Hilbish v. Hattle

• Decision Date: 15 May 1896
• Docket Number: 17,880
• Citation: 44 N.E. 20,145 Ind. 59
• Parties: Hilbish v. Hattle
• Court: Indiana Supreme Court

44 N.E. 20

145 Ind. 59

Hilbish v. Hattle

No. 17,880

Supreme Court of Indiana

May 15, 1896

From the Elkhart Circuit Court.

Affirmed.

Osborne & Zook, for appellant.

F. E Baker and C. W. Miller, for appellee.

OPINION

Howard, J.

This was an action for partition, brought by appellant against appellee, asking that one-third in value of certain lands described in the complaint, and formerly owned by Jacob Hilbish, deceased, be set apart to her as surviving wife of said decedent, said lands having been conveyed by her said husband during their marriage, without her having joined in such conveyance.

The appellee answered in general denial, and also filed a cross-complaint, asking to quiet his title to the lands claimed by appellant.

The court, at the request of the parties, made a special finding of the facts in the case, from which it appears: That the appellant and her said former husband, Jacob Hilbish, were married in Union county, Pennsylvania, in 1839 removing to Elkhart county, Indiana, in 1874, where appellant has ever since resided; that appellant and the said Jacob Hilbish ceased to live together as husband and wife in 1877 that on February 24, 1877, appellant brought suit for divorce and alimony, to which the said Jacob filed a cross-complaint; which complaint and cross-complaint were dismissed October 4, 1877; that, on March 13, 1878, appellant filed her complaint against her said husband on an account for money, to the amount of $ 6,000.00, which she claimed to have loaned him at various times during their marriage; that pending said last suit, on May, 30, 1878, the parties entered into the following agreement:

"This agreement witnesseth, that said Jacob Hilbish and Susannah Hilbish, being husband and wife, and there being irreconcilable differences between them, by reason of which they have separated and do not contemplate again living together as husband and wife; and as a proper and just division of their property, the said Jacob has this day conveyed to the said Susannah Hilbish one hundred acres of land in section 4, T. 36, N. R. 6 E., in Elkhart county, Indiana. Now, therefore, the said Jacob Hilbish agrees to remove from said lands all incumbrances and deliver the same to the said Susannah Hilbish, together with all the crops, buildings, and appurtenances thereunto belonging, free from all incumbrances; and when such incumbrances are removed the said Susannah shall accept the said deed and lands in full of all claim upon said Jacob, either for moneys heretofore loaned him, or other demands against him, and in full of all her inchoate rights or contingent rights in his property as his wife or as his widow, if she should survive him; and in full of all her claims upon him for her future support and maintenance; and she hereby releases him and his estate from all demands and claims in any way arising out of any of said matters. It is further agreed, that the suit now pending in the Elkhart Circuit Court shall be dismissed at the costs of the defendant herein, and, that the said Susannah shall not hereafter contract any debts against the said Jacob, nor look to him in any manner for her support or expenses, and that a separation between the said parties is hereby effected by mutual consent; and, in consideration of the premises, the said Jacob Hilbish hereby agrees and does release and surrender all his rights, inchoate and contingent, in the said real estate so conveyed to the said Susannah Hilbish, and in and to all her separate estate or property that she now has, or may have, or become seized of hereafter, and hereby releases her and her estate, if he should survive her, from all demands for services and earnings, and all claims, contingent or otherwise, by reason of the said marital relations between them. The intent of this agreement being that as to all the property hereafter acquired or now owned by either of said parties, the same shall be free from all claims by the other, either while they live or after either of them may die."

The court further finds, that, in making said agreement said Susannah Hilbish was represented by Judge J. D. Osborne, as her attorney, and said Jacob Hilbish was represented by Judge H. D. Wilson, as his attorney, and said agreement was fairly and intelli gently entered into; that, on said day and prior thereto, said Jacob Hilbish was the owner of the lands described in the complaint, then of the value of $ 7,000.00, and the one hundred acres described in said agreement, then of the value of $ 9,000.00, and encumbered to the amount of $ 4,496.00; and was the owner of other lands in Goshen, Indiana, in Ohio, and Pennsylvania, worth over $ 22,000.00, besides real estate in Missouri and Kansas; that he was, at said time, indebted in the sum of $ 10,000.00; that appellant's claim in the said suit then pending, and all the property of the said Jacob Hilbish, as well as his said indebtedness, were considered in making said agreement, and it was estimated and considered by the parties thereto that the said one hundred acres of land described in the agreement was a reasonably fair provision for said Susannah, as the wife of said Jacob Hilbish, at that time; and she dismissed her said suit against him; that on said day, and in pursuance of said agreement, the said Jacob Hilbish conveyed to said Susannah said one hundred acres, by warranty deed, stating therein that said land was conveyed to her "as her own separate property, with full power and authority to sell, convey or encumber the same by her own separate deed and contract, in every respect as though she were unmarried," and "the consideration of the same being a final settlement and adjustment of the property rights between the grantor and the grantee upon the separation this day effected between them;" that the said Jacob Hilbish fully performed all the stipulations of said agreement on his part, except the payment of a small amount of taxes on said land; that the appellant, on said day, and by virtue of said agreement and deed, took possession of the said one hundred acres, and has ever since been in possession thereof, claiming the same as her own; that, on January 28, 1879, the said Jacob Hilbish, by his deed, appellant not joining, conveyed the land described in the complaint for $ 6,000.00, under which deed, through mesne conveyances, appellee claims title to the land, having purchased the same for $ 7,000.00 and gone into possession; that, on January 10, 1894, appellant executed a power of attorney to one James Hilbish, authorizing him to recover for her, her interest as surviving wife or widow in any and all lands owned by the said Jacob Hilbish, this suit being brought February 13, 1895; that the appellee had no notice of the execution of said power of attorney until the summons in this cause was served upon him, other than that before purchasing the land, in 1883, appellant's son informed him that his mother claimed an interest in the land; that at the May term, 1879, of the Elkhart Circuit Court, Jacob Hilbish filed his complaint for divorce, to which said Susannah filed her answer and cross-complaint, which complaint and cross-complaint were both dismissed; that, in the summer of 1879, Jacob Hilbish removed to Daviess county, Missouri, where he resided for five years, then moving to Ohio, where he lived three years, after which he returned to Daviess county, Missouri, where he continued to reside until his death, August 15, 1893; that, on December 31, 1880, Jacob Hilbish filed his petition for a divorce against appellant in Daviess county, Missouri; that, on the 7th day of the February term, 1881, of said court, an interlocutory decree of divorce was granted on said petition; and at the June term, 1881, of said court, "a judgment and decree of divorce was rendered and entered of record by said court, in said cause of Jacob Hilbish v. Susannah Hilbish, granting the said Jacob Hilbish a divorce from the bonds of matrimony existing between said Jacob Hilbish and Susannah Hilbish, and that said judgment remains in full force."

The full proceedings of the action for divorce in Daviess county, Missouri, are set out in the special findings, as are also the statutes of Missouri in relation thereto.

The conclusions of law made by the court on the special findings of facts were:

"1. That the plaintiff is not the widow or surviving wife of said Jacob Hilbish, and is not entitled to recover on her complaint.

"2. That defendant is the owner of the land described in the complaint and cross-complaint, and that his title thereto should be quieted.

"3. And that defendant should recover of plaintiff his costs."

The errors, assigned on this appeal and discussed by counsel, call in question the correctness of the conclusions of law.

It is first insisted by appellant that, "it is not found by the court that the apparent decree of the Missouri Court is a decree or judgment of any court, nor that it was ever rendered by that or any other court; nor that if such a judgment ever existed, it was still in force at the death of Jacob Hilbish."

We confess that we are unable to understand this contention of counsel. The proceedings of the Missouri court are, as we have said, set out fully in the findings. In addition, as we have also shown, the court expressly finds that "a judgment and decree of divorce was rendered and entered of record by said court, in said cause * * * and that said judgment remains in full force."

Moreover counsel admit that the setting forth in the findings of...