Kirsch v. Kirsch

Divorce—Adultery of Wife—Award of Community Property to Husband—Allowance to Wife—Quitclaim Deed—Title of Husband —Equity—Writ of Assistance.—Where a divorce is granted to the husband for adultery of the wife, and an award is made to the husband of community property standing in the name of the wife, to be and remain his separate property, he in turn being required to pay five hundred dollars to the wife, upon the execution of a quitclaim deed by her, but to be relieved from payment of that sum if such deed was not executed, his title to the property does not depend upon the execution of the deed, or the payment of the money, it not being made a lien upon the property, but being in the nature of a money demand to be enforced by appropriate process, upon condition that the deed is executed, and the husband is entitled to a writ of assistance in the action for divorce, which is in the nature of a suit in equity, to place him in possession of the property awarded to him by the decree as against the wife.

Id.— Action of Ejectment Pending — Defense of Deed Intended as Mortgage — Immaterial Objection to Writ of Assistance.— The pendency of an action of ejectment brought by a third person claiming/ under a deed from the husband, against the husband and wife, in which the husband defended denying title of the plaintiff, and pleading by way of cross-complaint that the deed was a mortgage, and that plaintiff and his wife had been in possession, receiving the rents and profits, and praying for an accounting, and that the premises be restored to him under a reconveyance from the plaintiff, is no objection to the granting of a writ of assistance against the wife in an action for divorce, in which the property was awarded to the husband, and to which the plaintiff in the action of ejectment was no party, nor are the, questions raised in the ejectment suit material to be considered upon the application for the writ of assistance in the divorce action.

Id.—Judgment upon Demurrer of Wife—Res Adjudicata.—A judgment for costs in the action of ejectment in favor of the wife against the husband, upon the sustaining of a general and special demurrer interposed by her to his cross-complaint, it not appearing that the merits of the action were involved in the order sustaining the demurrer, cannot be said to constitute any bar or estoppel in her favor as against the husband’s title to the property awarded to him in the divorce suit, but the rights of the parties must be determined by the judgment in the divorce action, if no new and independent rights have been acquired subsequent to its date.

Id.—Title by Adverse Possession—Opposition to Writ of Assistance — Unsupported Claim —• Pendency of Appeal — Suspension of Rights.—Where there is a prima facie showing that the plaintiff has acquired a new and independent title by adverse possession, as against the defendant, a writ of assistance should not issue in favor of the defendant, and cannot operate to affect such new and independent right; but the bald assertion of an unsupported claim is not a sufficient warrant for asking the court to withhold its process; and where less than three years have elapsed since the final determination of the rights of the husband upon appeal to the supreme court from the judgment of divorce, there can be no title of the wife acquired by adverse possession, as her possession could not be adverse to the husband pending the appeal, all rights under the judgment having been suspended during the appeal.