Opinion
October 25, 1948.
1. Res Adjudicata.
When in a former suit between the parties, husband and wife, the only issue touching the property was as to whether it belonged to the wife or to the husband, and it was adjudged to be the property of the wife, and the wife subsequently conveyed it without the joinder of her husband in the deed, the former decree was not res adjudicata of the issue whether at the time of the conveyance the property was or was not the homestead of the parties.
2. Homestead — suit to set aside deed to — burden of proof.
When a husband prosecutes a suit to set aside a deed to property owned by his wife, on the ground that the property was a homestead and that the husband did not join in the deed of conveyance, the burden of proof was on him to show that he was living with his wife either actually or within the sense of Section 332, Code 1942, and he is not to be precluded from making such proof because of the fact that in a former suit the property had been adjudged to be that of the wife — the homestead issue not being involved in the former suit.
Headnotes as approved by McGehee, J.
APPEAL from the chancery court of Winston County, J.K. GILLIS, Chancellor.
Henry L. Rogers and R.W. Boydstun, for appellant.
Since this case turned in the lower court upon the pleas of res adjudicata called up by the defendants charging that the matters in issue in the present case had been determined in a former divorce proceeding had between Mr. Etheridge and his wife, it seems that the first thing that should be discussed is to determine what is meant by res judicata.
The definition offered in 30 Am. Jur., page 908, Section 161, "The Judgment of a court of concurrent jurisdiction, directly upon the point, is as a plea, a bar, or as evidence, conclusive, between the same parties, upon the same matter, directly in question in another court."
Black's Law Dictionary, page 1540, gives the definition of Res Judicata as, "A rule of law meaning the thing has been settled."
This definition was used in the Florida case of Gray v. Gray, 107 So. 261, "A study of the legal definition of Res Judicata will divulge that there are certain elements necessary in every case before it can be truthfully said, `The matter has been settled.'"
We respectfully submit that there must be an identity in four things:
(1) The things sued for. (2) The cause of action. (3) The parties to the action. (4) The same right or quality in which the parties sue.
We believe this to be universal rule since the authorities are overwhelmingly in support of this rule. We cite the following cases: Stringfellow v. Loyal Tabernacle, 291 S.W. 115; Hardyman Co. v. Kaze, 43 S.W.2d 678; Franklin v. North Weymoth Co., 186 N.E. 641; Buck's Estate, 170 At. 373; Nelson v. Parsons, 198 S.E. 401; Balcom v. Cain, 81 S.W.2d 827; Schadde v. U.S. 69 F.2d 866; Hogue v. Stephens, 14 P.2d 220; Smith v. Pattishall, 176 So. 571; Water Co. v. Highway Dept., 183 S.E. 27, 178 S.C. 415; Jones v. Adler, 62 So. 777, 183 Ala. 435; Basseck Mfg. Co. v. Larkin Auto. Pts., 23 F.2d 42; N. Pac. R.R. Co. v. Snokomish County, 172 P. 874; Vincent v. Mutual Reserve Fund Life Association, 58 At. 963; Slaughter v. Crosby, 289 S.W. 1060; Anderson v. Atkins, 22 F. Supp. 853; Prall v. Prall, 50 So. 261; Widner's Estate, 240 P. 608; Breendage v. O'Berry, 134 So. 520, 101 Fla. 320; Cox v. Calbert, 274 P. 317; Wood v. Wood, 33 So. 347.
In light of the above rule measuring the former judgment in this case we find:
1. The things sued for are not the same; that is to say, in the first case the husband sought the title to the homestead because he claimed to have furnished the money to purchase it. In the second case the title to the homestead is not sought but admitted to be in the wife and the suit is based on homestead rights rather than title.
2. The cause of action in the former case was for a divorce and for title to the property. In the case at bar the cause is based entirely on homestead right.
3. The parties to the action in the former case were Mr. and Mrs. Etheridge and in the present case the parties to the action are different.
4. The rights in which the parties sue are not the same. In the former case the wife sued for a divorce. The husband filed a cross-bill and sued for title to the home. In the present case the husband sued third parties for the cancellation of a deed given by the wife.
It is, therefore, evident that measured by the rules adopted as to Res Judicata the former suit has nothing to do with the present litigation for the cancellation of a deed given by the wife to the homestead without the husband's signature.
Livingston Fair, for appellees.
There were two allegations in the Special Plea:
(1) That the former decree of the court in determining the title to the land, and dismissing appellant's cross-bill was final and res judicata.
(2) That the appellant and appellee, Mrs. Bernice Etheridge, had not lived together as husband and wife in the home since the rendition of the decree in the divorce suit.
The appellant did not deny these allegations by pleading, nor did he undertake to deny them by his testimony, and this being true the allegations of the plea were, therefore, confessed by the appellant and the plea was only challenged for its legal insufficiency. If the appellant had any homestead rights it was his duty to introduce his testimony on the hearing of this plea.
The chancellor heard all of this evidence, was familiar with and considered the pleadings in the divorce suit and the pleadings in the suit at Bar, and entered an opinion adjudicating both the facts and the law involved. The special finding of the chancellor is on Page 56 of the record, and is as follows: "The court finds that the purchase of this property by Earl Webb and his wife Mrs. Maude Webb, two of the defendants herein, from Mrs. Bernice Etheridge was effected after the decree in Cause No. 6189 was made, and that in said former suit it was adjudicated that the separation between Mr. and Mrs. Etheridge was caused by Mr. Etheridge and not by Mrs. Etheridge, and that while they are still husband and wife, they are not living together, and therefore, under the law, this matter has been adjudicated and decree of res judicata is hereby sustained."
We submit to this Honorable Court that the finding of the chancellor is a special finding of fact and law. He adjudicated the fact that they were not living together as husband and wife, and that the separation was caused by Mr. Etheridge and not his wife. We think the homestead rights of the appellant, if any he ever had, were adjudicated in the trial of the divorce case. However, if we should be in error as to that adjudication, we still submit that the plea of res judicata should have been sustained because the homestead rights could have been litigated by the appellant in the divorce suit and his failure to raise that question in his pleadings now precludes him from raising it in the present case. We think that the decree of the chancellor in the divorce case is res judicata, not only as to issues actually raised on the trial of the case, but on issues that could have been there raised.
Parties cannot be permitted to litigate on the installment plan. The controlling questions here were well settled in the divorce suit.
"Briefly stated, the doctrine of res judicata is that an existing final judgment rendered upon the merits without fraud or collusion by a court of competent jurisdiction is conclusive of rights, questions and facts in issue as to the parties and their privies in all other actions in the same of any other judicial tribunal of concurrent jurisdiction. To adopt the language of the English court in announcing the doctrine in an early case, which has been frequently repeated by the courts, the judgment of a court of concurrent jurisdiction, directly upon the point, is as a plea, a bar, or as evidence, conclusive, between the same parties, upon the same matter, directly in question in another court. In speaking of this rule and the distinctions which appear therein, it has been said that this brief but comprehensive summary furnishes a rule for every case that any complication of circumstances can produce. On the other hand, it has been declared that when a case lies hard by the line of cleavage between what is and what is not res judicata, it may be a nice question to determine on which side of the line the case falls." 30 Am. Jur. 908, Section 161; Johnson Steel Street Rail Co, v. Wharton, 152 U.S. 252, 38 L.Ed. 429; Mutual Life Insurance Co. v. Harris, 97 U.S. 331, 24 L.Ed. 959 (declaring the rule stated in the text to apply equally to judgments at law and decrees in equity); Lamb v. Wahlenmaier, 144 Cal. 91, 77 P. 761; Cleveland v. Creviston, 93 Ind. 31, 47 Am. Rep. 367; Newhall v. Enterprice Min. Co., 205 Mass. 585, 91 N.E. 905; Agnew v. McElroy, 10 S. M. (Mass.) 552; 30 Am. Jur. 920, Section 178; Fair v. Dickerson, 164 Miss. 432, 144 So. 238; Goodhealth Dairy Products Corp. v. Emery, 275 N.Y. 14, 9 N.E.2d 758, 112 A.L.R. 401; Blair v. Bartlett, 75 N.Y. 150; Moore v. Snowhall, 98 Tex. 16, 81 S.W. 5.
The decree rendered in the divorce suit between the appellant and his wife was a final decree adjudicating and determining the rights of the parties as to the home here involved. The court held that the title to the home was vested in Mrs. Etheridge, and further held that it should remain vested in her, which we think is a final determination of the rights of the parties thereto. The appellant cannot be permitted to go into court and litigate the actual title to the land, cause lis pendens notice to be given, lose that lawsuit and then come back with another installment of litigation and ask the court to say to his wife she can't sell the land because he has a homestead right.
We, therefore, think the entire controversy was settled by the former decree of the court because all of the issues involved in this suit were involved in the first suit.
This suit is brought by the appellant, R.W. Etheridge, to cancel a deed of conveyance executed by his wife, Mrs. Bernice Etheridge, one of the appellee's herein, in favor of Earl J. Webb and wife, Mrs. Maude M. Webb, as being null and void on the alleged ground that the property described in the deed was at the time of its execution and delivery, the homestead of the said R.W. Etheridge and wife, and that he did not join her in the execution thereof.
(Hn 2) The burden of proof was on the husband as complainant to prove that he was living with his wife, either actually or in a legal sense, within the meaning of Section 332, Code 1942, at the time she conveyed the property in question to the said Earl J. Webb and wife. He was not afforded the opportunity of making this proof in the trial court, due to the fact that a plea of res judicata was interposed by the appellee, Mrs. Bernice Etheridge, and was set down for hearing and tried before the case reached a hearing on the merits, resulting in such plea being sustained and the bill of complaint dismissed, which precluded the taking of proof to sustain the allegations of the bill.
The plea of res judicata was predicated upon the fact that in a prior suit brought by Mrs. Etheridge against the complainant for a divorce, alimony, etc., he had filed an answer and a cross-bill for divorce in which it was alleged that while the legal title of this residence property was in the name of the wife, it had been paid for with funds sent her by the husband while he was in the military service, and that such title was therefore held by her as trustee for him. The cross-complainant finally withdrew his request for a divorce and the court then denied a divorce to the wife, but adjudicated in effect that the property belonged to the wife and that the title thereto should remain in her.
(Hn 1) The deed of conveyance from the wife to the said Earl J. Webb and wife was executed some months thereafter, and the court could not therefore have adjudicated in the divorce proceeding that the complainant in the present suit, R.W. Etheridge, was not living with the grantor as his wife at the time this deed was executed, the deed not having been made until sometime after the decree was rendered in the divorce proceedings as aforesaid. In other words, the only issue involved in the divorce proceeding insofar as the property was concerned, was whether or not it belonged to the husband or to the wife.
And even though the property was adjudicated in the divorce proceedings to belong to the wife, it would follow that the deed thereafter executed by her required the signature of the husband if the property did in fact constitute the homestead at the time of the execution of the deed of conveyance, and if he was then living with his wife.
It was therefore error to sustain the plea of res judicata in the present suit, since the husband was entitled to prove, if he could, that the property, although belonging to the wife, still constituted the homestead, and that he was living with his wife at the time the conveyance thereof was executed.
The cause must therefore be reversed and remanded for hearing on such issue.
Reversed and remanded.