175 F. 756 (8th Cir. 1910), 3,106, Horton v. Stegmyer

Docket Nº:3,106.
Citation:175 F. 756
Party Name:HORTON v. STEGMYER et al.
Case Date:January 05, 1910
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 756

175 F. 756 (8th Cir. 1910)

HORTON

v.

STEGMYER et al.

No. 3,106.

United States Court of Appeals, Eighth Circuit.

January 5, 1910

Syllabus by the Court

Five years' delay after discovery of the fraud to commence suit to avoid a decree of divorce therefor constitutes such laches as will defeat the suit, where the limitation of the analogous action at law is three years.

A federal court sitting in equity has jurisdiction to disregard or to enjoin the enforcement of an unconscionable judgment of a state or of a national court for new causes, such as fraud, accident, or mistake which led the court into the rendition of a wrong judgment, or prevented the judgment defendant from availing himself of a meritorious defense.

An oral agreement to devise real property, or real and personal property, is void under the statute of frauds.

A partial performance of such a contract, by delivery of possession of the property to the proposed devisee, or by other like acts which are unavoidably referable to the agreement, will except it from the rule.

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An act or acts which clearly appear to have been such as the performing party would not have done in the absence of the agreement, or without a direct view to its performance, are indispensable to constitute the partial performance which will take an oral agreement out of the statute.

When the fact that the contract was oral affirmatively appears on the face of the bill, the objection that it is void under the statute of frauds may be taken by demurrer. When that fact does not thus appear, it must be presented by answer.

F. C. Goudy and E. T. Wells (John M. Woy, on the brief), for appellant.

John A. Rush, for appellees.

Before SANBORN and VAN DEVANTER, Circuit Judges, and WILLIAM H. MUNGER, District Judge.

SANBORN, Circuit Judge.

At some time prior to July, 1900, Ariel P. Horton was married to the complainant, Emma W. Horton. They were residents of Arapahoe county, in the state of Colorado, and the law of that state required that a suit for divorce should be brought in the county in which one of the parties resided or last resided. Rev. St. Colo. 1908, Sec. 2116; Branch v. Branch, 30 Colo. 499, 506, 71 P. 632. They went to Jefferson county, in that state, where a summons and complaint in a suit for divorce brought by Horton were served upon the complainant in this suit, she gave written authority to some one to appear for her in that case, and on July 31, 1901, a decree of divorce was rendered therein by the county court of Jefferson county, wherein the complainant was allowed $900 permanent alimony and $25 attorney's fees, and each of the parties was forbidden to marry again within a year. In November, 1901, Horton was married to Caroline Stegmyer, the defendant in this suit. Thereupon the complainant filed a petition in the county court of Jefferson county against Horton, in which she set forth the foregoing facts, made other allegations, and prayed that the decree of divorce be vacated. Horton answered this petition, and on April 30, 1902, paid to the complainant $1,250, and she released him from all claims, debts, demands, and causes of action of whatsoever kind or nature which she had or might have against him. In November, 1907, Horton died, and on January 2, 1908, the complainant exhibited her bill in the court below, wherein she besought that court to annul the decree of divorce and to declare her to be the

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sole heir at law of Horton, or, in case any other person should be held to be his heir, that the latter should be required to convey to the complainant an undivided half of the property which Horton owned when he died.

The complainant set forth in her bill the facts which have been stated, and alleged that Horton secured her consent to the decree of divorce by misrepresentations, false promises, abuse, and cruelty, and that he obtained her subsequent release in 1902 of all claims upon him and causes of action against him by false representations, by the payment of the $1,250, and by an oral promise to devise to her at least one-half in value of his estate, which consists of real estate in the state of Colorado. The court below sustained a demurrer to and dismissed this bill, and this is the ruling questioned by the appeal.

The complainant's cause of action is founded upon two grounds, which will be considered in their order. The first is that she is the sole heir at law of Horton, because the decree of divorce was obtained by means of a fraud perpetrated upon her by him, and a fraud perpetrated upon her and the court by the same person. She pleads in detail false representations, false promises, abuse, and cruelty, which she alleges induced her to consent to the decree, and the false representation that she and her husband were residents of Jefferson county, which induced the court of that county to take jurisdiction of their case and to grant the decree.

The decree of divorce was not void. The pleadings disclosed the admitted fact that the parties were residents of Jefferson county and that the court had jurisdiction of the subject-matter and of the parties. Pleading and proof of facts dehors the record in that case, which evidence the alleged fraud upon the court or that upon the complainant, are indispensable to the vacation or disregard of...

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