Cheever v. Wilson
76 U.S. 108

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U.S. Supreme Court

Cheever v. Wilson, 76 U.S. 9 Wall. 108 108 (1869)

Cheever v. Wilson

76 U.S. (9 Wall.) 108

Syllabus

1. A married woman having rents from her separate real estate which had been settled upon her and was leased by her on long leases, subject to her mother's dower, pledged them to her tenant by proper instrument to a certain amount for advances. Sometime afterwards, her mother being yet alive, she was divorced by a decree which ordered her to direct payment of a-third of the rents as they should become due to her husband for the education and support of certain of their common children, which the court in decreeing the divorce assigned to him. The tenant refused to pay the husband anything in any way, but paid his own advances, and then kept rents on hand, paying some to the wife. After the divorce, and so after the husband's rights under the decree had attached, she made a further pledge of the rents to the tenant. It took some years before the sum for which the rents were pledged before the divorce was paid. On bill by the husband and account ordered -- the mother being now dead, and the dower-third having fallen in to the wife -- the auditor held,

i. That as soon as the advances for which the rents were first pledged were paid, the husband was entitled to be subrogated to the wife's full rights, against the tenant as existing at the time when the order in divorce was made (that is to say, exclusive of the dower-third), till his-third of the two-thirds, with interest from the date of the decree, was paid;

ii. That the tenant, for the payment of his demand under the pledge made after the divorce, was to stand postponed till this-third of the husband's was fully paid, and

iii. That the wife (to whom, as already said, after the divorce there had fallen in, by her mother's death, the dower-third, a part not subjected by the decree, to her husband) was to be confined to the enjoyment of that dower-third till the husband was fully paid his-third of the original two-thirds, and the tenant was paid whatever he had advanced after the divorce. Held, that the report was right.

2. A married woman has the same power as a feme sole to pledge rents settled in trust for her to receive, take and enjoy them to her sole and exclusive use and benefit.

3. Where a decree in divorce gives a husband one-third part of his wife's rents, these being at the time of the decree subject to a paramount right of dower in her mother, the-third does not become in any way augmented by the mother's death and consequent falling in of her dower's-third.

4. Where a divorced husband brings a claim against a tenant of his wife for a portion of her rents allotted to him by the decree of divorce, the tenant, if he means to take advantage of an alleged nullity of the decree, must make his averment of the nullity in such form as that the

Page 76 U. S. 109

husband can take issue. He cannot set it upon argument, although his averment was that he had a mortgage of the rents, and "reserves to himself the right to impeach the decree if occasion should offer and require him to do so."

5. A decree in divorce, valid and effectual by the laws of the state in which it was obtained, is valid and effectual in all other states. Whether the finding by the court of domicil on which the decree is founded is conclusive or only prima facie sufficient is not decided.

6. A wife may acquire a domicil different from her husband's whenever it is necessary or proper that she should have such a domicil, and on such a domicil, if the case otherwise allow it, may institute proceedings for divorce, though it be neither her husband's domicil nor have been the domicil of the parties at the time of the marriage or of the offense.

By a statute in force in Indiana in 1857, [Footnote 1] it was thus enacted:

"Divorces may be decreed by the circuit court of the state on petition, filed by any person at the time a bona fide resident of the county in which the same is filed, of which bona fide residence the affidavit of such petition shall be prima facie evidence."

"The grounds of divorce are (among others):"

"Abandonment for one year."

"Cruel treatment of either party by the other."

The statute further declares that, the court, in decreeing a divorce, shall make provision for the guardianship, custody, support, and education of the minor children of such marriage.

With this statute in force, one Mrs. Annie Jane Cheever, in June, 1857, she being then in Marion County, Indiana, filed a bill in the county court of the state (the proper court, if the case were otherwise one for its cognizance), praying a divorce a vinculo from her husband, B. H. Cheever. Mrs. Cheever had come to Indiana from Washington in apparently the February preceding, and the city just named was the place where her parents had long lived, where it seemed that she was brought up, and where in 1842 she was married, a contemporary document describing both herself and

Page 76 U. S. 110

her then intended husband, as "of the City of Washington." At the time of the application for divorce, Mrs. Cheever was owner, as for more than seventeen years previously she had been, by devise from her father, of real estate in Washington; a store on Pennsylvania Avenue and two houses on Sixth Street; property which on her marriage in 1842 had been settled in trust, that she should "receive, take, and enjoy the rents and profits to her sole and exclusive use and benefit."

There was little in the record to show exactly what motive took Mrs. Cheever from Washington to Indiana, or how long exactly she remained in Indiana, or how or where, by dates, she was living after she left it. But it was certain that divorces a vinculo could not, when she went to Indiana, nor until long after she was divorced in that state, be obtained by law in the District of Columbia.

Her petition for divorce -- which described her as a resident of Marion County and to which was annexed an affidavit that she was a bona fide resident of the county at the time the petition was filed (June 16th, 1857), and was so still -- represented that she had been married to Cheever; that after conduct to her harsh, cruel, and severe, he had in 1854 abandoned her without any purpose of returning to her, and it gave the names and dates of birth of four children which it stated were the issue of the marriage.

The husband, by an answer of three lines, denied the allegations of the wife's bill and required strict proof, and on his part filed a cross-bill setting forth the fact of her separate property, the existence of the children, that in 1854 a disagreement arose between him and his wife which was wholly irreconcilable, that he had abandoned her with intent never to live with her again; that reconciliation was impossible; and he, too, on his part concluded his petition with a prayer for a divorce a vinculo and to have custody of the older children, and the profits of the real estate to support them.

To this cross-bill of her husband Mrs. Cheever appeared without process, and the cause being called for trial, it was by

Page 76 U. S. 111

consent of parties submitted to the court without a jury, and "the court having heard the evidence," as the record stated, found the marriage, abandonment, and residence of Mrs. Cheever, the birth and names of the children all as alleged, and on the 26th of August, 1857, decreed the divorce prayed for by both parties alike.

How long Mrs. Cheever remained in Indiana after this date was not quite apparent. It rather seemed as if she had left it in the end of the following September. The record of the already described proceeding in divorce, contained under the date of February 24, 1858, this entry:

"Now comes S. Yandes, Esq., attorney for B. H. Cheever, and L. Barton, Esq., attorney for Annie Jane Cheever, and on their motion each of said parties has leave to withdraw their respective depositions filed in this Court at the last term thereof, in the cause then pending for divorce between said Cheever and Cheever."

Sometime before December of the same year (in June, as was said in one of the briefs without contradiction by the other), Mrs. Cheever remarried and went to Kentucky. Her second husband dying, she came back, apparently, to Washington. She was there it seemed in 1862 and 1863.

Prior to the divorce, she had made to one Wilson, a grocer, two leases of five years each, of the store in Washington; one of the leases, made in 1855, ran from the 1st of October in that year till the 1st of October, 1860, and the other (made July 16, 1857, forty days before the divorce) for a further term of five years, to commence when the first one should expire.

Besides these two leases made before the divorce, she made a-third one in 1858 after it, this-third one running for ten years from the expiration of the first one -- that is to say, from the 1st October 1860 till the same day in 1870, this last lease containing a stipulation that if the premises should be destroyed by fire during the term, the rent should cease until the premises should be rebuilt by the lessors.

Wilson, the lessee, already named, appeared to have been on friendly terms with Mrs. Cheever and her mother, and

Page 76 U. S. 112

from time to time during her domestic troubles advanced to her money, collected the rents of her Sixth Street houses, paid certain claims against her, charging them against the rents of the property occupied or managed by him. To secure him for these advances made and certain others to be made, Mrs. Cheever, nine months before the divorce, executed a deed of trust, in form, to two gentlemen of Washington, Messrs. Carlisle and Maury, and Wilson went on making advances on the one hand, and charging them against rents on the other, to the extent, as was alleged, of near $5,000, the whole of this sort of business being done without much formality. A likelihood of confusion of accounts and of contest about them, if-third parties became interested to intervene, was augmented by the fact that after the divorce and after Cheever's rights, if any, under the Indiana order had attached, Mrs. Cheever-Worcester received further advances from Wilson, not secured by the deed of trust and which advances it was agreed by her that Wilson should still charge against rents; and finally, that in 1862, the storehouse was destroyed by fire, that the mother of Mrs. Cheever-Worcester received the insurance money, $4,000, and that Wilson, under the covenant received the insurance it.

The decree of divorce in Indiana, which allotted the children in pursuance of the statute there, gave Cheever the three oldest, and Mrs. Cheever one, the youngest, and at the same time ordered that "as the rents should become due and payable," he should receive for the maintenance and education of the children which he took, the one-third part of those which would be coming to Mrs. Cheever in her own right, to obtain which Mrs. Cheever was ordered to give to him a proper authority to demand them of the tenant. Mrs. Cheever was to have the remaining two-thirds. The mother was still alive, and her dower-third was as yet paramount.

Mrs. Cheever, soon after the divorce, executed a power with an assignment to Cheever to receive the rents, interlining in it before execution, a declaration that the assignment was subject to a previous encumbrance of about $5,000

Page 76 U. S. 113

to Wilson. Cheever, disregarding this part of the instrument, demanded his one-third of Mrs. Cheever's two-thirds, and Wilson setting up his prior right, and refusing to pay, Cheever now filed a bill in the court below, against him, Mrs. Cheever (now called Worcester), and her new husband, Worcester himself, setting out the divorce, order &c., and praying for a specific performance of the Indiana order as to the portion of the rents allotted to him, and for general relief.

Mr. and Mrs. Worcester set up that the advances had not been yet paid by the rents, but of course did not set up that the divorce in Indiana was void.

Wilson set up the same allegation that the rents had not yet repaid him his advances made on the faith of them, and while he made no averment that the divorce was void, he yet stated that he

"did not admit its validity or regularity, or that it was operative to affect his rights, but, on the contrary, reserved to himself the right to impeach it if occasion should offer and require him to do so."

The matter, independently of the question of validity of the Indiana divorce, which, as Worcester died some time after filing his answer, it was possible might now be made, was obviously very much one of figures; and the court, in June, 1863, referred the matter to an auditor to state an account; the mother of Mrs. Cheever-Worcester having died in the April before, and her one-third so falling in to her daughter.

The auditor, assuming the validity of the divorce, and bringing his account down as near to the date as practicable of his report, considered that the order of payment ought to be:

1. Wilson's advances to Mrs. Cheever, as secured by the trust deed of Carlisle and Maury.

2. Cheever's one-third of the rents under the Indiana order from the time the advances were so satisfied.

3. So much of Cheever's one-third of the rents as had been displaced by the interference of Wilson's prior claim, from the date of the Indiana order to the date of the payment of the advances under the trust deed, to payment

Page 76 U. S. 114

of which one-third, the whole two-thirds of Mrs. Cheever-Worcester's rents were to be devoted; and, as the reporter understood his view -- this part of the case not having been argued here -- he held [Footnote 2] that Wilson was bound on the principle of subrogation to pay so much of Cheever's third as had been thus displaced; the effect of the auditor's whole view being to throw Wilson on later rents for reimbursement of advances not secured by the trust deed (the only ones as yet unpaid), and leaving to Mrs. Cheever-Worcester, for a considerable time, nothing but the dower one-third which had fallen in by her mother's death.

Acting on these views of law, and subrogating Cheever to Wilson's rights against Mrs. Cheever-Worcester, the auditor, after much work of calculation, presented certain figures in result. Both Cheever and Wilson excepted to the report. Cheever excepted:

1. To the position assumed by the auditor, that the wife had power, under the marriage settlement, to anticipate and pledge her rents.

2. To the auditor's not bringing in, after the death of the mother, Mrs. Cheever-Worcester's new one-third, to help to pay him a one-third of the whole rents.

3. To the finding as to the state of the accounts between Wilson and Mrs. Cheever, as to the advances.

Wilson, on his part, objected to his being too much postponed for his later advances.

The court sustained the defendant's exceptions and dismissed the bill, upon the ground that the Indiana decree was wholly void as to each of the subjects of which it undertook to dispose; the divorce, the children, and the property. Cheever then brought the case here.

In this Court, while some reference was made, on the side of Cheever, to the views of the auditor as to the wife's power of anticipation, to his view that the dower one-third was not subject to the Indiana order, and to his figures, and by

Page 76 U. S. 115

Wilson to the principle of subrogation adopted, the argument was on the validity of the Indiana divorce and orders.

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