(144 N.E.) land referred to in the will, codicil, and On September 10, 1884, D. P. Irwin, as petition.

such master commissioner, was ordered by On April 17, 1860, more than one year after the court of common pleas of Greene county, the Entailment Act was passed, the will Ohio, to reinvest the funds and proceeds in was probated.

certain real estate in Darke county, Ohio. Martha Judy went into possession of the This he did on September 17, 1884, taking land as life tenant under the will and title thereto "to Martha Judy for life and at codicil. Upon November 12, 1869, she com- her death to her heirs in fee simple," as menced an action in the common pleas court provided in the will and codicil, and the Enof Greene county, under the act of April 4, tailment Act and order of court. 1839, above mentioned, and under the amend In the meantime the only plaintiff below, atory acts, to sell the life estate and reinvest Olevia May Judy, was born in 1872. the funds as provided by law.

Some time prior to November 24, 1896, At the time Martha Judy commenced the Oliver Judy, a child of Martha Judy, and a action for sale of the said real estate she plaintiff in error here, bought from his mothhad nine living children, to wit, Kossuth er her life estate in the 80 acres in Darke Judy, aged 17; Florence A. Judy, aged 15; county. Upon November 24, 1886, Oliver Henry C. Judy, aged 14; Ohio B. Judy, Judy commenced a partition proceeding to aged 12; Wilson L. Judy, aged 10; Mary partition the Darke county land, in the court E. Judy, aged 7; Uriah B. Judy, aged 6; of common pleas of Darke county. This Oliver C. Judy, aged 4; Frank W. Judy, land, which was the same land purchased aged 2.

from the proceeds of the sale of the Greene One Samuel H. Judy was appointed guar-county land, was regularly sold in partition dian of all these minor children by the pro- at public sale. bate court of Darke county, Ohio, on De Martha Judy, the life tenant, died in 1910. cember 3, 1869. In the action for sale of the In the present partition action in the court said real estate each and every one of Mar- of common pleas, Oliver C. Judy, Henry O. tha Judy's children was made party defend- Judy, Frank W. Judy, Uriah B. Judy, Florant, their names appearing in the caption of ence A. Martin, Mary E. Stevens, Ohio Belle the petition, Samuel H. Judy was also Shaner, Wilson L Judy, Mearly Burgoon, made defendant as guardian.

Forest Judy, Wesley Judy, Mabel Smalley, Upon December 6, 1869, Samuel H. Judy, Hazel Oplinger, Bonnie Pappa, Myrtle Menas such guardian, filed an answer waiving | denaull, and Frederick Smalley, defendants, the service of notice of the pendency and admitted the ownership, title, and interest prayer of the petition and entered his ap of the plaintiff in the said premises describpearance therein. In the answer the guarded in the petition. ian consented to the sale of the life estate. The defendant James Trollinger fled an

A judgment was rendered, ordering the answer and cross-petition. The answer comsale of

estate, an ord of sale is- pris three defenses, first of which was sued, a master commissioner was appointed a general denial. The second defense set to make sale, and the land was sold at pub- up the proceedings in Greene county for the lic auction to one Uriah Wilson.

sale of the premises in 1860 as a bar to the A deed by order of the court was made to action. him, "free and clear of all entailment or limi The third defense incorporated the alle tation over," and the master commissioner gations of the second defense, set up the was ordered to reinvest the proceeds as re- facts concerning the investment of the funds quired by law.

received from the sale of the Greene county Uriah Wilson, the purchaser, in 1871, con property in a tract of land in Darke counveyed the land to one Philip Markley by ty, the partition of the said Darke county warranty deed; Markley by like deed con- land, and averred that each of the plain. veyed in 1874 to Abraham Brake; Brake tiffs and defendants in the action other by like deed on February 15, 1892, conveyed than Trollinger had receipted upon the parto A. L. Shuey; and Shuey by like deed on tition docket in the sheriff's office of Darke August 27, 1902, conveyed to defendant in county for his respective share from the proerror, James Trollinger, who has ever since ceeds of the said real estate. been and now is still in possession.

In his cross-petition Trollinger alleged William H. Wilson, the master commis. that he was the owner of and in possession sioner, was removed on February 7, 1882. of the real estate described in the petition, and one D. P. Irwin was appointed his suc- being the owner in fee simple therein, alcessor. Some litigation arose between Ir. leged that the plaintiff and the other de vin and his predecessor master commission fendants in the action claim interests ader to recover the funds; the funds were verse to himself, and prayed that his title fully recovered, and the court wherein they be forever quieted against the same. were recovered ordered a small portion of A demurrer was filed on behalf of Olevia the funds for the recovory and expenses May Judy and the other defendants, except thereto.

Trollinger, to the second and third defenses

in Trollinger's answer, and also to Trollin provisions of his will executed as he wrote ger's cross-petition. This demurrer was them, and that such is the result if this law overruled.

is upheld. The constitutionality of the act, The plaintif and all defendants in the however, has been sustained. Nimmons v. action except Trollinger then filed a reply, Westfall, 33 Ohio St. 213; Oyler v. Scanlan, admitting the facts set forth in Trollinger's 33 Ohio St. 308; Bennett v. Fleming, 105 answer with regard to the sale of the Greene Ohio St. 352, at page 363, 137 N. E. 900. county property under court decree, and Exactly the same question was raised in not denying the allegation that all of the the first two of the above cases, namely, that defendants in this Greene county action, ex- this law was retroactive, and hence violated cept Trollinger, were notified of the applica. the above-quoted sections of the Constitution. tion for the said sale, but denied that the The case of Nimmons v. Westfall, supra, court had jurisdiction of the subject-matter held in section 7 of the syllabus: of the action, upon the ground that the law

"The act of April 4, 1859 (S. & C. 550), and under which the sale of 1860 was executed the supplemental acts of March 30, 1864 (S. was unconstitutional. The reply also denied & S. 346), and April 13, 1865 (S. & S. 347), the regularity and validity of the sale pro- in so far as they affect and apply to estates ceedings in the Greene county case.

created subsequent to their passage, are not In the reply to the third defense of the in contravention of section 19, of article 1, of answer the plaintiff and all defendants ex

the Constitution of this state." cept Trollinger denied that any of them had

Oyler v. receipted for or received any money from

Scanlan, supra, held in the second

paragraph of the syllabus: the sheriff of Darke county in the second partition case, and denied the right of Trol- “2. The act of April 4, 1859 (S. & C. 550), linger to have his title to the said land qui- and acts amendatory thereto of March 30, eted, on the ground that the act of 1859 of 1864, and April 13, 1865, are not unconstituthe General Assembly was retroactive and tional as to estates vesting after the passage invalid.

of those acts." Demurrer was filed by Trollinger to the reply of plaintiff, on the ground that it

[1, 2] It is true that each of the wills in the did not constitute a defense to the answer.

Nimmons and Oyler Cases was executed aftThe court of common pleas sustained the er the passage of the act and not, as Isaac demurrer, dismissed the petition, and ren

Wilson's before the passage of the act; but dered judgment for Trollinger on his cross

we fail to see that this affects the problem, petition. The judgment was affirmed in the inasmuch as the will speaks, not from the Court of Appeals. Error was prosecuted to time of execution, but from the time of the this court.

death of the testator. 28 Ruling Case Law,

p. 283, § 255; Oyler v. Scanlan, 33 Ohio St. Philetus Smith, of Toledo, C. H. Kyle, of 308, at page 311; Baker v. Baker, 51 Ohio St. Xenia, and W H. McLellan, Jr., of Toledo, 217, at page 222, 37 N. E. 125. Isaac Wilson for plaintiffs in error.

died upon April 10, 1860, after the act in Marcus Shoup, of Xenia, for defendant in question was in full force and effect.

[3] Plaintiffs in error maintain, secondly,

that the sale in question could not bind Ole PER CURIAM. Plaintiff in error chal- via May Judy, since she was not born in lenges the judgment of the Court of Appeals | 1869. However, she was bound by the proupon the ground, first, that the act of 1859ceedings in Greene county under the doctrine under which the sale of the Greene county of virtual representation. Bennett v. Flem. property was made was invalid and uncon- ing, 105 Ohio St. 352, 137 N. E. 900. The secstitutional, as being in conflict with section ond paragraph of the syllabus of the Bennett 19, article 1, and section 28, article 2, of the Case is as follows: Ohio Constitution. These provisions of the

"Persons having a remote, contingent, or Constitution, in so far as pertinent, read as expectant interest in realty are bound by the follows:

judgment rendered in an action concerning Section 19, article 1: "Private property shall the property, although not made parties to the ever be held inviolate, but subservient to the suit, if the holder of the first estate of inpublic welfare.

heritance is a party

Estates limited over to Section 28, article 2: "The General Assem- persons not in being are represented by the bly shall have no power to pass retroactive living owner of the first estate of inheritance, laws, or laws impairing the obligation of con

so that a decree in a suit to which the first tracts.

holder, a living person, is made a party, will

conclude the rights of after-born remainderPlaintiff in error's contention is that the men." Legislature could not, by any act passed after the will was made, affect the execution of the Plaintiffs in error next contend that the provisions of Isaac Wilson's will. He claims | sale of the Greene county land was irregular, that the Legislature has no authority to de- upon the ground that the law as to service stroy the right of Isaac Wilson to have the / upon the minors was not complied with.


(144 N.E.) The original act providing for the sale of Judy, and Frank W. Judy; that a sale of said entailed or life estates is found in chapter 41, premises would be for the benefit of the said pp. 550 to 552, inclusive, of volume 1 of Swan Martha J. Judy, and will do no injury to the & Critchfield's Revised Statutes of Ohio. devisees in remainder, his wards aforesaid, Section 2 of that act provides in part as fol- and he as such guardian for and in behalf of lows:

each and all of his said wards hereby consents

to the sale of the real estate in the petition "The same notice shall be given to defend described as therein prayed." ants of the application for the sale as now is or may hereafter be required in cases of pe

[4] If Samuel Judy were in this case in titions of administrators for authority to sell any other capacity than that of guardian, if, real estate for the payment of debts."

for instance, he were defendant in his own in

terest, this objection might have some weight; Examining the provision then in force as however, he is joined as a party as guardian to notice required to be given to defendants only, and enters his appearance as guardian in a suit by an administrator to sell real

only. The record as a whole shows that estate for the payment of debts (1 Swan & the case proceeded upon the specific theory Critchfield's Revised Statutes of Ohio, p. 590), that Samuel H. Judy was acting on behalf we find:

of his wards as guardian. The objection at "Notice in writing of the petition, and of best is purely technical. A decree was enterthe time and place of hearing the same, or ed, and the decree of the court is presumed subpænas in chancery, shall be served as in to be based upon the finding of all facts necchancery, upon the defendants whose names

essary to the validity of the decree. State, and places of residence are known and who reside in this state, at least fourteen days be.

on Complaint of Cook, V. Cook, 66 Ohio St. fore the court shall make an order for the 566, 64 N. E. 567, 58 L. R. A. 625; Bly v. sale of the real estate mentioned in the pe- Smith, Sheriff, 94 Ohio St. 110, 113 N. E. tition: Provided, that if all persons interest- 659. In this case the court issued the deed signify, in writing, their assent to such cree, and hence it is presumed that Samuel sale, the notice and subpæna may be dispensed Judy acted for his wards in waiving notice with. Testamentary guardians, and guardians and entering appearance. Moreover, the reappointed by the court, may assent, in the ply does not deny that the wards received place of their wards, to the sale.”

due notice. In this case all persons interested assent We hold, therefore, that the sale of the ed to the sale.

Greene county land was regular according to This provision is again emphasized by sec- the law in force in 1869. tion 4 of the original Entailment Act (S. &

[5] Plaintiffs in error further attack the C. & 550), which reads as follows:

proceedings on the ground that no guardian "All parties in interest may appear volun

ad litem was appointed. However, section tarily and consent in writing to such sale, and 127 of the original Entailment Acts, Swan & testamentary guardians and guardians ap

Critchfield's Statutes, c. 43, p. 590, provides pointed by the court of probate, may assent,

as follows: in the place of their wards, to the sale."

It shall not be necessary, unless the peti

tion is contested, to appoint guardians ad The record shows that Samuel Judy, litem for the infant defendants; and no such guardian, appointed by the probate court, fil- guardian shall have authority to waive notice ed his formal consent to the sale. Hence, or service of subpæna," when Samuel Judy waived notice and gave his consent to the sale, he acted under the

The petition was not contested in the plain authority of the statute.

Greene county case. The plaintiffs in error contend that Samu Plaintiff in error next claims that the masel Judy, when he filed his waiver of notice ter commissioner appointed to effect the sale and entered his appearance, did not in terms and Uriah Wilson, who bought the property, waive notice upon his wards nor enter ap- were both ineligible, because they happened pearance for them. This contention is borne to be executors of Isaac Wilson. This contenout by the record, the answer of Samuel tion is disposed of by the fact that the record Judy, guardian, in the pertinent part reading does not show that either William H. Wilson, as follows:

who was first appointed master commission"And now comes the said Samuel H. Judy, er, or Uriah Wilson, who succeeded William defendant, and, waiving the service of notice H. Wilson, was an executor of Isaac Wilson. of the pendency and prayer of the petition of [6] The answer of Trollinger set up as a said Joshua Judy and Martha J. Judy, plain- third defense the fact that these defendants tiffs, hereby enters his appearance to said pe- had receipted for their respective shares tition, and for answer thereto says it is true, from the proceeds of the real estate in Darke as alleged in said petition, that he is the duly county, which was bought with the proceeds appointed and qualified guardian of the estates of each and all of his codefendants, to of the sale of the land in Greene county. wit, the said Kossuth Judy, Florence A. Judy,

In reply the plaintiff and the other defendHenry C. Judy, Ohio Belle Judy, Wilson L. ants, except Trollinger, deny that any or eiJudy, Mary E. Judy, Uriah B. Judy, Oliver C. (ther of them receipted for or received any


money from the sheriff of Darke county in William and Sadie Sponseller were husthe said case. This reply is inconclusive, for band and wife. On July 6, 1920, Sadie, the the parties in question may have received wife, filed her action asking partition, claimnotes or some form of security and payment, ing ownership in fee simple of an undivided even if they did not receive money from the one-third part of certain premises in Crawsheriff of Darke county. Hence upon this ford county, Ohio, and also for an accountfeature of the case the reply is not good ing of rents and profits. The title to the against demurrer.

other two-thirds of the premises was concedThe demurrer to the reply was properly ed to be in the husband. Other issues in resustained and the judgment of the Court of lation to the conveyance of 2642 acres to one Appeals is affirmed.

Spaide and a mortgage to one Drexel were Judgment affirmed.

tried by the Court of Appeals and deter

mined in favor of the plaintiff and will not MARSHALL, C. J., and ROBINSON, be disturbed by this court. The alleged title JONES, MATTHIAS, DAY, and ALLEN, JJ., to the one-third of the premises which plain

tiff claims in her petition rests upon a cerWANAMAKER, J., not participating. tain decree made in a former case which

will be referred to later.

William Sponseller, the husband, filed his answer and cross-petition to this partition

case in which he made the following defense: SPONSELLER V. SPONSELLER. That on November 22, 1912, the wife filed (No. 18236.)

her petition in the Crawford county common

pleas court, praying for alimony; that, with(Supreme Court of Ohio. May, 1924.)

out trying the cause, the alimony case was (Syllabus by the Court.)

dismissed by mutual agreement on considera

tion that they should resume their relations 1. Husband and wife On 299 (1) Court may ag husband and wife, which mutual agree approve agreement adjusting alimony.

ment was carried into effect; and that the In a case where a wife sues for alimony, a decree awarding to plaintiff the undivided court has the power to approve an agreement made by the husband and wife adjusting such one-third of the premises was made without alimony.

notice to the husband, was without authori

ty in law, and was a cloud upon his title 2. Judgment Om 481-Consent decree adjusting to the premises. He therefore asked that alimony held not subject to collateral attack. plaintiff's petition in partition be dismissed

Where a court acquires jurisdiction over and the decree for alimony in the former case such subject-matter and the parties, a sent decree adjusting alimony cannot be col- be canceled and expunged, and for such gen


eral relief as he might be entitled. laterally attacked.

The decree in the previous alimony case, 3. Judgment em 90-When consent decree ad rendered on November 27, 1912, stated that justing alimony may be vacated stated. the cause came on to be heard

If such decree has been fraudulently procured, or obtained without consent, a party may “on the pleadings and the evidence, and was have such consent decree vacated at the same submitted to the court, upon the same and the term, or thereafter vacated or modified, under agreement of the parties herein, and the court sections 11631 and 11635, General Code.

being fully advised in the premises, and on con

sideration thereof finds that plaintiff was at the 4. Estoppel Om91(1)-Husband held estopped time of the filing of her petition herein, and

from collaterally attacking consent decree amendment thereto, and still is, a bona fide adjusting alimony.

resident of said county of Crawford and that Where a wife petitions for alimony, and the there is a separation of plaintitf from defendcourt by decree has approved an agreement be- ant in consequence of ill treatment on his part tween the husband and wife adjusting alimony, against her, and that by reason thereof, and whereby the husband agrees to convey proper- said agreement of the parties berein, the plainty to the wife on condition that she resumes tiff is entitled to alimony out of the real estate marital relations with him, and thereafter she, of the defendant hereinafter described, which in good faith, carries out the agreement, the is subject to the life estate of said Sarah A. husband is estopped from collaterally attack-Sponseller, the widow of one Samuel Sponseling the validity of such decree.

ler, deceased. It is therefore considered, or-
dered, adjudged, and decreed by court that said

plaintiff, Sadie Sponseller, have and possess as Error to Court of Appeals, Crawford and for alimony the equal one undivided third County.

part of the following described lands and teneSuit by Sadie Sponseller and William H. ments of defendant subject to said life estate, Sponseller. Judgment for plaintiff was af- further considered, ordered, adjudged and de

to wit: (Description of the premises.] It is firmed by the Court of Appeals and cause

creed by court that the said defendant, William remanded, and defendant brings error. Af- Sponseller, within 20 days thereof, execute and armed.--[By Editorial Staff.]

deliver over to plaintiff his certain deed of genFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


(144 N.E.) eral warranty conveying unto her the said equal, infidelity, as it appears from the journal enone undivided third part of said lands and tene-| try that the court in fact heard the case upon 'ments subject to said life estate, and in de- the pleadings and evidence and found that fault thereof this judgment and decree shall there was a separation because of ill treatoperate as and for such deed and so much ment on the part of the husband. Even if thereof as would show the transfer of the title to said undivided equal one-third part of said the journal entry should be construed as real estate subject to said life estate shall withdrawing all charges made by either parbe certified by the clerk of this court to the ty, it at least discloses that it was an agreed county recorder of said county for record. The entry whereby the parties settled the case court further finds that the charge made by the by agreeing that the wife should "have and defendant as to the infidelity of the plaintiff is possess as and for alimony the equal one uinnot sustained, and that defendant admits herein, divided third part” of the premises described. that said charges are not true, and all charges

[1-3] The court having jurisdiction in the made by either party against the other are withdrawn. It is further considered, and ad- alimony case, both of the subject matter and judged by court that defendant pay all the costs of the parties, bad the right to enter the herein taxed at $ ;, and execution for such decree it did. The decree having been made said costs is hereby awarded."

by the agreement of the parties was an ad

judication as effective as if the merits had This action in partition was filed in the been tried, and was not subject to collateral common pleas court, which awarded parti-attack. Where the court has jurisdiction of tion and an accounting. The cause was ap both the subject-matter and the parties, and pealed to the Court of Appeals, and in that

a consent decree has been entered by the court was heard upon its merits and sub-court, such a decree is not even subject to mitted upon the pleadings and the evidence. direct attack, except for irregularity or fraud The Court of Appeals found from the issues in its procurement. In Harding v. Harding, joined in favor of the plaintiff, awarded par- 198 U. S. 317, 335, 25 Sup. Ct. 679, 684 (49 tition of the premises, as prayed, gave judg- L. Ed. 1066), Mr. Justice White quotes the ment to the wife for $866.66 on the Spaide following principle, as sustained by a large transaction, found the wife to be surety only number of authorities therein cited: on the Drexel notes and mortgage, found the wife to be entitled to an accounting for rents versed, set aside, or impeached by bill of re

"Decrees so entered by consent cannot be reand profits, and remanded the cause to the view or bill in the nature of a bill of review, common pleas court for that purpose. There except for fraud, unless it be shown that the upon the plaintiff in error instituted pro- consent was not, in fact, given, or something ceedings in error in this court, seeking a was inserted as by consent that was not con. reversal of the decree of the Court of Apsented to." pea ls.

If the decree of November 27, 1912, was 0. W. Kennedy and Gallinger & McCarron, not obtained by consent, or was procured by all of Bucyrus, for plaintiff in error.

fraud, the husband had ample authority to L. C. Feighner, of Bucyrus, for defendant have such consent expunged by the court durin error.

ing the term, or the entry vacated or modi.

tied after the term by a direct attack, under JONES, J. In the suit for alimony filed sections 11631 and 11635, General Code. It by Sadie Sponseller on November 22, 1912, is not necessary to refer to the large number the court heard the case on the issues joined, of authorities supporting the principle anfound that the plaintiff was a bona fide resi- nounced as to the effect and validity of judg. dent of the county, and that there was a sepments by agreement. These are collated in aration of the wife from the husband "in

the numerous text-books relating to that subconsequence of ill treatment on his part ject, among which we find the following rule against her.” The court thereupon awarded

stated : her alimony under section 11998, General Code, decreeing that the wife should “have "Courts have the general power of entering and possess as and for alimony the equal judgment by consent of the parties, and a judgone undivided third part” of the premises ment may properly be entered by a court for described. There is no doubt, in the judg- the purpose of carrying out a settlement and

compromise of a suit.

In one sense ment of this court, that the decree entered consent to the entry of a judgment appears to by the court in the former alimony case was give it greater force than ordinary judgments. a decree by the consent of the parties. The This is due to the fact that consent excuses erphrase "agreement of the parties" is twice rors and operates to end all controversy beused in the journal entry. However, it is tween the parties. In spite of the foregoing claimed by plaintiff in error that the court peculiarities of judgments by consent, the law had no jurisdiction to render any decree, has been broadly laid down that as between par. since the closing words thereof stated that ties sui juris, and in the absence of fraud, a

judgment or decree of a court having juris"all charges made by either party against diction of the subject-matter, and rendered by the other are withdrawn.” There may be consent of the parties, though without any agsome doubt as to whether said charges so certainment by the court of the truth of the withdrawn do not relate to the charges of facts averred, is as binding and conclusive be

144 N.E. 4

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