Anthony v. Rice

• Decision Date: 09 November 1891
• Citation: 19 S.W. 423,110 Mo. 223
• Parties: ANTHONY v. RICE et al.
• Court: Missouri Supreme Court

19 S.W. 423

110 Mo. 223

ANTHONY v. RICE et al.

Supreme Court of Missouri.

November 9, 1891.

DIVORCE — DECREE IN FOREIGN STATE — VALIDITY — HOMESTEAD — RIGHTS OF WIDOW — FAILURE TO ALLOT — SALE TO PAY DEBTS.

1. When a decree of divorce is shown to have been regularly entered in another state, in favor of a citizen thereof and against a citizen of Missouri, though service of process was made by publication, such decree is presumptively valid until overcome by proper proof.

2. An administrator filed a petition for the sale of decedent's real estate to pay debts, and the widow, being entitled to a homestead, filed her petition praying to have her homestead set off, and that no order of sale be made till this was done; and at a subsequent time the court made an order of sale wholly ignoring the widow's application, and without referring to it. Held, that the sale and conveyance under such order by the administrator were subject to the widow's homestead right; the doctrine of caveat emptor applying to the purchaser at such sale.

3. In an action against the widow's grantee of such homestead by the administrator's vendee the burden is on the plaintiff to show that the debts for which the homestead was sold were contracted by deceased prior to the time when he acquired such homestead.

4. Where such homestead premises were larger than the size prescribed by the homestead law, plaintiff took the excess over and above the lawful size thereof, and was entitled to a commission to have the same set off; Rev. St. § 5443, providing that whenever it shall become necessary in any proceeding to set out any homestead the court shall appoint commissioners for that purpose.

In banc. Error to circuit court, Morgan county; E. L. EDWARDS, Judge.

Action by A. W. Anthony against T. M. Rice and others. Judgment for defendants. Plaintiff brings error. Reversed.

A. W. Anthony, in pro. per. T. M. Rice, for defendants in error.

THOMAS, J.

This is ejectment for lot 104 of block 49 of Wyan & Gilbraith's addition to the town of Versailles, Morgan county, Mo. Though the defendants prevailed in the court below, they have filed in this court no abstract or brief. The facts, as disclosed by the plaintiff's abstract, are these: John C. McCoy and his wife, Lavina, resided in Morgan county prior to 1857. At that date they moved to Livingston county, in this state, where they resided for several years. He then went to Indiana, and procured a divorce there in 1864, and then married, in Illinois, Eveline Wallace, who had procured a divorce from her husband in an Illinois court. He came back to this state, and in 1867 purchased lots 104 and 105 of block 49 of said addition to the town of Versailles. In 1869, McCoy's first wife obtained a divorce from him by the judgment of the proper court of Livingston county, after personal service of summons on him. McCoy and his second wife resided on said lots from the time he purchased them till his death, in 1873. The administrator of McCoy sold said lots in 1875 to Kelsey, by virtue of an order of the probate court, for the payment of the debts of the deceased. Kelsey, by quitclaim deed, conveyed to the plaintiff, and this is his title. After the administrator filed his petition in the probate court for the sale of these lots and other lands of the deceased, the widow filed in that court her petition, praying that further proceedings be stayed till dower and homestead were assigned to her, and praying for the appointment of commissioners to make the assignment. This petition of the widow was filed September 14, 1874; and in October following the court made the order of sale as prayed for by the administrator, without naming the widow, or noticing her petition or her rights in the premises. The defendants' title to the property is based on the claim of said Eveline to homestead and dower therein.

1. The plaintiff insists that the said Eveline was not the legal wife of said McCoy, and therefore not entitled to a homestead or dower in his property, on the ground that the decrees of divorce rendered in 1864 by the court of common pleas of La Porte county, Ind., on the petition of McCoy and by the circuit court of Adams county, Ill., on the petition of said Eveline, are void for want of sufficient notice, and for fraud. Those decrees show that McCoy was a resident of Indiana, and that his wife was not a resident of that state, and that said Eveline was a resident of Illinois, and that her husband was a nonresident of that state, and the notice given in each case was by newspaper publication only. It may be true, as urged by plaintiff, that the notice given was wholly insufficient, under the laws of this state, but that does not affect the validity of those decrees. Those courts, in giving notice and rendering judgment, were guided and governed by the laws of their respective states. Those decrees are presumptively valid, and this presumption must prevail until it is overcome in a proper way, by proper proof. It has been ably and exhaustively argued that a decree of divorce obtained without actual service of process on the defendant, and by publication only, as is clearly shown by the record in these divorce proceedings, is utterly and absolutely void. A proceeding in divorce is a proceeding in rem. In it the petitioner seeks an adjudication upon his or her marital status, which is the res. Black, in his work on Judgments, (section 928,) says: "And on the admitted principle that each state has the right to determine the status and the domestic relations of its own citizens the conclusion appears irresistible that the bona fide presence of the res — the status of a domiciled citizen — should give its courts jurisdiction." This author, after laying down the general rule that actual and personal notice to the defendant in a divorce proceeding is not indispensable, adds: "Although the foregoing arguments have generally been accounted complete and irrefragable, yet some of the courts, while conceding one or more of the separate points, have refused to accept the conclusion to which the whole line of reasoning logically and inevitably leads. Thus the books exhibit a few decisions and some dicta to the effect that a decree of divorce against a nonresident, founded upon a merely constructive service of process, as by publication, is void and of no effect. But some of these have been overruled, others have been tacitly repudiated, and the true and fundamental principles governing the question have become more and more clear to the courts, and have gained weight with the increasing body of decisions, so that now the rule may be regarded as settled by the great preponderance of authority that a decree of divorce pronounced by a competent court in favor of a bona fide domiciled citizen of the state, and against a nonresident, where service of process was made by reasonable, constructive notice, and in the absence of any fraud or collusion, is valid and binding both in that state and all other states." Id. § 932. And this doctrine is the established law of Missouri. Gould v. Crow, 57 Mo. 200. The further objection made in the case at bar, that the decrees were procured by fraud, is an assertion only; for there is no evidence of fraud in this record, and, in the absence of evidence to the contrary, we must hold these decrees valid, on the maxim, omnia præsumuntur rite et solemniter esse acta. This being the case, it can make no difference that McCoy's first wife afterwards obtained a divorce from him in this state, for his fault. Our conclusion on this branch of the case, is, therefore, that the said Eveline was the legal wife of said deceased at the time of his death, and therefore entitled to all the rights of a legal wife.

2. McCoy and his second wife resided on the lots, and in the dwelling house thereon, for many years, and it was his homestead property at the time of his death. As the law stood at that time the homestead passed to the widow in fee simple, exempt from the payment of the debts of the husband. The title vested in her subject only to the...