Friebe v. Elder

• Decision Date: 12 May 1914
• Docket Number: No. 22,640.,22,640.
• Citation: 181 Ind. 597,105 N.E. 151
• Parties: FRIEBE et al. v. ELDER et al.
• Court: Indiana Supreme Court

181 Ind. 597

105 N.E. 151

FRIEBE et al.

v.ELDER et al.

No. 22,640.

Supreme Court of Indiana.

May 12, 1914.

Appeal from Circuit Court, Starke County; Enoch Myers, Special Judge.

Suit by Paulina Friebe and others against Elmer D. Elder and others. From a judgment for defendants, plaintiffs appealed to the Appellate Court, where the judgment was affirmed (103 N. E. 429), and the case was transferred to the Supreme Court under Burns 1914, § 1394, cl. 2. Affirmed.

Charles Kellison and L. M. Lauer, both of Plymouth, for appellants. Charles H. Peters and Glenn D. Peters, both of Knox, for appellees.

MORRIS, C. J.

This was an action for partition commenced by Paulina Friebe against appellees in February, 1908. The plaintiff died testate on August 29, 1909, and appellants, as her devisees, were substituted in the court below as parties plaintiff. The complaintproceeds on the theory that said Paulina Friebe was the widow of Henry Friebe, deceased, and, as such, the owner of the undivided one-third of 160 acres of land. The first paragraph is in the ordinary short form, containing only the averments rendered necessary by statute, and requires no further consideration, because appellants rely on their second paragraph, which alleges: That Paulina and Henry Friebe were married in 1857, and lived together as husband and wife until August, 1901. That on October 28, 1901, they were each then, and for 30 years theretofore had been, bona fide residents of Starke county. That on October 28, 1909, the husband filed a divorce complaint against the wife in the Starke circuit court. That no summons notifying Paulina Friebe of the pendency of the proposed action was ever served or issued. That the husband's attorney filed with the complaint for divorce the following instrument: “State of Indiana, Starke County-ss: Henry Friebe v. Paulina Friebe. In the Starke Circuit Court, October Term, 1901. The defendant, Paulina Friebe, hereby enters her appearance to the above-entitled cause of action, and waives issuing of summons and the service thereof, or any notice therein. Pauline Friebe. Witnesses: William J. White, Emma G. White.” That the only authority for filing the above instrument was such as may be given or implied from the contents thereof. That Paulina never appeared to the action, in person or by attorney. That the court ordered a default against her, heard evidence, and rendered a judgment of divorce against her. A copy of the decree, preceded by a copy of said written instrument, is set out in the complaint, and is alleged to be all of the record of the proceeding as appears from the court records. So much of the decree as is material here reads as follows: “And said defendant, now failing to appear and plead further, is three times audibly called, in open court, comes not, but herein wholly makes default. And the cause, being now at issue, *** is submitted to the court for trial, finding, and decree, and, after hearing all the evidence and being fully advised in the premises, the court does find in favor of plaintiff that the allegations of his complaint are true, and that he is entitled to a decree of divorce from the defendant on the ground alleged in his complaint; and also finds that all property rights of the plaintiff and defendant have been amicably settled between them. *** It is therefore ordered, adjudged, and decreed by the court that the bonds of matrimony existing between the plaintiff and the defendant be dissolved, and that the plaintiff be granted a divorce from the defendant; that the plaintiff have the care and custody of Carl Friebe until the further order of this court. ***”

The complaint further avers that: “Said divorce proceedings and judgment, as manifestly appears from the face thereof, was and is null and void and of no legal force or effect, and, notwithstanding said judgment and decree, or pretended judgment and decree, this plaintiff continued to be and remain the lawful wife of said Henry Friebe until the time of his death.”

It is further averred that Henry Friebe died intestate in Starke county on October 28, 1907, leaving surviving him as his only heirs the alleged widow, Paulina, and certain named children; that on and prior to October 28, 1901, said Henry Friebe was the owner of the 160 acres of land in controversy; that on August 29, 1907, he executed a warranty deed, for a portion of the land to appellee Elmer D. Elder, and on the same day by like deeds conveyed the remainder of the tract to two daughters of Elder; that in the several deeds Henry Friebe is designated as “a widower”; that in October, 1907, the daughters of Elder conveyed to him the land described in their said deeds; that he is in possession of the entire tract, and claims to be the sole owner thereof, by virtue, alone, of said deeds; that Paulina Friebe did not join in the Elder conveyances, and never conveyed, nor joined in the conveyance of, any portion of the 160-acre tract; that defendant Emma G. White is administratrix of the estate of Henry Friebe, deceased, and as such holds a mortgage on a portion of the tract, executed by Elmer D. Elder to Henry Friebe to secure a portion of the purchase price of the land, which mortgage, as to Paulina Friebe, is void, and ought to be canceled. The complaint concludes with the following prayer: “Wherefore plaintiff prays that said judgment and decree of divorce be declared to be invalid and void, and that she be adjudged the owner of the undivided one-third of all of said real estate, and that her title thereto be quieted against any and all claims of the defendants or either of them; that said real estate be partitioned, and that plaintiff's portion be set off to her in severalty; and for all other proper relief.”

Appellee Elmer D. Elder answered in two paragraphs. The first was a general denial, and in the second he averred the rendition of the divorce decree of October 28, 1901, sets out a copy thereof, and avers that it is in full force and effect; he further avers that Paulina Friebe had full knowledge of the provisions of the decree when rendered, and subsequently, until after the death of Henry, held herself out to the world as a divorced woman; that before the deeds were executed by Henry, and while negotiations were pending for the purchase, she had full knowledge of the negotiations, and made no objection; that a few days before the decree of divorce was entered Paulina and Henry Friebe, in contemplation of a separation, entered into a contract, by the terms of which Paulina relinquished all her right, title, and interest in Henry's estate in consideration of the execution to her by Henry of 19 notes, maturing, respectively, from one to 19 years after date, and secured by a mortgage on the land, which notes and mortgage were executed by Henry and accepted by Paulina; that the notes were for an aggregate amount exceeding one-third of the value of Henry's estate, real and personal; that before the conveyances by Henry he paid Paulina the notes maturing up to that time, and, when the conveyance was made to Elder, he assumed, with Paulina's consent, as a part of the purchase price of the land, the payment of the remaining mortgage notes; that after the death of Henry, appellee Elder paid to Paulina one of the notes then maturing, and received from her the note so paid.

The third paragraph of answer of Emma G. White, as administratrix, avers, among other things, the execution of a written contract between Henry and Paulina Friebe on October 10, 1901, entered into in contemplation of a separation, and by the terms of which Mrs. Friebe relinquished all inchoate interest in her husband's estate; that, under the provisions of the contract, Mrs. Friebe received cash and securities of greater value than the one-third of all Henry's estate, real and personal; and that the contract was fair and equitable in its terms. The decree of divorce was also pleaded as a defense.

Appellants demurred to the second paragraph of answer of Elmer D. Elder and to the third paragraph of answer of Emma G. White, administratrix. Each demurrer was overruled, and these rulings are here assigned as error. A reply was filed to the two paragraphs, and the cause was tried by the court with special findings of fact and conclusions of law in favor of appellees. A motion for a new trial was overruled. Errors are also assigned here in the conclusions of law and in overruling the motion for a new trial. In their brief counsel for appellants say that appellees, in the court below, defended the action on the theory that Paulina Friebe had been divorced, and, if not divorced, that she was estopped by her conduct from asserting the contrary. It is evident, however, that appellees further relied on the defense that the widow was bound by the terms of the separation contract executed before the rendition of the divorce decree.

It is earnestly contended that the court erred in overruling the demurrers to the answers. As any answer is good enough for a bad complaint, it becomes proper to determine whether the second paragraph of complaint states a cause of action.

[1] The manifest theory of the second paragraph of complaint is that the divorce judgment was absolutely void for lack of jurisdiction of the person of Mrs. Friebe, and consequently was subject to attack in a collateral proceeding. The action is against a purchaser for value, and there is no allegation of guilty knowledge on his part of any frauds perpetrated on Mrs. Friebe, or that before the purchase he had any knowledge of any defect in the divorce proceeding other than the record disclosed. Even in an equitable proceeding to vacate a judgment for fraud of the plaintiff in procuring a colorable jurisdiction of the person of the defendant, a purchaser for value cannot be affected, in the absence of allegations showing at least that the purchaser, in buying, had knowledge of the fraud charged against the plaintiff in the former action....