Busenbark v. Busenbark

The opinion of the court was delivered by HobtoN, C. J.: It is claimed that the district court of Sedgwick county had no power or jurisdiction to enjoin the judgments rendered by the district court of Harvey county, on September 26, 1883, in favor of John A. Busenbark and Josephine Underwood against Henry Busenbark; and further, that the court erred in finding these judgments to be fraudulent and void. A wife residing in this state is entitled, upon the death of her husband, to the half of all the real estate owned — 577 — by bira during the marriage which has not been sold on judicial sale, and is not necessary for the payment of debts, and of which the wife has made no conveyance; so that there is an inchoate interest to the extent of one-half given to the wife in the real estate of the husband. It is true that this interest in the real estate of the husband is inchoate and uncertain, yet, according to the authorities, it possesses the element of property. It is an interest and right of which she can be - divested only by her consent, or crime, or her dying before her husband. It is an interest which may be, in connection with the husband, the subject of contract and bargain, and is by many of the authorities denominated a contingent but i valuable interest. It has been decided by this court that the wife has an estate in the homestead occupied by herself and husband, although the title to the same be in the husband, and that it is such a present and existing estate that it will be protected by the courts. (Helm v. Helm, 11 Kas. 19; Jenness v. Cutler, 12 id. 500.) We now go further, and declare that although the wife’s right and interest in the real estate of her husband not occupied as a homestead is inchoate and uncer- \ tain, yet it possesses the element of property to such a degree that she may maintain an action during the life of her husband for its protection, and for relief from fraudulent alienation by her husband. (Busick v. Busick, 44 Iowa, 259; Thayer v. Thayer, 39 Am. Dec. 211-220, and the note and authorities there cited.) Now it is well settled, that fraud invalidates judgments, as well as contracts or other acts, and that a court of equity has power to grant relief against judgments fraudulently obtained. Whenever a judgment is procured through fraud of the parties thereto, for the purpose of defrauding a third person, such third person may escape from the injury thus attempted, by establishing in a separate and independent suit the fraud or collusion by which the judgment was obtained. (Freeman on Judgments, §336.) The fraudulent judgments in this case were rendered in Harvey county, but executions were issued to the sheriff of Sedgwick county, and the prem — 578 — ises of the husband in Sedgwick county were levied upon and were about to be sold in pursuance of a fraudulent scheme concocted between the husband and his children, with the object and for the purpose of defeating the wife’s rights. When the parties to the fraudulent judgment sought to enforce it in Sedgwick county, it was competent for the wife to relieve herself from the injury thus attempted, by her action in Sedgwick county to prohibit the sale of the real estate. (Chambers v. Bridge Manufactory, 16 Kas. 270.) The cases of Meixell v. Kirkpatrick, 28 Kas. 315, and Galbreath v. Drought, 29 id. 711, are confidently cited to support the propositiomthat the district court of Sedgwick county had no jurisdiction over the judgments in Harvey county, or power to enjoin the executions issued from the district court of Harvey county on the judgments rendered therein. Those cases are bottomed upon irregular and erroneous judgments — not upon fraudulent and void judgments — and therefore are not applicable. It was said in Meixell v. Kirhpatrich, supra, that “a void judgment may be treated’ as void everywhere, and collaterally as well as directly, while a judgment that is merely irregular, or erroneous, or voidable, cannot be so treated.” It was also said in Klemp v. Winter, 23 Kas. 699, that “fraud vitiates everything it touches — final judgments, final orders, final settléments and contracts, as well as things of less consequence, and that courts possessing general equity or chancery jurisdiction have the power to grant proper relief in all cases of fraud.” Upon the record, we perceive no error in the finding and the conclusion of the trial court, that the judgments of the district court rendered against Henry Busenbark in favor of his children were fraudulent and void. It is next claimed that the judgment giving the wife certain personal property and also the rents and profits of a quarter-section of land was improper. The statute controls. This provides: “ When the parties appear to be in equal wrong, the court may, in its discretion, refuse to grant a divorce1; but in any such case, or in any other case where a divorce is refused, the — 579 — court may, for good cause shown, make such order as may be proper for the custody, maintenance and education of the children, or the control and disposition of the property of the parties as may be proper.” (Code, § 643.) Its provisions are broad enough to sustain the court in its judgment relating to the disposition of the property of the parties. Its constitutionality is not challenged. The husband and wife had been married about fifteen years. The wife was a very industrious and hard-working woman; she had not only performed the customary household work, but had also assisted her husband at his labors upon the farm and in his business, upon various occasions, and in various ways; she herded cattle, spaded ground, butchered hogs and cattle, etc. Her labors must have aided him in accumulating property, and before he commenced disposing of his personal and real estate he was in good circumstances, having, besides his personal property, over five hundred acres of valuable land. The evidence shows that Henry Busenbark gave as the reason for marrying his wife, “that she was a German, and he thought they could do more work than any other class of people.” Prior to the trouble that grew up between them on account of the refusal of the wife to join in conveying the real estate to her husband’s children, the husband had no complaint to make that his wife did not do all the work he expected of her when he married her. He had cause, perhaps, to complain of her tongue, but not of the work of her hands. If the power existed in the trial court to make any disposition of any part of the property of the husband for the benefit of the wife, the order of the court was just and reasonable. It is also claimed that the trial court erred in requiring the husband to pay $50 attorney’s fees. Section 644, among other things provides: “ On granting a divorce in favor of the wife, or refusing one on the application of the husband, the court may require the husband to pay all reasonable expenses of the wife in the prosecution or defense of the action.” The husband filed a cross-petition for a divorce. It is true that he withdrew this by leave of the court after the evidence had closed, but — 580 — the expense to the wife in resisting this application for divorce had already accrued at the time of the withdrawal of such petition. We suppose it was withdrawn in anticipation that the court would refuse the application of the husband for a divorce. Within the spirit of the law, if not within its exact letter, the ■court committed no error in. requiring the husband to pay all reasonable expenses, including attorney’s fees of the wife in ■defending against such cross-petition. Other alleged errors are referred to in the arguments; but, believing that the findings of the court are sufficiently sustained by the evidence, and that, none of the said alleged errors were prejudicial to the rights of the parties complaining, the judgment of the district court must be affirmed.. All the Justices concurring.