Page images
PDF
EPUB

Jordan agt. Van Epps.

pher's decease, in which another woman claimed to be his wife; that on July 8, 1858, said Christopher obtained a divorce in New York supreme court (Monroe county) from Elizabeth (the plaintiff and appellant here) on the ground of her adultery; that the judgment roll therein is regular on its face and shows personal service of summons on said Elizabeth, her answer, testimony on her behalf before the referee trial, report and decree, and that she was represented by counsel who contested in her behalf at all stages of the case; that there was a partition suit of the premises in question, to which suit Elizabeth (appellant here) was a party, by personal service upon her, April 3, 1868, of the summons therein, and that, under the decree therein, defendant Van Epps was a purchaser and took possession of the premises under the referee's deed therein. The judgment roll in the partition suit showed that it extended from February 3, 1868, until March 3, 1876; that two reports of referees therein were made; the first one was a nullity for the proceedings were all dismissed and a trial de novo afterwards had, in which referee Mr. Dunning made a second and final report, in which he finds that Christopher obtained from said Elizabeth said divorce above mentioned and allows her no dower on said petition. Judgment of partition was accordingly entered March 3, 1876, the premises sold to Van Epps (respondent here) and sale confirmed; that said Elizabeth Jordan appeared and unsuccessfully opposed the confirmation of said partition sale against said Van Epps; that she also tried to vacate said sale on her alleged claim of dower, and was defeated at supreme court special term.

Fanning & Williams, for respondent, made and argued the following points:

I. Assuming the decree of divorce to be regular and valid the law is well settled that it bars the right of dower. The statute clearly is penal and bars all dower for a divorce for adultery (Bingham on Real Estate, page 648; Scribner on

Jordan agt. Van Epps.

Dower, 2 vol., p. 515; Willard on Real Estate, p. 70; Bishop on Marriage and Divorce, vol. 2, secs. 706-708; Schouler on Domestic Relations, p. 185; Hitts agt. Pitts, 13 Abb. [N. S.], R., 272; S. C., 44 How., p. 264; S. C., 52 N. Y., 593; Schiffer agt. Pruden, 7 Jones & Spencers' Superior Ct. R., 167; S. C., 64 N. Y., 51; Cropsey agt. Ogden, 11 N. Y., 228; Reynolds agt. Reynolds, 24 Wend., 193-198; Wait agt. Wait, 4 Barbour R., 192; S. C., 4 Comstock, 95, cited Kade, agt. Lauber, 48 How., p. 382; 5 Wait's Sup. Ct. Practice, 710; 3 R. S. [Banks & Bros. 6th ed.], p. 157, sec. 61; 2 R. S. [Banks & Bros. 6th ed.], p. 1120, sec. 188).

II. The divorce could not be collaterally impeached by Elizabeth Jordan in this action, as against the defendant Van Epps, either for fraud of Christopher Jordan or irregularity. A third person might perhaps attack it, but a party to the action could not attack or question as against a third person (Freeman on Judgments, sec. 33; 2 vol. Phillips on Ev., 80; People agt. Downing, 4 Sandf., 192; People agt. Townshend, 37 Barb., 521; Bush agt. Sheldon, 1 Day R. [Conn.], 170; McCraney agt. McCraney, 5 Iowa, 232-250; Greene agt. Greene, 2 Gray [Mass.], 361-367; Steen agt. Bennett, 24 Vermont, 303; Bishop on Marriage and Divorce, 2 vol., sec. 760; Herman on Estoppel, 159; Amory agt. Amory, 3 Bissell, 266; Granger agt. Clark, 22 Maine, 128; Davis agt. Davis, 61 Maine, 398; Martin agt. McLean, 49 Missouri, 361; Farrington agt. Bullard, 40 Barb., 513; White agt. Merritt, 7 N. Y., 353; Ray agt. Ronley, 4 T. & C., 431; Romain agt. Garth, 5 T. & C., 361; Krekler agt. Ritter, 62 N. Y., 373; 2 Best on Evi. [Wood's Notes], 1064 [739 marginal page]; Casoniebal agt. Jerome, 58 N. Y., 316-321; Bragg agt. Loris, 1 Wood Ct. U. S., 209-211; Ross agt. Wood, 8 Hun, 185; Allen agt. Martin, 10 Wend., 301; Hahn agt. Kelly, 34 Cal. R., 391-402; Weston agt. Haynes, 49 Missouri, 263; Waltrick agt. Friedman, 71 N. Y., 601; Welles agt. Thornton, 45 Barb., 391; Pease agt. Whitten, 31 Maine, 117; Ross agt. Wood, 8 Hun, 185;

Jordan agt. Van Epps.

Watson agt. Watson, 47 How., 240; S. C., 1 Hun 267; Smith agt. Ramsey, 15 Nat. Bk. Reg., 448; Ray agt. Rowley, 1 Hun, 614; Sheldon agt. Stryker, 21 How., 329-332; Ferguson agt. Crawford, 7 Hun, 25; Brown agt. Nichols, 45 N. Y., 28; Spaulding agt. Baldwin, 31 Ind., 376; Bates agt. Spooner, 45 Id., 489; Winston agt. Hayes, 49 Missouri, 263; Bradner agt. Howard, 19 Albany Law Journal, 159; Lawrence agt. Hunt, 10 Wend., 81; Colvin agt. Colvin, 2 Paige Ch., 386; Cropsey agt. Ogden, 11 N. Y., 228–236).

III. The plaintiff, Elizabeth Jordan, was estopped from questioning the divorce of Christopher (Brown agt. Balder, 3 Lansing, 284-290; De Riemer et al. agt. Cantillon, 4 John.'s Ch. R., 85; Bustard agt. Yates, 4 Dano [Ky.], 447).

IV. The partition suit is a bar to this action. The plaintiff's right of dower in the premises was directly adjudicated in that action, and denied. It was in issue and passed upon. Van Epps being a purchaser under that decree can avail himself thereof (Brevoort agt. Brevoort et al., 70 N. Y. 140; Howell agt. Mill, 56 N. Y., 226; Castle et al. agt. Noyes, 14 N. Y., 329; Casoni et al. agt. Jerome, 58 N. Y., 316, 321; 2 Best on Evi. [Wood's Notes], 1064 [739]; Freeman on Judgments, sec. 304; Herman on Estoppel, p. 98, sec. 92; Scribner on Dower, vol. 1, p. 331; Tanner agt. Niles, 1 Barb., 561; Jackson agt. Edwards, 6 Paige, 337; S. C., 22 Wend., 517; Mead agt. Mitchell, 17 N. Y., 210–217; Wright agt. Dunning, 46 Ill., 211; Clemens agt. Clemens, 37 N. Y., 72; Bloomer agt. Sturgis, 58 N. Y., 176; Blakely agt. Calder, 15 N. Y., 617; Whittemore agt. Shaw, 8 N. H., 393; Emberry agt. Conner, 3 Com., 511; Pentz agt. Kenster, 41 Missouri, 447-450; 5 Wait's Pr., 116 and 182; Moore agt. Mayor, 8 N. Y., 110; Ehle agt. Brigham, 7 Barb., 494; Jenkins agt. Fahey, 18 Alb. Law Jour., 157; S. C., 7 N. Y. Wkly. Dig., 148; Wright agt. Dunning, 46 Ill., 281; Carter agt. Nichols, 42 N. Y., 26; Winston agt. Haynes, 46 Missouri, 263; Gerard's Abstract of Titles, p. 622; Spaulding

Jordan agt. Van Epps.

agt. Baldwin, 31 Ind., 376; Dorsey agt. Thompson, 37 Maryland, 26-45; Secombe agt. R. R., 23 Wallace, 109-118; Woods agt. Lee, 21 Louisiana Annual R., 585; McCahill agt. Equitable Co., 26 N. J. Equity, 531-536; Yaple agt. Titus, 41 Penn., 195; Lawrence agt. Hunt, 10 Wend., 81; Kingsland agt. Spaulding, 3 Barb. Ch. R., 241; Brickhead agt Brown, 5 Sandf., 135; 1 Greenleaf on Evi., sec. 189; Whittlesey agt. Frautz, 7 N. Y. Wkly. Dig., 403; Dwight agt. St. John, 25 N. Y., 203–205; Stone agt. Flower, 47 N. Y., 566).

Daniel Wood, for appellant

TALCOTT, P. J.-This is an appeal from the judgment of the county court of Monroe county for the defendant, on the verdict of a jury and from an order denying a new trial in the case.

The action is ejectment for dower. The plaintiff having proved the seizin of her late husband, the possession of the defendant and her demand of dower in the premises rested; whereupon the defendant introduced and proved two judgment records, in the supreme court of this state.

(1.) A judgment in an action for a divorce instituted by Christopher Jordan, the late husband of the plaintiff, charging the plaintiff with various acts of adultery to which action the plaintiff appeared and defended, and which finally resulted in a decree of divorce a vinculo, on the ground of the adultery of the plaintiff, the record of which was filed July 8, 1858, in the office of the clerk of Monroe county where the parties then resided, and which judgment was conceded to be in all respects regular on its face.

(2.) A judgment roll in partition, in a suit wherein the said Christopher Jordan was plaintiff, and the said Elizabeth, the now plaintiff, one of the defendants under the decree, in which latter case, the premises in question were sold to the defendant in March, 1876. It appears that the partition suit was com

[ocr errors]

Jordan agt. Van Epps.

menced in 1868, but by reason of various delays was protracted. and resulted in a final decree for the sale of the premises in March, 1878. The proof of this judgment in partition was objected to by the plaintiff's counsel, on the ground that it was irrelevant, incompetent and immaterial." The objection was overruled, and the judgment in partition, and the subsequent proceedings thereon were received in evidence, and the plaintiff excepted. The plaintiff's counsel also makes various objections to the effect of the judgment in the action for divorce, which was conceded to be regular on its face, claiming that as the plaintiff's inchoate right of dower was vested in her before the decree, and before the alleged act of adultery took place, such decree could not operate retrospectively to bar her dower.

The counsel for the plaintiff also offered, in substance, to prove that the entering of the decree in the action for the divorce was fraudulent as against the plaintiff, who, as was alleged, continued to reside with the said Christopher Jordan, as his wife, for many years after the said decree was obtained, and down to the time of his decease. In the disposition which we propose to make of the case, the various objections raised to the validity of the decree of divorce will not be considered, as we see no reason to doubt but that the decree in the action of partition and the sale under the same to the defendant is a bar to the plaintiff's action to recover the premises in question, which constituted the land sold under the decree and under which sale and purchase the defendant claims title.

The judgment record in the action for partition is not set out at length, but instead thereof, the case contained various recitals referring to the contents of that judgment record. From this circumstance it is difficult in all respects to fully understand all the proceedings in the partition suit, but as the appellant made up the bill of exceptions and has caused to be inserted therein these various detached recitals instead of the entire judgment record in partition, it will be assumed that the judgment in partition was in all respects regular, so far

« PreviousContinue »