Fall v. Fall

• Decision Date: 12 July 1907
• Parties: SARAH S. FALL, APPELLEE, v. EDMUND W. FALL ET AL., APPELLANTS
• Court: Nebraska Supreme Court

113 N.W. 175

75 Neb. 120

SARAH S. FALL, APPELLEE, v. EDMUND W. FALL ET AL., APPELLANTS

Supreme Court of Nebraska

July 12, 1907

REVERSED.

LETTON J. SEDGWICK, C. J., dissenting.

OPINION

LETTON, J.

This is an action to quiet the title to an undivided one-half interest in a certain tract of land in Hamilton county, and to cancel and annul a certain mortgage and deed executed by the defendant, E. W. Fall, to the defendants W. H. Fall and Elizabeth Eastin. The plaintiff, Sarah S. Fall, bases her right to the relief prayed upon a decree rendered in divorce proceedings in the state of Washington, whereby a court of that state set apart the premises to her as her separate property and ordered her former husband, E. W. Fall, to convey the same to her.

In 1876 E. W. Fall and Sarah Fall were married in Indiana. They afterwards removed to Hamilton county, Nebraska, and lived in Nebraska until 1889, when they removed to the state of Washington. In 1879, while they lived in Nebraska, E. W. Fall purchased 160 acres of land in Hamilton county, the title to the undivided one-half of which is in controversy. In 1887 he conveyed the farm to Mrs. Fall's brother, as an intermediary, who in turn reconveyed to E. W. Fall and Sarah S. Fall, thereby vesting each with an undivided one-half interest in the land.

E. W Fall began an action for divorce against his wife in February, 1895, in the superior court of King county, Washington, to which she filed an answer and cross-petition. The law of Washington required parties desiring a divorce to bring into court a list and description of all their property, and empowers the judge of the court, sitting as a chancellor, to make an equitable division of all the property between the parties. See former opinion, ante, p. 104. The husband in his petition claimed the Nebraska land as his own property, while the wife asserted the same to be community property belonging to them both, and asked the court to set it apart to her as her separate property. On October 5, 1895, by its decree, the Washington court refused a divorce to the husband, and granted it to the wife on her cross-petition, and set apart and gave the Nebraska land to the wife as her sole and separate property, and directed the husband to convey the land to the wife in five days, which he refused and neglected to do. An appeal bond was filed, and the cause was taken to the supreme court of Washington by Mr. Fall, but on May 15, 1896, the appeal was dismissed. On May 24, 1895, E. W. Fall executed an indemnity mortgage to his brother, the defendant W. H. Fall, a resident of Nebraska, as defendants allege, to secure him from loss by reason of his having signed a note of $ 1,000 as surety for E. W. Fall in September, 1893, for money borrowed from his sister, Elizabeth Eastin. This mortgage was recorded on January 10, 1896. On July 3, 1896, without notice to E. W. Fall, the Washington court appointed one W. T. Scott as commissioner for the purpose, who executed a deed of E. W. Fall's undivided half interest in the Hamilton county land to Sarah S. Fall. This instrument was approved by the judge of the superior court, filed in the office of its clerk, and afterwards recorded in Hamilton county, Nebraska. At the time of these various conveyances the land was in the actual possession of a tenant of E. W. Fall and Sarah S. Fall, but this tenant attorned to Sarah S. Fall, who has held possession ever since. On April 27, 1896, and while the appeal was pending, E. W. Fall, who in the meantime had become a resident of California, executed a warranty deed to Mrs. Eastin for his undivided one-half interest in the land in payment of the same debt. At the time of the divorce and conveyances the land was incumbered, and Fall's interest was apparently worth no more than the amount of the debt.

In 1897 Sarah S. Fall began this action in the district court for Hamilton county, Nebraska, setting up the proceedings and decree in the state of Washington, the execution of the deed to her by Scott, commissioner, the execution and recording of the mortgage to W. H. Fall and the deed to Mrs. Eastin, and alleging that the mortgage and deed were each made without consideration and for the purpose of defrauding her, and that the mortgage and deed cast a cloud upon her title to the land acquired by virtue of the decree and commissioner's deed, and praying that the title to the land be quieted in her, and the deed and mortgage declared null and void. Personal service was had upon W. H. Fall, who disclaimed any interest in the premises and executed a release of the mortgage made to him by E. W. Fall. Constructive service was sought to be had upon Mrs. Eastin and E. W. Fall by publication, which service was defective as to Mrs. Eastin. This fact not appearing at the time, and default being made, a decree was entered on September 23, 1897, in favor of Mrs. Fall in accordance with the prayer of her petition. Within five years thereafter, upon Mrs. Eastin's application, this default judgment was opened under the statutory provisions and she was allowed to defend. Mrs. Eastin filed an answer, which pleads, in substance, that the petition does not state a cause of action; and in addition thereto sets forth her loan of $ 1,000 to E. W. Fall, the taking of the note signed by E. W. and W. H. Fall therefor, the giving of the indemnity mortgage to W. H. Fall and the subsequent execution of the deed by E. W. Fall to her in satisfaction of the debt. She further alleged the bona fides of the transaction, and denied the remaining allegations of the petition. No appearance was made by E. W. Fall and no personal service was had upon him. Trial was had, the issues found in favor of the plaintiff, Sarah S. Fall, and a decree rendered accordingly. The case is now before us upon appeal by Mrs. Eastin from this judgment of the district court.

The contentions of the appellant, in substance, are: That the decree of the Washington court and the deed executed by the commissioner of said court to Mrs. Sarah S. Fall are absolute nullities in so far as they relate to the land in Nebraska; that Mrs. Fall has no such title or interest in the undivided half interest in the land which had belonged to E. W. Fall that she can maintain this action; that, conceding that the Washington court had the power to compel the execution of the conveyance by E. W. Fall while he was within its jurisdiction, still since its decree acted only upon the person and not upon the land, and since no action was taken or compelled toward conveying the title to Mrs. Fall, she never acquired any interest in or title to the real estate in this state, and the decree of the Washington court utterly failed to affect the land, or to bind or fetter any action taken by E. W. Fall after he passed beyond the jurisdiction of that court. She further contends that by the laws of this state the courts of Nebraska are not permitted, by a decree in a divorce proceeding, to take the title of real estate from the husband and vest it in the wife, by way of adjusting the equities of the parties in the property of the husband, and that such a proceeding would be in violation of the law and public policy of this state. Upon the other hand, the appellee, Mrs. Fall, contends that the decree of the Washington court in the proceedings for divorce and for a division of the property fixed the equities and bound the conscience of the parties, and created a personal legal contract of record on the part of E. W. Fall to make a conveyance of his interest in the land, which he could not escape by going beyond the jurisdiction of the Washington court, and that the decree is entitled to the same faith and credit in the courts of this state that it has in the courts of Washington; that Mrs. Fall's rights in and to the land, acquired by virtue of the decree, are sufficient to enable her to maintain an action in this state for the purpose of quieting her title to the land; that the decree of the Washington court bound E. W. Fall to such an extent that neither he nor his privies could afterwards set up any right or title in the Nebraska lands against her, and that Mrs. Eastin acquired no right, title or interest in the land by virtue of the deed from E. W. Fall or the mortgage to W. H. Fall, and that the same were fraudulently made.

If the Washington court had taken the value of the Nebraska land into consideration in fixing the rights of the parties and rendered a money judgment accordingly, such a judgment might be enforced here under the full faith and credit clause of the United States constitution, since the court had full power and jurisdiction to render the same. Barber v Barber, 21 HOW 582, 16 L.Ed. 226; Trowbridge v. Spinning, 23 Wash. 48, 62 P. 125. And this has been the usual method in such cases. 2 Bishop, Marriage, Divorce and Separation, sec. 1,123. But what power had the Washington court to affect the title to the land or to confer equities therein by its decree? The purpose of the statutes of Washington referred to evidently was to give to the courts of that state powers with reference to the ascertainment of the duties of the parties with reference to property, growing out of the marriage relation, of the same nature as those which are enjoyed by courts generally having jurisdiction over divorce, alimony and the custody and support of children, but greater in extent than those enjoyed by the courts of some states. This power was unknown to the unwritten law, and when no statute exists the courts do not possess it. 2 Bishop, Marriage, Divorce and Separation, sec. 1,119. The power thus given is to be exercised in connection with the proceedings concerning the marriage status, ibid. sec. 826. It is remedial and ancillary to the divorce proceedings, and...