Wilkinson v. Elliott

• Decision Date: 04 April 1890
• Citation: 43 Kan. 590,23 P. 614
• Parties: AUGUSTA L. WILKINSON v. JOHN B. ELLIOTT et al
• Court: Kansas Supreme Court

23 P. 614

43 Kan. 590

AUGUSTA L. WILKINSON v. JOHN B. ELLIOTT et al

Supreme Court of Kansas

April 4, 1890

Error from Sedgwick District Court.

ACTION to cancel a certain deed, and to quiet title. Judgment for defendants Elliott and another, at the May term, 1887. The plaintiff Wilkinson brings the case here. The facts appear in the opinion.

Judgment affirmed.

George King, Schwinn & Wood, for plaintiff in error.

John A Murray, and C. Everest Elliott, for defendants in error.

JOHNSTON J. All the Justices concurring.

OPINION

JOHNSTON, J.:

This was an action brought by Augusta L. Wilkinson against John B. Elliott and Alexander C. Wilkinson, for the purpose of canceling a certain deed conveying a quarter-section of land, which purported to have been executed by Wilkinson and the plaintiff to John B. Elliott on May 25, 1883, and to quiet the title to the land in her. Some of the leading facts in the case are, that on February 19, 1883, the plaintiff and Alexander C. Wilkinson were then, and for a long time prior thereto had been, living together as husband and wife, and their family at that time consisted of six children. Some difficulty having arisen between them, they agreed to separate, and in the settlement made between them it was arranged that she should take a herd of cattle, and in turn should execute to him a power of attorney authorizing him to sell the real estate in controversy, the title to which stood in his name, and it had previously been occupied by them as their homestead. The power of attorney was executed on February 19, 1883, and was recorded on February 22, 1883. After the settlement was made, Mrs. Wilkinson moved from the land to a house in the same neighborhood, where she resided for a short time, and she subsequently went from there to the home of her father. On May 25 of the same year, Alexander C. Wilkinson negotiated and sold the land to John B. Elliott, and under and by virtue of the power of attorney mentioned, he conveyed her interest to the purchaser. The purchase-price of the land was about $ 2,200, which was made up in part of a mortgage upon the land of $ 700, and also of a judgment and some tax liens, which Elliott assumed. On May 21, 1883, Augusta L. Wilkinson, by her counsel, prepared a petition praying for a divorce from her husband, on the ground of gross neglect of duty, and praying also that the real estate in controversy should be granted to her by the court as permanent alimony. The petition was presented to the clerk of the district court, who placed his file-marks thereon, when it was immediately thereafter taken by counsel for plaintiff in error from the court and the possession of the officer. There was no proecipe for a summons filed, nor any summons issued, until May 25, 1883, and not then until after the conveyance to Elliott had been made. On the 24th day of May, and upon the application of Augusta L. Wilkinson, an order was granted by the district judge, at his chambers, restraining her husband from selling or disposing of this real estate during the pendency of the divorce proceedings. But this order was not filed in the district court until the 25th day of May, nor served until the following day, and the testimony of the defendant in error tends to show that neither the order nor the original petition which had been filed was returned to the district court until after the transfer of the real estate in controversy was made to Elliott. On May 20, 1885, a divorce was granted by the district court, and in the judgment it was decreed that the land in controversy should be given to Augusta L. Wilkinson as permanent alimony. Soon afterward she brought the present action, and the district court, after a full hearing, upon the evidence offered, made a general finding in favor of the defendants, and denied the plaintiff the relief asked for.

Two points are made against the judgment: First, that the power of attorney executed by Mrs. Wilkinson, authorizing the conveyance of the land, was void for the reason that she was a married woman, and was therefore incapable of thus conferring authority on her husband to convey the land in controversy; and, second, that the conveyance of the land to Elliott was made during the pendency of the action for divorce and alimony, and that under the doctrine of lis pendens Elliott took the conveyance subject to any judgment that might be rendered in that action.

In regard to the first question, it has already been determined by this court that "a married woman may appoint her husband by power of attorney as her agent to convey the inchoate interest which she holds in his real estate; and an instrument duly executed by himself, and by him for her under such authority, is effectual to transfer such interest." (Munger v. Baldridge, 41 Kan. 236.) It is claimed that a different rule applies where the land attempted to be conveyed is a homestead; but this question we need not determine. After the settlement between Wilkinson and his wife, and before the conveyance to Elliott, they ceased to occupy the land as a homestead. There is some controversy in regard to whether the land retained the homestead character after the possession of the same had been surrendered; but in view of the general findings of the court in favor of the defendants, we must assume that the homestead was voluntarily abandoned by them; and hence the case of Munger v. Baldridge is an applicable and controlling authority. The power of attorney was sufficient in form, and after execution was immediately placed on record. It still remains a matter of record, and there has been no attempt to revoke the same in the manner required by statute. (Gen. Stat. of 1889, P 1133.) There being no revocation, the power of attorney must, under the authority cited, be held valid and effectual.

The next inquiry is, whether the doctrine of lis pendens applies in actions for divorce and alimony, and whether Elliott was a pendente lite purchaser. In her petition for divorce and alimony, Mrs. Wilkinson stated at length the grounds of divorce; the necessity of alimony for the support of herself and family; and that this land particularly describing it, constituted the principal property of the defendant; and she prayed that the rents of the land should be paid to her, and that the land itself should be decreed to her as permanent alimony. The law provides that when a divorce is granted to the wife on account of the fault of the husband, she shall be restored to all her lands which have not been disposed of, and shall be allowed such alimony out of her husband's real and personal property as the court shall think reasonable. (Civil Code, § 646.) The general rule is, that one who purchases from a party to an action the subject-matter of the litigation, is bound by the judgment subsequently rendered. It is essential to the doctrine of lis pendens that the litigation should be about some specific thing to be affected by the result of the action, and that the...