DIVORCE AND ALIMONY.

[Lucas Circuit Court,

October Term, 1897.]

King, Haynes and Parker, JJ.

#### Jennie C. Fletcher v. Oliver P. Fletcher, et al.

1 Plaintiff in Divorce may reach all the Property in which Defendant has any Interest. His Grantees may be Brought in.

In a petition for divorce the plaintiff has a right to describe all the property in which the defendant has any interest, no matter what that interest is, and may allege, that to defeat her claim for alimony, he has conveyed that property away, describing it without consideration, and have the grantee or grantees brought into court, for the purpose of holding the property in order to determine her rights. And the court has power to determine such matters and take them into account in allowing alimony.

2. Describing Property, Charging it with Equities in favor of Plaintiff, is within Doctrine of Lis Pendens.

A petition for divorce and alimony, which describes property in which the defendant has an interest, charging it with equities in favor of plaintiff, and asking for an injunction is an offset to prevent an alienation of her property *pendente lite,*although no injunction is actually granted. ' / , "

3. Petition for Divorce and Alimony, making Third Party Defendant, Sustained.

In the case at bar plaintiff alleged that defendant had conveyed to H. certain property, to be held in trust to satisfy any judgment for alimony that plaintiff might recover, and that subsequently the defendant conveyed to H., as assignee for the benefit of creditors, all his property, and that H., as such assignee, had filed a petition in the probate court in which he was seeking to sell the property held by H. in trust for plaintiff’s benefit: *Held,*that such petition is not defective as uniting an action to enforce a trust for plaintiff’s benefit as *cestui qui*trust with a cause which might fall within the jurisdiction of the court under a petition for divorce and alimony, and does not, in seeking to enforce anything against H., contain a misjoinder of causes or action, nor does it seek to administer the assignment.

King, J.

Three different petitions were filed in the court by the plaintiff below, who is here the plaintiff in error, to each of which demurrer were severally sustained, and the action of the court on those demurrers *272is assigned for error; also the dissolving an injunction granted in the action; and the action of the court in removing or discharging as receiver appointed. As to the latter ground, it is sufficient to say that mere is no bill of exceptions setting out the evidence, and it appears that the motions were heard upon evidence, and therefore the action ot the court cannot be reviewed at this time and in this proceeding.

Plaintiff filed her petition on September 24, 1896, alleging several grounds for divorce as existing, and in her petition she describes certain tracts of real estate,' alleging that certain real estate — describing it by metes and bounds, and its situs, one tract in Michigan and another tract in Toledo — had been conveyed to defendant Henricks for the purpose of putting it beyond her reach, so that it might sot be made subject to the payment of any judgment for alimony ; and she wound, up with the prayer that that conveyance be set aside, and she be allowed reasonable alimony. She also asked for an injunction, alleging that her husband was threatening to convey certain property,'and also that Henricks would convey the piece to which he had the legal title, if not prevented by an injunction. A temporary injunction was allowed by a judge of the court of common pleas. That stood until, when, upon motion, it was dissolved. On January 13, 1897, some five months after the filing of this petition, the principal defendant, her husband, filed an amended answer, in which he set out the defenses upon which he relied. He denied generally the grounds for divorce that were set out in the petition, and then set up what he had been doing with his property. With reference to the property that had been conveyed to Henricks, this defendant, her husband, says he admits that the property had been conveyed to Henricks,

“ But avers that the same was at the instance and solicitations of her attorney, and that he conveyed said property at her request, and for her behoof and benefit, and to satisfy her of his affection for her, and of his willingness to do all things in his power for her welfare, and for the purpose of showing her that he bore her no ill will. And this defendant further says, that shortly subsequent to said transfer, he agreed with her attorney as to alimony for her, and .that his attorney and her attorney then agreed upon practically the sum of $1,500, in cash and real estate, the same being all and more than this defendant was worth.”

And he avers that in all. things he has endeavored to do what was right; and he further saj^s, ‘ he denies all allegations in said petition as to his placing or trying to place any property of any description beyond plaintiff’s reach, or trying in any way to deprive her of any property rights whatever.”

The defendant Henricks did not answer, but he filed a demurrer, which was heard and determined on March-15th, some little time after this answer of the principal defendant. The demurrer was sustained, and in the judgment of the court sustaining that demurrer, I think appears also the judgments upon the motions that had been filed as to the receiver, and the judgment dissolving the injunction. There had also been a motion filed to have Mr. Henricks show cause why he should not be punished as for contempt, and that was disposed of against the application of the plaintiff.

On the 17th — two days later — the plaintiff filed an amended petition. She sets forth substantially the same things that were in the original petition, and with reference to this property conveyed to Henricks, she in substance adopts some of the allegations of her husband’s answer — that *273it had been conveyed to Henricks to be held by him in trust to satisfy any judgment for alimony that she might recover, and that it had been transferred to him for her benefit; and she further says, that prior to the transfer, the property had been acquired by the joint efforts of her husband and her herself, and she had an interest therein. To that a general demurrer was filed, and it was heard on the first day of April, 1897, and sustained. On April 2, 1897, a second amended, petition was filed, which sets out more particularly the allegations with reference to this property conveyed to Henricks, and also sets forth that some time after the original petition was filed, perhaps in November, the defendant Fletcher had conveyed all his property to an assignee for the benefit of his creditors, and that the assignee was Henricks, and that Henricks, in his capacity as assignee, had filed a petition in the probate court in which he was seeking to sell this very property described in her petition, conveyed to him to satisfy such judgment for alimony, or such decree for alimony as the court of common pleas might thereafter render, and it was not at the date of the assignment the legal estate of Fletcher, her husband ; and she asks for an injunction as to these acts of Henricks in the probate court. A general demurrer was filed to that, and on May 18, 1897, it was sustained.

All these acts of the court, are alleged as error.

It is contended here by counsel, for the demurrers, that the plaintiff, ■in these amended petitions especially, has set up specifically a trust, and that she could not unite an action to enforce a trust made for her benefit as *cestui que*trust, with any cause of action that might fall within the jurisdiction of the court under a petition for divorce and alimony ; that this is a misjoinder of causes of action, so far as it seeks to enforce anything against Henricks; that while she might allege that her husband has property which he is seeking to hold away from a judgment for alimony, she cannot come in aud say a trust has been declared for her, and asl? the court to adjudicate about that trust; and that the demurrers were sustained properly for that reason. '

We cannot agree with the argument, nor with the decision of the court below upon any of those demurrers. We do not say as to the first petition that there was any error in that; but clearly the plaintiff, in filing a petition for divorce, had a right to describe all the property in which the defendant had any interest, no matter what that interest was. She might allege that he had, in anticipation of her filing a petition for alimony, conveyed that property away', without consideration, for the purpose of defeating her application for alimony. She might have made that allegation, described the property, and brought the grantee of the property into court, and held him, subject to the final decree that might be made — not for the purpose of setting aside that deed, although we have no doubt the court might do that; but for the purpose of holding that property in order to determine what her rights were — whether the court would grant her alimony in kind, in lands, or in money and make a money decree a lien upon the land. The court has ample power to determine every interest the defendant had in any propery, or that of other parties to that suit who claim an interest in it. If this land was held by Henricks for the use of the plaintiff, it was actually the property of the defendant Fletcher, the amount and value of which the court should always consider in rendering its decree for alimony. Whether the court should, if it found that this conveyance was made as the *274defendant Fletcher alleges it was made, decree that Henricks should convey that property to the plaintiff as and for her alimony, or whether the court should decide that, in view of the property that Fletcher had, and the character of it, he 'should pay her so much money, and that should be a lien upon his • other property or upon this, is not a matter of any consequence now. The court of common pleas, when it tries and determines this question, will make such decree as it deems right and legal. This pleading shows that Henricks was a proper party, if the allegations of the petition are true, and they are to be taken as true by the demurrer.

Whether the filing of this petition holds this property now as *lis pendens,*is now to be decided. The question is, whether this petition contains a cause of action as against Henricks. We cannot see why it does not. The statute in reference to divorce and alimony, secs. 5699 and 5705, provides that any and every interest, legal or equitable, of the defendant, in any property whatsoever, may be described in the petition and taken into account by the court in its allowance of alimony.

It is claimed here by counsel for the demurrers, that this petition seeks to administer this assignment. We do not think it can bear that construction. The petition alleges that Fletcher had assigned all his property to Henricks to administer for the benefit of his creditors. It also alleges that before this assignment he had conveyed this estate to Henricks to hold in trust for certain purposes and uses. If these allegations were true, then the deed of assignment did not convey to Mr. Henricks, assignee, any of this real estate. The petition alleges that Henricks, assignee, is seeking in the probate court of this county to sell this property that he holds as trustee for plaintiff, and pay it over to the creditors of Mr. Fletcher. Clearly the court of common pleas should stop that proceeding until it shall determine whether this woman is entitled to alimony.

It is said again, that this assignment was made after this injunction was dissolved. It -is not so alleged in the petition, but we think that that makes no difference. If Henricks was a proper party, if the allegations made against him as to his interest in this real estate are sufficient, and if the real estate is properly described, then no injunction was necessary. Tolerton v. Willard, 30 O. S., 579, cited to us clearly expresses our view of this case. That case arose from an action brought for divorce and alimony, in which the plaintiff described certain real estate as being owned by the defendant. She further set forth that “she had received from her father’s and her brother’s estate moneys belonging to her as an inheritance to the amount of $2,700; that her husband had, after the marriage, purchased a half section of land for $1,600, and it was understood that said half section, in consideration of the moneys thus received by the plaintiff, was to be conveyed and secured to the plaintiff and her heirs, as her separate estate and property; but that defendant wrongfully caused the conveyance to be made in his own name, and has since sold a large portion, and mortgaged the same;” and she further averred that he intended to sell and mortgage the balance. As a matter of fact, after the filing of the petition, he did mortgage the balance. If that allegation in her petition is to be construed strictly, it was an allegation of a trust resting in her husband, which could have been enforced in a separate action. The prayer asked for an injunction, but no injunction was allowed in that case. When the court came to hear he case, divorce was granted, and when it came to consider the question *275of alimony, it allowed her $5,000, and the real estate described in the petition was held to pay the $5,000, and it was ordered to be a lien upon the real estate until the same was paid, with interest, and in default of payment within the time limited, the real estate should be sold by the sheriff. Afterwards, proceedings were brought to marshal the liens and sell the property, and the property was sold at sheriff’s sale under those proceedings, and the plaintiff bid in the property at a price named. She paid off the judgments prior to her lien, and kept the balance of the purchase money to apply on her alimony.

*Hurd, Brumback & Thatcher,*for plaintiff in error

*Frank I. Isbell*and *Seney, Johnson & Friedman,*for defends;:; Henricks.

C. *W. Everett,*for defendant Fletcher.

The court held that the petition which described this property and asked for an injunction, charged it with equities — not with her right to alimony, but with equities in her favor, and was sufficient to prevent an alienation of this property *pendente*lite; and it was a sufficient ground for any equitable relief which the facts, after the hearing by the court, would warrant, and also sufficient to bring this property within the doctrine of *lis pendens*as to whoever might acquire any equity in it; “that the decree of alimony, which settled the equities, being for $5,000 in money, did not allow her an estate in this land, but made that a charge upon it, and bound the property from the date of the filing of the petition and service of summons. I cannot go over the decision in full, but it clearly sustains the proposition, that the petition, which made the defendant a party and which set up this trust, although no injunction was granted, was sufficient to charge all who might have knowledge of the pendency of the suit, and that when the court came to make its decree, it might grant such relief as the facts warranted; it might recognize that the property was held in trust for her and purchased with her money, or it might take into consideration in allowing alimony, and allow a larger sum of money on account of that, or allow it in real estate.

To the same effect, or at least upon the same line, is Railroad Co. v. Brennan, 50 O. S., 589, where it is held that no injunction is necessary to hold property in an application for divorce and alimony, where the property is described and the owner of the property and the person having an interest in it is made a party; that he cannot thereafter transfer it, although there is no injunction against his transfer.

We think both of these amended petitions were correct and proper, but we deem it sufficient to say that the court erred in sustaining the demurrer to the last amended petition; that the action of the court should be reversed and set aside, and the case remanded to the court of common pleas for further proceedings.