Reel v. Elder
| Decision Date | 06 July 1869 |
| Citation | 62 Pa. 308 |
| Parties | Reel v. Elder.[1] |
| Court | Pennsylvania Supreme Court |
May 20 1869
1. The injured party in the marriage relation must seek redress in the forum of the defendant, unless where the defendant has removed from what was before the common domicil of both.
2. No one who has not shut himself out by flight from justice can be condemned without hearing or an opportunity of being heard.
3. If a court has not jurisdiction, neither notice nor process duly served can give vitality to its judgments.
4. Such judgment is void, at least as to any extra-territorial effect.
5. A husband went from the domicil of himself and wife into another state, and obtained a divorce; after the decree land vested in him. Held, in an action of dower, the fact of the vesting after the decree did not affect the wife's right.
6. However indisputable proof depending on oral testimony may be, it is the province of the jury to decide under instructions from the court.
7. A voluntary separation of the wife from the husband, as well as adultery, will bar her of dower.
8. When one by his words or conduct wilfully causes another to believe in the existence of a certain state of things, and induces him to act on that belief so as to alter his previous position, he is estopped.
9. A husband living in another state was divorced whilst his wife lived in the original domicil; afterwards she lived with another man as her husband. The husband conveyed land afterwards the wife declared she was married to the second man. Held, in a suit for dower against the purchaser, that she was not estopped from claiming as the widow of the first husband.
10. In an action of dower, it is no defence that the defendant is a bona fide purchaser for value without notice.
11. Colvin v. Reed, 5 P. F. Smith 375, approved.
Before THOMPSON, C. J., READ, AGNEW, SHARSWOOD and WILLIAMS, JJ.
Error to the Court of Common Pleas of Dauphin county: Of May Term 1869.
This was an action of dower unde nihil habet, brought July 26th 1867, by Amelia Elder against John Reel, the vendee of John Elder, her husband, to recover dower in a farm which he had aliened in his lifetime. The testimony developed the following facts:--
John Elder, son of Thomas Elder, Esq., late of Harrisburg, on the 7th November 1841 married Amelia Dehart. The difference in the social condition of the parties made the marriage an unhappy one, and they lived together but a short time after the marriage. About two weeks after the marriage, John Elder left, saying that he was going to leave his wife. His mother testified in this case: " John did not want to let his wife know that he was going away; he went away secretly in the cars; he went away as though he was going a-gunning; the reason John went away was that he did not want to live with her, and his father did not want the fuss of a divorce here." John Elder went to Clarksville, Tennessee. After he went away the plaintiff Mrs. Elder gave birth to a daughter. John Elder remained in Tennessee twelve years. In 1849, about six years after the desertion, Mrs. Elder had a child by another man in Harrisburg, Pennsylvania. John Elder having heard this, instituted proceedings in divorce in the Circuit Court of Montgomery county, Tennessee. The petition for divorce set out that he had not married with his own consent, but was fraudulently married to her whilst he was intoxicated and unconscious of the transaction; that after the marriage in 1841 he came to Tennessee and had since remained there; that shortly afterwards his wife was guilty of adultery; he prayed that Amelia his wife be made a party to the proceedings, she being a resident of Pennsylvania. On presentation of the petition the Tennessee court ordered that publication of the petition be made for three months in a newspaper published in Clarksville, Tennessee.
On the 17th of January, 1850, the court being satisfied with the publication according to the order, and the defendant not appearing, ordered that the bill should " be taken for confessed and set for trial ex parte."
Mrs Elder never was out of the state of Pennsylvania, and during the pendency of the proceedings in divorce in Tennessee against her, was a resident of Philadelphia.
A commission to take testimony issued from the court in Tennessee, returnable at Harrisburg, Pennsylvania. The following notice, signed by John Elder, was sent to Mrs Elder:--
Mrs Amelia D. Elder--Take notice that on Wednesday, May 1st 1850, I will attend at the office of William Kline, in Harrisburg, Pennsylvania, to take the depositions of Dr. Christian Seiler, Jr., to be read as evidence in a suit for divorce now pending in the Circuit Court of Montgomery county, Tennessee, wherein I am complainant, and you are defendant, & c.
The constable made return under oath " that he had left a correct copy of the notice with James Chester, the brother-in-law of Amelia D. Elder, where the said Amelia had her last place of residence, and learned from him that said Amelia had left, but was expected daily to return to Harrisburg; and also left a copy of the notice with Mrs. Dehart, the mother of Amelia D. Elder." The depositions taken under the commission tended to show the adultery of the respondent.
In 1853 Thomas Elder, Esq., the father of John Elder, died seised of a large real estate. There was evidence that John Elder returned to Pennsylvania, and met his wife in Philadelphia, called the Tennessee divorce a nullity, and that they came to Harrisburg with their child and lived together several months. During this time, on January 17th, 1854, the title of the farm in which Mrs. Elder claims dower vested in John Elder, by proceedings in partition. Soon after he again left Mrs. Elder, and lived with another woman, to whom he was married in Schuylkill county, Pennsylvania, February 4th, 1854. " John Elder and Jerusha his wife," by deed dated February 2d, 1856, conveyed the farm in question to John Reel.
On September 29th, 1856, information was made against Mrs. Amelia Elder before Justice Reed, for adultery. She alleged before the justice that " she was not guilty, for her husband John Elder appeared as a witness and proved that he was divorced from said Amelia." Jerusha died in March 1857. There was evidence that in the summer of 1857 John and Amelia were reconciled, and until July 5th 1860, the date of his death, they lived in Harrisburg as man and wife. During these three years after the reconciliation they had three children, of whom two are living. Mrs. Elder claimed dower in the farm sold to John Reel, and that the children of John Elder and herself, born after the Tennessee divorce, are legitimate.
The court (Pearson, P. J.), after referring to the facts and discussing preliminary legal questions, charged: [" We are of the opinion that the divorce decreed by the court of Tennessee effectually destroyed the marriage contract between John and Amelia Elder.]
We come now to another branch of the defence. At the time the divorce was granted, John Elder had no interest in the estate out of which the dower is claimed. His father died in 1853. John then returned to Pennsylvania, and now became reconciled to his former wife; spoke of the divorce as a nullity, and they lived together for some weeks or months. She went to Philadelphia for some purpose, and the next account we have of her is that she was living in that city with Pickel, and passing as his wife. Mr. Shaffer states that the two-- Pickel and Amelia--came there about the first of April 1854, and lived his next neighbors for about a year, passing in society as a married couple. John had in the meantime taken up with some other woman, and they resided together on the land awarded to him in the partition, as part of his father's estate, until he sold to John Reel, the defendant; and he, and his new wife (real or pretended), conveyed the same by deed on the 2d of February 1856. At that time we may fairly infer that Amelia was living with Pickel as his wife, as they were found staying together in that capacity in the spring of 1855 in Philadelphia; and Barbara Bridenbaugh testifies that they came to the tavern kept by her relative in Campbellstown, boarded there for eight months, passed as husband and wife, and Amelia had a child during the time they were there, which both claimed as their own. They said they were married, and had a marriage certificate.
In the month of September 1856, after the execution of the deed to Mr. Reel, Amelia and Pickel came to Harrisburg, when a prosecution was commenced against her for adultery with Pickel. She then averred that Elder and she were divorced, and sent for him to testify before the magistrate. He did testify that they were divorced, and the prosecution was dismissed. The stat. 13 Edward 1, ch. 34, bars the wife of her dower who goes away and continues with her avouterer, unless her husband be voluntarily reconciled with her, and suffers her to live with him, in which case she shall be restored to her action.
By the common law adultery was no bar to dower, though in our opinion it should have been, as the wife, by such act violates her marriage contract in the most essential...
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