Wilson v. Smart

• Decision Date: 16 February 1927
• Docket Number: No. 17227.,17227.
• Citation: 324 Ill. 276,155 N.E. 288
• Parties: WILSON v. SMART et al.
• Court: Illinois Supreme Court

324 Ill. 276

155 N.E. 288

WILSON

v.SMART et al.

No. 17227.

Supreme Court of Illinois.

Feb. 16, 1927.

Error to Circuit Court, Shelby County; F. R. Dove, Judge.

Suit by Freda Snyder Wilson against Ida J. Smart and others, in which defendants filed a cross-bill. Decree for plaintiff, and cross-complainants bring error.

Affirmed.J. J. Baker and A. J. Steidley, both of Shelbyville, for plaintiffs in error.

S. S. Clapper, of Moweaqua, and George B. Rhoads, of Shelbyville, for defendant in error.

DE YOUNG, J.

Freda Snyder Wilson on May 19, 1924, filed her bill in the circuit court of Shelby county for the partition of 280 acres of land in that county. The bill alleged, among other things, that Michael Snyder on May 8, 1882, conveyed the land to his son Michael Snyder, Jr., for life, with the remainder at the latter's death to the heirs of his body; that Michael Snyder, Jr., died on May 15, 1924, leaving him surviving, as such heirs, Ida J. Smart, Lucy Thomas, Margaret Hudson, Lena Moore, and Albert C. Snyder; that the complainant is the daughter of Albert C. Snyder and Agnes M. Snyder, his wife; and that the undivided interest of Albert C. Snyder, subject to the life estate of Michael Snyder, Jr., his father, was sold at a sheriff's sale, and by a sheriff's deed dated and recorded on October 6, 1898, was conveyed to Agnes M. Snyder, who died testate on February 15, 1914, and by her last will devised her interest in the land to the complainant.

Albert C. Snyder was not made a party to the partition suit, and on June 17, 1924, he filed his petition to become a defendant thereto. The petition alleged that Agnes M. Snyder was his former wife, and while he was a resident of the state of Colorado she instituted a suit for divorce against him; that service was obtained solely by publication and the bill was taken as confessed; that a decree was rendered, which granted her a divorce, $650 as alimony, and $50 solicitor's fees, and directed that, unless he paid the alimony within 60 days, execution should issue, and his interest in the land should be sold to satisfy the execution; that an execution was issued, the land was sold, and Agnes M. Snyder became the purchaser at the pretended sale; that the sale was void, and she acquired no interest in the land; that the petitioner had not conveyed, nor had he been divested of, his interest; and that he owned an undivided one-fifth of the land in fee simple. The prayer of the petition was granted, and Snyder filed an answer to the bill for partition, which amplified the allegations of his petition, and denied that the complainant was entitled to the relief sought.

A joint and several answer, setting forth their interests and averring the invalidity of the sale and conveyance to Agnes M. Snyder, was filed by Ida J. Smart, Lucy Thomas, and Lena Moore. These defendants joined with Albert C. Snyder in a cross-bill, which repeated the allegations of the petition and the answers, set forth the interests claimed by the cross-complainants, and sought the cancellation of the sheriff's deed to Agnes M. Snyder, its removal as a cloud on the title,and partition of the land. Freda Snyder Wilson, the original complainant, in her answer to the cross-bill set out the conveyances and proceedings by and through which she claimed ownership of an undivided one-fifth of the land, and denied that the cross-complainant Albert C. Snyder had any interest therein. After the cause was at issue a hearing followed, which resulted in a decree dismissing the cross-bill for want of equity and awarding partition, and appointing commissioners in accordance with the prayer of the original bill. To review the record the cross-complainants prosecute this writ of error.

It appears from the evidence that on February 18, 1897, Agnes M. Snyder, the wife of Albert C. Snyder, filed her bill for divorce against him in the circuit court of Shelby county, charging desertion. The bill alleged the requisite jurisdictional facts, the birth of the child, Freda M. Snyder, as the issue of the marriage, the ownership by the husband, in fee, of an undivided one-fifth of the land in question, specifically described, subject to the life estate of Michael Snyder, Jr., his father, the complainant's lack of means of support, her husband's threat to dispose of his property, and his intention to leave her destitute. In addition to a divorce, the prayer of the bill was for the care and custody of the child, an allowance out of the land to support and maintain the complainant and the child, solicitor's fees to prosecute the suit, and an order restraining the disposition of the defendant's property. Summons was issued, but the return showed that the defendant could not be found in Shelby county. An affidavit was filed in the suit, in which it was averred that the defendant was a nonresident of the state, and that his place of residence was Basault, Eagle county, Colo. Notice of the pendency of the suit, the names of the parties thereto, the title of the court, and the time and place of the return of summons was published in a newspaper of the county once in each week for four successive weeks. Within ten days after the first publication of the notice the clerk of the court mailed a copy addressed to the defendant at his place of residence as stated in the affidavit. The defendant failed to appear and the bill was taken as confessed by him.

After a hearing the court, by its decree rendered on April 15, 1897, found that the material allegations of the bill were true, granted the complainant a divorce, awarded her the custody of the child, and ordered the defendant to pay to the clerk of the court, for the use of the complainant, $650 as alimony. The court found the sum mentioned to be reasonable for the support and maintenance of the complainant and the child, and that it was proper to assess it in gross, rather than in periodical installments. The alimony so fixed and $50 solicitor's fees were specifically made a lien or charge upon the undivided one-fifth interest of the defendant in the land in question, and it was ordered that, if the alimony, solicitor's fees, and costs were not paid within 60 days, then, to obtain satisfaction, that execution should issue, and the defendant's interest in the land should be sold by the sheriff in the manner of other sales of real estate upon execution, subject, however, to the right of redemption. The defendant failed to satisfy the decree, and in consequence an execution was issued, by virtue of which the sheriff sold the defendant's interest in the land to the complainant, and the sheriff's certificate of sale was issued to her. Before the period of redemption expired she married Henry M. Otta. No redemption from the sale having been made, the sheriff, by deed dated October 6, 1898, conveyed Snyder's interest to her by the name of Agnes M. Otta, formerly Snyder. She died testate on February 15, 1914, her last will was admitted to record by the county court of Shelby county, and by that instrument she devised all of her real estate to her daughter, Freda M. Snyder, later Freda Snyder Wilson, the defendant in error.

Albert C. Snyder testified that he was first informed of the divorce in the year 1898 by an aunt, who resided in Moweaqua, in Shelby county, with whom he corresponded every two or three weeks. He insisted, however, that he did not know until 1916 that his interest in the land had been sold and conveyed by the sheriff. On March 15, 1900, within three years after the decree of divorce had been rendered, he married Margaret Snyder, who became his second wife.

The validity of the decree, to the extent that it granted Agnes M. Snyder a divorce, is not questioned by the plaintiffs in error. Albert C. Snyder obviously accepted that part of the decree, for he married again after the decree was rendered. The husband was not a resident of the state when the suit for divorce was prosecuted. Service upon him was obtained by the publication and mailing of notice in accordance with the statute, and the principal controversy arises over the award of alimony, to be realized, if not otherwise paid, by a sale of the nonresident husband's interest in the land situated within the court's jurisdiction. The plaintiffs in error contend that an action for divorce is a proceeding in personam; that a decree for alimony is a personal decree, unauthorized by constructive service of process; that the circuit court of Shelby county had no power or authority to direct the satisfaction of the provision of the decree for alimony out of the defendant's real estate in that county; and that in consequence the execution and sheriff's sale pursuant to the decree were void.

[1][2][3] A purely personal decree in a divorce suit, awarding alimony against a nonresident defendant, who is notified of the proceeding constructively by publication, and who does not appear, is not binding upon him. 2 Bishop on Marriage, Divorce, and Separation, § 79; Brown on Jurisdiction (2d Ed.) § 7; 2 Black on Judgments (2d Ed.) § 933. Divorce proceedings are, however, in some aspects purley in personam, while in others they are clearly in rem. 3 Freeman on Judgments (5th Ed.) § 1427; 2 Schouler on Marriage, Divorce, Separation, and Domestic Relations (6th Ed.) § 1467. In the strict sense of the term, a proceeding in rem is...