Taylor v. Taylor

• Decision Date: 17 August 1909
• Citation: 103 P. 524,54 Or. 560
• Parties: TAYLOR v. TAYLOR.
• Court: Oregon Supreme Court

103 P. 524

54 Or. 560

TAYLOR v. TAYLOR.

Supreme Court of Oregon

August 17, 1909

Appeal from Circuit Court, Umatilla County; H.J. Bean, Judge.

Action by Isabella Taylor against Moses Taylor. Judgment for plaintiff and defendant appeals. Reversed and remanded.

King J., dissenting from last paragraph only.

This is an action by Isabella Taylor against Moses Taylor formerly her husband, for money had and received. In the year 1905, plaintiff and defendant, pursuant to a suit instituted the previous year, were divorced. In the decree alimony was awarded the wife, and certain property rights were adjudicated, a general statement concerning which may be found in Taylor v. Taylor, 47 Or. 47, 81 P. 367. The present action involves the right to recover money alleged to have been received by defendant in the renting, together with that collected by him in the sale of lots 11 and 12 in block 1 of Kirk's addition to Athena, Or. It appears that during the year 1900 Moses Taylor gave and deeded to his then wife, the plaintiff herein, the lots mentioned, known as the "Athena property." Later he found a purchaser therefor at the agreed price of $6,000, received part payment thereon, caused the proper conveyance to be executed, and took a mortgage in his own name for the balance of the purchase price. The purchaser subsequently defaulted, and, to secure a cancellation of the debt and mortgage, conveyed the property to Moses Taylor, instead of to Mrs. Taylor, from whom he had acquired it. In the divorce proceeding both the trial and the Supreme courts found that Isabella Taylor had at one time held the legal title to the Athena lots, and that, notwithstanding the subsequent transfers in reference thereto, she had at all times been the equitable owner thereof, and accordingly decreed the realty described together with other lands and personalty, to her as her individual property, at the same time awarding her alimony in the sum of $6,500.

The complainant, as a first cause of action, avers that between October 1, 1901, and March 1, 1905, she was the owner in her individual right of the Athena lots, and that between the latter date and the time when they were reconveyed to her by the defendant, under the decree of the court, the property was rented to a third party by defendant as her agent, at a monthly rental of $50 a month, all of which defendant received, amounting, including interest, to $2,707.60, none of which has been paid. And as a second cause of action alleges: That in December, 1900, she was the owner of a certain piece of real estate in Umatilla county--which the record discloses refers to the Athena property--which she sold, in pursuance whereof, and as a part of the purchase price, she alleges there was paid to her then husband, this defendant, the sum of $3.800 for her use and benefit; that defendant concealed this fact from her, and has neglected and refused to pay to her any part of the sum thus collected which, with interest thereon, aggregates $5,367.60, for which sum, together with that specified in the first cause of action, judgment is demanded.

Defendant answered admitting that between October 1, 1901, and March 1, 1905, the premises were rented at the monthly rental averred, but denies that he collected any part thereof, except the sum of $300, and denies that any part of any such collections made by him was for the use or benefit of plaintiff, or that he had refused to pay any part thereof, and as an affirmative defense thereto alleges that at all times prior to September 1, 1904, plaintiff had with the store of the tenant who occupied the premises an open running account, and that her family traded sufficiently with said tenant to pay the rents to that date, the defendant thereby and in that manner receiving the rents therefor, by reason of which nothing is due plaintiff from defendant for rents during such time; that after September 1, 1904, he collected the $300 above mentioned, and no more, on the rents on said property, none of which sum is due plaintiff. It is also denied that on or about December 1, 1900, plaintiff was the owner of the "certain piece of real property" as alleged, or contracted to sell and convey the same, or that defendant, as agent, received the sum of $3,800 for the use and benefit of plaintiff, or any sum as purchase money thereon greater than $1,000, which latter sum he denies was received for plaintiff's use or benefit. This was followed by averments to the effect that $250 thereof was repaid to the purchaser of the realty, leaving the net amount received by defendant on the alleged transaction, the sum of $750, and no more, which it is denied that he failed to pay to plaintiff, or that any part thereof is due or owing to her. He further alleges that the said sum of $750 was paid out in improvements upon the buildings and in taxes upon the Athena property, and that $1,022.90 in all was paid therefor. As an affirmative and separate defense, defendant alleges that plaintiff should not be permitted, and is estopped, to assert a right to any of the moneys collected for rents or from the sales in question, setting out in support thereof proceedings in the divorce suit, consisting of the pleadings, findings of fact, and decree of the trial court, together with the mandate with the decree thereon of the cause on appeal to the Supreme Court. A demurrer was interposed and sustained to this plea on the ground that sufficient facts were not stated to constitute a defense, and, a reply having placed the cause at issue, the action was tried, resulting in a verdict and judgment for plaintiff in the sum of $2,763, from which defendant presents this appeal.

J.H. Raley and N.C. Richards (Raley, Richards & Raley, on the brief), for appellant.

Douglas W. Bailey and S.F. Wilson, for respondent.

KING J. (after stating the facts as above).

The questions here involved will, so far as practicable, be examined in their logical order, without reference to the numerical order assigned by appellant.

Assignments of error Nos. 1, 2, 3, 6, 10, and 11, respectively, all bear upon the same general subject presented for consideration, and will be considered together. They include the rulings of the trial court upon the demurrer to the answer, upon a motion for nonsuit, and the exclusion of certain evidence offered by defendant. In this connection the position of defendant, briefly stated, is: (1) That the decree in the divorce suit, so far as it relates to the Athena lots, is void: (2) that, if not void, the matters here involved were fully determined therein and are not subject to investigation here.

It appears from the averments in the answer, to which a demurrer was sustained, that in her petition for alimony, as well as in her answer subsequently interposed in the divorce suit, the plaintiff herein assumes to give in detail the property owned by Moses Taylor, and included therein the Athena realty with other property there described, as to which Taylor made no denial. After setting up an affirmative defense therein, she concluded her answer by demanding: (1) Dissolution of the bonds of matrimony; (2) that a decree be granted giving her a divorce, together with the custody of certain children there named; (3) that she be decreed the ownership of 160 acres there described in section 21; (4) an undivided one-third interest in all her husband's real estate; (5) $14,960 as alimony; and (6) $50 a month for the support and maintenance of herself and minor children. It is argued in this connection that the decree of the trial court, and also that of the Supreme Court affirming it, in so far as they relate to the Athena property, were outside of the issues, and therefore void. This contention presents for solution a unique as well as difficult question. Mr. Justice Clarke, of the North Carolina Supreme Court, in volume 3, Cyc., at page 489, states the rule upon the subject thus: "An appellate judgment which is clearly void for want of jurisdiction may

be disregarded in the court below, but not for fraud or mere irregularities." If, therefore, in the trial of the proceeding in which plaintiff was decreed the realty out of which she claims the moneys here sought to be collected, the pleadings presented no issue showing that she claimed the property in her own right, and the trial court was for that reason without jurisdiction in the first instance to make any decree concerning the property, the decree would be void, and subject to a collateral attack in the manner here presented; otherwise it is not subject to attack and must stand as the law of the case. 23 Cyc. 1055.

There may have been some question in the first instance whether a cause of suit, having for its purpose the determination, or quieting of the title to the individual property of either of the parties, was properly united with a cause of suit involving marriage rights, except the property rights for which provision is made in B. & C. Comp. §§ 511, 512, 513. Wetmore v. Wetmore, 40 Or. 332, 67 P. 98. But whatever may be the rule on the subject, no objection thereto having been made by either of the parties, they impliedly consented to a determination of their respective rights concerning the realty mentioned in the pleadings, which determination was subsequently ratified and acquiesced in by Taylor in executing the deed and his wife accepting the same according to the tenor of the decree. It is true that it appears that in the divorce suit this plaintiff alleged that her husband, the plaintiff therein, was the owner of the lots in Athena, being the "certain property" alluded to in the complaint herein, to which allegation her then husband made no denial; but, notwithstanding this averment and the implied admission, the trial court, in its findings of...