Kienitz v. Sager, A.K.A. Kienitz

While I agree that the decree of the chancellor should be reversed, I disagree with the reasons therefor. I disagree with the conclusion that the deeds should be reformed and disagree that the compensation of the respondent should be fixed by this court rather than be returned to the court below which could take evidence to find a proper basis in case a money award should be made to the respondent in addition to her share of the property already deeded to her. I also agree that the marriage of petitioner and respondent was void ab initio.

Without going into too great detail of the facts, it appeared that the respondent, then a married woman, came to Hawaii on a visit in June, 1938. Soon after her arrival she met the petitioner, who had arrived here some six months earlier, having left Montana mainly because of the condition of his health. The petitioner paid ardent court to respondent whom he knew was a married woman. He proposed marriage to her, suggesting that she get a divorce and thereafter marry him though he knew she had been in the Territory only a few weeks. When she replied that she did not have money for a divorce, he offered to finance it. Respondent was told by certain women that she would have to reside within the Territory for a two-year period before obtaining a divorce but if she went to the right attorney she would not have to wait that long. She did go to an attorney, filed in September, 1938, a suit for divorce financed by thepetitioner, and obtained a decree of divorce in November, 1938, for which petitioner paid all costs and fees, paying part before the decree and part after.

It does not appear what evidence relating to residence requirements was given by respondent in her divorce proceeding, as the transcript of the proceedings has disappeared, *Page 19 the presiding judge has been dead for some years, and the attorney who handled the case no longer resides in the Territory. However, as the libel for divorce was verified, it may be safely assumed that fraud was committed upon the presiding judge in some manner.

In the meantime petitioner, who had established a small popcorn business in Hawaii, had gone back to Montana; as planned, he returned to Hawaii on the date respondent received her divorce, obtained a waiver of the three-day delay and married respondent on the day after his return. They thereafter lived together as husband and wife, apparently happily married, for more than ten years, as shown by petitioner's letters up to late 1948.

Not only did petitioner prosper during the ten-year period succeeding his marriage to respondent, but his health greatly improved. In June 1938 he was badly run down and in a nervous condition, being of a subnormal weight of 185 pounds, but regained his normal weight of 230 pounds during the period while he lived with respondent.

Respondent aided and assisted petitioner in the popcorn business in Hawaii, particularly during the war years when the business was carried on from their residence, and the same grew to be very prosperous. (Figures are not available as to profits, but in one year the gross receipts from the popcorn business were some $98,000.)

Respondent, in addition to keeping house, aided petitioner in his business by collecting accounts, delivering popcorn to the various spots, making deposits, and when petitioner was absent on the mainland having general charge of the business with power of attorney. On one occasion she even mortgaged lands to secure release from an attachment which had been levied upon the business property. As showing the affectionate relationship between *Page 20 the parties and the fact that Mrs. Kienitz did aid the petitioner and was in charge of the business while her husband was away, I merely quote one of his several letters, dated March 17, 1948, as follows: "Well, how is my Peg. I hope she is ok. And how is business? Are all vending machines out, and are all big machines been shifted to the other Islands. — I hope you are not too lonesome dear — I love you. Big hug and kiss." During this period petitioner purchased three parcels of land, placing them in their joint names as tenants by the entirety, and certain improvements were erected thereon: on one lot a home, and on another improvements to be used in connection with the popcorn business.

Difficulties arose between the parties early in 1949 and the respondent herein instituted a suit for divorce in this circuit alleging mental cruelty on the part of the petitioner. Thereafter petitioner started the present proceeding alleging that the divorce of respondent from Mr. Sager was void, that her purported marriage to himself was void, that the conveyances of property to them as man and wife were due to her fraud, and prayed that the deeds be reformed to make him the sole grantee, and that the marriage to him be declared null and void.

Upon the hearing of this equity proceeding, the chancellor found that the marriage of petitioner and respondent was void because respondent's divorce from her first husband was void; that the respondent was engaged in a joint venture with the petitioner, and that though she contributed no capital she did aid and assist him in his business over and above mere wifely duties; and that "The parties * * * both having formerly lived on the mainland, and later coming to the Territory, the Court will not and cannot judicially note, or charge * * * these two parties to this proceeding, with knowledge of the law." He then *Page 21 concluded that it would be an "impossibility * * * that this respondent would not know of the two-year residential requirement at the time of seeking the divorce in 1938. * * * and at all times since then, this respondent was and continues to stand charged with the knowledge [namely, two-years residential requirement to secure a divorce];" that petitioner did not discuss and did not know the two-years residential requirement for divorce; further, that the deeds be reformed to make petitioner the sole grantee and that the respondent, not being "a putative wife in good faith," was entitled to no relief.

That there was no fraudulent misrepresentation by respondent that induced petitioner to marry her is clear.

In the first place the rule in equity, as well as in law, is that to be actionable fraud must be a misrepresentation of a fact known to be false, made to induce the other party to act andrelied upon by the other party who is ignorant of the true facts and who does act to his detriment. A misrepresentation of law is not considered a fraudulent misrepresentation (except under certain circumstances not pertinent to this case) because not only is it said that all persons are presumed to know the law but, further, such a statement would be merely an expression of an opinion other than the assertion of a fact. (3 Pomeroy,Equity Jurisprudence, § 877-a [5th ed., Symons], citing cases from the United States Supreme and Federal Courts and most of the States.)

In 23 American Jurisprudence, Fraud and Deceit, section 45, page 809, the statement is made that "The general rule is well settled that fraud cannot be predicated upon misrepresentations of law or misrepresentations as to matters of law based on factsknown to both parties alike * * *." (Emphasis added.)

If petitioner did not know the facts relating to respondent's *Page 22 divorce there might be a misrepresentation by the respondent, but he knew the length of residence of the respondent and the fact that the divorce was granted in Hawaii and he himself aided andabetted her to secure it. As he persuaded her and aided her to obtain the divorce for the purpose of marrying him, the least he could do was to see that her divorce was legal. (Taylor v.Taylor [Calif.], 152 P. [2d] 480.)

The petitioner, a subsequent husband, cannot in equity take advantage of a wife's fraud in securing a divorce where he waseither guilty of instigating, abetting or encouraging the divorceproceedings resulting in a void divorce from her first spouse orwas grossly negligent in encouraging them. At least he cannot obtain affirmative relief.

Taylor v. Taylor, 152 P.2d 480, is an interesting case where the facts and the relief sought are very similar to the case before us (except, perhaps, the husband in addition to instigating and encouraging the divorce advised the wife that such a Mexican divorce was legal.)

In the Taylor case, as in the present case, the husband contended that his marriage to respondent should be annulled because the wife had a living husband at the time of her marriage to him and, as in the instant case, he sought affirmative relief in the form of the cancellation of a deed whereby he had vested his two properties in the wife and himself as joint tenants. He claimed, first, that the deed to the wife was obtained through fraud; second, that it was made under mistaken belief that plaintiff was his legal wife; and, third, that there was no consideration for such deed.

Prior to the union of this couple the wife had been the wife of another man but was living separate and apart from him. She met the petitioner, they developed a mutual *Page 23 fondness, and she announced her intention of obtaining a divorce in Nevada. Petitioner suggested that she obtain a Mexican divorce as it would be cheaper and more expeditious; she did so withfunds supplied her by the petitioner and immediately thereafter the two were married. They continued the marriage relation, she performed the customary services as housekeeper for some two years, and left him on account of cruelties and later filed suit for divorce. In the meantime, during their married life, the husband had his attorney prepare a conveyance vesting his two properties in himself and his wife as joint tenants. At that time both naturally assumed that the Mexican divorce was valid and their marriage lawful.

The trial court decided that in procuring the deed there was no fraud, there was no mistake, and that there was ample consideration for the deed and refused to set it aside, but did declare their marriage null and void as the Mexican court was without jurisdiction in the divorce proceeding.

The appellate court sustained the action of the trial judge saying that the services rendered a man by the woman while they lived together and her sufferance of his cruelties were a consideration for the conveyance if such were needed. But the court said no consideration was needed as the transaction amounted to a gift from the man to the woman motivated by nothing more than a desire to share his property with another at a time when he was in possession of all the facts. The court further found there was no fraud in obtaining the deed nor evidence of undue influence; that the husband was not defrauded by respondent marrying him while she had an undivorced living husband, in this regard finding that the husband actively aided the plaintiff andwas equally culpable with her in embarking upon the marriagewithout investigating *Page 24 the legality of the Mexican divorce. "His honest belief in the legality of the Mexican decree does not obviate his responsibility for encouraging its procurement." (Emphasis added.)

The court further found that "Where the parties to a putative marriage have accumulated no community estate, upon an annulment of the invalid marriage it is proper to award the de facto wife a money judgment for her services. `The law raises the promise to pay in such cases.' Sanguinetti v. Sanguinetti, 9 Cal. 2d 95,69 P.2d 845, 848, 114 A.L.R. 342."

A voluntary gift divests the donor of his property and invests the donee with an irrevocable title. If there was neither actual fraud nor undue influence on the respondent obtaining a joint interest in the appellant's property, her title thereto is secure either because the conveyance was made out of consideration of services as a wife or because it was a voluntary gift. In either view, respondent is secure in her holding. (Taylor v. Taylor,supra.)

The court in the Taylor case said that the proceeding was not primarily to determine the financial or material obligations that one owed to the other; it was a denial of relief for equitablereasons because the demand to cancel the deed "lacked equity." The court stated: "Whether appellant was guilty of instigatingthe Mexican proceedings or was grossly negligent in encouragingthem, he was no less culpable than respondent in contracting thevoid marriage. Under the clean hands maxim he may ask nothing ofequity save that specifically authorized by statute, towit, anannulment." (Emphasis added.)

Additional cases refusing relief to a second husband who is guilty either of instigating or aiding a wife to obtain a divorce from her first husband where such divorce turns out to be illegal or void are numerous. The following *Page 25 are a few of them from various jurisdictions.

Kaufman v. Kaufman, 163 N.Y. Supp. 566, held that where a wife, at the request of plaintiff, who financed her, obtained a divorce in Nevada and subsequently married plaintiff, the divorce will be conclusively presumed to be valid in an action by plaintiff to annul his marriage. After pointing out that it was against the public policy of New York to recognize such a decree, it refused plaintiff relief saying: "If she would not be heard to question the validity of the divorce, and could not have her marriage with plaintiff annulled on the ground that the divorce was invalid, why should he, who induced her to obtain it, andthen to marry him on the assumption that she was free so to do, be heard to question its validity?" (Emphasis added.)

To a similar effect is the case of Margulies v. Margulies (New Jersey), 157 A. 676, wherein it is stated in the syllabus: "Husband having induced wife to obtain foreign divorce from first husband and paid expenses held precluded from attacking validity of divorce." Again, "Husband, having participated in fraud by which wife obtained divorce from first husband, cannotin equity take advantage of wrongdoing." (Emphasis added.) In addition, the court held that after the wife became eligible to marry and the parties continued to live together there was a common-law marriage.

Van Slyke v. Van Slyke, 152 N.W. 921, held a divorce secured by fraudulent representations as to residence of complainant cannot be set aside at the suit of one who subsequently married complainant where he himself was a party to the fraud in obtaining the former decree. In that case the court pointed out that the second husband was quite as much interested in procuring the decree of divorce as was the complainant, he"proposed to pay her counsel and advised her and her counsel of his interest. *Page 26 He intended to profit by the decree of divorce, not in a financial way, but in removing an obstacle to his marriage with complainant. Whether it was or was not intentional, he aided andabetted the fraud which was perpetrated. * * * Upon the authority of Robson v. Robson, 161 Mich. 293, 126 N.W. 216, he may be held to have no standing to present the defense that he was defrauded into marrying complainant." (Emphasis added.)

Robson v. Robson, 161 Mich. 293, 126 N.W. 216, held that a man who interested himself in and promoted the suit of a woman against her husband for divorce, intending to marry her after she had procured a divorce, could not after he had married her maintain a suit to set aside the divorce on the ground that she obtained it through a fraud on the court which consciously orunintentionally he aided or abetted her in perpetrating.

In Hall v. Hall, 123 N.Y. Supp. 1056, it was held that the second husband was not injuriously affected by virtue of the wife's fraudulent divorce but, to the contrary, he obtained what he wanted; that while the divorce was voidable it was not void nor could she avoid it though the former husband, if living, might have.

Kinnier v. Kinnier, 45 N.Y. 535, held that the second husband could not attack a divorce where the original was obtained by collusion and fraud. The decision pointed out that the Illinois courts having jurisdiction, there could be no collateral attack. "Conceding fraud, as alleged, he cannot avail himself of it."

See also: Bater v. Bater (Eng.), 5 B.R.C. 717; Atkinson v. Atkinson, 65 App. D.C. 241, 82 F.2d 847; Rocco v.Rocco, 288 N.Y. Supp. 405.

The above list is not exhaustive. There are many more cases to the same effect. In fact I have been unable to find a single case that does not deny affirmative relief to a *Page 27 second husband who aids and abets or encourages the wife to secure a divorce from her first husband for the purpose of marrying him when such divorce turns out to be void or voidable. In refusing to listen to the husband the court does not aid in giving effect to a judgment obtained by fraud but regards the husband as a suitor without a cause of action.

No one of the cases cited in Mr. Justice Le Baron's opinion is contrary to the numerous cases holding that a second husband who is guilty either of instigating or aiding a wife to obtain a divorce will be refused affirmative relief where such divorce turns out to be illegal or void.

He has cited three cases, two to show respondent having received a fraudulent divorce has no equity against petitioner, the other a case of plain bigamy. The first case from which extensive quotation is made is the Massachusetts case of Batty v. Greene, 206 Mass. 561, 92 N.E. 715, and involves a suit against the estate of a deceased wife on the ground that the marriage was void because of a concealment of a prior marriage, which marriage had never been dissolved by death or divorce. It seems that one Elizabeth Mitchinson, before she had gone through the marriage ceremony with Batty, had gone through a marriage ceremony with Mitchinson with whom she had lived for nineteen years as his wife until his death, which occurred before the marriage ceremony between herself and Batty. Later, however, it appeared that before either of these ceremonies she had married in England one Fotherby who did not die until April 1902, and it appears that Batty knew nothing of this marriage until after 1898 and before Elizabeth Mitchinson's death in 1902. From the time of his marriage Batty put his money into a common fund with his wife's, which was used for the purpose of both, and certain houses were purchased after the *Page 28 marriage with money from this common fund, which property was put in the name of the wife. The master found that Batty contributed at least six fifteenths to the common fund and that he was entitled to this as being his full proportion thereof. In this case the plaintiff knew nothing of the prior husband from whom there had not even been a pretended divorce. The decree giving the plaintiff six fifteenths of the property was affirmed. Clearly that case involved no fraudulent or void divorce securedby plaintiff's aid.

Another case, Smith v. Foto, cited and quoted in the justice's opinion, can best be described in a later Michigan case of Zirkalos v. Zirkalos, 326 Mich. 420, 40 N.W.2d 313, 314, wherein it cites the Foto case again on appeal to the Michigan supreme court (Bankers Trust Co. of Detroit v. Foto, 4 N.W. [2d] 54), which stated that in the prior case (Smith v.Foto) no law was made as only four members of the court concurred in the reasons given in the opinion that was submitted and that "all that was decided was that the bill contained allegations conferring jurisdiction and commanding the taking of proofs." It is interesting to note that in the last Foto case after taking proofs the circuit court dismissed plaintiff's bill finding that the plaintiff's collateral attack upon the divorce could not be sustained when it was contended that the court had no jurisdiction because of irregularities of service of summons. This finding was sustained on appeal in the case of BankersTrust Co. of Detroit v. Foto, supra, so that if the case cited in the justice's opinion stood for any law, this was overruled by the holding in the second appeal (evidently overlooked by the justice). So, too, the Zirkalos case quotes with approval many Michigan cases, particularly Van Slyke v. Van Slyke, supra, as to the power of a court of equity to set aside its own decree of *Page 29 divorce for fraud in its procurement or for want of jurisdiction on the application of the party against whom the decree was obtained, but that the decree cannot be voided by the party guilty of the fraud nor at the instance of third parties. It quotes with approval cases from other jurisdictions, particularly New York, holding that one aiding and abetting or participating in a fraudulent divorce cannot question the same. Furthermore, the allegation in the Smith v. Foto case was that plaintiff met the defendant and "she informed him she had been married to a man named Frank Foto but had obtained a divorce from him in Chicago in 1928." Had respondent in the instant case informed petitioner when she met him that she had been married but had obtained a divorce in California, it would have some similarity; but in the instant case, as previously pointed out, the petitioner actually encouraged and financed the divorce proceedings of respondent.

The third case, Butler v. Butler, 157 N.Y. 188, cited in the justice's opinion, was a case where a woman met the plaintiff and thereafter "She [falsely] told plaintiff that she had been married, but that her husband had been absent continuously for five years, that she did not know where he was and whether or not he was alive, and that she had tried to locate him, but had been unable so to do." Plaintiff proposed marriage. Apparently, under the New York statute where a husband has been absent for five years and cannot be located, a wife may make an affidavit to this effect, act upon the presumption of his death, and secure a license to remarry. She did make such an affidavit and married plaintiff, who obviously knew nothing of the facts. Here is a direct fraud upon the plaintiff himself by a false representation, known to the wife to be false, made to the plaintiff with intent that the *Page 30 plaintiff act upon it, who was ignorant of the facts and did act upon the representation to his detriment. This is quite different from the present case where there was no false representation, or any representation whatever, made to the petitioner save that she was a married woman who had been here only a few weeks.

In addition to the New York cases heretofore cited, there are numerous other New York cases that equitable defenses will operate in an action to annul a void marriage and the most common equitable defense is the doctrine that he who seeks equitable relief must come into court with clean hands.

Supplementing the type of cases denying a husband relief because of lack of equity are the numerous cases which give a defacto wife a share of the property accumulated by the husband and such de facto wife, frequently based on the theory of a "joint venture," and in those cases, where no property has been accumulated, the court gives to the de facto wife a money judgment usually on the theory of "quasi contract." In the latter cases the supposed husband has been unjustly enriched by the wife's services.

The opinion of Mr. Justice Le Baron (as well as the chancellor's) that the respondent practiced fraud upon thepetitioner confuses fraud upon the court with fraud upon the petitioner. His opinion states: "One phase of that fraud is her false representation that she was domiciled in the Territory at the time of her purported divorce." (No representation was made to petitioner and none could be made, as he actually knew the facts to the contrary.) "Another is her false representation that she was legally divorced and free to marry at the time of her purported marriage." Had she obtained her divorce outside of the Territory, with the petitioner having no knowledge *Page 31 of the actual facts, a representation that her divorce was legal would have some status, but certainly not with petitioner knowing all the facts. "Still another is her false representation that on such marriage she became legally married to the petitioner and thereafter was entitled to be treated by him as his legal wife." (Emphasis added.) Such reasoning needs no comment.

There is not a scintilla of evidence that the respondent made any representations to petitioner regarding the legality of their marriage, concerning which both parties knew all the facts relative thereto; both knew that respondent had been in the Territory only a few months; petitioner himself had been here more than six months longer than respondent; both had notice of the inadequate residence of respondent and consequent illegality of the divorce and doubtless were chargeable with notice of all the legal consequences flowing therefrom, including the illegality of the marriage, though neither had actual knowledge of the illegality of the remarriage. The sworn answer ofrespondent and the undisputed testimony show that both regard themarriage as legal until after the institution of the divorceproceedings in 1949 by respondent. Many divorces are obtained by collusion and fraudulent testimony (particularly in States that have only one cause for divorce) yet a marriage entered into thereafter by the divorced spouse is perfectly good until set aside by proper parties unless the fraud goes to the jurisdiction of the court granting the divorce (Ruger v. Heckel, 85 N.Y. 483; Deyette v. Deyette, 92 Vt. 305; Kinnier v. Kinnier,supra), and a third party or one participating in the fraud cannot take advantage thereof.

From the opinion of Mr. Justice Le Baron it is difficult to understand his conclusions allowing respondent five thousand dollars, or any amount whatever. The opinion of *Page 32 the justice rehashes the reasoning set forth in the opinion delivered by the territorial supreme court relative to "joint venture" in the Ah Leong case (which, denying the defendant'sde facto wife any compensation, was reversed by the circuit court of appeals for the ninth circuit) and concludes that the parties were not engaged in a "joint venture," as had been specifically held by the chancellor below. His syllabus states: "Mere sporadic services of a wife in her husband's business, contributed outside her domestic duties, does not suffice to make her a commercial adventurer or business partner." And, on page eight of his opinion, the following occurs: "There is every indication that he [the husband] regarded her assistance as nothing more than that which a man would ordinarily expect ofhis wife." (Emphasis added.)

The justice left unchanged in his final opinion, which I did not see until after the same had been filed, the reasoning in his original draft wherein he followed the decision of the territorial supreme court relating to "joint venture," found there was none, that respondent was doing no more than a man "would ordinarily expect of his wife," and allowed the respondent nothing; also, the conclusion that the respondent was entitled to no part of the property accumulated was retained in the final opinion, his syllabus reading as follows: "The reason for the rule in equity, allowing an innocent putative wife a share in property accumulated by the joint efforts of herself and the man with whom she has lived as his wife * * * has no application to a woman who * * * is not an innocent party but * * * by her own perjury and fraud invited the consequences of which she complains * * *."

In view of Mr. Justice Le Baron's conclusions regarding the services of the respondent being incidental to the duties of a wife and her lack of equitable claim to a share *Page 33 in the property, it is difficult to see on what theory he makes an award to the respondent (unless as a compromise with conscience) and particularly how he arrives at the amount of five thousand dollars for her "services."

The fable of the bat as told by Aesop is applicable here. When caught by the cat, who is hungry for mice, he extends his wings and convinces the cat he is a bird; next, having been caught by an owl, who is hungry for bird, he points to his fur and convinces the owl he is not a bird but a mouse. Thus, when performing services in the business of the petitioner she is a wife, doing what a husband "would ordinarily expect of his wife" and is not entitled to compensation, but when performing wifely duties and seeking the rights attached thereto she is not a wife but merely a stranger.

The record does not contain evidence by which a proper amount to be awarded to the respondent can be determined.

The circuit court of appeals, in the Ah Leong case, after determining that the plaintiff was entitled to a measure of relief, pointed out that the decided cases are not in harmony as to what standard should be supplied in determining the amount and character thereof, and states that "perhaps no specific general rule can be formulated. Each case must be adjudged in the light of its own peculiar facts and the local laws." The court, however, said it would be proper in further proceedings to take into consideration the relative contributions of property and of personal services in point of value made by the two parties in the accumulation of property standing in the defendant's name, the amount and value of such property at the time their defacto marital relations ceased, the amount of property accumulated by plaintiff during the said period and standing in her name, the local statutes affecting the *Page 34 marital relation and divorce, and alimony and dower, or other pecuniary interests of the wife, whether absolute or contingent, present or in expectancy. (Fung Dai Kim Ah Leong v. Lau AhLeong, 27 F. [2d] 582.) These factors have not been placed in evidence in the present case to enable a court to make a proper determination.

The chancellor below found that there was a joint venture with the respondent contributing services and no cash. He might also have found that the respondent contributed cash, the evidence showing that she contributed between four and five thousand dollars, the amount of an accrued insurance policy which petitioner had previously assigned to respondent. It may be argued that this being a gift from the petitioner, it was actually his contribution. However, the petitioner had parted with complete title to the insurance policy and the respondent had collected the proceeds, was the legal owner thereof, and was under no obligation to give the same to petitioner or to invest it in their joint undertaking. These facts are uncontradicted. Thus, there is ample evidence to support the finding of the chancellor both as to services rendered and, in addition, capital contribution.

However, the chancellor, evidently because he found that the wife was chargeable with knowing the law relative to the two-year residence requirement for divorce (but that the petitioner, who had been in the Territory six months longer than the respondent, was not presumed to know the law) and that therefore her divorce was obtained by fraud, refused to allow the respondent any compensation for her services in the joint venture, which he specifically found existed.

As pointed out, no fraud was committed by respondent on thepetitioner, but only upon the court for which both are chargeable. Both parties believed in the legality of *Page 35 their marriage and the same would have been legal and not subject to attack save that the fraud went to the jurisdiction of the court granting the divorce. Nothing appears in the record which should prevent her from recovering either property or a money award to which she would be entitled were she entirely innocent of wrongdoing, unless the purpose of the chancellor was to punish the woman and not the equally guilty man for participating in the illegal relationship. There can be no question that her services as homemaker, as well as her services in the business, were of value to the petitioner.

Obviously both parties thought their marriage was legal as their conduct showed conclusively. What then are the respective rights of the parties, where both have legal notice of fraud upon the court but not actual knowledge of the invalidity of their subsequent marriage?

The overwhelming weight of authority, and particularly of modern cases, is that upon an annulment or a declaration of the invalidity of such a marriage, the courts will recognize the rights of a de facto wife in property acquired by the parties through their joint efforts and will make an equitable division of such property, or will recognize a right to recover for services by the de facto wife on the theory of a quasi contract. The supposed husband has been unjustly enriched by the reasonable value of the services rendered to him. The law raises a promise to pay in such a case, although there is a minority view where recovery to a de facto wife is denied on the grounds that she never contemplated that she should be paid for such services and a contract will not be implied. The leading case holding this view is Cooper v. Cooper, 147 Mass. 370, which has not been followed in other jurisdictions. Intent is not a necessary element in the equitable doctrine of quasi contracts. See Balkan v. Buhl (Minn.), *Page 36 197 N.W. 266, that "The quasi contract is what was formerly known as the contract implied in law. It has no reference to the intentions or expressions of the parties. The obligation is imposed despite, and frequently in frustration of, their intention."

As showing the extent to which a court of equity will go in allowing compensation to a de facto spouse, even one guilty of fraud, who performed services adding to the value of the property of the other spouse, see the case of Davis v. Cummins, 195 S.W. 752. Davis, a married man posing as single, without a divorce from his first wife, married one Mary A. Staples. Davis, who had no property, acquired possession of his wife's property and through the value of his services in managing the business he afterwards bought other land. It was held that Davis' marriage was a fraud, that the fraud continued up until the date of her death, during which said period he induced her to believe, and she did believe, that he was her lawful husband, but the court dealing with the matter as a court of conscience held that the ends of justice would be promoted by treating the compensation earned by Davis in managing the affairs of his wife as a payment of the purchase money for a portion of the land and allowed him an interest therein. This case, it will be noted, was referred to by the chancellor in his opinion below but to illustrate the exact opposite of what the case actually decided.

To summarize, this court should hold:

That respondent's divorce having been granted by a court without jurisdiction is void ab initio; that the subsequent marriage is void and needs no annulment but there was no error in the court declaring such marriage void;

That the respondent in obtaining her divorce practiced *Page 37 no fraud or misrepresentation upon the petitioner, who knew all the facts relative to her residence; and, furthermore, petitioner being guilty of instigating, aiding, abetting, encouraging and financing the divorce proceedings against respondent's first husband, in order that respondent might marry him, which proceedings resulted in a void divorce from respondent's first spouse, cannot take advantage of the wife's alleged fraud upon the court in securing the divorce as he was equally culpable with the respondent in entering into the subsequent marriage without investigating the legality of the divorce; and that under the doctrine of clean hands, petitioner may not ask anything of equity in the way of affirmative relief;

That the deeds giving respondent an interest in certain real property should not be modified; that the grantees under these deeds hold as tenants in common; that there was no misrepresentation or fraud by the respondent in securing the deeds, and that there was ample consideration therefor, and even without consideration the deeds would be good as gifts; furthermore, the court should refuse to listen to the petitioner, as he has not come into court with clean hands and must be regarded as a suitor without cause of action;

That the services of the de facto wife should be compensated but the amount and value should be determined by the court below after a hearing; that in fixing the value the court may take into consideration the value of the property accumulated during the marital period, the extent and value of the respondent's services, the value of the real property received by the respondent by way of gift from the putative husband and other matters that may be material to the issue. *Page 38