Cizek v. Cizek

• Decision Date: 17 March 1904
• Citation: 99 N.W. 28,69 Neb. 800
• Parties: MICHAEL CIZEK v. ANNA CIZEK
• Court: Nebraska Supreme Court

99 N.W. 28

69 Neb. 800

MICHAEL CIZEK v. ANNA CIZEK

Supreme Court of Nebraska

March 17, 1904

REVERSED.

KIRKPATRICK C. DUFFIE and LETTON, CC., concur.

OPINION

KIRKPATRICK, C.

At a former term an opinion in this case was handed down affirming the judgment of the lower court. Ante, p 797. The case has been resubmitted to this department, and argument by counsel for both parties has been had upon the merits. The principles of law as announced in the syllabus of the prior opinion are conceded to be sound; but counsel for plaintiff in error (hereinafter defendant) contend that the judgment of affirmance is based upon a misapprehension of the record, and that the judgment should have been one of reversal. We will herein restate the facts, as shown by the record upon which this cause was tried, as briefly as consistent with a clear expression of our views of the law applicable to the case made.

On April 30, 1902, defendant in error (hereinafter plaintiff) filed her complaint against defendant in justice court of Lancaster county, for the unlawful and forcible detention of lots 1 and 2, in block 109, city of Lincoln, and asking restitution with costs. There was judgment for plaintiff, and the cause was removed to the district court where, after trial to a jury, the district court directed a verdict for plaintiff. Judgment entered upon this verdict is sought to be reversed by the present proceeding in error to this court.

It appears that plaintiff and defendant prior to March 26, 1902, were husband and wife. On that day, in an action then pending in the district court for Lancaster county, wherein defendant was plaintiff and plaintiff was defendant, the court granted an absolute divorce to plaintiff, and in the decree rendered is contained the following recital:

"The court finds that the defendant (plaintiff herein) is entitled to a divorce as prayed for, and by consent of parties being made thereto in open court, in lieu of all other orders for alimony entered herein, the plaintiff shall, within ten days from this date, give to the defendant his deed for lots 1 and 2 in block 109, Lincoln, Lancaster county, Nebraska, and in default thereof this decree to operate as such deed, and that within thirty days the plaintiff shall deliver possession of said property to the defendant; and that within ten days from this date, the defendant shall execute and deliver to the plaintiff her note and mortgage for the sum of $ 250 upon said property, due in six months from date and bearing six per cent. interest from date of same, and in default thereof, this deed to operate as a lien upon said property for said amount."

This decree is the basis of plaintiff's claim to the property in controversy, and upon it the lower court in the case at bar directed a verdict for plaintiff. All of the contentions by counsel for defendant urged at the former hearing have been abandoned except the one that the decree in the divorce suit, in so far as it awards specific real estate to plaintiff as alimony, is void, and can not be the basis of any right.

It will be convenient at this point to state the theory upon which the conclusion leading to an affirmance of the judgment at the former hearing was reached. In the fourth paragraph of the petition of defendant (then plaintiff) in the divorce suit, he alleged: "That plaintiff is possessed of the following described property, to wit: Lots one (1) and two (2) block 109, Lincoln, Nebraska. That lot one contains a three room house, and lot two contains a small stable. That all of said property is clear of all incumbrances and is worth about $ 800." The petition also alleged that "it is the wish and desire of this plaintiff that the court allow defendant reasonable alimony."

In her answer and cross-petition plaintiff (then defendant) alleged:

"That she admits all the fourth paragraph of plaintiff's petition, and further says, that the consideration money for the payment of said lots one and two was money received by her from her father's estate in Bohemia, Europe; and that the said house on said lot 1 was built, except one room or part thereof, with her said funds obtained as aforesaid, all of which said moneys were loaned by this defendant to said plaintiff, at plaintiff's request; no part of which has ever been returned by the plaintiff to this defendant."

The cross-petition contained a prayer that the defendant be decreed to pay reasonable alimony, and that the title in said lots one and two be quieted in plaintiff.

Under this state of the pleadings in the divorce suit, upon the doctrine announced in Hilton v. Bachman, 24 Neb. 490, 39 N.W. 419, and State v. Duncan, 37 Neb. 631, 56 N.W. 214, it was, in the former opinion, held that: "In case the pleadings are sufficient to bring the subject matter before the court, the decree may not be attacked collaterally merely for want of findings. Such defect goes no further than to render the decree irregular or erroneous"; and, assuming that the property was brought within the jurisdiction of the court by the allegations in the cross-petition, it was thought that in order to sustain the decree, the presumption should be indulged that sufficient evidence was heard by the trial court to sustain a resulting trust in the property in favor of the plaintiff, warranting the award of the property to her, the failure to make and incorporate in the decree specific finding of this fact not being jurisdictional.

The principle is sound, but its application to the facts in this record is now questioned, counsel for defendant contending, first, that the issue of plaintiff's equitable claim to the property was not tendered by her answer and cross-petition; and, second, that the decree itself contains a recital rebutting the presumption indulged to sustain it.

Whether the court by the pleadings was given jurisdiction to make a decree affecting the title to this property may, we think, well be doubted. The only object of the proceeding instituted by the husband was to obtain a divorce from his wife. The wife sought by answer and cross-petition to obtain a divorce from her husband with alimony. Ordinarily, an action to quiet title, or to collect a debt, would not be joined with a suit, the object of which was to obtain a divorce, a purely statutory proceeding in this state. This being the nature of the proceeding then before the court, it ought to appear from the pleadings that the court had jurisdiction of this property--jurisdiction to make a decree affecting title thereto. The question, we think, would be whether the pleadings, aided by any presumptions which it may be permissible to indulge, tendered the issue of a resulting trust in plaintiff's favor, so that the court would have jurisdiction by the decree to change the title. Plaintiff alleged in her cross-petition that the money with which the property was purchased was loaned by her to her husband at his request, no part of which he had repaid. Under a state of facts like this it was held that "the payment of the money at the request of the husband was a loan by the wife to him. It created the relation of debtor and creditor, and not that of trustee and cestui que trust." Torrey v. Cameron, 73 Tex. 583 at 583-587, 11 S.W. 840. In 2 Story, Equity Jurisprudence (13th ed.), sec. 1195, it is said that "a trust is never presumed or implied as intended by the parties unless, taking all the circumstances together, that is the fair and reasonable interpretation of their acts and transactions." Such a trust is a presumption, subject to rebuttal by evidence showing that the transaction was of a different character. And, if this be true, then it would seem beyond question that a pleading alleging facts as potential to rebut any claim of a resulting trust as any which could have been shown in evidence can not be said to bring such an issue into the case, for, upon the plainest principles, one who loans money upon the request of the borrower has not an equitable claim upon the property purchased with the money borrowed. It does not seem to us that under the state of the pleadings in the divorce suit this property was brought before the court in such a way as empowered it to make any decree affecting the title thereto upon any presumed theory that a trust therein was established.

But the decree in the divorce suit, as already quoted herein, shows, we think, without question, that the property was awarded to plaintiff as alimony, and this precludes any presumption that the property was awarded to her because it was shown to be her own. Alimony is payable out of the husband's estate, and not out of the wife's. It can never be assumed that the court gave as alimony to the wife property shown on the trial to be hers. In 1 Black, Judgments (2d ed.), sec. 277, it is said:

"The general rule, as stated, is that every presumption will be indulged in favor of the records of superior courts. An important corollary to this rule is that there can be no presumption against the record. For if the record imports absolute verity, its recitals must be equally as conclusive when they make against the jurisdiction as when for it."

Upon this rule we think it follows that the judgment of the district court in the case at bar can not be affirmed by invoking the presumption that a trust was proved.

Thus we are brought to a consideration of the one remaining contention, and that now relied on, that the decree, in so far as it awards specific real estate of the husband to the wife as alimony, is void and subject to collateral attack. Is it competent for a district court in this state, sitting as a court of equity to hear cases arising under the provisions of chapter 25, Compiled Statutes (Annotated Statutes, 5324), to devest the husband of his...