Opinion
No. 32539.
March 22, 1937.
1. DIVORCE.
Omission of post office address of wife from bill of complaint and affidavit attached thereto, in husband's divorce suit, alleging that wife was resident of another state but that husband did not know her whereabouts, held to render publication made thereon ineffective and to entitle wife to vacation of decree entered after service by publication (Ann. Code 1892, sec. 3421).
2. DIVORCE.
Allegation of wife's petition to set aside divorce decree granted husband for defect in affidavit on which publication was had, alleging that husband failed to comply with requirements of statute regarding publication of notice and process in divorce suit and that there had been no valid process had on wife, held, as against demurrer, to negative inference that court rendering divorce decree had before it another seasonably made affidavit on which publication was made (Ann. Code 1892, sec. 3421).
3. DIVORCE.
Wife held entitled to vacation of divorce decree entered after ineffective publication of notice because of defective affidavit, where property rights of wife were affected thereby, notwithstanding that death of husband resulted in abatement of suit for divorce.
4. DIVORCE.
Petition to set aside divorce decree on ground of defect in publication of notice held not required to be filed within two years after date of filing of decree as required by statute relating to bills of review, since courts have power to set aside judgments without obtaining jurisdiction of person of defendants thereto on motion or petition, although term of court at which judgment was rendered has expired and without limitation of time within which such action must be taken (Ann. Code 1892, sec. 3421; Code 1930, sec. 2322).
5. DIVORCE.
Petition of wife to set aside divorce decree entered when court was without jurisdiction of wife's person held not barred by laches, where petition alleged that rendition of decree was unknown to wife (Ann. Code 1892, sec. 3421). (See syllabus on Suggestion of Error).
ON SUGGESTION OF ERROR. (Division A. May 17, 1937.) [174 So. 255. No. 32539.]1. DIVORCE.
Decree of divorce which did not recite that publication was made for nonresident defendant held not void where decree was rendered by court of general jurisdiction and hence decree could not be collaterally attacked.
2. JUDGMENT.
One may become estopped from complaining of a defective judgment or decree by accepting benefit thereof with knowledge of its rendition, and may forfeit right to complain thereof by laches.
3. DIVORCE.
Husband could not have divorce decree set aside where it was rendered at his instance with knowledge, actual or presumed, of its irregularity.
4. DIVORCE.
Wife could not complain of decree of divorce secured in husband's suit therefor if she had known of existence of decree for more than thirty years but delayed instituting any proceeding to have it set aside until after husband's death notwithstanding affidavit on which publication was made for wife who was a nonresident was defective where decree was not void because rendered by a court of general jurisdiction.
APPEAL from the chancery court of Madison county. HON. M.B. MONTGOMERY, Chancellor.
A.K. Foot, of Canton, for appellant.
We may presume that Judge Conn when this case was called thirty-six years ago, conscientiously and painstakingly, examined the allegations of the original bill and the affidavit to see if they complied with the provisions of section 3421 of the Code of 1892.
Brotherhood of Railroad Trainmen v. Agnew, 155 So. 205, 170 Miss. 604; Broom v. Board of Suprs., Jefferson Davis County, 158 So. 344, 171 Miss. 586.
Judge Conn in considering the sufficiency of the allegations of the bill and affidavit as to the postoffice address of the defendant found the following allegations: "The last time said Cratin heard of said Eva Cooper, she was a resident of Florida, but at present he knows not her whereabouts and has had no connection with said Eva Cooper since May 1, 1894." Judge Conn in considering the above allegation as to the postoffice of defendant found that the foregoing allegation was a substantial compliance with the statute
We must bear in mind that Judge Conn had complainant before him and we have a right to indulge in the presumption that Judge Conn after considering the allegations of the bill and affidavit examined the complainant in person and satisfied his mind that the complainant did not actually know the postoffice address at that time of his wife. We may even indulge in the presumption that the Chancellor required a new affidavit to be prepared incorporating in detail the requirements of the statute and that this affidavit through lapse of time had been lost, for did not our court in McCallum v. Spinks, 91 So. 694, 129 Miss. 237, hold that the court did presume that a new process would be presumed to have been issued, properly served and became lost through lapse of time rather than to hold a default decree a mere nullity where the file showed that the original process was void because it did not contain the seal of the chancery court. In that case thirty-three years had elapsed since the decree was attacked. In our case thirty-five years has elapsed.
Cox v. Simmons, 57 Miss. 196; Hester v. Hester, 103 Miss. 13, 60 So. 6, Ann. Cas. 1916B, 428.
The letter of section 3421, Code of 1892, does not require where the postoffice is unknown that there be the further allegation that "diligent inquiry has been made to ascertain same." This further essential element was read into section 3920 of the Code of 1906 in the case of Ponder v. Martin, 80 So. 388, 119 Miss. 156, which was decided January 20, 1919.
There will be found no case prior to September, 1900, that holds that under section 3421 of the Code of 1892 the bill or affidavit must further state that diligent inquiry has been made to ascertain the postoffice of the absent non-resident defendant, where it is stated that it is unknown to the complainant.
Judge Conn found that the statute had been complied with and this must stand as the law of the case unless reversed on appeal. Judge Conn might have been wrong in his conclusions; his findings might have been erroneous, but if such was the case it was simply an error in the assumption of jurisdiction and does not render the decree a mere nullity. The appellee Eva Cratin relied on this decree and used it as protection for almost thirty-five years. If she did not have actual notice of it, and it is absurd to presume otherwise, she had constructive notice of it.
Adams v. Belt, 100 So. 191, 136 Miss. 511.
Our court in McCray v. McCray, 102 So. 174, 137 Miss. 160, has established a rule that after the death of one of the parties the surviving party may properly maintain a suit for the annulment of decree for divorce in a proper case.
Dwyer v. Nolan, 40 Wn. 459, 5 A. E. Ann. Cas. 890; 57 L.R.A. 583; 44 L.R.A. (N.S.) 505.
But all the courts agree that the attack on the decree should be timely, and I have found no case where annulment was granted after thirty-five years had elapsed.
Sedlak v. Sedlak, 14 Or. 540, 13 P. 452.
It is the rule that where the court has been asked to vacate a decree because the court granting the decree did not have jurisdiction of the defendant, that the petition is an entry of appearance and if the decree should be vacated the defendant is then permitted to demur or answer the bill for having appeared for one purpose, he has appeared for all purposes.
Amis on Divorce and Separation in Mississippi, sec. 300; McCoy v. Watson, 154 Miss. 307, 122 So. 368; Kirschner v. Dietrich, 110 Cal. 502, 42 P. 1064.
If a suit for divorce was pending and on the docket before any decree was rendered or any hearing the court would certainly dismiss the cause on the showing of death of either party and the Supreme Court, if such a case was pending in it, would certainly dismiss appeal, especially if there was no question of alimony or property rights involved.
The original bill in this case shows that there was no question of alimony, property rights or custody of children. The only question involved was the status of the parties. The original defendant, Eva Cratin, is now in court by virtue of a petition to annul the original decree. The court finds that providence has anticipated its action and solved the status by death.
Zoellner v. Zoellner, 46 Mich. 511, 9 N.W. 831; Roberts v. Roberts, 19 R.I. 349, 33 A. 872.
Why should not the section 3222 of the Code of 1930 entitled "Bills of Review Limited" apply to this case? This section provides that bills of review in chancery shall be filed within two years next after the date of the final decree in the cause. Or section 2316, Code 1930, limitation of expressed trust.
Garner v. Townes, 100 So. 20, 134 Miss. 791.
Our Supreme Court has recently held in Ellis v. Ellis, 152 Miss. 836, 119 So. 304; White v. Williams, 154 Miss. 897, 124 So. 64, 159 Miss. 732, 132 So. 573, that a suit to nullify a marriage must be brought during the lifetime of both parties by one of them in a direct proceeding against the other. By analogy this rule should be extended to the annulment of a decree granting the divorce except under very unusual circumstances and then when the attack is timely.
The courts are getting away from the proposition that judgments and decrees of courts of general jurisdiction where the assumption of jurisdiction was erroneously exercised are mere nullities in any case.
Brooks v. Spann, 63 Miss. 198; Adams v. Belt, 100 So. 191, 136 Miss. 511; Allen, Trustee, v. Dicken, 63 Miss. 91; Western Union Tel. Co. v. Williams, 127 S.W. 791; Duphorne v. Moore, 107 P. 791; Black v. Black, 64 Kan. 689, 68 P. 662; Donaldson v. Jacobitz, 67 Kan. 244, 72 P. 846.
A judgment that merely ought to be nullified is still a judgment.
Simpson v. Kimberlin, 12 Kan. 579; Duphorne v. Moore, 107 P. 791; Cotton v. McGehee, 54 Miss. 623; Noonan v. Bradley, 12 Wallace 129, 20 L.Ed. 281; 1 Wheat. 304, notes.
I will conclude by simply remarking that if appellee's petition is sustained that divorced parties living in this state had better have their divorce decrees looked into and, if possible, obtain a surety bond, or they may find that the chains of matrimony have not been severed, and that they are still the legal, if not loving, spouse of another.
A.K. Foot, of Canton, for appellant, on Suggestion of Error.
In McElrath v. Littell, 120 Minn. 380, 139 N.W. 708, 44 L.R.A. (N.S.) 505, the court held that when after the death of the husband, the wife sued, contesting the validity of the decree for divorce, the state was not an interested party.
In Hunt v. Hunt, 75 Misc. 209, 135 N.Y. Supp. 39, it was held that a motion to revive an action for absolute divorce, and to vacate the final judgment on the ground of fraud, should be denied where the libellant was dead at the time the motion was made, since, under the circumstances, there was no action pending in which the judgment could be vacated.
In Sedlak v. Sedlak, 14 Or. 540, 13 P. 452, the Oregon court held that: "After acquiescing in a decree and accepting benefits under it for thirty years, such decree cannot be impeached by the defendant on the ground that it was entered without notice, knowledge or consent."
Kirschner v. Dietrich, 110 Cal. 502, 42 P. 1064; Zoellner v. Zoellner, 46 Mich. 511, 9 N.W. 831; Roberts v. Roberts, 19 R.I. 349, 33 A. 872; Dwyer v. Nolan, 40 Wn. 459; Maher v. Title Guarantee, etc., Co., 95 Ill. App. 389; Given v. Given, 25 Pa. Sup. Ct. 467; Bomsta v. Johnson, 38 Minn. 230, 36 N.W. 341.
Equity aids the vigilant, not those who slumber on their rights.
21 C.J. 193.
We submit that Eva Cooper Cratin by her extreme procrastination and in waiting until the voice of her ex-husband was stilled by death has forfeited any rights she may have in his estate.
White McCool, of Canton, for appellee.
It is the first, and one of the most important of the duties of courts to see to it, before proceeding in any case, that the court has jurisdiction both of the subject matter and of the parties.
Brotherhood of R.R. Trainmen v. Agnew, 155 So. 205, 170 Miss. 604; Broom v. Board of Suprs., Jeff Davis County, 158 So. 344, 171 Miss. 584.
Our whole cause of action is based on the fact that the bill and affidavit as filed by Cratin affirmatively revealed the defects of which we complain; and that on the record as made by Cratin in his bill and affidavit Chancellor Montgomery found that Chancellor Conn, though assuming jurisdiction of Mrs. Cratin, never, in fact, obtained any jurisdiction of the person.
Want of jurisdiction is as fatal to the proceedings of one court as to those of another. No court can render a valid judgment without jurisdiction.
McKinney v. Adams, 50 So. 478.
Jurisdiction of the person is as essential as jurisdiction over the subject matter, and no court can by a recital deprive a party of the right to show, in a direct proceeding undertaken for that purpose, that he is about to be deprived of his property without having had an opportunity to be heard.
The rule that a record is conclusive evidence of its own verity is not applicable in a direct proceeding instituted for the purpose of showing its falsity as a matter which, if false, shows that the court pronouncing it as a judgment had no jurisdiction of the person of the defendant, and, consequently, that what purports to be a record is in fact no record at all. No consideration of public policy requires that one guilty of no negligence should be concluded by ex parte proceedings, of which he had no notice, because of a declaration made by the court, at the instance of his adversary, that he had such notice.
Duncan v. Gerdine, 59 Miss. 550; Crawford v. Redus, 54 Miss. 700; Sively v. Summers, 57 Miss. 712; Ponder v. Martin, 80 So. 388.
John I. Cratin never complied with the statute as to the affidavit of "non-residence;" and counsel for appellants cannot successfully contend, and he apparently does not contend, that in the original bill for divorce there was any affidavit asserting that Eva Cooper Cratin was a non-resident of the state of Mississippi.
Cratin, in his bill for divorce, and in his affidavit thereto attached, has not made that positive, unequivocal statement contemplated and required by the statute.
Burns v. Burns, 97 So. 184.
A review of the authorities shows that the weight of authority is to the effect that in a proper case a decree of divorce may be set aside and vacated after the death of one of the parties.
Dyer v. Nolan, 40 Wn. 459, 5 A. E. Ann. Cas. 890.
There is no attempt by Mrs. Eva Cooper Cratin to relitigate any divorce case or any other suit, so far as that is concerned. There has been no litigation of a divorce case or anything else to which she was ever any party. Her husband, John I. Cratin, it is true, made a miserable attempt and feeble effort, and a perfect failure, to litigate. His every step was futile; and the instrument signed by the court, purporting to be a valid decree, was a mere nothing and nullity.
Davis v. Davis, 99 So. 673.
The sections in regard to the limitation of actions which counsel sets out in his brief will not help his cause. This court held in the case of Davis v. Davis, 99 So. 673, that a void decree "neither binds nor bars any one."
The cause of appellee is grounded and anchored in the legal maxim that "no one should be condemned without a legal chance to be heard."
Griffith's Mississippi Chancery Practice, secs. 48, 236.
A reading of the original bill filed by John I. Cratin, the complainant, for a divorce from his wife, Eva Cooper Cratin, reveals that, at no time, nor at any place, did he ever in said bill, or in said affidavit attached and a part thereof, make any declaration whatever about the postoffice of his said wife, who was the defendant.
Our court in the case of Ponder v. Martin, 80 So. 388, holds that it is necessary to make such averment.
Sec. 3920, Code 1906 (section 2927, Hemingway's Code); Moore v. Summerville, 80 Miss. 323, 31 So. 793, 32 So. 294; Diggs v. Ingersoll, 28 So. 825; Burns v. Burns, 97 So. 814; 9 R.C.L., secs. 201, 210, pages 409-411.
If a defendant does not voluntarily appear to a cause against him he cannot be gotten into court except in the manner laid down by law. He is under no obligation to notice what is going on in a cause in court against him, unless the court has gotten jurisdiction of him in some manner recognized by law.
Burns v. Burns, 97 So. 814; Diggs v. Ingersoll, 28 So. 825; McCray v. McCray, 102 So. 174.
It is the uniform and unbroken course of decisions that under all statutes which authorize the substitution of some other means for personal service of process as a foundation for the jurisdiction of the court, the most exact compliance with those requisitions will be enforced. Unless such compliance be shown affirmatively, the proceedings will not be sustained.
Zecharie Kerr v. Bowers, 3 S. M. 641.
Appellee's attack is for the sole purpose of declaring the decree rendered in the case of John I. Cratin v. Mrs. Eva Cooper Cratin, No. 3152, Chancery Court of Madison County, Mississippi, by Chancellor Conn, void.
Plummer v. Plummer, 37 Miss. 185; Theobald v. Deslonde, 40 So. 712; Paepcke Light Lbr. Co. v. Savage, 101 So. 709; Gwin v. McCarroll, 1 S. M. 351; Davis v. Davis, 135 Miss. 214, 99 So. 673.
White McCool, of Canton, for appellee on Suggestion of Error.
Beyond the shadow of a legal doubt, the decree rendered in the lower court in Cause No. 3152 in the case of John I. Cratin versus Eva Cooper Cratin was void, a nullity, without force or effect, because neither the bill of complaint on which the decree of divorce was rendered, nor the affidavit attached thereto, sets forth the postoffice address of the defendant to the bill (the appellee here on appeal) nor that her postoffice address was not known to the complainant. This omission is fatal, and under numerous decisions of our Supreme Court, and in the opinion just recently handed down in this cause by this Honorable Court, the publication made thereon was ineffective.
Griffith's Chancery Practice, sec. 236; Diggs v. Ingersoll, 28 So. 825; Burns v. Burns, 97 So. 184; McCray v. McCray, 102 So. 174.
We respectfully submit "the most exact compliance" cannot be supplied by presumption or assumption. The law demands and requires that such "exact compliance" be affirmatively shown.
If a judgment be void, and if a void judgment is, in legal effect, no judgment, may we inquire what was it that Mrs. Cratin was required to "question," whether the years be thirty-five or one?
If by it no rights are divested, what occasion could there have been throughout all that course of years on the part of Mrs. Cratin, — even though it be conceded that she knew of its existence, but which the bill denies — for any redress?
If it neither binds nor bars any one, why make Mrs. Eva Cooper Cratin the lone, solitary and single exception to the rule of law?
If from it no rights can be obtained, then pray tell us what rights have these appellants in this case?
If all claims flowing out of it are void, what standing have the appellants in this court?
If no inaction upon the part of the defendant can give it life, surely supine inaction on the part of Mrs. Cratin cannot blow the breath of life in this dead thing, this abortive act thirty-five years without life!
If no resulting equity in the hands of third persons can invest it with any of the elements of power, then by what authority do appellants presume to tell this court that the so-called inaction on the part of Mrs. Eva Cooper Cratin has quickened this decree with life?
Davis v. Davis, 99 So. 673.
The Davis case undoubtedly settles all questions of laches, inaction, or "supine sitting" in a case like this.
55 Miss. 243.
Where a judgment is void upon its face it may be vacated upon proper application, regardless of what length of time has interposed since its entry; and it matters not whether the application to set it aside is made before or after the expiration of the term at which it was entered.
15 R.C.L., secs. 144, 146; Flowers v. King, 122 Am. St. Rep. 444; People v. Green, 5 Am. St. Rep. 448, 74 Calif. 400; Pettus v. McClanahan, 52 Ala. 55; Baker v. Bancroft, 76 Ala. 414; Jennings v. Pearce, 101 Ala. 538; Cotton v. McGehee, 54 Miss. 621; Onley v. Harvey, 50 Ill. 453; 60 A.S.R. 642, notes.
The presumption in favor of proceedings of courts are indulged only in relation to those jurisdictional matters concerning which the roll is silent. But no presumptions in support of the judgment are to be allowed in opposition to any statement contained in the record.
Freeman on Judgments (4 Ed.), sec. 125; Hahn v. Kelly, 34 Calif. 391; Clark v. Thompson, 47 Ill. 25.
In this case there is no adjudication of jurisdiction over the person, the records are intact, and they affirmatively reveal the fact, and show, upon their face, that the process in this case is fatally defective.
It is also a fixed rule on this subject that the record of the judgment must show upon its face that the court did have jurisdiction of the person. Unless it so appears, the judgment is a nullity, for it will not be presumed that the court had jurisdiction of the person unless the record shows that fact.
Steen v. Steen, 25 Miss. 531; Hahn v. Kelly, 34 Calif. 391; Broom's Legal Maxims, sec. 952.
Argued orally by A.K. Foot, for appellant.
This is an appeal to settle the principles of the case, and is from a decree overruling a demurrer to a motion or petition to vacate a decree theretofore rendered by the court below.
The petition alleges that the petitioner, the appellee here, now a resident citizen of the State of New York, was lawfully married in the year 1887, in the State of Florida, to J.I. Cratin, and there lived with him in the relation of husband and wife until May, 1894, when he deserted the petitioner and removed to Madison county, Miss., where he remained until his death in March, 1935. In July, 1900, he obtained a decree of divorce from her in the court below on a sworn bill of complaint alleging, after stating the grounds for divorce, "that the last time said Cratin heard of said Eva Cooper (Cratin), she was a resident of Florida, but at present he knows not her whereabouts, and has had no connection with said Eva Cooper since May 1st, 1894." An affidavit by the complainant attached to his bill of complaint alleges "that his wife is a resident of the State of Florida." Publication was made for the appellee, but no copy thereof was ever mailed to, or received by, her and she did not know of this suit for divorce, nor of the decree rendered therein, until after the death of her husband.
The petition then alleges that neither the bill of complaint nor the affidavit attached thereto complies with section 3421, Annotated Code of 1892, and therefore the publication made thereon was insufficient to justify the rendition of the decree sought by the bill of complaint.
J.I. Cratin did not marry again, and by will he devised and bequeathed his property to persons other than the petitioner, and they were made parties defendant hereto, and prosecute this appeal.
The appellants, in support of their contention that the court erred in overruling their demurrer to the petition say that:
1. The sworn bill on which the divorce was granted and the affidavit filed therewith substantially comply with the requirements of section 3421, Annotated Code of 1892.
2. If they do not, it may have been made to appear to the court rendering the decree that the publication was made pursuant to another correct affidavit therefor which has now disappeared from the record.
3. Because of the death of J.I. Cratin the case made by his bill of complaint cannot now be tried and determined. And
4. The petitioner is barred by limitations and laches.
Section 3421, Annotated Code of 1892, under which the publication for the appellee was made, provides: "If a defendant in any proceeding in a chancery court be shown by bill or petition sworn to or by affidavit filed, to be a non-resident of this state, or not to be found therein on diligent inquiry, and the post office of such defendant be stated in the bill, petition, or affidavit, or it be therein stated that it is not known to the complainant or petitioner . . . the clerk, upon the filing of the bill or petition, account, or other commencement of a proceeding, shall prepare and publish a summons to such party to appear and defend the suit on a rule-day or on the first day of a term of the court, sufficiently distant in time to admit of the due publication thereof."
Neither the bill of complaint on which this decree of divorce was rendered nor the affidavit attached thereto sets forth the post office address of the defendant to the bill (the appellee here), nor that her post office address was not known to the complainant. This omission is fatal, and under numerous decisions of this court the publication made thereon was ineffective. Griffith's Mississippi Chancery Practice, section 236, and authorities there cited, and Diggs v. Ingersoll (Miss.), 28 So. 825.
It is true that the court rendering the decree may have had before it another seasonably made affidavit filed with the clerk on which the publication was made, although it does not appear in the record, but that the fact is negatived by the two following allegations in the bill of complaint: "That he did not comply strictly, or otherwise, with the requirements of the statute regarding the publication of notice and process in such a case. . . . That there was no legal, valid, nor binding process had upon your petitioner in said cause."
Although the death of J.I. Cratin may result in abating his action for divorce, nevertheless the appellee has the right to have the decree complained of vacated, for the reason that her property rights are affected thereby. McCray v. McCray, 137 Miss. 160, 102 So. 174; 19 C.J. 169. The appellants assert that this petition is merely a bill of review and is barred by section 2322, Code of 1930, which requires such bills to be filed "within two years next after the date of the final decree in the cause." It may be, as to which we express no opinion, that the defect in the decree here under consideration may be reached by a bill of review, but such a bill is not necessary therefor. All courts have the power to set aside their judgments and decrees rendered without obtaining jurisdiction of the person of the defendants thereto, on motion or petition therefor, although the term of the court at which the judgment or decree was rendered has expired, and we have no statute limiting the time within which this may be done.
If the right of a defendant to have a judgment or decree vacated, which was rendered against him when the court was without jurisdiction of his person, is affected by laches, as to which it is not necessary for us to express an opinion, the petition negatives the existence of any facts on which laches could be predicated by alleging that the rendition of the decree was unknown to the petitioner.
Affirmed and remanded.
ON SUGGESTION OF ERROR.
The appellant suggests that we failed, in our former decision herein, to decide one question presented by the record. This is true, but our failure so to do was not altogether our fault.
But that aside, the question is one that will confront the court below on a return of the case thereto, and should be decided. The question is the sufficiency, vel non, of a plea filed after the overruling of the demurrer to the appellee's petition. This plea alleged, in substance, that the appellee had, for more than thirty years, known of the existence of this decree of divorce, but delayed instituting any proceedings to have it set aside until after her husband's death. The plea was heard on the question of its efficiency and was overruled. It should have been sustained.
The alleged defect in the decree is that the affidavit on which publication was made for the appellee, a non-resident, did not meet the requirements of section 3421, Code 1892, and in our former opinion we held that the affidavit appearing in the record is defective. The decree does not recite that publication was made for the appellee; nevertheless the decree is not void, having been rendered by a court of general jurisdiction. It cannot be collaterally attacked and remains in full force and effect unless and until set aside in a direct proceeding for that purpose. Cotton v. Harlan, 124 Miss. 691, 87 So. 152. For aught that now appears, the court may have had before it another and sufficient affidavit. Brotherhood of Railroad Trainmen v. Agnew, 170 Miss. 604, 155 So. 205.
The appellee was under no obligation to institute a proceeding to set aside the decree until she acquired knowledge thereof. According to the appellant's plea, she did acquire this knowledge more than thirty years before her husband's death. The question then is, Does this delay on the part of the appellee to institute a proceeding to set aside the decree constitute such laches as will bar her from now instituting and maintaining a proceeding for that purpose?
One may become estopped from complaining of a defective judgment or decree by accepting the benefit thereof with knowledge of its rendition, and may forfeit the right to complain thereof by laches. 1 Freeman on Judgments (5 Ed.), section 265; 34 C.J. 362, and 15 R.C.L. 694. What the appellee here did, assuming that the allegations of the plea are true, was to accept a release from her marital obligations, and wait, for thirty years, until her husband died, to institute a proceeding to set aside the decree, thereby rendering it impossible for the divorce issue to be tried, which would result, should the decree be set aside, in her becoming entitled to a portion, at least, of her husband's property, when, had the decree been set aside during his lifetime, he might have been able to have proven his right to a divorce. On the other hand, he was without the right to have the decree set aside, it having been rendered at his instance with knowledge, actual or presumed, of its irregularity, Freeman op. cit. section 263, 34 C.J. 347, and had she died during his lifetime, he could have asserted no marital rights in her property, if any she had. Under such circumstances, it would seem, in equity and good conscience, that she should not be permitted to complain of the decree. Freeman op. cit. sections 271, 272. Cf. Brooks v. Spann, 63 Miss. 198; Metcalfe v. Perry, 66 Miss. 68, 5 So. 232; Adams v. Belt, 136 Miss. 511, 100 So. 191, and McCray v. McCray, 137 Miss. 160, 102 So. 174.
Our former judgment will be set aside, and another rendered affirming the decree overruling the demurrer, but reversing the decree holding the plea insufficient.
So ordered.