Goldsborough v. Hewitt

• Decision Date: 13 January 1909
• Citation: 99 P. 907,23 Okla. 66,1909 OK 7
• Parties: GOLDSBOROUGH et al. v. HEWITT.
• Court: Oklahoma Supreme Court

99 P. 907

23 Okla. 66, 1909 OK 7

GOLDSBOROUGH et al. v. HEWITT.

Supreme Court of Oklahoma

January 13, 1909

Syllabus by the Court.

The separate deed of a married man, the head of a family, to the homestead, is void.

[Ed Note.-For other cases, see Homestead, Cent. Dig. §§ 203-209 216, 217; Dec. Dig. § 118. ^[*]]

In a divorce proceeding it is competent for the court, in the decree, to set aside the homestead to either party; but where the same makes no disposition thereof, the homestead remains to the husband, as the head of the family, discharged of all homestead rights or claims of the other party.

[Ed Note.-For other cases, see Divorce, Cent. Dig. § 712; Dec Dig. § 249. ^[*] ]

A judgment sustaining a demurrer for misjoinder of causes of action is not available to establish the plea of res judicata.

[Ed. Note.-For other cases, see Judgment, Cent. Dig. § 1048; Dec. Dig. § 572. ^[*] ]

Error from District Court, Kingfisher County; C. F. Irwin, Judge.

Action by William H. Goldsborough and Louisa Caldwell against Robert Hewitt. Judgment for defendant, and plaintiffs bring error. Reversed and remanded.

On March 23, 1904, William H. Goldsborough and Louisa Caldwell, plaintiffs in error, plaintiffs below, brought suit against Robert Hewitt, defendant in error, defendant below, in the district court of Kingfisher county, Okl. T., and for cause of action, in substance, stated that on and for some time after February 18, 1897, they were husband and wife; that as such at that time they had living with them, and still have, three children born of said marriage; that they were the owners in fee and in possession of a certain tract of land in said county, occupied and acquired by them as their homestead in compliance with the homestead laws of the United States and the territory of Oklahoma; that in March, 1896, the plaintiff Louisa Caldwell, then Goldsborough, took the youngest child and left the territory on business, with intent to return, leaving her then husband, William H. Goldsborough, and the two other children, living on their said homestead; that during her absence said William H. Goldsborough, on February 18, 1897, without her knowledge or consent, and without consideration, executed to defendant a quitclaim deed to said homestead, and put him in possession thereof, which he has since retained and refuses to surrender on demand; that there is due plaintiffs for the use and occupation thereof $2,100, for which they pray judgment, and that said deed be set aside, and for costs. On December 1, 1905, an amended answer was filed, which was in effect, a general denial and a plea of res judicata as to William H. Goldsborough. On February 19, 1906, plaintiff filed a general denial by way of reply, a jury was waived, and the cause went to trial to the court. There was a judgment for defendant, and, after motion for a new trial filed and overruled, plaintiffs prosecuted the cause by petition in error and case-made to the Supreme Court of the Territory of Oklahoma, and the same is now before us for review by virtue of the terms of the enabling act (Act June 16, 1906, c. 3335, 34 Stat. 267)

Spencer E. Sanders and F. W. Jacobs, for plaintiffs in error.

W. A. McCartney and Lee M. Gray, for defendant in error.

TURNER J.

The only assignment of error necessary for us to consider is that the judgment is not supported by the evidence and is contrary to law.

The facts are undisputed. They are: That in March, 1896, plaintiffs were living as husband and wife on their homestead in Kingfisher county; that there were living with them their three children; that about that time the plaintiff, then Louisa Goldsborough now Louisa Caldwell, took the youngest child and went to Kansas to secure employment; that while gone, without her knowledge, consent, or joinder, and without consideration, to wit, on February 18, 1897, her coplaintiff, then her husband, made, executed, and delivered to defendant a quitclaim deed to their said homestead, and put him in possession, which he has since retained.

At that time the law provided (St. Okl. 1893, § 2844): "The following property shall be reserved to the head of every family residing in the territory exempt from attachment or execution, and every other species of forced sale for the payment of debts, except as hereinafter provided: First, the homestead of the family." Section 1627: "All instruments conveying or affecting the title to the homestead exempted by law to the head of a family, shall be void unless the husband and wife sign and acknowledge one and the same joint instrument conveying the same."

This conveyance was therefore void. Hall v. Powell et ux., 8 Okl. 276, 57 P. 168; Moore v. Daniel Reaves et al., 15 Kan. 150; Matthew Chambers and Wife v. Robert H. Cox, 23 Kan. 393; C. M. Ott v. Amy Sprague, 27 Kan. 620; W. R. Hill et al. v. Chas. Alexander et al., 2 Kan. App. 251, 41 P. 1066; Mary M. Locke v. Margaret Redmond, 6 Kan. App. 76, 49 P. 670; Schermerhorn v. Mahaffie, 34 Kan. 108, 8 P. 199.

In Chambers and Wife v. Cox, supra, Brewer, J., speaking for the court, said: "The separate deed of a married man to the homestead is void; it does not divest him of title, nor estop him from recovering the land. The question is not, who will inherit from him? but, has his title been divested? And the Constitution says that his title to the homestead shall not pass unless his wife joins in the deed. While the Legislature may regulate the matter of inheritance, it cannot avoid or limit the constitutional provision for the protection of homesteads. The Constitution forbids the alienation without the joint consent of husband and wife. It does not add, 'providing they are living together and occupying the homestead,' nor, 'providing that both are residents of the state'; but the prohibition against separate alienation is absolute, when the relation of husband and wife exists."

This would seem to be conclusive of the question, and would be were it not contended in support of the judgment that Louisa Caldwell, being divorced from William H. Goldsborough at the time of the execution of the deed, has no interest in the subject-matter of this suit, and the alleged rights of William H. Goldsborough to the land in controversy have heretofore been decided by the court adversely to him in the case of William H. Goldsborough v. Robert Hewitt, and are, therefore, res judicata.

We think the first point well taken. The undisputed facts are, in addition to those already stated, that in March, 1896, after making the deed to defendant, and while his wife was gone, as stated, William H. Goldsborough brought suit for divorce against her by publication, on July 12, 1897, and obtained a decree, October 30, 1897, while she was still absent from the territory. At the time of the rendition of that decree, the chancellor, undoubtedly, had the right, under Wilson's Rev. & Ann. St. Okl. 1903, § 4839, to set aside the homestead to either plaintiff or defendant; but the decree being silent on the subject, we are constrained to hold that she retained no right therein, but that the same remained in the husband. In Brandon v. Brandon, 14 Kan. 342, Brewer, J., in speaking of the power of the chancellor in the premises, under Laws 1870, p. 180, c. 87, § 27, which confers power similar to those conferred by section 4839, supra, said: "In so far as it is a homestead, it is the homestead of each, and upon a divorce the court has the power to assign it to either. The statute expressly gives the court the power in case of a divorce, whether granted for the fault of the wife, or the husband, to give to her such share of her husband's real or personal estate as shall be just and reasonable." See, also, Blankenship v. Blankenship, 19 Kan. 159.

That she retained no right to the homestead is by reason of the fact that the statute expressly reserves it to the head of the family, which was William H. Goldsborough. By the decree she ceased to be a member of the family the same as if dead, and thereby lost all claim upon or right to it as a homestead. A citation of authority would seem unnecessary in support of this position, but it has a number of times been so expressly held.

In Burns v. Lewis, 86 Ga. 591, 13 S.E. 123, the court said: "That the dissolution of the marriage severed Mrs. Lewis from the family, and she was no longer a beneficiary of the homestead. But by the Constitution of 1868, her husband, as the head of a family, had the right to a homestead, of which the sole beneficiaries were the members of his family. Code 1873, § 5135. *** A total divorce severs the wife from the family as effectually as death itself. She ceases to be a beneficiary of the homestead provision, and her relation to it thenceforth is the same as if she had never been a member of the family. The provision which the law contemplates for a divorced wife is alimony, or such an interest in the property as the jury rendering the final verdict shall award to her. In this instance, the jury thought proper to declare in express terms that no alimony was to be set apart for her support. We have already seen that the effect of this was to leave the title to the property now in question in Lewis. If her interest in it as a homestead was destroyed by the dissolution of the marriage, and the verdict conferred upon her no new interest, she was left altogether without right to use or occupy the premises, and consequently, when Lewis brought his action against her in 1874, both title and the right of possession were in him."

In Julius Rosholt v. Thea Mehus, 3 N. D. 513, 57 N.W. 783 23 L. R. A. 239, numerous authorities are cited in support of this position. In that case, section 2 of the syllabus reads: "In divorce proceedings, it is competent for the court...