Anthony v. Rice

• Decision Date: 09 May 1892
• Parties: Anthony, Appellant, v. Rice et al
• Court: Missouri Supreme Court

19 S.W. 423

110 Mo. 223

Anthony, Appellant, v. Rice et al

Supreme Court of Missouri

May 9, 1892

Appeal from Morgan Circuit Court. -- Hon. E. L. Edwards, Judge.

Reversed and remanded.

A. W Anthony pro se.

(1) Plaintiff may use two chains of title. Public Schools v Risley, 28 Mo. 415. (2) The probate court is a court of record, having original jurisdiction in the matter of the sale of real estate of decedents for the payment of debts. If the order of sale was erroneous, any person interested could appeal. 1 Wagner's Statutes, 1872, sec. 1, p. 119. (3) In the case at bar, the court having acted upon the petition and made the order of sale, notwithstanding objections filed that order was the judgment of a court of competent authority, upon a subject within its jurisdiction, and its proceedings cannot be collaterally assailed. If upon any given state of facts the court had the power to order the sale of the homestead, having exercised the power and made the order, the sale cannot be questioned in this action. Gray v. Bowles, 74 Mo. loc. cit. 423, 424; Smythe on Homesteads & Exemptions [Ed. 1875] sec. 414, p. 414; Rorer on Judicial Sales [Ed. 1873] secs. 265-290-1, p. 102; Naylor's Adm'r v. Moffat, 29 Mo. 126; Johnson v. Beasley, 65 Mo. 250, clause 5 of opinion; Wolf v. Robinson, 20 Mo. 459; Sims v. Gray, 66 Mo. loc. cit. 616; Grayson v. Weddle, 63 Mo. 523; Knowlton v. Smith, 36 Mo. 507; Rugle v. Webster, 55 Mo. 250; Bagley & Woods v. McGinnis, 57 Mo. 362; Brooks v. Duckworth, 59 Mo. 49; Scott v. Crews, 72 Mo. 262, and cases cited; Cornett v. Williams, 20 Wall. (U.S.) 249; Cooper v. Duncan, 20 Mo.App. 355; Jeffries v. Wright, 51 Mo. 215; Ellis v. Jones, 51 Mo. 180; Hardin v. Lee, 51 Mo. 244; Sullivan Co. v. Burgess, 37 Mo. 300. (4) Rogers v. Marsh, 73 Mo. 64, followed by Kelsay v. Frazier, 78 Mo. 110, if sustained, overthrows all the foregoing decisions. In the later cases, however, the court gets back to the only true doctrine. Henry v. McKerlie, 78 Mo. 429; State v. Donegan, 83 Mo. 374; Yeoman v. Younger, 83 Mo. 428; Lewis v. Morrow, 89 Mo. 174; Fenix v. Fenix, 80 Mo. 33; Camden v. Plain, 91 Mo. 129; Rowden v. Brown, 91 Mo. 429. (5) The presumption is that the court passed upon the claim of Evaline U. McCoy for homestead and decided against it. Baker v. Henry, 63 Mo. 517; Jones v. Manly, 58 Mo. 559; Pattee v. Thomas, 58 Mo. 163; Gates v. Tusten, 89 Mo. 13; Brooks v. Duckworth, 59 Mo. 49; Wertz v. Wertz, 11 Mo.App. 26; Ellis v. Jones, 51 Mo. 180; Henry v. McKerlie, 78 Mo. 416. (6) If Evaline U. McCoy was entitled to a homestead in the premises, the sale without admeasuring it was not void, and plaintiff in this action was entitled to the surplus. Poland v. Vesper, 68 Mo. 727; Blandy v. Asher, 72 Mo. 27; Crisp v. Crisp, 86 Mo. 630. (7) Lavinia McCoy, having been divorced in Livingston county, Missouri, from John C. McCoy for his misconduct, did not lose her right to dower and homestead. Brown v. Brown, 68 Mo. 388; Blandy v. Asher, 72 Mo. 27; Hunt v. Thompson, 61 Mo. 148; Whitehead v. Tapp, 69 Mo. 415. And she, taking an absolute estate, under the law in force in 1873, of course could convey to whom she pleased. Plaintiff has her deed. (8) Fraud vitiates everything. Corby v. Wright, 4 Mo.App. 443; Marx v. Fore, 51 Mo. 69; Ward v. Quinlivan, 57 Mo. 425; Eager v. Stover, 59 Mo. 87. (9) Both decrees were obtained without personal service, and upon insufficient publication under our statute. Both decrees are absolutely void. Flato v. Mulhall, 72 Mo. 522; Philpot v. Railroad, 85 Mo. 164.

Thomas, J. Barclay, J. Gantt, J., joins in this opinion.

OPINION

In Banc.

Thomas J.

This is ejectment for lot 104, of block 49, of Wyan & Gilbraith's addition to the town of Versailles, Morgan county, Missouri. 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, Lavinia, 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 Evaline 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 defendant's title to the property is based on the claim of said Evaline to homestead and dower therein.

I. The plaintiff insists that the said Evaline 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, Indiana, on the petition of McCoy, and by the circuit court of Adams county, Illinois, on the petition of said Evaline, 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 Evaline was a resident of Illinois, and that her husband was a non-resident 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 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 non-resident, founded upon a merely constructive service of process, as by publication, is void and of no effect. But some of these cases 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 non-resident, where service of process was made by a reasonable, constructive notice, and in the absence of any fraud or collusion, is valid and binding, both in that state and in all other states." Sec. 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 proesumuntur 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 Evaline was the legal wife of said deceased, at the time of his death, and, therefore, entitled to all the rights of a legal wife.

II. 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...