Hinkle v. Lovelace

• Decision Date: 29 May 1907
• Citation: 204 Mo. 208,102 S.W. 1015
• Parties: HINKLE v. LOVELACE.
• Court: Missouri Supreme Court

102 S.W. 1015

204 Mo. 208

HINKLE v. LOVELACE.

Supreme Court of Missouri, Division No. 1.

May 29, 1907.

1. DIVORCE—PROCEEDINGS—SERVICE BY PUBLICATION.

In an action for divorce, a petition alleged "that defendant is a nonresident of this state, or that he has absconded or absented himself from his usual place of abode in this state so the ordinary process of law cannot be served upon him." Held, that the allegations were sufficient to authorize an order for service of notice by publication.

2. SAME—PETITION—VERIFICATION.

Gen. St. 1865, c. 114, § 2, provides that the petition in a divorce case shall be accompanied by an affidavit, annexed thereto, that the facts stated therein are true to the best knowledge and belief of the plaintiff, and that the complaint is not made out of levity, or by collusion, fear, or restraint between plaintiff and defendant, but in sincerity and truth for the purposes mentioned in the petition. Held, that the petition must be sworn to by the plaintiff in person.

3. SAME—AFFIDAVIT A JURISDICTIONAL MATTER.

The affidavit of the absence of collusion, fear, or restraint and of good faith, in a proceeding for divorce, is jurisdictional, and the absence of such affidavit to that effect is fatal.

4. SAME — PLEADING — AMENDING PETITION AFTER PUBLICATION OF SERVICE.

A petition in a divorce proceeding could not be amended by adding a proper verification by the plaintiff, on the day the final decree was entered, after the defendant had been served by publication and failed to appear.

5. SAME—DECREE—COLLATERAL ATTACK.

Where a decree of divorce was void because of an insufficient petition, the decree was subject to collateral attack.

6. LIMITATION OF ACTIONS—PERSONAL DISABILITY —COVERTURE.

Where a person claiming an interest in land by descent from her father was married while a minor, obtained a void decree of divorce from her husband, and remarried, the statute of limitations began to run against her cause of action to obtain possession of the land at the death of her first husband, when her disability of coverture was removed.

Valliant, Graves, and Lamm, JJ., dissenting in part.

Appeal from Circuit Court, Jasper County; J. D. Perkins, Judge.

Action by Lucy M. Hinkle against Jonathan Lovelace. From a judgment for defendant, plaintiff appeals. Affirmed.

This is an action in ejectment, and the petition is in the usual form, instituted in the circuit court of Jasper county, whereby the plaintiff sought to recover the undivided one-half interest in and to certain real estate situated in said county, with damages for the detention thereof, and rents and profits. The answer admitted the possession of certain portions of the land, and denied he had the possession of the remainder; that he had bought plaintiff's interest in the land, paying $300 therefor, and that he had expended money for improvements; that plaintiff had stood by and knew of defendant making improvements without objection and making no claim to the land; that she had not tendered back the purchase money, nor paid for the improvements and taxes; and that she was estopped by her conduct from prosecuting her action. Defendant pleaded the 10, 24, and 30 years' statutes of limitations, and that plaintiff's marriage to Daniel Hinkle in 1867 was void; that her first husband, Daniel Edmonds, was alive at said time, and did not die until some years afterwards; and that she was divorced from Daniel Hinkle in March, 1903. The plaintiff's reply denied the allegations of the answer, and further averred that at all the times mentioned in the answer she was a married woman and continued so until March, 1903.

It was admitted on the trial that Emberson Herold was the common source of title; that he died intestate in June, 1864, owning 312½ acres of land, of which the land in controversy is a part, and leaving surviving him as his heirs at law his six children, one of whom is the plaintiff; and that the value of the rents and profits of the land sued for is $2 per acre per year. The record of a partition suit in the common pleas court of Jasper county was read in evidence, by which it appeared that in an action between part of the heirs of Emberson Herold, deceased, and the defendant and others the defendant had claimed the one-sixth interest of plaintiff and also another one-sixth interest purchased by him from one of the other heirs, and that the land in controversy was set off to him as his two-sixths interest in the estate. The plaintiff was not a party to that suit. It was shown by the plaintiff's testimony that plaintiff was born on June 7, 1850, had been twice married, first to Daniel Edmonds in the fall of 1865, and with whom she lived three months and was then divorced from him October 1, 1867; that she married Daniel Hinkle January 1, 1868, and continued as his wife until divorced from him June 22, 1903; that Daniel Edmonds died after plaintiff's marriage with Hinkle; that defendant was plaintiff's stepfather after having married plaintiff's mother, the widow of Emberson Herold. Defendant's evidence established the following facts, to wit: That plaintiff and Daniel Edmonds were married in November, 1865, and separated in March, 1866. That on January 9, 1867, plaintiff filed a petition for divorce from Daniel Edmonds. Said petition was sworn to by J. Lovelace as agent for plaintiff; the affidavit otherwise being in statutory form for divorce proceedings. In the body of the petition is the following allegation: "That defendant is a nonresident of this state, or that he has absconded or absented himself from his usual place of abode in this state, so that the ordinary process of law cannot be served upon him." Upon which allegation an order of publication was made notifying Daniel Edmonds to appear at the March term, 1867, at which term there was an interlocutory decree in favor of plaintiff. At the October term, 1867, on October 1st, plaintiff by leave of court amended her petition, the amendment consisting of the statutory affidavit being written onto the original petition and subscribed and sworn to by plaintiff, and on the same day final decree was entered in favor of plaintiff. On January 1, 1868, plaintiff went through a marriage ceremony with Daniel Hinkle and lived with him as his wife until some time in 1903. The records shows that Daniel Edmonds died in Joplin, Mo., some four or five years after said decree of divorce and plaintiff's marriage to Hinkle. Defendant received two deeds from plaintiff for her interest in this land, one in January, 1868, while still under age, and one in December, 1868, after she became of age, but while living with Daniel Hinkle as his wife, both acknowledged by plaintiff and Daniel Hinkle, but in neither does the certificate show she was examined separate and apart, etc. Defendant took and held possession of said land under said deeds for 35 years, and paid all the taxes thereof, and that the legal title and equitable title thereto emanated from the United States more than 35 years before the commencement of this action.

The cause was tried by the court without the intervention of a jury, and, at the request of plaintiff, the court gave five instructions, and refused the following: "The court declares the law to be that the decree of divorce granted in favor of the plaintiff against Daniel Edmonds on the 1st day of October, 1867, was valid and effective to divorce the plaintiff from said Daniel Edmonds." To which action of the court, in refusing said instruction, the plaintiff duly excepted. The court over the objection of the plaintiff gave declarations of law on behalf of the defendant to the effect that the decree of divorce obtained by the plaintiff from Daniel Edmonds was void, for the reason that the statutory oath attached to the petition was sworn to by the next friend instead of the plaintiff, and that the marriage between the plaintiff and Daniel Hinkle was void, and that in consequence the 30-year statute of limitation was a bar to the recovery by the plaintiff. Other declarations of law were given and refused, all showing that the theory of the finding for the defendant was that the decree obtained from Daniel Edmonds was void, and that the marriage to Daniel Hinkle was likewise void, and that the statute of limitations commenced to run against the plaintiff at the instant of the death of Daniel Edmonds. The court found the issues for defendant, and rendered judgment accordingly. Plaintiff in due time filed motions for a new trial and in arrest, which were, by the court, overruled, and exceptions were duly saved, and plaintiff has brought the cause here by appeal.

Thomas & Hackney, for appellant. McReynolds & Halliburton, for respondent.

WOODSON, J. (after stating the facts).

1. Plaintiff's contention is that when, in 1864, her father, Emberson Herold, died, seised of the land described in the petition, she, under the statutes of descent and distribution, inherited an undivided one-sixth of it, and, being a minor at the time and married before she attained her majority, the statute of limitations would not run against her until the dissolution of her marriage contract, which was on June 22, 1903; and that when the land was partitioned, and her portion was decreed and set over to defendant, ejectment will lie against him for her share of the land, notwithstanding the execution and delivery of the two deeds by her to the defendant purporting to convey the land in controversy, for the reason, as she contends, both of them are void because she was not examined separate and apart from her husband when she acknowledged them, as required by statute. The defendant, upon the other hand, contends that the decree of divorce rendered in plaintiff's favor against Daniel Edmonds, her first husband, on October 1, 1867, was absolutely null and void, and that she continued to be his lawful wife until his death, which occurred in 1872 or 1873, and that on that account her marriage to ...