neb. 210, one of the cases cited by the defendant upon this question, it is said:

“In an action having for its object the declaration of a trust in land in favor of the plaintiff and the quieting of title in him, it is incumbent upon the plaintiff to affirmatively establish an equitable title in himself, and if he fail to do so, the nature of defendant’s title or the existence of any title in defendant, is immaterial.”

By the statutes of this state the court in a divorce proceeding has no power to set apart real estate to either party or to make any equitable division of the real estate of the respective parties. And it is urged in the brief that our courts would not be competent to render such a decree as was rendered by the superior court of Washington, and from this fact it is argued that by the decree in the court below an effect was given to a judgment of a sister state which no court in this state could have rendered. But in our state the courts may in divorce proceedings adjust the equitable rights of parties in property, if such equitable rights exist, and judgments for alimony in divorce cases become liens upon real estate of the party against whom they were entered, and by a sale under such lien the title to the real estate is transferred. The question therefore raised by the foregoing-suggestion is one of practice rather than one of substantive law. The methods provided by the law of Washington for adjusting the rights of the parties to a divorce proceeding cannot be said to be in conflict with the general policy of the laws of this state. On the other hand, the results aimed at are, in substance, the same, the intention in both states being to give each party a fair share of the property which they have accumulated in common. The superior court of Washington is a court of general jurisdiction. It lias full power to settle all equities of the parties, and by the statutes of that state it was confided to the court to make an equitable adjustment and distribution between the parties of all the property owned by them both, or, in the language of the court of last resort in that state, it is the duty of the parties to an action for a divorce to bring into court all their property. “Each party must lay down before the chancellor all that he or she has, and, after an examination of the whole case he makes an equitable division.” No clearer language than this could be used to indicate that the divorce courts there have general equity jurisdiction over the property and property rights of the parties, and that the decree of the court in such a case is a decree in equity as to the property of the parties, and fixes and disposes of their property rights in the same manner as do decrees in equity in courts of general jurisdiction in actions brought for the purpose of determining the equities of the parties in specific property. It cannot, of course, be doubted that, if by the law of the state where the parties reside one of the parties is given equity in property, and, in a proper case for that purpose, the courts of that state find and adjudicate that right to exist, the courts of another state will not refuse to recognize that decree, and give the full faith and credit, solely on the ground that under its laws the equitable rights of. the parties could not have been adjudicated in the form of action used in the court rendering the decree. We see no reason why the rules that obtain in the adjudication and adjustment of partnership rights would not be applied here. In an action in equity to settle partnership' affairs the property of the partnership is considered to be in court for the purpose of the full adjustment of the rights of the partners in the property ; and so here, the law required that all of the property of the parties to the divorce proceedings be brought into court, so that the court might do what the statute required it to do — “make such disposition of the property of the parties as shall appear just and equitable” — and when the parties have by their pleadings so brought the property into court, we see no reason why the force and effect of the decree should not be as full and complete as in similar proceedings for the adjustment of partnership rights and equities.

In Burnley v. Stevenson, 24 Ohio St. 474, the court declared the rule to be:

“A court of equity in one state, having acquired jurisdiction over the persons of the parties, may enforce a trust, or the specific performance of a contract, in relation to land situate in another state. Although the decree in such case, or the deed of a master executed in pursuance thereof, cannot operate to transfer the title to such lands, yet the decree is binding upon the consciences of the parties, and concludes them in respect to all matters and things properly adjudicated and determined by the court. When the decree in such case finds and determines the equities of the parties in respect to such land, and directs a conveyance by the parties in accordance with their equities, such decree, although no conveyance has been executed, may be pleaded as a cause of action, or as a ground of defense in the courts of the state where the land is situated; and it is entitled, in the court where so pleaded, to the force and effect of record evidence of the equities therein determined, unless it be impeached for fraud.”

In an action for that purpose in the courts of Kentucky, a judgment was entered, decreeing the specific performance of a contract to convey lands in Ohio. Parties avIio derived title from the plaintiff, who obtained the decree in the Kentucky court, set up that decree as a defense in an action in Ohio brought to recover possession of the land in the latter state. The defense was sustained. The court said:

“That courts exercising chancery powers in one state have jurisdiction to enforce a trust, and to compel the specific performance of a contract in relation to lands situate in another state after' having obtained jurisdiction of the persons of those upon whom the obligation rests, is a doctrine fully settled by numerous decisions.”

Counsel for the defendant in their brief quote at length from the statement of facts in the opinion in this case, and then say: “This statement of facts clearly shows that the action in the state of Kentucky was based upon the contract to convey by Scott, the ancestor of plaintiffs. When a suit is instituted upon a contract and the court acquires juriscfiction of all the parties to be affected thereby, its judgment is a legal construction of that contract and will bind the parties. Such construction, Avhich becomes a part of the contract, can be plead as the true and legal construction, although a suit thereon be instituted in a foreign jurisdiction.” But such judgment of the court not only affects, but necessarily determines the rights of the parties to the land lying in another state; so that it is not correct to say that no judgment of a court of one state can affect the rights of the parties in real estate lying in another state. Again, if the courts of one state have jurisdiction to affect and virtually determine the equitable rights of parties in real estate lying in another state by construing the contracts of the parties in relation thereto, that is, by determining Avliat equities between the parties their contracts have raised, why may they not also determine what equities betAveen the parties the laAV and their respective contributions to accumulating the property, and their conduct toward each other have raised? Counsel say that “such construction, AAdiich becomes a part of the contract, can be plead as the true and legal construction, although a suit thereon be instituted in a foreign jurisdiction.” That is to say, in a suit in one state to establish equities in land and to quiet title thereto, the plaintiff may plead the judgment of the courts of another state determining what his rights in the land are, if those rights arise from a contract; and such judgment is conclusive, it will not admit of contradiction. But if the rights of the plaintiff depend upon equitable considerations arising from the relation and the condition of the parties, and the amounts.they have respectively contributed toward its purchase, such judgment has no binding force. This distinction seems not to be based upon any difference in principle. The Washington court, as has already been suggested, by the law of that state, had undoubted jurisdiction of all of the equities of the parties, and it was expressly made the duty of the court, by the law of the state, upon separating the parties, to adjust and declare what their equitable rights were in all of the property which they both possessed. We do not see Avhy its judgment upon these issues should 'not have the same force in determining the rights of the parties to real estate situated in another state, as though those rights originated in an express contract between them.

In Pingree v. Coffin, 12 Gray (Mass.), 288, 304, the court said:

“The fact of the situs of the land being without the commonAvealth does not exempt the defendants from jurisdiction, the subject of the suit being the contract, and a court of equity dealing Avitli persons, and compelling them to execute its decrees and transfer property within their control, Avhatever may be the situs. These defendants having been found Avitliin the jurisdiction of the court, and served with its process, and having appeared and answered originally Avithout objection to the jurisdiction, Avill not be presumed to be Avithout its jurisdiction so that its decrees cannot be executed. If ‘such event should occur, it Avill be time to determine Avliat remedies the plaintiff might have. But it seems that their personal property Avithin the commonAvealth might be sequestered. 2 Daniel, Chancery Practice, 123G, 1237. The court might retain the bill, and, under the general prayer for relief, mould the decree to one of damages for nonconveyance. Andrews v. Brown, 3 Cush. 136; Peabody v. Tarbell, 2 Cush. 226. And a decree of this court might be a foundation for other courts to compel performance specifically.”

In the state of Washington, in an action to dissolve marriage, the subject of litigation is the marriage status, and the equitable rights of the parties in the property of both upon their separation, and so, the action being in personam, a decree of that court in such action “might be a foundation for other courts to compel performance specifically.”

Dull v. Blackman, 169 U. S. 243, 18 Sup. Ct. Rep. 333, was an action brought in Iowa to compel reconveyance of real estate situated in that state on the ground of the defendant’s failure to advance money thereon as agreed. A defense set up in the action by an amended answer was that a judgment had been recovered in • the state of New York in an action involving the same question and between the same parties. The validity of this defense was denied upon two grounds, as shown in the opinion of Mr. Justice Brewer, as follows:

“Upon these facts we remark that as the land, the subject matter of this controversy, was situate in Iowa, litigation in respect to its title belonged properly to the courts within that state, Ellenwood v. Marietta Chair Co., 158 U. S. 105, 107, although, if all the parties interested in the land were brought personally before a court of another state, its decree would be conclusive upon them and thus, in effect, determine the title.”

The other reason given was that the defendant in the Iowa case, who held the title to the land, although he obtained his title from a party to the New York decree, was not in privity with him because he obtained his title before the commencement of the New York action. It is said in the syllabus:

“A grantee of lands is not bound by a judgment rendered in an action commenced against his grantor subsequent to the conveyance.”

From which it appears that, if the New York action had been begun before the conveyance of the Iowa land to the defendant and he had been a party to the New York decree,, he would have been bound by that judgment, and would have been compelled by the Iowa court to convey the land.

In the defendant’s brief we are earnestly requested to carefully consider Bell v. Bell, 181 U. S. 175, 21 Sup. Ct. Rep. 551; Streitwolf v. Streitwolf, 181 U. S. 179, 21 Sup. Ct. Rep. 553; and Andrews v. Andrews, 188 U. S. 14, 23 Sup. Ct. Rep. 237. In Bell v. Bell, it is held that “no valid divorce from the bond of matrimony can be decreed on constructive service, by the courts of a state in which neither party is domiciled.” The recital in proceedings for divorce of the facts necessary to give jurisdiction may be contradicted in a suit between the same parties in another state. The other cases mentioned are similar to this. The point, however, relied upon in these cases, we suppose, is to be derived from the opinion, in which it is held that an action for divorce, that is, to dissolve the marriage status between the parties, is a local action, and that no court has jurisdiction to dissolve the marriage status, except the court of the domicile of the parties, or one of them. We do not see how this proposition has any bearing upon the question involved here. Both of these parties were domiciled in the state of Washington at the time of the divorce proceedings, so that the courts of that state had jurisdiction of their marriage relation, and, by the laws of that state, that court ivas also given the further jurisdiction to determine and adjust the equities of the parties in the property of both.

Again, it is sought to draw an argument from the language used in the decree, of the Washington court. It was adjudicated that the land in question “be, and the same hereby is, set apart to the defendant Sarah S. Fall as her OAvn separate property, forever, free and unincumbered from any claim of the plaintiff thereto.” The law required the court to determine the equitable rights of the parties in all of their property, and it is possible that language might be selected to more nearly correspond Avith the requirements of their laAV in that regard. The court found that the defendant therein, Sarah S. Fall, “is entitled to a decree of this court setting apart to her as her OAvn separate property, forever, * * * a certain tract of real estate, to wit” (describing the land in question), and the language of the decree1 is sufficient, as far as formalities are concerned, to adjudicate her equities in the land. The defendant asks in his brief: “Was the title to the land in question at issue in the divorce suit, and did that court possess jurisdiction to determine the question of title? We think it should rather be said that the right to the land was in issue, and the equitable right to have title, rather than the legal title itself.

Our attention is also called to Kline v. Kline, 57 Ia. 386, 42 Am. Rep. 47. In that case the wife and children were residing in Iowa, the husband was a resident of Wisconsin and there obtained a divorce from his wife upon the ground of desertion. The service was by publication only. The wife had no notice nor actual knowledge of the legal proceedings. The decree of the Wisconsin court gave the husband the custody of the. children. The supreme court of Iowa refused to enforce this decree. Its reason is stated in a quotation which the court makes from Woodworth v. Spring, 4 Allen (Mass.), 321:

“Every sovereignty exercises the right of determining the status or condition of persons found within its jurisdiction. The laws of a foreign state cannot be permitted to intervene to affect the personal rights or privileges even of their own citizens, while they, are residing on the territory and Avithin the jurisdiction of an independent government. * * * The question AAdiether a person within the jurisdiction of a state can be removed therefrom depends, not on the laws of the place whence he came or in which he may have his legal domicile, but on his rights and obligations as they are fixed and determined by the laws of the state or country in which he is found.”

If the law of Wisconsin had given their courts jurisdiction in a divorce proceeding to determine the custody of the children, and if both parties had there appeared and submitted themselves to the jurisdiction of the court, and had asked the court to determine to which party the custody of the children should be given, the Iowa court might still have refused to banish the children from its state because of the personal rights of the children themselves ; but the case would have been very different from the one presented to and determined by the Iowa court.

The case of Bullock v. Bullock, 52 N. J. Eq. 561, 30 Atl. 676, is much relied upon by the defendant. Indeed, this is the only case to which our attention has been drawn which conflicts in some degree at least with the conclusion which we have reached. The opinion of the court as announced by Magie, J., appears to contain language which in its literal meaning supports the contention of the defendant. The wife had obtained a divorce in the state of New York, with a decree for permanent alimony, and also decreeing that the husband should execute a mortgage upon land situated in the state of New Jersey to secure the payment of the alimony. An action was brought in the state of New Jersey to compel the specific performance of this decree by executing the mortgage upon the lands in that state. The court held that such a decree would not be enforced in the state of New Jersey. In the opinion it is stated that the petition alleged that the action commenced in New York was for the purpose of dissolving the marriage of the parties, and alleged that the court had jurisdiction of the case. The Avriter of the opinion' said:

“I find difficulty in-dietermining how extensive a jurisdiction is thereby asserted to have inhered in the supreme court of New York. * * * From these statements it was obviously to be assumed that the court in question had jurisdiction to decree a divorce and annul a marriage. But is it to be inferred — for there is no express averment of it — that the same court possessed jurisdiction to fix the amount and require payment of alimony, and especially to require a defendant to secure the payment of alimony by' a charge upon lands lying beyond the territorial jurisdiction of the court? Alimony is, in general, an incident of divorce. It may be justifiable to infer that a court empowered to dissolve the bonds of matrimony would also be clothed with authority to determine on the amount of alimony and to render judgment therefor. But how, without-some further averment,' is an inference to he drawn that the same court was authorized to require security for the payment of alimony to he given by the mortgage of lands and of lands beyond its jurisdiction?”

One member of the court concurs in the conclusion solely upon the ground expressed in the above quotation, and five members of the court refused to agree to the conclusion reached, so that the language of the remainder of the opinion, which one member of the court, at least, who concurred in the conclusion, thought unnecessary to ■the determination of the case, and from which five members of the court dissent, is not to be regarded as authority of a controlling nature. Yan Syckel, J., in his dissenting opinion said:

“The New York court having jurisdiction of the person of the husband and also of the subject matter of the suit there, the judgment in that state, as between the parties to that suit, was conclusive of the right of the wife to have the husband execute a mortgage upon the New Jersey lands, although it did not of its own force create a lien upon the lands. As to the title to such lands, it had the effect of an admitted legal contract or obligation by the husband to convey and should be enforced in equity here. A judgment in New York that a party defendant shall specifically perform a written contract to convey lands in New Jersey would furnish no better foundation for the interference of our court of equity than the judgment relied upon in this case. In what "respect they differ in principle is not apparent. In either case obedience to the mandate of the federal constitution would give effect to the judgment here.”

The reasoning of the minority opinion is more satisfactory to our minds, and we think is in harmony with the better authorities. It may further be observed that this case is distinguishable from .the one at bar. This will be observed from a consideration of the concurring opinion of Mr. Justice Garrison, who said:

“That only is judgment that is pronounced between the parties to the action upon the matters submitted to the court for decision. To judgments thus rendered, the federal law accords in every 'state the same conclusive force possessed in the state where they are rendered. After judgment in a state court, all that follows for the purpose of enabling the successful party to reap the benefits of the determination in his favor is execution or in aid of execution. No interpretation has ever been placed upon the federal constitution giving conclusive effect, or, indeed, any effect at all to the executions of'the judgments rendered in sister states or to any order merely in aid thereof.”

This view appears to have been unanimously taken by the chancery court when the case was there considered. 51 N. J. Eq. 444, 27 Atl. 435. In the case at bar it seems that the Washington judgment was “pronounced between the parties to the action upon the matters submitted to the court for decision.” Under such circumstances Mr. Justice Garrison, at least, would not have concurred in the conclusion reached in Bullock v. Bullock, supra. In that case there was a judgment for the payment of alimony and a decree that it should be secured. Tt was this decree that was sought to be enforced in another state. The providing for the collection of the amount of alimony due under the decree was thought to be in the nature of an execution, or in aid thereof, that is, a part of the remedy, which is always provided by the state in which it is to be used. In the case at bar the judgment was not for alimony. Alimony is. decreed for the necessary support of the wife. This land was decreed to her, not because she needed it, but because she was entitled to it, not necessarily for the purpose of her support, but because the equities arising out of her marriage relation under the laws of Washington, and the conduct of her husband toward her, and her personal contributions toward the accumulation of the property, entitled her to this land, and the law required the court to consider, determine and adjust her equities.

The decree of the Washington court determined that it is “just and equitable” that this plaintiff have the land. That was a proper issue to be presented under the law. The court had. jurisdiction of the matter and of the parties. If we give “full faith and credit” to that decree, we must affirm the judgment of the lower court.

Affirmed.