Rumsey v. Rumsey
| Decision Date | 10 June 1939 |
| Docket Number | 34170. |
| Citation | 90 P.2d 1093,150 Kan. 49 |
| Parties | RUMSEY v. RUMSEY et al. (INVESTORS ROYALTY CO., Inc., Intervener). |
| Court | Kansas Supreme Court |
Rehearing Denied July 8, 1939.
Syllabus by the Court.
A wife was entitled to a decree for alimony without divorce against husband found by court to be irresponsible and unreliable and to have abandoned his wife and children and associated and traveled with disreputable women. Gen.St.1935, 60-1516.
A husband's deeds to third person were properly set aside at instance of wife in action for alimony, where court found on substantial evidence that third person sought to defraud husband and wife, that deeds were without consideration, and that purpose of husband was to force wife to procure a divorce.
The lis pendens statute providing that no interest can be acquired by third persons in subject matter of pending action as against plaintiff's title applies to actions for divorce and alimony. Gen.St.1935, 60-2601.
Where interest in realty belonging to husband had been conveyed to intervener subsequent to institution of wife's alimony action wherein she sought to have a portion of realty allocated to her as alimony, the doctrine of lis pendens applied and intervener was bound by decree setting aside conveyance to it. Gen.St.1935, 60-2601.
A husband's realty may be set apart to wife in action for alimony alone as well as in action for divorce and alimony. Gen.St. 1935, 60-1516.
The lis pendens statute providing that no interest can be acquired by third persons in subject matter of pending action as against plaintiff's title is not limited to real property. Gen.St.1935, 60-2601.
The purpose of statute giving plaintiff in suit for alimony right to an attachment against property of defendant was to give plaintiff the same remedy given to creditors where a debtor has sold or is about to sell property for purpose of defrauding creditors. Gen.St.1935, 60-901, 60-933.
The right of wife in suit for alimony to have an attachment against husband's property is not limited to realty, but includes any property, real or personal. Gen.St.1935, 60-901.
The trial court has a wide discretion in allowance of alimony and attorney fees, and its exercise of that discretion, unless clearly abused, will not be disturbed on appeal.
1. Where a wife files a petition asking for alimony, in which she describes certain real estate belonging to her husband and prays that it be awarded to her as permanent alimony, the doctrine of lis pendens applies, and anyone who purchases such property during the pendency of the action will be bound by the judgment subsequently rendered therein.
2. Under the statutes of this state real estate of the husband may be set apart to the wife in actions for alimony alone, as well as in actions for divorce and alimony.
3. In a suit for alimony the right of the wife to have an attachment against the property of the husband under our statute G.S 1935, 60-901, is not limited to real property.
4. The trial court has a wide discretion in the allowance of alimony and attorney fees, and its exercise of that discretion unless clearly abused, will not be disturbed on appeal.
Appeal from District Court, Ellis County; C. A. Spencer, Judge.
Action by Rose Rumsey against John L. Rumsey for alimony, and against John L. Rumsey and J. R. Harris to set aside mineral deeds, wherein the Investors Royalty Company, Incorporated, intervened. From the decree rendered, the defendants and the intervener appeal.
Affirmed.
Ezra Branine, Alden E. Branine, and Fred Ice, all of Newton, and J. H. Jenson, Paul Ward, Delmas Haney, and E. J. Malone, all of Hays, for appellants.
D. M. McCarthy, Kathryn O'Loughlin McCarthy, and A. J. Wiles, all of Hays, for appellee.
This was an action by Rose Rumsey against her husband John L. Rumsey for alimony. In plaintiff's petition it was alleged that the parties were married on August 2, 1926; that they have six children ranging in age from 1 1/2 years to 11 1/2 years. The defendant is charged with extreme cruelty, gross neglect of duty and adultery; that defendant has abandoned plaintiff "going to parts unknown taking with him another woman."
It is alleged that defendant is the owner of an undivided one-tenth interest in Section 23, Township 11 South, Range 17 West, Ellis county, Kansas.
Plaintiff asked for alimony, suit money and attorney fees, and that she be given the custody of the minor children. She also prayed that the interest of the defendant in the above described real estate, or such part thereof as to the court should seem meet and just, be allocated to her as alimony.
Thereafter the plaintiff filed an amended or supplemental petition wherein plaintiff alleged that after the commencement of the action and on August 16, 1937, three certain mineral deeds from John L. Rumsey to the defendant J. R. Harris and purporting to convey certain interests in the land in Section 23, above described, were filed for record in the office of the register of deeds in Ellis county. The amended petition charged that the defendants John L. Rumsey and John R. Harris fraudulently and illegally entered into a scheme or conspiracy to defraud plaintiff of her interest in such property; that as a part of such fraudulent scheme the defendant Harris was to induce plaintiff to consent to a divorce; that it was the intent and purpose of Harris in entering into such fraudulent conspiracy to cheat, swindle and defraud the defendant John L. Rumsey and plaintiff out of the mineral rights and property in such land. Plaintiff asked that such mineral deeds be set aside and canceled.
In the alimony action the Investors Royalty Company, Inc., prayed for and was granted leave to intervene. The petition of the intervenor alleged that on the 19th day of July, 1937, the defendant John L. Rumsey for a valuable consideration sold and conveyed by three separate instruments certain interests in the oil, gas and other minerals in Section 23, above described, to J. R. Harris. Intervenor alleged that thereafter and on August 3, 1937, intervenor for a valuable consideration purchased all of the interest of Harris in and to said land, and received proper grants and assignments therefore and that such instruments were on August 16, 1937, duly recorded in the office of the register of deeds in Ellis county. Intervenor asks that its interests so acquired be protected by proper orders and decrees of the court.
The plaintiff in her answer to the petition of the intervenor alleges that the intervenor had full notice and knowledge of the fraudulent and illegal conspiracy of John L. Rumsey and J. R. Harris, and of the fraudulent purpose of Harris, denies that intervenors paid an adequate consideration for the interests so acquired, and asks that the transfers from Harris to such intervenors so recorded be canceled.
The petition of plaintiff was filed on July 30, 1937. On the same date an affidavit for an attachment was filed by the plaintiff, and on that date levy of the attachment on the land of defendant John L. Rumsey above described was made by the sheriff of Ellis county.
The defendant John L. Rumsey filed an answer in which he denied the allegations of plaintiff's petition, except he admitted he was the owner of an undivided one-tenth interest in Section 23, above described, and alleged that his interest therein was of the value of $35,000.
Service was had on the defendant Harris by publication.
The court returned findings of fact and by its decree awarded all of the interest of defendant John L. Rumsey in the land in Section 23, above described, to the plaintiff, and decreed that the defendant John L. Rumsey and all persons whomsoever claiming by, through or under him be forever barred, estopped and enjoined from claiming or asserting any right, title, interest or estate therein, and that plaintiff should have the right to convey and dispose of such real estate without the consent of the defendant. Attorney fees in the sum of $1,000 were allowed.
On this appeal many errors are specified.
The action was for alimony without divorce. This form of action is expressly allowed by our statute G.S.1935, 60-1516.
The charges in the petition as to the character and conduct of the defendant John L. Rumsey were sustained by the evidence. The court found that he was "a ne'er-do-well, irresponsible, unreliable husband and father." That he abandoned his wife and children; that he associated with and traveled from state to state with disreputable women is not denied. The decree for alimony was justified by the record before us.
Were the deeds from John L. Rumsey to Harris executed with the intent and purpose to defraud the plaintiff?
The findings of the court on this question are in part as follows:
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