DocketNumber: No. 18365. Reversed and remanded.
Citation Numbers: 158 N.E. 411, 327 Ill. 39
Judges: Dunn
Filed Date: 10/22/1927
Status: Precedential
Modified Date: 10/19/2024
Minnie A. Lipe filed a bill for separate maintenance against her husband, John J. Lipe, to the November term, 1926, of the circuit court of Montgomery county, which by amendment she later changed to a bill for a divorce on the ground of extreme and repeated cruelty; alleging, also, that the defendant was an able-bodied man, able to earn a large sum of money as a farmer; that he was the owner of personal property consisting chiefly of livestock and household goods, and of real estate consisting of a farm of the value of $20,000, subject to an incumbrance upon a part of the land, and one and one-half acres of land in the village of Irving, in Montgomery county, of the value of $2000. The bill represented that the complainant had no property except her interest in the property of Lipe as his wife, and besides the divorce prayed a decree of such part of his property or such sum of money as might be deemed necessary and proper for the complainant's support. The defendant answered, admitting the marriage but denying *Page 41 all the allegations of cruelty and denied the allegations as to his financial ability. The court ordered the issue of fact to be tried by a jury, Has the defendant been guilty of extreme and repeated cruelty toward the complainant in manner and form as charged in the bill? — and the jury found the defendant guilty. A motion for a new trial was overruled and a decree of divorce was granted, the question of an allowance to the complainant being postponed until a later day, when there was another hearing and a decree that the acre and a half in Irving should be vested in the complainant, who should receive it in fee simple in lieu of alimony, maintenance or support on the part of the defendant, and the personal property of the complainant and the defendant was divided between them by the court. The defendant has appealed and argues that the evidence is insufficient to sustain the verdict of the jury.
The parties were married in February, 1890, and lived together over thirty-six years, until September, 1926, with the exception of brief separations during that time, when the appellee left the appellant on account of his cruel conduct. They had five children, of whom the oldest, Mrs. Edna Menzer, is thirty-four years old, and the youngest, Godfrey Lipe, twenty-three. The complainant testified to a number of instances of physical violence done to her by her husband during their marriage, constituting a course of cruel conduct extending through the greater part of their married life. On one occasion, as she testified, he threw her against a chair, cursed her and ordered her out of the house. Another time he struck her with a buggy whip. Again he threw his shoe at her, striking her in the stomach, causing her to be very sick for three or four days and resulting in a miscarriage, but he refused to permit her to call a physician. Another time he threw her across a chair and struck her, hurting her badly, and another time hit her with a shovel. In July, 1926, he struck her with his fist in the face. He used abusive language to her, and threatened *Page 42 her at times when he committed no acts of physical violence. She continued to live with him, though she left him on three occasions previous to the last for short periods. She returned to him each time because of his promise to do better. The last promise was made on February 12, 1926, to the attorneys of the parties, and it was in July of that year that he struck her with his fist in the face. On August 25 they had a controversy over sowing wheat. She wanted some sowed and he did not. He cursed and used vile and abusive language to her.
Much of the evidence of the complainant was uncorroborated. It was corroborated in its general nature by the daughter Mrs. Menzer and the son Godfrey, and to a less degree by other witnesses, relatives and neighbors. The defendant denied every detail of the testimony against him. He makes no complaint of any instruction given or refused, or of any evidence received, or offered and not received. The verdict of the jury was in accordance with the evidence.
The appellant argues that by continuing to live with him after the various acts of cruelty described in the evidence the appellee condoned the cruelty and cannot demand a divorce upon the ground of extreme and repeated cruelty. This defense was not alleged in the pleadings. The defense of condonation in a divorce suit, to be available to the defendant, must be set up by plea or answer. It is an affirmative defense and the burden of proof is on the defendant. (Klekamp v. Klekamp,
The appellant objects to the part of the decree which awards the property in Irving to the appellee, and insists that the allegations of the bill and the evidence do not warrant a decree vesting the fee of the appellant's real estate in the appellee. Ordinarily a decree for alimony should not vest the fee of the husband's real estate in the wife except under special circumstances which justify it. (Ross v. Ross,
The allegation of the bill is that the farm is worth $20,000. The only evidence in the record is that it is worth $100 an acre, which would be $25,000. The mortgages amount to $10,300, leaving an equity of about $15,000. The appellant owes $4200 besides. The bill alleges that the property decreed to the wife is of the value of $2000. The answer denies that it is of so great value, and there is no evidence on the question. In this condition of the record it is fair to assume that the property is not worth more than $2000, and it is not, therefore, an undue proportion of the appellant's property to be applied to the support of his wife.
The decree is not erroneous in awarding the land to the appellee, but there is a formal error in decreeing that all the right, title and interest of the defendant, John J. Lipe, shall be vested in the complainant. The court of chancery, in administering the system of equitable remedies within its jurisdiction, in the absence of any statute, acted upon the principle that its remedies and decrees operate upon the parties in personam and not upon the thing itself in rem. Its decree spoke in terms of personal command to the defendant, but its directions could be carried into effect only by his personal act. While declaring an equitable estate, interest or right of the plaintiff to exist, a decree could not operate, by its own intrinsic force, to vest the plaintiff with the legal estate, interest or right to which she was pronounced entitled. The decree was not itself a legal title, nor could it either directly or indirectly transfer the title from the defendant to the plaintiff. Though it might declare that the plaintiff was in equity entitled to the ownership of certain land of which the defendant held the *Page 46 legal title, the latter's voluntary act was necessary to carry a decree into execution, and if he refused to convey, the method of compelling his obedience was by attachment for contempt. The decree of itself did not convey the title. (I Pomeroy's Eq. Jur. sec. 428; Greaves v. Tofield, L. R. 14 Ch. Div. 563.) The practice, in the absence of a statute, is stated in Silver v. Ladd, 7 Wall. 219: "The most usual mode under the chancery practice, unaffected by statute, is to compel the defendant, in person, to convey to plaintiff, or to have such conveyance made in his name by a commissioner appointed by the court for that purpose. In some of the States it is provided by statute that a decree of the court shall operate as a conveyance where it is so expressed in the decree, and additional relief may be granted by giving possession of the land to plaintiff, quieting his title as against defendants and enjoining them from asserting theirs." We have no statute in this State providing that the decree of a court of chancery may operate as a conveyance of an estate, and the court has no power to vest the title in the appellee.
The jury having returned a verdict finding the defendant guilty of extreme and repeated cruelty, in manner and form as charged in the bill, the appellant made a motion for a new trial, which the court overruled and thereupon entered a decree dissolving the marriage between the appellant and the appellee, in which no finding of specific acts of cruelty or of physical violence was made, and the appellant contends that the decree is insufficient because of such absence of finding of specific instances of cruelty. The verdict of the jury, which is a part of the record, is a sufficient compliance with the requirement that the decree must show on its face the facts which justified it. Thatcher v. Thatcher,
The decree is reversed and the cause remanded, with directions to the court to re-enter the decree with a modification requiring the appellant to convey to his wife in *Page 47 fee the property awarded to her, and in case of his default that the master in chancery make the conveyance. The appellant will pay three-fourths of the costs and the appellee one-fourth.
Reversed and remanded, with directions.
Webber v. Webber , 349 Ill. App. 154 ( 1953 )
Rich v. Rich , 24 Ill. App. 3d 1083 ( 1975 )
Cross v. Cross , 2 Ill. 2d 104 ( 1954 )
Schiff v. Schiff , 25 Ill. App. 2d 157 ( 1960 )
Giesler v. Giesler , 336 Ill. 410 ( 1929 )
Wesselhoeft v. Wesselhoeft , 369 Ill. 419 ( 1938 )
Blair v. Blair , 341 Ill. App. 93 ( 1950 )
Harwood v. Harwood , 412 Ill. 131 ( 1952 )
Van Antwerp v. Van Antwerp , 125 Ind. App. 65 ( 1954 )
McGaughy v. McGaughy , 410 Ill. 596 ( 1951 )
Honey v. Honey , 120 Ill. App. 2d 102 ( 1970 )
Rasgaitis v. Rasgaitis , 347 Ill. App. 477 ( 1952 )
Ward v. Sampson , 395 Ill. 353 ( 1946 )
Bissett v. Bissett , 375 Ill. 551 ( 1941 )
Anderson v. Anderson , 380 Ill. 435 ( 1942 )
Ollman v. Ollman , 396 Ill. 176 ( 1947 )