Peaslee v. Peaslee
| Decision Date | 19 June 1888 |
| Citation | 17 N.E. 506,147 Mass. 171 |
| Parties | PEASLEE v. PEASLEE et al. PEASLEE et al. v. PEASLEE. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Henry Carter and J.P. & B.B. Jones, for demandant.
The decree of divorce from bed and board was granted under Gen.St. c. 107. The decree from the bonds of matrimony was made under St.1870, c. 404. The latter statute is retroactive in its terms, and has been sustained by the court. Bigelow v. Bigelow, 108 Mass. 38; Sparhawk v Sparhawk, 116 Mass. 315. The tenants claim that the decree absolute is void because the records do not show that notice was given to the libelee. The answers to this are threefold: (1) The statute did not require that notice should be given of a petition to have the decree of divorce from bed and board or the decree nisi made absolute. The statute is not invalid for want of such a requirement. Pennoyer v. Neff, 95 U.S. 714. In case of a wife divorced from the bed and board of her husband, there is no constitutional objection to a statute providing that the court, upon ex parte hearing, and upon proof that the parties have lived apart three consecutive years, may decree the divorce to be from the bonds of matrimony. If the legislature have power to authorize the courts to grant a divorce between a citizen and non-resident without notice to the latter, it would seem to have power, in the case of a divorce from bed and board between its own citizens, to authorize the courts in an ex parte hearing, and upon proof of the prescribed cause, to decree a divorce from the bonds of matrimony. It is true that the practice of the courts has been to order notice of the petition to the other party. This fact, in and of itself, confirms the position of the demandant on this point for if St.1870, c. 404, was invalid or unconstitutional in not requiring notice, the court could not, by its practice or rules, impart validity to it; or, in other words, the judicial department cannot exercise legislative powers. If the statute is valid, it is valid independently of the rules of practice of the court. If the statute was not valid, the court could not have acted under it, or applied its rules to it. The power of the legislature in the matter of divorces is not limited by the constitution of the United States. Opinion of the Justices, 16 Me. 479, 481. Its power is limited by the provision in the state constitution that it shall not exercise judicial powers. Sparhawk v. Sparhawk, supra. The statute in question authorized the court, upon proof that parties divorced from bed and board had lived apart for three years, to decree a divorce from the bonds of matrimony upon the application of either party. Such decree does not deprive either party of vested rights; for they have no legal rights in each other's property. Pierce v. Burnham, 4 Metc. 303. Nor does it even impute moral guilt; for it involves only the question of separation after the decree from bed and board. (2) If notice was requisite, the presumption is in favor of the regularity of the proceedings of a domestic court. Edds' Case, 137 Mass. 346. Huntington v. Charlotte, 15 Vt. 46, is a case directly in point. See Grignon's Lessee v. Astor, 2 How. 319; Hahn v. Kelly, 34 Cal. 391; Miller v. U.S., 11 Wall. 268; Waltz v Borroway, 25 Ind. 380; Rhoades v. Selin, 4 Wash.C.C. 715; Newcomb v. Newcomb, 13 Bush, 544; Lefever v. Lefever, 6 Md. 472; Fridge v. State, 3 Gill & J. 112; Fitch v. Boyer, 51 Tex. 336; U.S. v. Ambrose, 7 Fed.Rep. 554. (3) A want of notice, even if notice was requisite, is an irregularity in the proceedings not affecting the jurisdiction of the court, and the decree cannot be impeached collaterally, but can be set aside only by proceedings instituted directly for that purpose. Cook v. Darling, 18 Pick. 393; Emery v. Hildreth, 2 Gray, 228; Finneran v. Leonard, 7 Allen, 54, 55; Hendrick v. Whittemore, 105 Mass. 23; Stockwell v. McCracken, 109 Mass. 84; McCormick v. Fiske, 138 Mass. 379; Foley v. Haverhill, 144 Mass. 352, 11 N.E. 554; Harvey v. Tyler, 2 Wall. 328. A decree of divorce can be vacated or annulled by proceedings instituted directly for that purpose. Edson v. Edson, 108 Mass. 596. It would seem as if every reason of public policy which upholds the judgment of a justice of the peace rendered in a case wherein the records disclose no service of notice on the defendant would apply to a decree of divorce entered in the supreme judicial court of the commonwealth. The decisions in Smith v. Rice, 11 Mass. 506; Jochumsen v. Bank, 3 Allen, 87; Newhall v. Sadler, 16 Mass. 122,--require some consideration. In the first two cases the court place the right to collaterally impeach a decree on the ground that a party who had no notice of the proceeding had no other means of having the decree reversed or vacated, and it is fair to assume that, if the court had decided that such party could have had the decree reversed or vacated by proceedings directly instituted for that purpose, it would have held that the decree could not be collaterally attacked. In Waters v. Stickney, 12 Allen, 1, it was decided that although the decree of a probate court could not be reversed or vacated by error, certiorari, or bill in equity, it could be reversed or vacated by proceedings directly instituted for that purpose. But see McKim v. Doane, 137 Mass. 195; Bassett v. Crafts, 129 Mass. 513; Emery v. Hildreth, 2 Gray, 228; Jenks v. Howland, 3 Gray, 536.
The tenants excepted to the admission of the testimony of Ellen S. Smith and Isaac C. Pear, that, after the engagement Peaslee told them that he was going to settle $10,000 on the demandant; $5,000 in money, and $5,000 in land. The ruling of the court in regard to this was correct. Thurston v. Thornton, 1 Cush. 89; Camerlin v. Palmer Co., 10 Allen, 539. The statement of Hiram Peaslee in regard to the jointure was fraudulent, in that it misrepresented the contents of a written instrument to a person to whom the same was presented for execution. Foster v. MacKinnon, L.R. 4 C.P. 707; Chapman v. Rose, 56 N.Y. 137; Gibbs v. Linabury, 22 Mich. 479; Trambly v. Ricard, 130 Mass. 259; Lewis v. Rees, 3 Kay & J. 132. The fact that the demandant was an educated person was only evidence on the question of due care in signing without reading. It was a question for the jury. Savage v. Stevens, 126 Mass. 207; Foster v. MacKinnon, and Trambly v. Ricard, supra. Indeed, the court could have correctly ruled, as matter of law, that the demandant had a right to rely upon Peaslee's statement. Kline v. Kline, 57 Pa.St. 120; Kline's Estate, 64 Pa.St. 122; Cranson v. Cranson, 4 Mich. 230; Brown v. Bronson, 35 Mich. 415; Buzick v. Buzick, 44 Iowa, 259; Littleton v. Littleton, 1 Dev. & B. 327; Smith v. Smith, 6 N.J.Eq. 515; Chandler v. Hollingsworth, 3 Del.Ch. 99. A representation as to the price paid by a third party is actionable. Medbury v. Watson, 6 Metc. 259; Manning v. Albee, 11 Allen, 520; Com. v. Wood, 142 Mass. 459, 8 N.E. 432; Van Epps v. Harrison, 5 Hill, 70; Page v. Parker, 43 N.H. 369; Sandford v. Handy, 23 Wend. 269. Inadequacy of a jointure assented to while the parties are engaged, raises a presumption of fraud. Grogan v. Garrison, 27 Ohio St. 50. It is important in this connection that, when the demandant signed said indenture, she believed, by reason of the fraud of Peaslee, that it contained a pecuniary provision. In such case the signature is no more than a forgery would be. Foster v. MacKinnon, supra; Walker v. Ebert, 29 Wis. 194; Whitney v. Snyder, 2 Lans. 477; Taylor v. Atchison, 54 Ill. 196; Wait v. Pomeroy, 20 Mich. 425. The jointure is an equitable one, and is so inadequate that equity will not enforce it. To constitute a legal jointure under St. 27 Hen. VIII., c. 10, the estate must be so limited that it must take effect immediately upon the death of the husband, and it must be made to the wife directly, and not to any one in trust for her. The jointure in question is not a legal jointure under the statute; for, upon the death of the husband, the estate did not vest immediately in the wife. It was necessary that the trustee should act, and execute and deliver a deed to her, before the estate could vest in her. The indenture in question is one of bargain and sale, and the use raised by means of the bargain was executed in Smart by force of the statute of uses; and, as the statute does not execute a use upon a use, the legal estate remained in Smart as trustee for the wife. Bac.Abr. bk. 10, tit. "Uses and Trusts," H 1; Stearns v. Palmer, 10 Metc. 32. See Murphy v. Collins, 121 Mass. 6. See Wilson v. Cheshire, 1 McCord, Eq. 238; Mott v. Buxton, 7 Ves. 201; Nevil v. Saunders, 1 Vern. 415. It was an equitable jointure, and governed by the rule that such a jointure will not be enforced if not an adequate provision. Buckinghamshire v. Drury, 2 Eden, 60; Caruthers v. Caruthers, 4 Brown, Ch. 374; Smith v. Smith, 5 Ves. 189; Gould v. Womack, 2 Ala. 83; Grogan v. Garrison, 27 Ohio St. 59; McCartee v. Teller, 2 Paige, 511; Mason v. Mason, 140 Mass. 63, 3 N.E. 19; Seymour v. De Lancy, 3 Cow. 445. On the question of ratification during coverture, the demandant submits: (1) If Peaslee, Smart, and the demandant had executed, during coverture, an agreement similar to the one in question, providing the same jointure, limited in the same manner, and containing the same covenants on her part, she would not have been bound by it, and could have elected to hold her dower upon her husband's death. (2) Not having capacity to bind herself during coverture by such an agreement, she cannot bind herself during coverture by ratifying it. (3) The indenture was a jointure settled on her, without her assent, before...
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