Emery v. Emery

• Decision Date: 01 December 1948
• Docket Number: 8843
• Parties: EMERY v. EMERY.
• Court: Montana Supreme Court

200 P.2d 251

122 Mont. 201

EMERY v. EMERY.

No. 8843

Supreme Court of Montana

December 1, 1948

Appeal from District Court, Thirteenth Judicial District Yellowstone County; Guy C. Derry, Judge.

Action by Bina M. Emery against John A. Emery for divorce, to enforce resulting trusts, to recover personal and real property and for other relief. From separate injunctive orders, the defendant appeals.

Orders reversed and cause remanded with directions.

Melvin N. Hoiness, Rockwood Brown & Horace S Davis, Norman Hanson and William H. Bellingham, all of Billings, for appellant.

Chapple & Wooster, of Billings, for respondent.

ADAIR Chief Justice.

April 5, 1948, Bina M. Emery, plaintiff, filed in the district court of Yellowstone county a complaint against her husband John A. Emery, defendant.

The complaint comprises nine separately numbered paragraphs.

Action for Divorce. The first five paragraphs of the complaint set forth a cause of action for divorce alleging: (I) That for more than one year last past plaintiff has been and now is a resident of this state; (II) that on July 31, 1913, the parties intermarried and since have been and now are husband and wife; (III) that no children have been born of their union; (IV) that commencing on, to-wit, the 12th day of February 1943 and at divers times thereafter the defendant committed adultery; (V) that the alleged acts were committed without the consent, connivance, procurement or previous knowledge of plaintiff and that since she became cognizant of their alleged commission plaintiff has not lived or cohabited with defendant. Paragraph designated 1 of the prayer is: 'That the bonds of matrimony heretofore and now existing between the parties be dissolved and that each of the parties be freed from their obligations thereunder.' Neither the complaint nor prayer asks for any alimony, attorneys' fees or suit money.

Claims against Trustee for Specific Real Property. In paragraphs designated VI to IX, inclusive, plaintiff claims a resulting trust in her favor and that she is the owner of an undivided one-half interest in various separate specifically described parcels of real estate designated in the complaint as parcels A, B, C, D, F, G and H, alleging: That parcels B, D, G and H stand of record in the name of her husband John A. Emery; that parcel A, comprising more than 6,000 acres of specifically described ranch land situate near Pompeys Pillar 'stands in the name of J. A. Charboneau and John A. Emery, or Federal Land Bank of Spokane' and that parcel F 'stands of record in the name of Suburban Home Company.' Plaintiff fails to allege the record title owner of parcel C.

Claims against Trustee for Specific Personal Property. In her complaint plaintiff also claims a resulting trust in her favor and that she is the owner of an undivided one-half interest in certain specifically described personal property designated as parcel K, 'assessed in the name of John A. Emery' and consisting of: 'Household furnishings, machinery, 60 head of range horses, 20 head of saddle horses, one registered stallion, four registered bulls, and in excess of 177 head of registered cows, range cows and milk cows, also a large amount of hay and feed.'

Claims to Recover Specific Personal Property. In her complaint plaintiff also claims that the furniture at the home of the parties located at 6th Avenue and 24th Street South is her sole and separate property 'and that it is fitting and proper that upon the entry of the decree in this action that the furniture * * * be decreed to be the sole property of the plaintiff.'

Plaintiff further claims that 'a considerable amount of the furniture in the ranch house east of Pompeys Pillar, Montana, is also the sole and separate property of the plaintiff.'

Claims to Recover Specific Real Property. The complaint further alleges that plaintiff and defendant are the record title owners of three specifically described tracts of land designated as parcels E, I and J and asks that one-half of said property 'be set apart to the plaintiff as her sole property.'

The complaint further alleges:

'VI. That since the marriage of the plaintiff and defendant as above alleged, they have accumulated a large amount of real and personal property. That the money advanced which was the start of the accumulation of all of said property was advanced by the plaintiff, and that since said marriage and during the time of the accumulation of said property the plaintiff has worked and contributed a major portion of the efforts resulting in such accumulation. * * *

'That the clear market value of Parcels A and B above indebtedness is in excess of $42,000. That the clear market value of Parcels C, E, F, G and H is $30,000 and that said parcels of land are unencumbered. That Parcel D consists of an entire city block and is of the clear market value of $10,000. That Parcel I consists of an entire city block and is of a clear market value of $10,000. That Parcel J is the land upon which the Settergren Funeral Home is situated and is worth above indebtedness in excess of $40,000.

'That the items of personal property described in Parcel K are of the clear market value of $42,000 and upwards.

'VII. That all of the property above described, regardless of the record owner, in truth and fact is owned one-half by the plaintiff and one-half by the defendant by reason of the joint accumulation of said property by the parties hereto. That it is necessary and proper that a complete division of this property be made between the parties hereto, separating the ownership of said property, so that the plaintiff will have 50 percent of said property standing in her own name for the reason that the defendant, by reason of his profligate habits, intemperance and adultery, is squandering the revenue received from said properties and has failed and continues to fail to pay the amounts due on mortgages, either principal or interest, and has failed and continues to fail to pay the taxes on said properties although the rental received therefrom is adequate for that purpose.'

Further Claims to Recover Specific Real Property. The complaint further alleges:

'VIII. That property known as the Montana Hotel situated on Lots 23 and 24 in Block 87 of the original town (now city) of Billings, Yellowstone County, Montana stands in the name of Walter Erdman and Jack Emery and Bina Emery. That an interest in said property was transferred by Walter Erdman to Jack Emery through inadvertency and mistake and for the reason that the person loaning the money on said property insisted that the defendant sign as co-mortgagee on a mortgage placed upon said premises. That said property came from the estate of an aunt of the said Walter Erdman and Bina Emery, and that the said defendant has no interest whatsoever in said property. That it is equitable and proper that the portion of said property transferred to the said Jack Emery be decreed to be the sole property of the plaintiff so that she shall be the owner of an undivided one-half interest in and to said hotel property. It is also proper that the plaintiff be required to refinance said property thereby relieving the defendant from any possible obligation as co-obligor on the mortgage above referred to.'

Prayer for Relief. The prayer so far as it concerns the specific real and personal property described in the complaint reads:

'Wherefore, plaintiff prays judgment as follows: * * *

'2. That one-half of the property described in Paragraph VI above as Parcels A to J, inclusive, be set apart to the plaintiff as her sole property.

'3. That the household furnishings situated in Billings, Montana, be decreed to be the sole property of the plaintiff and that she be given one-half of the rest of said property described in Parcel E of Paragraph VI above, except the furniture at the Ranch.

'4. That by the decree of this Court in this matter the property described in Paragraph VII above as the Montana Hotel property, one-half of which stands in the name of the plaintiff and defendant, be decreed to be the sole and separate property of plaintiff.'

Joinder of Causes of Action. This is an action for divorce where dissolution of the marriage is the subject of the action and wherein the property and property rights of the parties are but an incident to the suit for divorce. Notwithstanding, the plaintiff has united in her divorce complaint a number of other causes, thereby attempting to convert her divorce suit into:

(1) An action to cancel a recorded conveyance to her husband of an interest in the specific parcel of real estate known as the Montana Hotel Property and compel a conveyance of such interest to the plaintiff wife, being of the class designated in subdivision 1 of section 9130, Revised Codes of Montana 1935;

(2) An action for partition and to recover specifically described real property standing of record in the names of the husband and wife as tenants in common, being of the class designated in subdivision 2 of section 9130, Revised Codes of 1935;

(3) An action to recover specifically described personal property being of the class designated in subdivision 3 of section 9130, Revised Codes of 1935;

(4) An action to declare a trust by operation of law, sec. 6785, Rev.Codes 1935, in favor of the wife in specifically described real estate standing of record in the name of the husband alone and for partition thereof being of the class designated in subdivision 4 of section 9130, Revised Codes of 1935;

(5) An action to declare a trust by operation of law, sec. 6785, Rev.Codes 1935, in favor of the wife in specifically described personal property assessed to and in the possession of the husband;

(6) An action to determine and adjudicate respective...