Wagner v. Treesh
| Decision Date | 12 December 1919 |
| Docket Number | 10,005 |
| Citation | 125 N.E. 242,71 Ind.App. 551 |
| Parties | WAGNER v. TREESH |
| Court | Indiana Appellate Court |
From DeKalb Circuit Court; Dan M. Link, Judge.
Action by Phoebe Treesh Wagner against Lewis E. Treesh. From a judgment for defendant, the plaintiff appeals.
Affirmed.
Edgar W. Atkinson and Sharpless & Beck, for appellant.
Mountz & Brinkerhoff, for appellee.
The appellant and appellee were formerly husband and wife. A divorce was granted to appellant December 14, 1915, and she on the same day commenced this action against the appellee. An amended complaint was afterwards filed alleging said marriage and divorce, and charging in substance that on April 12, 1907, while she and appellee were husband and wife, she contracted for the purchase of certain real estate for the sum of $ 1,300; that at that time she paid out of her individual money $ 100 on the purchase price; that a contract for the purchase of said real estate was made to appellant and appellee jointly; that she paid the balance of the purchase price out of her own estate, the final payment being made in May, 1910 at which time a deed was executed in which appellant and appellee were named as grantees; that she had no knowledge that it was so executed but supposed that it was executed to herself only; that she did not intend to relinquish her right to said property, but intended to hold it as her own in her own name and believed when the deed was so made, that she was holding the property to her sole use and benefit, and so continued to believe that she was the sole owner thereof until immediately prior to the beginning of this action; that appellee caused the title to said real estate to be so taken without her knowledge and consent, and that he claims an undivided one-half interest therein adverse to her. The prayer is that the conveyance of said real estate to appellant and appellee be declared a trust in favor of appellant; that appellee be required to execute a deed conveying said property to appellant, and that the title be quieted in her.
Appellee filed a cross-complaint for partition, to which appellant filed an answer in which she set out the same facts as stated in the amended complaint. Appellee then filed a demurrer for want of facts to the amended complaint, and also to the answer to his cross-complaint, which were sustained. Appellant refused to plead further, and judgment was rendered against her. The errors assigned are that the court erred in sustaining each of said demurrers. A memorandum filed with each demurrer challenged the sufficiency of the pleading, for the reason that the decree of divorce fully and finally adjudicated the property rights of the parties.
Appellant contends that under § 344 Burns 1914, Acts 1911 p. 415, this court, in reviewing the action of the trial court, is limited to the specifications set out in the memorandum. The Supreme Court, however, has ruled otherwise. Bruns v. Cope (1914), 182 Ind. 289, 105 N.E. 471.
A decree of divorce by a court having jurisdiction of the subject-matter and the parties is an adjudication of all property rights or questions growing out of, or connected with, the marriage. As a general rule, all such questions, unless excepted therefrom, are put at rest by the judgment, and the parties thereto are precluded thereby, until it is set aside in a proper proceeding. Such a decree precludes the parties as to all matters which might have been legitimately proved in support of the charges or the defenses in the action. Walker v. Walker (1898), 150 Ind. 317, 50 N.E. 68. See, also, Wise v. Wise (1918), 67 Ind.App. 647, 119 N.E. 501.
The complaint and answer now under consideration are singularly silent as to when the appellant learned that the contract for the purchase of the real estate provided that the conveyance should be made to herself and to the appellee, and also when she learned that she and the appellee were named as grantees in the deed. We are justified in assuming, and we shall assume, that she knew...
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