Whitmore v. Harden

• Decision Date: 11 February 1882
• Citation: 1 P. 465,3 Utah 121
• Court: Utah Supreme Court
• Parties: WHITMORE v. HARDIN ET AL

1 P. 465

3 Utah 121

WHITMORE v. HARDIN ET AL

Supreme Court of Utah

February 11, 1882

APPEAL by the plaintiff from a judgment of the third district court in favor of the defendant Emma Hardin. Prior to 1862 Emma Hardin and John W. Jenkins were man and wife; in that year they were divorced by a decree of the probate court of Salt Lake county, and by this decree the divorced wife was awarded possession of parts of the house situate on the premises which are the subject of this action, as long as she should remain unmarried. In 1873 Emma Hardin remarried, having in the mean time abandoned the possession decreed her. On May 18, 1875, John W. Jenkins and another wife, Eliza, mortgaged the same premises to the plaintiff, which mortgage was duly recorded on the next day. The plaintiff seeks to foreclose this mortgage making John W. Jenkins and his wife Eliza and Emma Hardin parties. In October, 1875, Emma Hardin applied to the probate court of Salt Lake county for further relief against her divorced husband Jenkins, by modified decree, and by an appeal to the district court succeeded, in November 1877, in obtaining a personal judgment against Jenkins for fifteen hundred dollars in lieu of her former allowance as alimony, which was decreed to be a lien upon the mortgaged premises; under this judgment the mortgaged premises were sold to the defendant Emma Hardin, who in due time received a marshal's deed therefor. Kenyon v. Kenyon, referred to in the opinion, is reported in this volume, post.

Judgment of the third district court reversed, and cause remanded, and the third district court directed to enter a decree of foreclosure in favour of the appellant and against all the defendants for the amount found due on said note and mortgage.

E. D Hoge, for the appellant.

The appeal is from the judgment, and only the judgment roll is before this court.

We claim that the conclusions of law are radically wrong, and that upon the facts found we are entitled to a decree of foreclosure.

The decree of the probate court of August 30, 1862, is a nullity and John W. Jenkins and Emma Hardin are yet husband and wife Cast v. Cast, 1 Utah, 112; Ferris v. Higley, 20 Wall. 382.

It will no doubt be claimed, as it was in the court below, that congress, by what is known as the Poland bill, made valid that void decree.

I answer--1. That congress could not by legislation make valid what was void: Cooley's Const. Lim., secs. 107, 108, 397, 398; McDaniel v. Carrell, 19 Ill. 226; Richards v. Rate, 68 Pa. St. 248; Denny v. Mattoon, 2 Allen, 361; Sedgwick's Stat. & Const. Law, 141; California Dist. Ct. Reis v. Lawrence, S. B. McKee, Judge. 2. Congress has not attempted to validate this decree of the probate court: Utah Stat., sec. 3, p. 54.

But it is claimed, and if I am not mistaken the court below held, that the Spanish or Mexican law is in force in this territory, and by that law the defendant Emma Harden was entitled to this property.

We deny that the Mexican law is in force, and allege that the common law is in force in this territory; this question has been settled by our own supreme court: People v. Green, 1 Utah, 11; First National Bank v. Kinner, Id. 100; Thomas v. U. P. R. R. Co., Id. 232. This last case affirmed in the supreme court of the United States.

The common law being in force, the respondent had no interest in this property. The court will take judicial notice that this property was not at the date of this divorce, in August, 1862, property to which dower would attach, it not being a fee simple or fee tail: Davenport v. Farrer, 2 Ill. 314; Grover v. Dawley, 5 Cal. 486; Bowers v. Keescker, 14 Iowa 301; Bouv. Law Dict. 505, 711; 2 Bla. Com. 131.

But if the defendant was entitled to dower, the provision made by probate decree would deprive her of that right.

Sutherland & McBride, for the respondent.

The appellant's argument for the reversal is founded entirely on the proposition that Jenkins and the respondent are husband and wife.

As the respondent has never set up any claim to the premises on the basis of dower, that part of the appellant's brief may be entirely dismissed. But it is by no means clear or probable that the appellant could enforce her mortgage on community property, under the circumstances stated in the record, even if the respondent were still the wife of the mortgagor; for though he might in that case have the power to manage and even to sell, he can not give it away nor devise it, nor could he mortgage it except to pay an actual debt against the community: Beard v. Knox, 5 Cal. 256; Smith v. Smith, 12 Id. 226; De Godey v. Godey, 39 Id. 164. And on the dissolution of the marriage relation by divorce, the husband's right, as head of the community, to manage or dispose of the common property ceased, and the parties from that time are on an equal footing: De Godey v. Godey, supra.

Answering the appellant's brief, we contend the decree of the probate court of August 30, 1862, is not a nullity, and the mortgagor and this respondent are not, and at the time the mortgage was given were not, husband and wife.

This court will take notice that an act was passed in 1852, by the territorial legislature, purporting to give the probate courts jurisdiction in all cases of divorce and alimony: Comp. Laws, 373; that until this jurisdiction was questioned in 1873 and 1874, it had been frequently exercised; all the divorces granted in this territory for a period of over twenty years had been granted by that court, for the divorce law applied in terms exclusively to it; and during that period the jurisdiction of the probate courts was recognized and affirmed by this court: Kenyon v. Kenyon, post.

Nor has that jurisdiction ever been judicially determined not to exist. Cast v. Cast, 1 Utah, 112, merely decided that the district courts had jurisdiction. Boreman, J., went further, and contended that the probate courts had not jurisdiction. That question was not in the case. Judge McKean concurred in the result, that is, that the district courts had jurisdiction, and Judge Emerson dissented.

This jurisdiction is not excluded by the organic act, as the lines are traced in Ferris v. Higley, 20 Wall. 375, decided in 1874.

The probate courts had been exercising for years general chancery and common-law jurisdiction, and in that act of congress is this general provision: "All judgments and decrees heretofore rendered by the probate courts which have been executed, and the time to appeal from which had by the existing laws of said territory expired, are hereby validated and confirmed:" Comp. Laws, 54.

It is contended by appellant that this provision is void; that congress had no power to enact it; but it is not stated what limitation of the power of congress was exceeded in this legislation. All retrospective statutes which have been declared void will be found to be in conflict with some constitutional restriction. This is proved by appellant's citations, except the unauthoritative case of Reis v. Lawrence. There are no such restrictions on the power of congress to legislate for territories. Acts of congress are here the paramount law: American Ins. Co. v. Carter, 1 Pet. 511, 538, 542, 545; Scott v. Sanford, 19 Hun, 442.

But the validation of decrees for divorce may be sustained to a greater extent than other curative statutes. Legislatures have an inherent power to grant divorces: Cooley's Const. Lim. 107; Starr v. Pease, 8 Conn. 541; Opinion of Judges, 16 Me. 479; Adams v. Palmers, 51 Id. 480; Levins v. Sleator, 2 G. Greene, 604; Brigham v. Mills, 17 Ohio 144.

The probate court in the first instance, and the district court on appeal, had power to distribute and afterwards to modify the order for the distribution of the property of the parties, and to provide for the respondent's maintenance; and the respondent had an interest in and title to a distributive share, depending for amount on this action of the court, in the nature of property, originating in the marriage relation, and having priority from the date of cause, in the husband's misconduct, for a divorce. This right, in the nature of property, exists only in estate acquired by the parties during the time they lived together as husband and wife. The husband, owing his wife a support, might be compelled to perform that duty out of subsequent earnings or accumulations.

The property in question here is of the former class, that in which the respondent has an interest being property existing at the time of the divorce, and then and afterwards within the power of the court as "property of the parties:" Comp. Laws, sec. 1155.

Such property, being subject to division among them, is common property; they are tenants in common in respect to it, and the court determines their proportions in distributing it.

The section 1155 of the act of 1852, by its very terms, has the effect in case of a divorce, first, of making the parties--husband and wife--tenants in common of the property; and second, of giving the divorce court a continuing jurisdiction to distribute it.

The order of the district court, made November 23, 1877, gave the respondent for her interest in the premises one thousand five hundred dollars, to be made out of it, unless otherwise paid. That sum has the qualities of purchase money, and is supported by the same equities that make such money a lien; and until paid the property would continue subject to the same jurisdiction of the court.

It was bought under that order; on expiration of redemption was deeded to respondent by the marshal and Jenkins, and by those proceedings the court has awarded it wholly to the respondent. She has the property by virtue of the executed order of the court, and the acquiescence of all parties who could appeal or redeem,...