Holmes v. Holmes
Decision Date | 24 October 1922 |
Docket Number | 33. |
Citation | 283 F. 453 |
Parties | HOLMES v. HOLMES et al. |
Court | U.S. District Court — Eastern District of Michigan |
Carton Roberts & Stewart, of Flint, Mich., for plaintiff.
John F Baker, of Flint, Mich., for defendants.
This cause was commenced by a bill in equity, filed by a citizen of Michigan, residing in this district, against citizens of Minnesota, who reside in that state, and the value of the matter in controversy exceeds $3,000, exclusive of interest and costs. The bill was originally filed in the circuit court for the county of Genesee, one of the courts of record of the state of Michigan, and was thence properly removed by the defendants, on the ground of the requisite diversity of citizenship, to this court, where it has been heard and submitted on bill and answer and on the proofs taken in open court. The material facts, some of which are disputed, are as I am satisfied from the evidence and find, as follows On December 11, 1917, plaintiff herein filed, in a former suit in said state court, a bill against the defendant Holmes, who is one of the defendants in the present suit, and who was then her husband, praying for an absolute divorce and for temporary and permanent alimony, alleging that the defendant owned certain land in said county, particularly described in the bill, and asking that any amount awarded to her as alimony be declared a lien upon said land, and that the latter be sold, if necessary, to satisfy such lien. On the day of the filing of said bill plaintiff also filed, pursuant to the Michigan statutes applicable, in the office of the register of deeds for said county, a notice of lis pendens, which referred to such bill, and set forth that the suit thereby commenced affected the real estate in question, describing it. On the following day a deed to such land, running from the said defendant Holmes to the defendant Perrin, and executed about a year previously, was recorded in the office of said register of deeds. This deed, as the evidence shows, and as I find to be the fact, was executed without consideration and for the deliberate and fraudulent purpose of defrauding and depriving the plaintiff of her rights, as the wife and creditor of the grantor, in such property, and it is therefore void and of no effect as against her in this suit. Pennington v. Fourth National Bank, 243 U.S. 269, 37 Sup.Ct. 282, 61 L.Ed. 713, L.R.A. 1917F, 1159, and cases there cited; Glick v. Glick, 110 Mich. 304, 68 N.W. 153. I find the value of said land to be $16,000.
Upon the commencement of the divorce suit mentioned an effort was made by plaintiff to obtain personal service of process on the defendant therein. It appearing, however, that the latter resided in Minnesota and could not be served in Michigan, constructive service of such process was made upon him by service outside of Michigan, in accordance with an order of the court authorizing such constructive service, pursuant to the Michigan statutes. Thereafter the bill for divorce and alimony was duly taken as confessed by the defendant, and upon proofs heard in open court a decree of absolute divorce was entered on October 15, 1921, as prayed by plaintiff. It was therein further decreed that the plaintiff--
'recover for permanent alimony in said case out of the real estate above described the sum of $6,000, and that this decree be and remain a lien on said above-described real estate until such lien is satisfied, this provision to be in lieu of the dower of the said Edith H. Holmes in the property of the said Edward H. Holmes, and in full satisfaction of all claims which she may have as the wife of the said Edward H. Holmes in any property now or hereafter owned by him, or in which he may have any interest.'
The property so referred to was the land described in the bill for divorce, in the lis pendens, and in the bill in the present suit. All of the proceedings in the said divorce suit were regularly held pursuant to the applicable Michigan law.
Plaintiff not having received any part of the sum thus awarded to her, she filed her bill of complaint in the present suit in the same state court, alleging that the aforementioned deed from defendant Holmes to the defendant Perrin was without consideration, fraudulent and void as to her, averring that her only means of collecting the said sum was by foreclosure sale of the real estate in question, and praying that said 'pretended deed' be set aside as to her and any purchaser at such sale, and that said real estate be sold by the court to satisfy her said lien and the costs and expenses of such sale. Thereafter, as already stated, the suit was properly removed to this court, where defendants appeared and answered, and the cause has proceeded to trial upon the merits, and has been submitted on the pleadings and proofs, and arguments and briefs thereon, all of which have received careful consideration.
The principal contention of the defendants is that the decree of the state court, in so far as it awards alimony to the plaintiff, is a judgment in personam, not in rem, and, not being based on proper personal service of process upon the defendant therein, is void and unenforceable as against said defendant, and that therefore, to the extent that such decree attempts to fasten a lien upon the property involved for the amount of such alimony, it is in excess of the jurisdiction of the court and void.
It is settled law that a state may, consistently with due process of law and without violating any provision of the federal constitution, subject property located within its borders to claims existing against the owner of such property, whether...
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McLean v. McLean, 6631.
...v. Haddad, 152 Okl. 264, 4 P.2d 110;Allen v. Allen, 126 Ark. 164, 189 S.W. 841;Rodgers v. Rodgers, 56 Kan. 483, 43 P. 779;Holmes v. Holmes, D.C., 283 F. 453. In still other jurisdictions it is held that a pleading, which is not specific both as to description of property and demand that the......
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...v. Haddad, 152 Okla. 264, 4 P.2d 110; Allen v. Allen, 126 Ark. 164, 189 S.W. 841; Rodgers v. Rodgers, 56 Kan. 483, 43 P. 779; Holmes v. Holmes (D.C.) 283 F. 453. still other jurisdictions it is held that a pleading, which is not specific both as to description of property and demand that th......
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