Cheever v. Wilson
APPEAL from the Supreme Court of the District of Columbia; the case being this:
By a statute in force in Indiana in 1857  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 bon a fide resident of the county in which the same is filed; of which bon a fide residence the affidavit of such petition shall be prim a 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 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 bon a 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 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 24th, 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.'
Some time 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 16th, 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 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 $5000; 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 insureance money, $4000, 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 incumbrance of about $5000 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 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  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 Wilson to the principle of subrogation adopted, the argument was on the validity of the Indiana divorce and orders.
Mr. Boyce, for the appellant, contended that the Constitution ordaining that 'full faith and credit should be given to the judicial proceedings of every other State,' the judgment, if conclusive, as undoubtedly it was, in Indiana, was conclusive everywhere else in this country.  Jurisdiction having attached, the judgment was not open to inquiry upon the merits; that judgments of another State were not prim a facie but conclusive evidence of what they adjudged; that while parties not privies could show that the judgment had been obtained by fraud, or that the court rendering it had no jurisdiction, parties privy to the judgment could not do it. 
Mr. W. S.C.ox, contra, commenting on the case as already stated, and upon the demoralizing character of the Indiana statute, contended that the courts of Indiana had no right to decree a divorce of any person but of bon a fide domiciled citizens of that State; that the question of bon a fide domicil was always one of fact; that here it was palpable that no case existed in fact, and that the divorce was a divorce by collusion and consent; the wife having set up a domicil in Indiana, because no divorce a vinculo could be got in Washington, her true domicil; that Mrs. Cheever could acquire no domicil except that of her husband, who it was not pretended was ever domiciled in Indiana; that even if there had been jurisdiction in Indiana to affect the person, there was none to affect the real estate in Washington; and, finally, that the decree was without parallel, for that it awarded the husband alimony for his own offence of desertion.
Mr. Justice SWAYNE delivered the opinion of the court.
^1 Act of May 13th, 1852.
^2 Printed transcript of record, December Term, 1869, No. 53, pp. 47, 53, 54
^3 Christmas v. Russell, 5 Wallace, 302.
^4 Clay v. Clay, 13 Texas, 204.