Fischer v. Leach , 124 Kan. 97 ( 1927 )

The opinion of the court was delivered by

Marshall, J.:

In this action the plaintiff asked for a judgment against the defendant enjoining her from bringing and prosecuting an action in the state of Missouri to establish her claimed dower rights in the Missouri real property which had belonged to her deceased husband; asked for a temporary injunction; and asked that there be embraced within the temporary injunction an order directing that the defendant execute such papers and instruments as may be required by the laws of Missouri to accomplish the waiver and renunciation of all her rights, titles, interests and dower in such real property; that such instruments be deposited with the clerk of the court, and that, on the final determination of the action, they be delivered to the plaintiff for Roderick Leach Fischer and Eleanor Ann Fischer. A temporary injunction was issued, the instruments were ordered executed and deposited with the clerk, and judgment was rendered in favor of the plaintiff according to the prayer of the petition. The defendant appeals.

The defendant and Louis B. Leach entered into an antenuptial marriage contract on June 26, 1911, and were married immediately thereafter. They separated in November, 1925, and in December of that year the defendant commenced an action against Louis B. Leach for a divorce and for alimony. While that action was pending, but before judgment was rendered, the defendant and Louis B. Leach entered into a signed and acknowledged written contract by which the rights of each in the property of the other were adjusted, and by which Louis B. Leach agreed to pay to the defendant $27,500 alimony. After the separation contract was signed, the defendant amended her petition by striking out the prayer for divorce, leaving the prayer for alimony. Both parties asked for judgment in accordance with the separation contract. Judgment was so rendered. Louis B. Leach subsequently died. The defendant set up a claim of dower in the real property situated in Missouri.

Roderick Leach Fischer and Eleanor Ann Fischer are the grandchildren of Louis B. Leach and his only living descendants. Their guardian, Floyd E. Fischer, prosecutes this action, which was commenced July 10, 1926. A restraining order issued at that time was served on the defendant. On July 23, 1926, on the application of the plaintiff, the court ordered the defendant to—

“Execute and deliver an instrument of writing remising, releasing and forever quitclaiming unto said minors all of the real estate described in the petition herein, to have and to hold the same, with all the rights, immunities, privileges and appurtenances thereto - belonging, and unto their heirs and assigns forever, so that neither the said Minnie H. Leach nor her heirs, nor any other person, or persons, for her or in her name or behalf shall or will hereinafter claim or demand any right or title to said real estate or any part thereof, but that they and each of them shall by such instrument and indenture be excluded and forever barred . . . that upon the proper execution and acknowledgment of said instruments of writing that-they be deposited with the clerk of this court to abide the further orders of the court in this cause.”

The defendant, after being ordered so to do by the court, and after objection, executed an assignment, transfer, and relinquishment to the plaintiff of all her right to the personal property owned by Louis B. Leach at the time of his death, and executed a deed conveying to Roderick Leach Fischer and Eleanor Ann Fischer the real property in Missouri owned by Louis B. Leach at the time of his death. Both instruments were deposited with the clerk of the court.

The antenuptial contract provided in substance that the property of each of the parties thereto should be and remain forever the property of the party then owning it; that each would sign all papers with the other which were necessary for the transfer of any property when sold; and that each should control his property and do with it whatsoever he wished, the same as he could or would if no marriage relation existed between them. The separation agreement .provided in substance that the defendant and Louis B. Leach should hold their property free and clear from the demands of each other, and barred each from any interest inheritable or otherwise in the property of the other. The judgment in the action for alimony recited that—

“The plaintiff is forever barred from setting up any right, title or estate whatsoever in and to said real estate and personal property, whether now owned by the defendant, or hereafter acquired by him, and from all rights of inheritance, and/or dower therein.”

In the present action the court made extensive findings of fact and conclusions of law. The findings embraced the facts above set out. Those findings of fact, the conclusions of law thereon, the antenuptial contract, the separation agreement, and the judgment in the action for alimony are such that it is difficult to make a correct condensed statement of them so as to give their true meaning and effect. For that reason, omitting the descriptions of property, they are attached as an appendix to this opinion and made a part of it.

1. The defendant contends that she has not waived her dower interest in the Missouri real estate of her deceased husband. So far as this action is concerned, dower may be defined as “the provision which the law makes for a widow out of the lands or tenements of her husband, for her support and the nurture of her children.” (1 Bouvier 932.) Until the death of her husband, the defendant’s right of dower was inchoate. Concerning the inchoate right of dower, 19 C. J. 493 says:

“The inchoate right of dower is neither a title, nor an estate in land, nor a lien upon the husband’s land, nor a personal claim against the husband. It confers upon the wife no right of possession or control of the land to which it attaches. Some decisions deny that it is even an interest in land, and describe it as a mere possibility of a future interest. But generally the inchoate right of dower is regarded as a subsisting, separate, and distinct interest, of such a nature that the wife may maintain a separate action for its protection, and which attaches as soon as there is a concurrence of marriage and seizin.”

The right of dower can be released, relinquished, waived or conveyed.

The defendant in her answer pleads section 315 of the Revised Statutes of Missouri of 1919, as follows:

“Every widow shall be endowed of the third part of all the lands whereof her husband, or any other person to his use, was seized of an estate in inheritance at any time during the marriage to which she shall not have relinquished her right of dower in the manner prescribed by law to hold and enjoy during her natural life.”

She also pleads section 2175 of the Revised Statutes of Missouri of 1919, as follows:

“A husband and wife may convey the real estate of the wife and a wife may relinquish her dower in the real estate of her husband by their joint deed acknowledged and certified as herein provided.”

She argues that neither the antenuptial contract, nor the separation agreement, nor the judgment of the district court in the alimony case, conform to the statutes of Missouri concerning relinquishment of dower. By both the antenuptial contract and the separation agreement the defendant attempted to release, waive and relinquish every right which she then had or thereafter might obtain in her husband’s property. Those agreements, although neither specifically named dower, were comprehensive enough to include that interest of the defendant in the property of her husband. When the judgment in the action for alimony was rendered at her request in accordance with the separation agreement, she, through her counsel, in open court expressly consented that the judgment should bar her dower right to the property in Missouri. A judgment entered in that manner is a most solemn form of contract.

In 19 C. J. 499 it is said:

“If in an action to which the wife is a party facts are alleged as a bar to the wife’s right of dower, the judgment therein based upon such facts precludes a subsequent assertion of her rights; but it is otherwise if the wife’s right of dower is not in issue in the action; and as a rule she will not be precluded by judgments in actions to which she is not a party.”

By the antenuptial contract, the separation agreement and the judgment rendered in the action for alimony, the defendant waived all of her dower rights to the Missouri lands of her husband.

2. Another contention of the defendant is that the judgment in the action for alimony could not have any effect outside of the state of Kansas, and for that reason could not deprive the defendant of her dower rights in the state of Missouri. It may be conceded that the judgment cannot have any effect on the title to real property outside of the state of Kansas, but it has full effect in this state. The defendant and her husband lived in Kansas at the time the judgment was rendered. The district court of Lyon county then had jurisdiction of both of them. They were in court, the defendant in person and by counsel. The court had jurisdiction to render judgment settling all rights of each of them in the property of the other.

In Meador v. Manlove, 97 Kan. 706, 156 Pac. 731, this court said:

“Where a court of general jurisdiction has secured jurisdiction of the parties who hold the legal title to land in another state, it may render a judgment to impress a trust as to such land and order the trustees to execute a conveyance thereof; and the possible difficulties which may attend the enforcement of its judgment do not in any wise abridge its jurisdiction.”

In Caldwell v. Newton, 99 Kan. 846, 848, 163 Pac. 163, this court said:

“It is well settled that actions involving title and possession of real property are local in character and can be tried only in the state wherein the land lies, but it is equally well settled that, jurisdiction having been acquired, equitable relief may be afforded without regard to the location of the subject matter where it is enforceable against the person of the defendant.”

This is not a new principle; it has often been applied. See, also, Zane v. Vawter, 102 Kan. 887, 172 Pac. 37, and the cases cited in Caldwell v. Newton, 99 Kan. 846, 848,163 Pac. 163.

3. The defendant contends that the judgment in the divorce action barring her dower rights was outside the issues presented by the pleadings in that case, and for that reason is void. In that action the petition was an ordinary one for divorce and alimony; the petition was amended by striking out the prayer for divorce. That did not change the issues so far as the property of the plaintiff and the defendant in that action was concerned. Judgment was rendered on the pleadings under the separation agreement and effectively bound the parties thereto. . The judgment is not void.

4. The defendant argues that compelling her to execute the assignment and relinquishment of her rights to the personal'property of her deceased husband and in compelling her to execute the deed conveying to Roderick Leach Fischer and Eleanor Ann Fischer all her rights and interest in and to the land in Missouri impairs the obligation of the separation agreement in violation of section 10 of article 1 of the constitution of the United States, deprives her of her property without due process of law in violation of the fourteenth amendment of the constitution of the United States, and deprives her of the right to go into the courts of Missouri, in violation of clause 1 of section 2 of article 4 of the constitution of the United States.

We quote from the headnotes to Selover-Bates & Co. v. Walsh, 226 U. S. 112, as follows:

“With the ruling of the state court as to the applicability of a state statute to a particular contract this court has nothing to do. It is concerned only with the question of whether as so applied the law violates the federal constitution.

“The court may, through action upon, or constraint of, the person within its jurisdiction, affect property in other states.

“The obligation of a contract is the law under which it was made, even though it may affect lands in another state; and in an action which does - not affect the land itself but which is strictly personal, the law of the state where the contract is made gives the right and measure of recovery.”

In Caldwell v. Newton, 99 Kan. 846, 848, 163 Pac. 163, this court quoted from Massie v. Watts, 10 U. S. 148, as follows:

“ ‘Where the defendant in the original action is liable to the plaintiff, either in consequence of contract, or as trustee, or as holder of a legal title acquired by any species of mala fides practiced on the plaintiff, the principles of equity give a court jurisdiction wherever the person may be found, and the circumstances, that a question of title may be involved in the inquiry, and may even constitute the essential point on which the case depends, does not seem sufficient to arrest that jurisdiction.’ (p. 158.)”

A host of authorities might be cited to support this rule.

The propositions discussed dispose of all the questions presented by the defendant, although those questions are presented in a number of different ways under as many different heads.

The judgment is affirmed.