Kohl v. Montgomery

• Court: Illinois Supreme Court
• Writing for the Court: STONE
• Citation: Kohl v. Montgomery, 373 Ill. 200, 25 N.E.2d 826 (Ill. 1940)
• Decision Date: 21 February 1940
• Docket Number: No. 25334.,25334.
• Parties: KOHL et al. v. MONTGOMERY et al.

373 Ill. 200

25 N.E.2d 826

KOHL et al.

v.MONTGOMERY et al.

No. 25334.

Supreme Court of Illinois.

Feb. 21, 1940.

Suit by Myrtle A. Kohl and others against Thomas A. Montgomery and others, for partition of land. From the decree, defendant Charles T. Watkins appeals.

Reversed and remanded for further proceedings in accordance with opinion.Appeal from Circuit Court, Christian County; F. R. Dove, judge.

W. B. McBride, of Taylorville, for appellant.

Edward E. Adams, James A. Merry, and John E. Hogan, all of Taylorville, for appellees Myrtle A. Kohl and others.

Arthur Yockey and Ellen M. Yockey, both of Taylorville, for other appellees.

STONE, Justice.

This is an appeal by Charles T. Watkins, named in the cause a defendant, from a decree entered in a proceeding for the partition of certain lands, the same being a 60-acre tract in Christian county.

The facts as set up by the complaint, and not denied, are that this 60-acre tract of land was left by one Levi Montgomery to his widow, Jane Montgomery, for life, with remainder to six children, one of whom was Effie J. Watkins, wife of the appellant Charles T. Watkins. The mother and the other five children joined in a warranty deed of all their interest in this 60-acre tract to Effie J. Watkins and Charles T. Watkins, her husband, ‘for and during their natural lives and to the survivor of them for and during the natural life of such survivor, which remainder in fee to the child or children born of the body of Effie J. Watkins; and in case said Effie J. Watkins leaves no child her surviving, then the remainder in fee to’ the children of Montgomery who were grantors in the deed to Effie Watkins. This deed was made as a property settlement in the Levi Montgomery estate and represented Effie J. Watkins' interest in that estate. Thereafter, Effie Watkins, on March 13, 1913, obtained a divorce from the husband, the appellant, on the ground of adultery, and the chancellor in the decree for divorce ordered, adjudged and decreed ‘that all the rents, incomes and accumulations and all right, title and interest that the defendant, the said Charles T. Watkins, has in the following described real estate, to-wit: [describing the 60 acres] be, and the same is hereby vested in the complainant, the said Effie J. Watkins, for and during her natural life’ with remainder in fee, as provided in the original deed to Effie J. Watkins and Charles T. Watkins.

Further facts are that, later, Effie J. Watkins married Harry H. Wagner and died testate on August 21, 1938, leaving surviving her husband, her brothers and sister or their descendants, as her only heirs-at-law, no children having been born to the said Effie J. Watkins, later Wagner. By her will she devised to her then husband the undivided one-sixth interest in the premises in question, which she inherited from Levi Montgomery, her father. The amended complaint alleges that Wagner owns one-sixth of the 60 acres and that Effie J. Watkins' five brothers and sister or their assigns or representatives are each entitled to an undivided one-sixth part of the premises, and prays partition.

Appellant filed a separate answer admitting that the warranty deed was executed as alleged; that Effie J. Watkins obtained a divorce from him and that the decree of divorce contained the provisions as set out in the amended complaint, but averred that, by reason of the fact that no child had been born to Effie J. Watkins, appellant was entitled to and is the owner of the life estate in the whole of the premises, and that appellees are owners of the fee subject to the life estate of appellant, Charles T. Watkins. The facts were stipulated by the parties and, upon a hearing, the court rendered a decree granting partition as prayed in the amended complaint and finding appellant had no interest in the premises. A freehold being involved, an appeal has been taken directly to this court.

Appellant contends that the warranty deed referred to in the complaint granting five-sixths of the premises in question ‘to Effie J. Watkins and Charles T. Watkins for and during their natural lives and to the survivor of them for and during the natural life of such survivor,’ conveyed to appellant not only a life estate in said five-sixths in common with Effie J. Watkins but also a contingent remainder, for life, in said five-sixths which would vest in him if he survived the death of said Effie J. Watkins, and that the court, in rendering the divorce decree, had no jurisdiction or power to convey or order the sale of the said contingent remainder.

Appellees argue, first, that the court granting a divorce may properly decree that the wife shall be vested with the title to real estate belonging to the husband in order to effect an equitable and fair adjustment of the property rights of the parties; second, that the court, in the divorce proceeding, having had jurisdiction of the subject matter and the parties, its decree vesting the title to the property in question in Effie J. Watkins, is not subject to collateral attack; third, that the estate granted by the warranty deed, which conveyed the property to Effie J. Watkins and Charles T. Watkins, conveyed a joint tenancy and not a tenancy in common, and there was no contingent remainder to the survivor; fourth, that even if appellant acquired a contingent interest by the deed, such was subject to forfeiture through his misconduct, and lastly, that appellant must come into equity with clean hands, which he does not do since he was the one at fault in the divorce proceeding.

The decree for divorce was entered on March 13, 1913, by the circuit court of the county of Christian, the same county in which the 60-acre tract in question is located. As shown by the decree the defendant in the divorce proceeding, Charles T. Watkins, could not be found in the State and was not personally served with process, but was served with notice by publication and mailing pursuant to statute, and failing to answer was defaulted. The decree found that at the time of the marriage defendant had no property, real or personal; that complainant had about $1000 in personal property; that after the marriage complainant's mother, brothers and sister conveyed to her their interests in the 60-acre tract in question by a family settlement of property. Other property was involved in the divorce proceeding but not here. The decree finds that the fivr-sixths of the 60 acres was purchased from Effie Watkins' family with her money and the entire 60 acres was, in fact, her share in the estate of her parents. The decree further found that complainant, by reason of the misconduct of defendant, was without means of support except by her own labor and was compelled to seek assistance from her friends and relatives.

The Divorce Act provides that in a case where the wife is complainant in a divorce proceeding, the court may grant her both temporary and permanent alimony. Ill.Rev.Stat.1939, c. 40, §§ 16, 19. Section 17 of said act provides that ‘Whenever a divorce is granted, if it shall appear to the court that either party holds the title to property equitably belonging to the other, the court may compel conveyance thereof to be made to the party entitled to the same, upon such terms as it shall deem equitable.’

It has been held since the early decisions of this court that, in decreeing a divorce, a court of equity has the power to assign as alimony to the wife a part of the real estate of the husband. Stewartson v. Stewartson, 15 Ill. 145;Wheeler v. Wheeler, 18 Ill. 39;Bergen v. Bergen, 22 Ill. 187;Jolliff v. Jolliff, 32 Ill. 527;Armstrong v. Armstrong, 35 Ill. 109. So far as appears in those cases the decrees were by personal service on defendant. The doctrine there announced has been followed and frequently declared by this court in later decisions. Wilson v. Smart, 324 Ill. 276, 155 N.E. 288;Engler v. Engler, 313 Ill. 527, 145 N.E. 206;Meighen v. Meighen, 307 Ill. 306, 138 N.E. 613.

Ordinarily a decree for alimony should not vest the fee of the husband's real estate in the wife unless special circumstances justify it (Giesler v. Giesler, 336 Ill. 410, 168 N.E. 331;Lipe v. Lipe, 327 Ill. 39, 158 N.E. 411;Shaw v. Shaw, 114 Ill. 586, 3 N.E. 271), and where the wife has made no contribution to the acquisition of the property from her means, the court would not be justified, upon granting a divorce to her, in decreeing the title of her husband's land to her except in cases of some special equity arising out of the particular facts in the case. Lipe v. Lipe, supra; Champion v. Myers, 207 Ill. 308, 69 N.E. 815;Robbins v. Robbins, 101 Ill. 416. However, in the case before us, there were special circumstances which justified the granting to the wife, Effie J. Watkins, of her husband's interest in the property in question. Walz v. Walz, 325 Ill. 553, 156 N.E. 828. The 60-acre tract was acquired by Effie J. Watkins by a family settlement from her mother, brothers and sister. Watkins contributed nothing toward the acquisition of the property but, on the other hand, ran off with another woman, taking all available cash and leaving his wife without money or means of support. According to the decree, at the time of the divorce proceeding Watkins was a non-resident and was given notice of the proceeding by publication. The property in question here was within the jurisdiction of the court.

The question of power of a court of equity upon granting a divorce to a wife, to decree that she be vested with the fee to property held by the husband, he being a non-resident but the property being in the State, was discussed in Wilson v. Smart, supra. In that case the wife filed her bill for divorce in Shelby county and the husband was notified by publication, he being a resident of Colorado. The decree granted the wife alimony, assessed the same in gross rather than installments and made it, and a sum for solicitor's fees, a lien upon the husband's one-fifth interest in 280 acres of...