Lynn v. Sentel

Mr. Justice Wilkin delivered the opinion of the court: The contention of plaintiff in error is, that her homestead estate has continued to The present and is complete; that the judgments obtained against her husband, the holder of the legal title, were illegal, but if legal did not affect her homestead; that the divorce of her husband in Missouri, in 1894, was fraudulently obtained, and void, but even if valid could not affect her homestead rights in Illinois. Counsel for defendants in error take the opposite view of each of these contentions. There is no dispute that Margaret Lynn, upon being abandoned by her husband, under the statute succeeded to the homestead estate as the head of the family, and continued in that right up to the date of the divorce in Missouri, in 1894. The chief inquiry is, what was the effect of the divorce upon her homestead? For the purposes of this decision it is unnecessary for us to consider whether or not there was fraud in obtaining that decree, as we shall base our conclusion upon other grounds. It appears the divorce was granted upon notice by publication, the wife having no actual notice of the suit and not appearing therein. The authorities are to the effect that every State reserves the right to regulate and control the marriage status of all persons within its jurisdiction, even though, at the time, one of the parties to the marriage may reside in another State. And where a husband abandons his wife and removes to a foreign jurisdiction, and there obtains a divorce upon constructive notice, merely, such decree is not conclusive against the wife so as to bar a homestead or other property right or estate acquired by her before the date of the decree. The decree of divorce, in other words, serves to dissolve the marriage relation, but it cannot affect property rights beyond the jurisdiction of the court. Doerr v. Forsythe, 35 N. E. Rep. 1055; Doughty v. Doughty, 28 N. J. Eq. 581; Thurston v. Thurston, 59 N. W. Rep. 1017; Cook v. Cook, 56 Wis. 105, and cases cited. In Doerr v. Forsythe, supra, the husband, Isaac M. Wood, separated from his wife in Ohio and went to Indiana, taking up his residence there, where he afterwards obtained a divorce, the wife being served by publication notice. Upon his death the wife brought her suit for dower in the lands in Ohio and recovered a decree. The court said: “The decree of divorce granted the husband in the State of Indiana acted only on the marital relation between the parties, and did not affect nor purport to affect the property rights óf the wife in the State of Ohio. For aught that appears the divorce may have been granted on some ground not recognized as a ground for divorce by the laws of this State,- so that it cannot be said that it was granted for any aggression of hers, within the meaning of section 5700, Rev. Stat. But if it were otherwise, as she had no opportunity to defend, all that can be claimed for that decree is, that it dissolved the marriage relation between the parties and restored the husband to the status of an unmarried man. This the court could do. But as it had no jurisdiction of the person of the wife, it was not competent to the Indiana court to affect such rights as she had acquired in the property of the husband under the laws of this State,” — citing cases. In Doughty v. Doughty, supra, it was held: “A decree in a divorce suit will have no extra-territorial effect when the defendant is domiciled in another State and is not served with process nor with notice of the proceedings. A decree for divorce, to be entitled to extra-territorial effect when the person of the defendant is without the jurisdiction, must be obtained in a manner consistent with natural justice, and such decree is enforced in another State only on the ground of comity.” The question is a new one in this State, but the rule announced has the sanction of current authority. It is contended by counsel for defendants in error that this is not the recognized law in Illinois; that we have held a foreign decree, upon substituted service, sufficient to divest property rights in such cases in this State; and they rely, in part, upon Dunham v. Dunham, 162 Ill. 589, and Knowlton v. Knowlton, 155 id. 158. These cases recognize the principle just announced, that the foreign jurisdiction can dissolve the marriage relation, it having jurisdiction over one of the parties, but do not in any way assume to pass upon the efiect of such a foreign divorce upon property rights here. The further contention is made that the Missouri divorce was obtained because of the fault of the wife, and, under section 14 of the Dower act, she has forfeited her homestead and all other rights acquired as the wife of Caleb Lynn. The rule already announced is an answer to this contention also, because of the substituted service. But, even supposing the wife were subject to the jurisdiction of the court in Missouri, the petition there filed asked relief upon a ground not recognized by our statute as a cause for divorce, the charge being, substantially, incompatibility of temper; and it would be unreasonable to say this section of the statute contemplates a fault which is not recognized as such by our own laws. In support of this^last contention much reliance is placed by counsel upon the case of Rendleman v. Rendleman, 118 Ill. 257. That case is not in point here, for the reasons that there the parties to the proceedings for divorce in the foreign jurisdiction were both in court in person; the ground relied upon for the divorce was one recognized as a fault and as a cause for divorce by the laws of this State; and the decree there provided that a sum of money be paid to the wife (although she was at fault) “in full of all claims, right of dower, or otherwise, in the property, whether personal or real, of the husband.” The question before the court there arose in an ejectment proceeding, and the wife was in the attitude of having received a sum of money in lieu of her property rights and afterwards insisting upon claiming them. The doctrine contended for by defendants in error is, to our minds, wholly irreconcilable with a proper sense of right and justice. The logical effect of holding this property liable for the debts of the husband would be to maintain "that upon abandoning her and obtaining a divorce in Missouri the husband could have immediately returned to Illinois and himself ousted the wife'of the homestead and all other property rights in his estate, because, forsooth, the Missouri court, having jurisdiction of his' person, without actual notice to her had decreed that she was so at fault in her marital relations to him that he was entitled to a divorce. It requires but little reflection, and no ingenuity, to show that under such a rule husbands or wives could successfully consummate a most outrageous wrong upon the other without the possibility of defense. Upon these considerations we hold the estate of homestead in Margaret Lynn unaffected by the Missouri divorce. The remaining question is, did the wife lose her homestead estate after that time? ' She was, as stated, temporarily away from it, but part of her household goods were left there and she was at all times in possession and control. From the evidence it appears she did not leave it with the intention of abandoning her homestead estate. We have often held that after homestead has once been acquired, a temporary absence therefrom, with an intention of returning, is not an abandonment. Her homestead estate being perfect at the date of the judgments rendered against her husband, the latter were not a lien upon and in no way affected it. The judgments and sale are questioned. They appear to have been irregular, yet it is not necessary to further notice them. Defendant in error Sentel can have no rights founded on his being an innocent purchaser for value without notice. Margaret Lynn being in possession of the premises, he and all other parties were chargeable with notice ,of her rights. The property was not legally liable to execution on judgments against Caleb Lynn. The decree of the circuit court will be reversed and the cause remanded, with directions to proceed in conformity with the views here expressed. Reversed and remanded.