Cheever v. Wilson

Mr. Justice SWAYNE delivered the opinion of the court. The material facts of the case, as disclosed in the record, are as follows: *On the 6th of September, 1842, Cheever, and the defendant, *116 Annie, then Annie J. Hughes, executed a deed of marriage settlement, whereby the title of the real estate therein described, situate in the city of Washington, was vested in Sarah T. Hughes, the mother of Annie, “in trust, to permit her daughter, the said Annie J. Hughes, to receive, take, and enjoy the rents and profits of the said lands and premises to her sole- and exclusive use and benefit,” &c. The property embraced in the settlement is designated in the proceedings as “the Avenue property,” and “ the Sixth Street property.” On the 8th of September, 1842, the parties were married. On the 10th of September, 1855, Mrs. Cheever and Mrs. Hughes executed to the defendant, Wilson, a lease of the Avenue property for five years, from the 1st of October, 1855, at an annual rent of $1300, to be paid quarterly. On the 26th of November, 1856, they executed a deed of trust to Carlisle and Maury, to secure certain advances therein mentioned, made, and to be made, by the defendant Wilson, to Mrs. Cheever. This deed refers to the lease, and authorizes Wilson, after the 1st of October, 1857, to retain and apply the rents to the indebtedness until it should be extinguished. On the 11th of February, 1857, Mrs. Cheever executed to Wilson a paper purporting to assign to him all the rents then due and thereafter accruing until he should have received the sums therein mentioned. A further lease was given by Mrs. Hughes and Mrs. Cheever to Wilson, on the 16th of -July, 1857, of the Avenue property, for the term of five years, to commence on the 1st of October, 1860, at the same rent, to be paid in the same manner as was provided in the former lease. Mr. and Mrs. Cheever lived together in Washington until December, 1854, when they separated. On the 16th of June, 1857, Mrs. Cheever filed her petition for a divorce in the Circuit Court of Marion County, Indiana. She described herself therein as a bond fide resident of that county. The cause, was removed by an order for a change of venue to the Circuit .pourt of Madison County, in that State. On the 19th of August, 1857, Cheever appeared and filed his answer and a cross-petition. On the 26th of that month the court decreed *117 a divorce a vinculo matrimonii, and thereafter, by the agreement of the parties, it was further decreed that Cheever should have the custody of the three elder children, and that Mrs. Cheever should have the custody of the younger one until the further order of the court, and that for the support and education of the children Cheever should receive one third of the rents and profits, to which Mrs. Cheever was entitled, accruing from the property described in the deed of settlement. The decree declared, “ that the same is hereby decreed to the said Benjamin, as the same shall hereafter become due and payable, for the uses and purposes of the said infant children during the lifetime of the said Annie.” . . . “ And the said Annie shall execute to the said Benjamin a good and sufficient power to receive said rents and profits for the uses and purposes herein declared, which shall be sufficient for the purpose.” On the 27th of August she executed such an instrument, pursuant to the decree; but before doing so she added this sentence to the draft which had been prepared: “ This assignment of' rents is subject to an incumbrance upon said rents to my agent, Jesse B. Wilson, of about $5000.” Her interest in the rents at the date of the decree was two thirds in possession, and the remaining third expectant upon the death of her mother, who received that portion for her dower. Notice of the decree was given to Wilson within a very short time after it was rendered. He did not recognize the complainant’s claim, and has never paid him anything. Soon after the divorce was granted Mrs. Cheever married Louis Worcester. On the 11th of December, 1858, Worcester and wife gave to Wilson an instrument whereby they assigned to him all her rents until he should have received the sum of $3000. On the 30th of December, 1858, Worcester and wife and Mrs. Hughes gave to Wilson an extension of his lease of the Avenue property for the term of ten years, from the 1st of October, 1860, being an addition of five years to the term of the last preceding lease. At the same time Mr. and Mrs. Worcester executed to him a further assignment of the rents. The Avenue buildings were destroyed by fire *118 in April, 1862. Wilson erected the present store on the property at a cost to himself of upwards of $4000. He has continued to occupy it, and has paid no rent since the fire to any one. Mrs. Hughes died on the 12th of April, 1863. Worcester died before that time. On the 22d of October, 1863, Wilson and Mrs. Worcester came to a settlement of their accounts.. He had collected the rents of the Sixth Street property up to that time, but did so no longer. The accounts embraced the rent received from that property, as well as that from the Avenue property, and extended to the period of the fire. The result was that she was found to be indebted to him in the sum of $3290. The complainant’s bill was filed the 21st of June, 1858, and seeks a specific performance of the Indiana decree, against Wilson, as to the portion of the rents allotted to the complainant for the benefit of the children. On the 17th of June, 1863, it was ordered by the court that the auditor should report upon the state of the accounts between Mrs. Worcester, and Wilson. There was no finding as to the rights of the parties, and no specific directions were given in the order. The auditor made a very elaborate report. Assuming the Indiana decree to be valid, his conclusions were that the balance due to Wilson for his advances on the faith of the pledges of the rents, prior to the divorce or his having notice, and at the time of notice — which the auditor found to be the 11th of September, 1857 — was $4627.78, including interest, and that this balance was extinguished on the 1st of January, 1863, leaving an'overplus of $23.30; that there was due to the complainant the sum of $622.97, including interest, for rents, from the time of the-payment of Wilson’s advances to the 1st of January, 1865, the last quarter-day before the adjustment by the auditor, and the further sum of $2437.41 and interest for rents, from the date of the decree to the time the advances were paid; that the amount of the rents, accruiug from the time of the payment of the advances. to the 1st of March, 1865, from the Avenue property, *119 as well as the Sixth Street houses, while the defendant collected the rents of the latter, excluding the third which fell in by the death of Mrs. Hughes, was $1881.84; that the amount due to the complainant was, therefore, $3060.38, and that the sum in the hands of the defendant, Wilson, applicable thereto in payment, $1831.84, was not sufficient to pay-complainant’s arrears by the sum of $1295.58. According to the report the claimant is entitled to a decree against Wilson for the sum of $1831.84, with interest from the 1st of March, 1865, and for the further sum of $1295.58 against Mrs. Worcester, with interest from the same time. The sum proposed to be decreed against Wilson is made up of two elements: (1) the complainant’s share of the rents received by Wilson after his advances were paid, with interest down to March 1st, 1865, being $622.97; and (2) the share belonging to Mrs. Worcester of the rents accruing after the same period (excluding her mother’s share, which lapsed by her mother’s death), with interest computed also to the 1st of March, 1865, being $1208.87, these sums making together the aggregate of $1831.84. The auditor held that Wilson was liable for the latter sum, because the complainant was entitled to it, on the principle of subrogation. All the parties excepted to the report. The court sustained the defendants’ exceptions, and dismissed the bill upon the ground that the Indiana decree was void. Upon the execution of the deed of settlement, the real estate therein described became the separate property of Mrs. Worcester, and she had the same power to anticipate and encumber the rents as if she had been a feme sole . * The proportion of the rents to which the complainant was entitled was one third of the two thirds to which Mrs. Worcester was entitled at the time of the rendition of the de *120 cree in Indiana. The decree had reference to her rights as they existed at that time. It was not affected by the falling in of the other third, which her mother held as her dower to the time of her death. The complainant was not bound by the lease of December, 1858. It was executed after the decree and notice to Wilson. He was bound by the preceding lease of July, 1857, .which was executed before the decree. • That lease contained a covenant on the part of Wilson to repair and pay rent. It did not expire until October 1st, 1865. The buildings on the Avenue property destroyed by fire in April, 1862, were insured in the name of Mrs. Hughes for $4000, and she received that amount from the insurance company. The lease of 1857 fixed the amount of the rent, and the complainant is entitled to claim accordingly. Under the lease of 1858, important questions may arise between Wilson, Mrs. Worcester, and the estate of Mrs. Hughes, but they do not affect the rights of the complainant in this litigation, and we need not therefore consider them. It was proper, under the circumstances, to include in the accounts the rents received by Wilson from the Sixth Street property. That property was embraced in the deed of settlement and in the Indiana decree. The record of that case was filed with the bill as an exhibit, and became a part of it. The prayer of the bill is for general relief. The securities given by Mrs. Worcester embraced alike the rents accruing from that and the Aven ue property. Wilson had applied and credited both. It would not be proper to withdraw and sepa- ■ rate the former. It appears by the complainant’s exceptions, that he objected strenuously in the court below to the findings of the auditor, as to the state of the accounts between Wilson and Mrs. Worcester touching the advances. After a careful consideration of the evidence, we are satisfied with his conclusions, and see no reason to disturb them. We do not think anything would be gained to the interests of justice by modifying the report, or by setting it aside, and ordering a further examination of the subject. *121 We think the auditor was right in his conclusion upon the point of subrogation. A much larger amount of the complainant’s share of the rents than this principle will give him of hers, was applied in payment of Wilson’s advances. It is proper that an equal amount of her share, according to her rights, as they were when the decree was rendered, should replace what had been so applied for her benefit. This will leave, unaffected by this ruling, for her enjoyment, the full third which had belonged to her mother, and to which she became entitled at her mother’s death. We are satisfied with the auditor’s findings as to the amount for which the defendants respectively should be held liable. Their exceptions should have been overruled. The decree rendered in Indiana, so far as it related to the real property in question, could have no extra-territorial effect; but, if valid, it bound personally those who were parties in the case, and could have been enforced in the situs rei, by the proper proceedings conducted there for that purpose. * But no question arises upon that subject. The assignment executed by Mrs. Worcester to the complainant, of the 27th of August, 1857, in pursuance of the decree, was ample to vest in him the interest and authority which the court ordered her to convey. The reservation in behalf of Wilson was only what the law without it would have prescribed, and did not impair its efficacy, or limit what would otherwise have been the scope of its effect and operation. The main pressure of the arguments here has been upon the question of the validity of the Indiana decree. Those at the bar were confined to that subject, and the printed briefs go but little beyond it. The courts of the United States take judicial notice of the laws and judicial decisions of the several States. † Upon looking' into the laws of Indiana we find that the *122 proceedings in the case there were governed by “ an act regulating the granting of divorces, nullification of marriages, and decrees and orders of court incidental thereto,” approved May 13th, 1852. The petition makes a case within the statute. It alleges that the petitioner was a bond fide resident of the county where it was filed, and sets forth as causes for a divorce abandonment from December, 1854, and cruel treatment, by the husband. His answer denied the allegations of the petition. His cross-petition prayed for a divorce, for the custody of the children, and for provision for their support out of the separate property of the wife described in the deed of settlement. The decree sets forth as follows: “ The court find the marriage, abandonment, and residence of the said Annie J. Cheever, and the births, and names, and ages of the children, as alleged in the original petition, to be true, and the residue of said petition to be untrue.” A divorce was thereupon adjudged in the usual form. It would be a sufficient answer to the questions raised as to the validity of this decree, that no such issue is made in the pleadings. The answer of Mrs. Worcester is silent upon the subject. Wilson, in his answer, says he “ does not admit the validity or regularity of said decree,” or that “ it is operative to affect his rights,” but, on the contrary, . . “ reserves to himself the right to impeach it if occasion should offer and require him to do so.” This language is too vague and indefinite to have any effect. If he desired to assail the decree he should have stated clearly the grounds of objection upon which he proposed to l’ely. The averments should have been such that issue could be taken upon them. * He and his co-defendant are precluded by the settled rules of equity jurisprudence from entering upon such an inquiry. Their silence is an admission, and they are bound by the implication. As, however, the question has been fully argued upon both sides, and may arise hereafter in further litigation between the parties, we deem it proper to express our views upon the subject. *123 The petition laid the proper foundation for the subsequent proceedings. It warranted the exercise of the authority which was invoked. It contained all the requisite averments. The court was the proper one before which to bring the case. It had jurisdiction of the parties and the subject-matter. The decree was valid and effectual, according to the law and adjudications in Indiana. * The Constitution and laws of the United States give the decree the same effect elsewhere which it had in Indiana. † “ If a judgment is conclusive in a State where it is rendered, it is equally conclusive everywhere” in the courts of the United States. ‡ It is said the petitioner went to Indiana to procure the divorce, and that she never resided there. The only question is as to the reality of her new residence and of the change of domicil. § That she did reside in the county where the petition was filed is expressly found by the decree. Whether this finding is conclusive, or only primd facie sufficient, is a point on which the authorities are not in harmony. || We do not deem it necessary to express any opinion upon the point. The finding is clearly sufficient until overcome by adverse testimony. None adequate to that result is found in the record. Giving to what there is the fullest effect it only raises a suspicion that the animus manendi may have been wanting. It is insisted that Cheever never resided in Indiana; that the domicil of the husband is the wife’s, and that she cannot have a different one from his. The converse of the latter *124 proposition is so well settled that it would be idle to discuss it. The rule is that she may acquire a separate domicil whenever it is necessary or proper that she should do so. The right springs from the necessity for its exercise, and endures as long as the necessity continues. * The proceeding for a divorce may be instituted where. the wife has her domicil. The place of the marriage, of the offence, and the domicil of the husband are of no consequence. † The statute of Indiana enacted that “the court, in decreeing a divorce, shall make provision for the guardianship, custody, and support, and education of the minor children of such marriage.” ‡ That part of the decree which relates to this subject has been already sufficiently considered. Barber v. Barber, § has an important bearing upon the case under consideration. There a wife had obtained a divorce a mensd et thoro, and an allowance of alimony, in the State of New York. The husband afterwards removed to Wisconsin To enforce the payment of the alimony she sued him in equity in the District Court of the United States for that district. The court was clothed with equity powers. The ground of Federal jurisdiction relied upon was the domicil of the husband and wife in different States. The court decreed for the complainant. This court, on appeal, recognized the validity of the original decree, sustained the jurisdiction, and affirmed the decree of the court below. This is conclusive upon several of the most important points involved in the case before up. Decree reversed, and the ease remanded with directions to enter a decree In conformity tp this opinion. Footnotes [*] Colvin v. Currier, 22 Barbour, 387; Heatley v. Thomas, 15 Vesey, Jr. 696; Bullpin v. Clarke, 17 Id. 365; Jaques v. Methodist Church, 17 Johnson, 548; North American Coal Company v. Dyett, 7 Paige, 9; Insurance Company v. Bay, 4 Comstock, 9; Gardner v. Gardner, 22 Wendell, 526; Browning v. Coppage, 3 Bibb, 37, 1 Story’s Eq. $ 64. [*] Sutphen v. Fowler, 9 Paige, 280; Massie v. Watts, 6 Cranch, 148, 158; Swann v. Fonnereau, 3 Vesey, Jr. 44; Portarlington v. Soulby, 3 Mylne & Keene, 104; Monroe v. Douglass, 4 Sanford’s Chancery, 185; Shattuck v Cassidy, 3 Edwards’ Chancery, 152; 1 Story’s Eq., ?¿?¿ 743, 744. [†] Pennington v Gibson, 16 Howard, 80. [*] White v. Hall, 12 Vesey, 324. [*] Statute of 1852, i¿ 33; McQuigg v. McQuigg, 13 Indiana, 294; Noel v. Ewing, 9 Id. 52; Lewis v. Lewis, Ib. 105; Kourke v. Kourke, 8 Id. 430; Tolen v. Tolen, 2 Blackford, 407; Wilcox v. Wilcox, 10 Id. 436. [†] Constitution, Art. 4, § 1; 1 Stat. at Large, 122; D’Arcy v. Ketchum, 11 Howard, 175. [‡] 2 Story on the Constitution, § 1313; Christmas v. Russell, 5 Wallace, 802. [§] Case v. Clarke, 5 Mason, 70; Cooper’s Lessee v. Galbraith, 3 Washington Circuit Court, 550; McDonald v. Smalley, 1 Peters, 620. [||] Noyes d. Butler, 6 Barbour, S. C. 613 ; Hall v. Williams, 6 Pick. 239 Mills v. Duryee, 2 Amer. Leading Cases, 791, note. [*] 2 Bishop on Marriage and Divorce, 476. [†] Ditson v. Ditson, 4 Rhode Island, 87. [‡] Act 1852, j 21. [§] 21 Howard., 682.