Sioux City Iowa
Dec 14 1916
Dear Mother and all,
I suppose you are wondering how I am getting along and if I got out to M C alright this evening. I got on the car when we had only gone a few blocks a man came and sat down beside me and started talking. He was a railroad man. He talked my arm nearly off about railroads. I got out to the room all O.K.
But I must say I haven't done any studying as yet. I am going to get it in the morning if everything turns out all O.K.
I got felt enough to make an Ames pennant. Was that alright? It cost 28c.
Well how is everything at home? This looks rather changeable but the pencil needs sharpening.
Mother do you want to come down next Wednesday? I get out at 11:35. I want to get my bathrobe blanket so I can make or at least start my bathrobe at home. Miss Greene thinks that will be alright. You know make up the sewing I was to have the Monday I missed. I would like to have you help me pick it out. And I have so many dirty clothes here and some clothes that I do not need at all. I could manage to carry them home some how I suppose. Now I do not want to force you to come at all. If you would like to. Come. If not don't.
If you are not planning on coming you will have to send me some money. I have $1.75 or perhaps I have a little more than that. About $2.00.
Say but it sort of seems a long time before Wednesday. I am rather anxious to get home. But I am not coming until Wednesday.
Say, Elva I do not see why, on earth you did not speak to me about going over o the college. I sort of feel bad about it. You stop to think you can just imagine how it is. I was so tickled to think that you were here and that I could go down town with you. I did not think about you kids being interested in the college. I think you might have at least spoke about it. I was feeling good. I didn't think about college. I would have liked to have taken you kids through it. Oh just a little more of my lacking.
When you write send Lillian's address. I will write and apologize to her for maybe she will never get the chance to see the college. Did you forward Eldon's letter to him? I don't see why he doesn't write to me. [Eldon is Ellen's older brother and was probably away from home due to WWI]
This seems like Saturday to me. Now Mother if you would like to come down let me know. Either way will be alright.
Well my dear ones I must go to bed. It is 10:25.
With love, Ellen
Thursday, January 13, 2011
Letters to Home, Part 5
3131 Orleans Ave
Sioux City Iowa
November 26 1916
Dear Father, Mother, Sister & Bro.
How are you all getting along. I am just fine at present.
Did you hear about me being in Merrill Sunday about 11:45. Miss Parry, Grace and I started off for church. We turned the corner. Mr. and Mrs. Trenary just got their car out of the shed and they asked us to go along for a ride. So, of course, we accepted the invitation. We drove along up to James. Mr. Trenary asked if we wanted to and were dressed to go further. Of course we were willing to go on. We drove down through Main street. I showed them where I lived. I asked them if they wouldn't go out for dinner. No was the reply. Mr. Trenary wanted to get back by dinner time so we turned around and went back to the city.
Did you go to the Easton's? I thought it looked like our surrey standing in their yard. I saw Mr. Easton and Mr. Harker. Say but it was rather cold. I just dressed to go to church. When we were in town Mr. Trenary asked if I wanted to go out home of course I did but Mrs Parry said "she just was home last Sunday and is not very anxious to go." But I was just wishing they would. They don't know what home means to me. Anyway I enjoyed the ride.
I ought to have gone to church this evening but I just didn't feel like going. I am tired and thought rest would do me the most good.
Well, I do not know for sure when I will get out Wednesday but rather think it will be about 3 o'clock. Here's hoping. Elva can come down and go to Parry's if I am not there she can come in the back door of the Gymnasium. I expect to be there.
I do not know any news tonight so I guess I will cease for this evening.
This is 7:55 Mon morning.
It seems a long time until Wednesday. But here goes to studying before Wednesday comes.
Beatrice goes Wednesday noon. She says she can't hardly wait. I bet she is anxious to get there. She is popular there to hear her tell it any way. She isn't very popular here.
Well I will mail this and wait till I see you Wed evening.
With love from Ellen
Sioux City Iowa
November 26 1916
Dear Father, Mother, Sister & Bro.
How are you all getting along. I am just fine at present.
Did you hear about me being in Merrill Sunday about 11:45. Miss Parry, Grace and I started off for church. We turned the corner. Mr. and Mrs. Trenary just got their car out of the shed and they asked us to go along for a ride. So, of course, we accepted the invitation. We drove along up to James. Mr. Trenary asked if we wanted to and were dressed to go further. Of course we were willing to go on. We drove down through Main street. I showed them where I lived. I asked them if they wouldn't go out for dinner. No was the reply. Mr. Trenary wanted to get back by dinner time so we turned around and went back to the city.
Did you go to the Easton's? I thought it looked like our surrey standing in their yard. I saw Mr. Easton and Mr. Harker. Say but it was rather cold. I just dressed to go to church. When we were in town Mr. Trenary asked if I wanted to go out home of course I did but Mrs Parry said "she just was home last Sunday and is not very anxious to go." But I was just wishing they would. They don't know what home means to me. Anyway I enjoyed the ride.
I ought to have gone to church this evening but I just didn't feel like going. I am tired and thought rest would do me the most good.
Well, I do not know for sure when I will get out Wednesday but rather think it will be about 3 o'clock. Here's hoping. Elva can come down and go to Parry's if I am not there she can come in the back door of the Gymnasium. I expect to be there.
I do not know any news tonight so I guess I will cease for this evening.
This is 7:55 Mon morning.
It seems a long time until Wednesday. But here goes to studying before Wednesday comes.
Beatrice goes Wednesday noon. She says she can't hardly wait. I bet she is anxious to get there. She is popular there to hear her tell it any way. She isn't very popular here.
Well I will mail this and wait till I see you Wed evening.
With love from Ellen
Letters to Home, Part 4
Morningside S.C.
October 15, 1916
Dear folks-
How are you getting along? I am just fine. Hope you are the same. As I think you are.
I took Una to the train as you have heard by this time I suppose. That is the way it always turns out. I always have two engagements for the same time. The girls around here (not this house) but others wanted me to go with them for a walk. Una asked me to take her to the train. I didn't want to turn her down as she did not get to come here before. So I took her down. Saw Al Howes and Irwin Taylor but they didn't see me. They were at the depot.
Say I hear that Gus Dennler Jr. is taking out several pieces of kitchen and wash room ware. This looks rather curious to me. How about it. People seem to believe it to be true. Thus I wonder if I am being left out in this like I was in E. E. & Co., party. [Ellen's sister Elva married Gus Dennler in March of 1917]
Almeda Corr & Mr Sampson were here. I took their pictures. Then Almeda alone. They left for the monument and where else I do not know. They left when Una & Gladys came.
I was to the Dedication of the First Methodist Episcopal Church this morning. They have a series of meetings for the entire week. It sure is a beautiful church. I will finish this after supper.
This is after breakfast. I went to Epworth League with Beatrice and Eva Payne las night. There was no church in the Grace church. The evening was given to this dedication of the First Methodist. I may go to one of the sessions I do not know. Eva made some candy. Mr Peterson took Beatrice and I home. I first. I don't know when she went in. I don't care. She didn't tell me.
I have sewing this afternoon. I am going to cut out my combination suit. Try and finish it at home. Also the apron.
I am going to devote the morning to hard study if possible.
I am getting to dislike the place more and more right along. I don't know what can be the trouble. Oh well I am here to study. Perhaps you will be disappointed when you hear it but I can't help it. I forgot to tell you I am on the menu committee this week. So I will be able to have what I wish to eat. So you see I am in it. They asked this morning if we were going to have sour kraut. I am not game.
Well Good Bye. With love, Ellen
P.S. I forgot to tell you I put my hair on kid curlers last evening. Had a dream and took them out. What do you know about that. They were lying beside my pillow this morn.
October 15, 1916
Dear folks-
How are you getting along? I am just fine. Hope you are the same. As I think you are.
I took Una to the train as you have heard by this time I suppose. That is the way it always turns out. I always have two engagements for the same time. The girls around here (not this house) but others wanted me to go with them for a walk. Una asked me to take her to the train. I didn't want to turn her down as she did not get to come here before. So I took her down. Saw Al Howes and Irwin Taylor but they didn't see me. They were at the depot.
Say I hear that Gus Dennler Jr. is taking out several pieces of kitchen and wash room ware. This looks rather curious to me. How about it. People seem to believe it to be true. Thus I wonder if I am being left out in this like I was in E. E. & Co., party. [Ellen's sister Elva married Gus Dennler in March of 1917]
Almeda Corr & Mr Sampson were here. I took their pictures. Then Almeda alone. They left for the monument and where else I do not know. They left when Una & Gladys came.
I was to the Dedication of the First Methodist Episcopal Church this morning. They have a series of meetings for the entire week. It sure is a beautiful church. I will finish this after supper.
This is after breakfast. I went to Epworth League with Beatrice and Eva Payne las night. There was no church in the Grace church. The evening was given to this dedication of the First Methodist. I may go to one of the sessions I do not know. Eva made some candy. Mr Peterson took Beatrice and I home. I first. I don't know when she went in. I don't care. She didn't tell me.
I have sewing this afternoon. I am going to cut out my combination suit. Try and finish it at home. Also the apron.
I am going to devote the morning to hard study if possible.
I am getting to dislike the place more and more right along. I don't know what can be the trouble. Oh well I am here to study. Perhaps you will be disappointed when you hear it but I can't help it. I forgot to tell you I am on the menu committee this week. So I will be able to have what I wish to eat. So you see I am in it. They asked this morning if we were going to have sour kraut. I am not game.
Well Good Bye. With love, Ellen
P.S. I forgot to tell you I put my hair on kid curlers last evening. Had a dream and took them out. What do you know about that. They were lying beside my pillow this morn.
Letters to Home, Part 3
Morningside
October 9 1916
Dear Folks-
I arrived here O.K. Was to sewing and am now almost ready to study. Oh, I guess I will write a few or 1 letter before I go to supper. It is 5:15 o'clock.
There wasn't a soul on the train that I knew. I got on the street car at Davidson's corner after waiting about 15 min. I didn't look around very much for I would see something else that I wanted. I saw Stella H. and some girl walking down the street when I was on the car. Mrs. Holstrom got on a couple of blocks out. She went to her sister's place in Morninside. She was real talkative. I do not know how it happened. She said she saw Stella. She didn't know who was with her. "They were both painted up alike." They looked like they were taking life easy when I saw them. She said that she saw her but didn't for she said you know when you don't want to see anyone you don't have to.
Say! what do you think about that silk taffeta skirt. Do you think it would be all right. I think so. I need something. I could get a new waist now and one later so that it would be fresh. Say Mother send for it right away if you think it is all right. If not don't.
Beatrice called for me to go to dinner. She said that I ought to have heard them talk (Sunshine kids) about Essie and Nellie. She said it wasn't anything slow. The boys told all they knew. One said that he would not lower himself so much as to be seen with them. They did not pull off that joke on Cocks. The guy that was going to leave. He has left. Andrews and he are cooking together. They said they had lots of fun Sunday afternoon with Cocks. He played his violin for the bunch.
Say write and let me know Elva how you come out Tue evening. I would like to know.
Leona is just fine. We get along just dandy.
I am going to study a little now. May write more later.
This is Tue morning. I got up late. Didn't go to breakfast. We girls had ice cream and nabiscos last evening. Had a dandy time. Poor kids cried until they were about sick. Say they are going to cut out all M. kids. They have talked to several Y. W. girls about it.They feel so bad. For the boys have stretched everything. It is out afright.
Well let me know the news and when you are coming down and all.
With lots of love, Ellen
October 9 1916
Dear Folks-
I arrived here O.K. Was to sewing and am now almost ready to study. Oh, I guess I will write a few or 1 letter before I go to supper. It is 5:15 o'clock.
There wasn't a soul on the train that I knew. I got on the street car at Davidson's corner after waiting about 15 min. I didn't look around very much for I would see something else that I wanted. I saw Stella H. and some girl walking down the street when I was on the car. Mrs. Holstrom got on a couple of blocks out. She went to her sister's place in Morninside. She was real talkative. I do not know how it happened. She said she saw Stella. She didn't know who was with her. "They were both painted up alike." They looked like they were taking life easy when I saw them. She said that she saw her but didn't for she said you know when you don't want to see anyone you don't have to.
Say! what do you think about that silk taffeta skirt. Do you think it would be all right. I think so. I need something. I could get a new waist now and one later so that it would be fresh. Say Mother send for it right away if you think it is all right. If not don't.
Beatrice called for me to go to dinner. She said that I ought to have heard them talk (Sunshine kids) about Essie and Nellie. She said it wasn't anything slow. The boys told all they knew. One said that he would not lower himself so much as to be seen with them. They did not pull off that joke on Cocks. The guy that was going to leave. He has left. Andrews and he are cooking together. They said they had lots of fun Sunday afternoon with Cocks. He played his violin for the bunch.
Say write and let me know Elva how you come out Tue evening. I would like to know.
Leona is just fine. We get along just dandy.
I am going to study a little now. May write more later.
This is Tue morning. I got up late. Didn't go to breakfast. We girls had ice cream and nabiscos last evening. Had a dandy time. Poor kids cried until they were about sick. Say they are going to cut out all M. kids. They have talked to several Y. W. girls about it.They feel so bad. For the boys have stretched everything. It is out afright.
Well let me know the news and when you are coming down and all.
With lots of love, Ellen
Letters to Home, Part 2
I missed one when I gathered the letters to home so this one actually comes before part 1.
Morningside, Ia.
Sept-14-16
Dear folks,
Rec'd your letter today. Glad to hear from you. Perhaps I may change my rooming place over to Meyer's. Cleo Star of Spencer wants me to room there and two other girls will take this room.
Altwood and Fissel and Miss Pinkham are too good for this chicken. I should worry! I am getting along just splendid. Sunshine Inn is a dandy place I have to pay over $5 today to start the club. The club is all one just like the C.K.C. Everyone is so sociable & nice. I like it just fine so far. Getting acquainted with so many. Got nocked down to so many. But Oh the names. Met a Norwegian today. Ruth J. comes around quite often. Was to Y. W. Halls last eve to a reception. Had watermelon. Will be around next wanting us to join I suppose. Have fine meals at the inn.
I wish I had my new fall hat. Most all of the girls have theirs. And suit. Miss Pinkham is going to get a $65 suit.
Was to Chapel this morn. The boys try to sell the Freshie's Chapel seats 10 cts. I didn't bite. Looks suspicious. I have been running around with a girl from Spencer who is working her way through. She is real nice. Going to hunt work this eve after supper. I got one book $1.25 new kind. I haven't taken any pictures as yet. Just getting acquainted.
Say I have no mirror. Most of the girls have hand mirrors. Bring my bloomers. Have to take Physical training. Bring my book "The Shephard of the Hills." Next time you write send a few Blessings I might be asked. So I could. Don't forget.
Tell Una I will not be home until week from Sat if all is O.K.
I am gong to write Ellen tonight I think.
Perhaps I may go to see Daisy Sun. As I can't leave very well before then. Maybe go to see Mrs. Van Dyke. It is 8:15 just finished writing a theme. I don't think by what I hear I will change rooming places. I don't know for sure.
I paid the $5 at the Inn tonight. I just have $6 left of course the check.
How is poor duckie?And all the rest at home.
With love, Ellen
You will not need to bring the book.
Morningside, Ia.
Sept-14-16
Dear folks,
Rec'd your letter today. Glad to hear from you. Perhaps I may change my rooming place over to Meyer's. Cleo Star of Spencer wants me to room there and two other girls will take this room.
Altwood and Fissel and Miss Pinkham are too good for this chicken. I should worry! I am getting along just splendid. Sunshine Inn is a dandy place I have to pay over $5 today to start the club. The club is all one just like the C.K.C. Everyone is so sociable & nice. I like it just fine so far. Getting acquainted with so many. Got nocked down to so many. But Oh the names. Met a Norwegian today. Ruth J. comes around quite often. Was to Y. W. Halls last eve to a reception. Had watermelon. Will be around next wanting us to join I suppose. Have fine meals at the inn.
I wish I had my new fall hat. Most all of the girls have theirs. And suit. Miss Pinkham is going to get a $65 suit.
Was to Chapel this morn. The boys try to sell the Freshie's Chapel seats 10 cts. I didn't bite. Looks suspicious. I have been running around with a girl from Spencer who is working her way through. She is real nice. Going to hunt work this eve after supper. I got one book $1.25 new kind. I haven't taken any pictures as yet. Just getting acquainted.
Say I have no mirror. Most of the girls have hand mirrors. Bring my bloomers. Have to take Physical training. Bring my book "The Shephard of the Hills." Next time you write send a few Blessings I might be asked. So I could. Don't forget.
Tell Una I will not be home until week from Sat if all is O.K.
I am gong to write Ellen tonight I think.
Perhaps I may go to see Daisy Sun. As I can't leave very well before then. Maybe go to see Mrs. Van Dyke. It is 8:15 just finished writing a theme. I don't think by what I hear I will change rooming places. I don't know for sure.
I paid the $5 at the Inn tonight. I just have $6 left of course the check.
How is poor duckie?And all the rest at home.
With love, Ellen
You will not need to bring the book.
Wednesday, January 12, 2011
Letters to Home, Part 1
Here is a transcription of a letter postmarked September 19, 1916 from Brendan & Olivia's great grandmother Ellen Lake to her parents in Merrill, Iowa. Ellen was 17 at the time and a train ride away from home at Morningside College in Sioux City.
Morningside S.C.
Sept, 18 - 1916
Dear folks-
Well, I am able to say. I have been homesick. Say, tis no joke. I was all in, all over. I have not recovered entirely as yet. But I have been feeling fine today. Got a new vision, if it only stays Sat evening after returning from the Freshie party. I could not go to sleep or anything. I got up around twelve ate a piece of candy I had in store. That helped a little. I rolled around in bed all over. If I could have got home easily I never would have returned. Only I expended so much for tuition and could not get it back.
Say do you know if this college life or builder of character is going to cost like fury. One gets lots of enjoyment but Oh my the trials, example of being homesick thats too much. Sun eve I had to sob a little before I went to sleep. I felt sick to my stomach. I was to ??? and church Sun morning. Walked to Graceland Cemetary in the afternoon. Some walk I can tell you. I took 2 pictures. My kodak left some dirty marks on my cream dress. We are invited to an Epworth League party Tue evening. I don't know yet if I shall go or not.
Say that five bucks you gave me Elva is almost gone. I haven't enough I don't think to get only two books. Then I have my gym shoes to get next. Well I am here now. No way of escape.
Say I don't know how I am going to be able to get my washing done unless you wash Mother, Sat eve while I do your milking. I will be home on the first afternoon train if possible. I have recitations until 11:30. I can't catch the noon train. Will let you know if it is possible. Maybe I can get excused from gym work. I am going to try.
Say what am I going to get a new suit and hat or what? I would like very much to have a new hat for next week. All the girls have theirs or most all. Let me know your plans.
Sometimes I wish I had never seen college and again I am so glad I have. But one has to meet their trials some time. Say I saw Cassidy the other day Sat P.M. she leaves tomorrow. She was all togged in her finery a new suit and hat.
Say something has affected my writing. I can't write like I used to. Not writing but what I write.
If you talk to Ellen or any of the kids tell them to write all the news. I would like to hear from any of the C.K.Cs no matter what sex. I will consider it as news from home. Tell them to have a meeting or party and write about it.
After supper tonight we played a game. I can't think of the name now. I got real warm and have a slight cold now. The boys went snipe hunting. Part of them can't talk only whisper. Took one Freshie. They are going to take us girls for an outing so they say. We sure have fine times at the inn. It is half past nine I am getting tired and want to read a little and study a little yet.
How is all at home? Ducky and all the rest of the inhabitants of the Lake & adjoining Zoo. I hope fine. Wish I could be with you talking to you all when you get this. but I am getting along pretty good. Don't feel bad tonight. I got the package. Thanks.
I don't think I shall move. Miss Dimmett says I better not unless Mrs Parry says so. I think I can get along all right here. Beatrice Carver is a fine girl. We go to meals and entertainments together. Get along fine.
I rather like to be alone in many ways. Its all freedom. Will stay that way unless she charges double. Then will be good bye.
Are you going to the fair? I would like to but it is impossible.
Plan a way to get my washing done.
Had Physical exam today. Weigh 132 1/2 lbs with just a sheet on.
Pencil is getting dull.
It's 25 to 10.
Write.
With love from Ellen
Busy most of the time
Just 3731 Orleans Ave
Morningside Sioux City, Ia.
Morningside S.C.
Sept, 18 - 1916
Dear folks-
Well, I am able to say. I have been homesick. Say, tis no joke. I was all in, all over. I have not recovered entirely as yet. But I have been feeling fine today. Got a new vision, if it only stays Sat evening after returning from the Freshie party. I could not go to sleep or anything. I got up around twelve ate a piece of candy I had in store. That helped a little. I rolled around in bed all over. If I could have got home easily I never would have returned. Only I expended so much for tuition and could not get it back.
Say do you know if this college life or builder of character is going to cost like fury. One gets lots of enjoyment but Oh my the trials, example of being homesick thats too much. Sun eve I had to sob a little before I went to sleep. I felt sick to my stomach. I was to ??? and church Sun morning. Walked to Graceland Cemetary in the afternoon. Some walk I can tell you. I took 2 pictures. My kodak left some dirty marks on my cream dress. We are invited to an Epworth League party Tue evening. I don't know yet if I shall go or not.
Say that five bucks you gave me Elva is almost gone. I haven't enough I don't think to get only two books. Then I have my gym shoes to get next. Well I am here now. No way of escape.
Say I don't know how I am going to be able to get my washing done unless you wash Mother, Sat eve while I do your milking. I will be home on the first afternoon train if possible. I have recitations until 11:30. I can't catch the noon train. Will let you know if it is possible. Maybe I can get excused from gym work. I am going to try.
Say what am I going to get a new suit and hat or what? I would like very much to have a new hat for next week. All the girls have theirs or most all. Let me know your plans.
Sometimes I wish I had never seen college and again I am so glad I have. But one has to meet their trials some time. Say I saw Cassidy the other day Sat P.M. she leaves tomorrow. She was all togged in her finery a new suit and hat.
Say something has affected my writing. I can't write like I used to. Not writing but what I write.
If you talk to Ellen or any of the kids tell them to write all the news. I would like to hear from any of the C.K.Cs no matter what sex. I will consider it as news from home. Tell them to have a meeting or party and write about it.
After supper tonight we played a game. I can't think of the name now. I got real warm and have a slight cold now. The boys went snipe hunting. Part of them can't talk only whisper. Took one Freshie. They are going to take us girls for an outing so they say. We sure have fine times at the inn. It is half past nine I am getting tired and want to read a little and study a little yet.
How is all at home? Ducky and all the rest of the inhabitants of the Lake & adjoining Zoo. I hope fine. Wish I could be with you talking to you all when you get this. but I am getting along pretty good. Don't feel bad tonight. I got the package. Thanks.
I don't think I shall move. Miss Dimmett says I better not unless Mrs Parry says so. I think I can get along all right here. Beatrice Carver is a fine girl. We go to meals and entertainments together. Get along fine.
I rather like to be alone in many ways. Its all freedom. Will stay that way unless she charges double. Then will be good bye.
Are you going to the fair? I would like to but it is impossible.
Plan a way to get my washing done.
Had Physical exam today. Weigh 132 1/2 lbs with just a sheet on.
Pencil is getting dull.
It's 25 to 10.
Write.
With love from Ellen
Busy most of the time
Just 3731 Orleans Ave
Morningside Sioux City, Ia.
Thursday, January 6, 2011
Burgess v. Burgess
To start out 2011 here is something I recently came across by accident. It was a bit of surprise to find my great-great grandfather Myron Burgess on my dad's side was a defendant in a case before the South Dakota Supreme Court. Since nearly all of the 1890 US Census records were destroyed in a fire in 1921 this reveals new information about his 2nd marriage (my great-great grandmother Anna Belle Mashek was his 3rd wife).
I included the entire description of the case in this transcription but I also highlighted the area of interest to family history if you would like to skip the legal verbiage.
BURGESS v. BURGESS.
(Supreme Court of South Dakota. June 3, 1903.)
SPECIFIC PERFORMANCE-COMPLAINT-SUFFICIENCY-DIVORCE-COLLUSIVE AGREEMENT-PRESUMPTION OF LEGALITY.
1. A complaint alleging ownership and possession of land by defendant by virtue of a valid entry under the timber culture laws; an agreement in writing by defendant to convey the land to plaintiff as soon as he made final proof; the making of final proof by, and the issuance of a patent to, defendant; the performance by plaintiff of all conditions of the agreement on her part; the compliance by defendant at the time of making said agreement with the timber culture laws of the United States; and that, since the making of final proof and reception of the patent by defendant, plaintiff has duly demanded a conveyance of said tract in accordance with the agreement, which defendant has refused to make--states a cause of action for specific performance.
2.In an action for specific performance of a contract for conveyance of land, it was shown that, the marital relations of the parties being unsatisfactory, defendant, who was contemplating divorce, wrote to plaintiff: "I * * * will prove up the land and send you the deed as soon as possible. All I ask is a mutual settlement and bill, for which I will pay all costs, using the lightest cause possible." Held, that the agreement was not collusive, under Comp. Laws 1887, 2568, defining collusion as "an agreement between husband and wife that one shall commit or appear to have committed or to be represented in court as having committed, acts constituting a cause of divorce for the purpose of enabling the other to obtain a divorce," although, relying on such agreement, plaintiff did not appear in the divorce proceedings.
Appeal from Circuit Court, Brule County.
Action by Agnes Burgess against Myron E. Burgess. From a judgment for plaintiff, defendant appeals. Affirmed.
G.P. Harben, for appellant. James Brown, for respondent.
HANEY, P.J. This is an action to compel the specific performance of a contract to convey real property. The plaintiff in her complaint states the cause of her action as follows:
"(1)That at the times hereinafter mentioned the defendant was lawfully possessed of the following real estate, situated in the county of Brule, in the state of South Dakota, to wit: The southwest quarter of section 1, township 104 north, range 68 west fifth P.M., under and by virtue of a valid and subsisting entry of said land made by the defendant under the timber culture laws of the United States; that defendant was duly qualified to make such entry when the same was made, and said land was subject to entry under timber culture laws of the United States.
"(2)That on March 26, 1897, the defendant agreed in writing, to convey said tract of land to plaintiff as soon as he final proof of his compliance with the timber culture laws, and of his right to a patent for said land.
"(3)That in the month of December, 1899, the defendant made such final proof, which proof was duly approved by the proper officers of the Land Department of the United States, and a patent for said land has been duly issued to the defendant by the United States, and defendant is now the owner of said land, and the same is of the reasonable value of $800.
"(4)That plaintiff has duly performed all the conditions of the agreement for the conveyance to her of said land required by said agreement to be performed on her part.
"(5)That, at the time of making said agreement to convey said land to plaintiff, the defendant has fully complied with the timber culture laws of the United States under his said entry of said tract, and could then have made final proof for said tract, had he so desired.
"(6)That since he made said final proof, and received the patent therefor, plaintiff has duly demanded of defendant that he convey to her said tract of land in accordance with said agreement, but defendant refuses to make such conveyance, and he has not executed to plaintiff any conveyance of said land, or of any part thereof."
The first and third paragraphs of the complaint are expressly admitted in the answer, and the others are denied. The court below found the facts to be as alleged in the complaint, and gave judgement for the plaintiff. Defendant appealed from the judgement, and from an order denying his application for a new trial.
It was stipulated by the parties that the following statement of facts might be read in evidence by either party, "subject to any objections as to competency, relevancy, and materiality" that the other party might desire to make: "The plaintiff and defendant were married to each other on September 11, 1885 and lived together as husband and wife until about April 17, 1897, about which time the plaintiff left defendant and went to the state of Iowa, and on May 17, 1898, the defendant in this action obtained a divorce from plaintiff on the grounds of desertion; such divorce being obtained in this court after service of the summons upon the defendant in the state of Iowa. That in the month of March, 1897, the plaintiff herein was in the state of Iowa on a visit, and at that time the marital relations between the parties were unsatisfactory, and on March 26, 1897, the defendant herein wrote to the plaintiff herein a letter, in which, after relating the misery he had endured, owing to the incompatibility of their dispositions, he said: 'I am not to blame for being constituted so and cannot stand it as I have done longer. As to our dear one, I trust that she will be even better under your care alone than could possibly be with two extremes to guide her; but remember that she has some of her poor father's warmth in her heart and must be appreciated and not crushed, or her life will be one of misery, too, may God help you both. I shall furnish her support always, and send you any and all we have that you wish, and will prove up the land and send you the deed as soon as possible. All I ask is a mutual settlement and bill, for which I will pay all costs, using the lightest cause possible.' That the land referred to in said letter was the same land described in the complaint herein, and was the only public land on which the defendant had a subsisting entry or could prove up. That plaintiff, relying on the promise in said letter that the defendant would support their only child, and would convey to the plaintiff said land, made no appearance in said action of divorce, and made no claim for alimony or support either for herself or the child of the parties hereto. That the defendant has failed and refuses to convey to plaintiff said land (the same being the southwest quarter of section 1, township 104, range 68, in said Brule county), or any part thereof. That on November 12, 1900, plaintiff, through her attorney, James Brown, sent to defendant for execution a deed of conveyance of said land to plaintiff, and requested defendant to excecute the same, which he refused to do, and he has not conveyed said land to plaintiff."
Defendant objected to the introduction of the agreed statement of facts on the grounds (1) that the complaint failed to state a cause of action; and (2) that it appeared on the face of the statement and complaint that the contract sought to be enforced was illegal, contrary to public policy, and void. The overruling of this objection is assigned as error. It is clear from a mere inspection of the complaint that it states facts sufficient to constitute a cause of action. Assuming that the ruling on the introduction of the agreed statement properly involved a decision upon the legality of the contract sought to be enforced, we will proceed to consider the legal effect of the facts established by such agreed statement. A husband and wife cannot, by any contract with each other, alter their legal relations, except as to property, and except that they may agree in writing to an immediate separation, and may make provision for the support of either of them and of their children during such separation. Comp. Laws 1887, 2591. Marriage can be dissolved only by the death of one of the parties, or by the judgment of a court of competent jurisdiction, decreeing a divorce of the parties. Comp. Laws 1887, 2558. Divorces must be denied upon showing of collusion. Comp. Laws 1887, 2566. Collusion is an agreement between husband and wife that one of them shall commit or appear to committed, or to be represented in court as having committed, acts constituting a cause of divorce, for the purpose of enabling the other to obtain a divorce. Comp. Laws 1887, 2568. Contracts are unlawful which are contrary to the policy of express law, though not expressly prohibited, or which are otherwise contrary to good morals. Comp. Laws 1887, 3577. As the alleged unlawfulness of the contract sought to be enforced in this action rests alone on the ground of collusion, its validity should be tested by the legislative definition of "collusion," as given in connection with the granting of divorces. The law of this state expressly permits contracts between husband and wife with respect to the property of each, but forbids certain agreements, as collusive, which are intended to alter or to promote the dissolution of the relation of husband and wife. Contracts relating to alimony are being constantly made and enforced, whil agreements which contravene the policy of the law in relation to granting divorces are everywhere regarded as illegal. To which class does the contract in this action belong? The answer to this inquiry depends upon the intention of the parties as shown by the facts contained in the agreed statement. An interpretation which gives effect is preferred to one which makes void. Comp. Laws 1887, 4728. All person are presumed to have acted lawfully. Unless clearly inconsistent with any reasonable view of the agreed facts, it should be inferred that these parties did not intend to violate the law, or to do any wrongful act. This, in substance, is all that is shown, tending to prove collusion: The marital relations of the parties being unsatisfactory, the defendant wrote to the plaintiff: "I * * * will prove up the land and send you the deed as soon as possible. All I ask is a mutual settlement and bill, for which I will pay all costs, using the lightest cause possible." This was an unconditional promise to convey the land. The plaintiff was not asked to commit, or to appear to have committed, or to be represented in court as having committed, any act constituting a cause for divorce. She was not asked to refrain from appearing in the contemplated action for divorce, nor does it appear that she ever agreed to refrain from making a defense. It is true that she did not appear, relying, as she had a right to, on the defendants express promise, and was thus deprived of an opportunity to have her property rights and the property rights of her daughter determined by the court. But it does not affirmatively appear, and we think it cannot be inferred, that she made any agreement as a consideration of receiving the land, which, if shown, would have required the court to deny her husband a divorce on the grounds of collusion. We think the transaction can and should be regarded as an agreement merely affecting property rights, and not as one which contravenes the policy of the law, or which was otherwise contrary to good morals. The letter refered to in the agreed statement was itself received in evidence, but as it contained nothing different in effect from the contents of the agreed statement, it demands no further attention.
The judgement of the circuit court is affirmed.
Transcribed from The Northwestern reporter, Volume 95
West Pub. Co., 1903
I was able to follow Agnes and her daughter Cora after the divorce. Agnes never remarried and they lived in Maquoketa Iowa until Cora's marriage to Mahlon Miller in 1911. After the marriage the family moved to Montana near Baker. Cora, who was 10 years old at the time of the divorce, passed away in Baker at the age of ninety.
On a side note, I noticed that Agnes was noted as widowed rather than divorced on the census. An error, social pressure or keeping up a story? I do wonder what Cora was told about her parents' separation.
I included the entire description of the case in this transcription but I also highlighted the area of interest to family history if you would like to skip the legal verbiage.
BURGESS v. BURGESS.
(Supreme Court of South Dakota. June 3, 1903.)
SPECIFIC PERFORMANCE-COMPLAINT-SUFFICIENCY-DIVORCE-COLLUSIVE AGREEMENT-PRESUMPTION OF LEGALITY.
1. A complaint alleging ownership and possession of land by defendant by virtue of a valid entry under the timber culture laws; an agreement in writing by defendant to convey the land to plaintiff as soon as he made final proof; the making of final proof by, and the issuance of a patent to, defendant; the performance by plaintiff of all conditions of the agreement on her part; the compliance by defendant at the time of making said agreement with the timber culture laws of the United States; and that, since the making of final proof and reception of the patent by defendant, plaintiff has duly demanded a conveyance of said tract in accordance with the agreement, which defendant has refused to make--states a cause of action for specific performance.
2.In an action for specific performance of a contract for conveyance of land, it was shown that, the marital relations of the parties being unsatisfactory, defendant, who was contemplating divorce, wrote to plaintiff: "I * * * will prove up the land and send you the deed as soon as possible. All I ask is a mutual settlement and bill, for which I will pay all costs, using the lightest cause possible." Held, that the agreement was not collusive, under Comp. Laws 1887, 2568, defining collusion as "an agreement between husband and wife that one shall commit or appear to have committed or to be represented in court as having committed, acts constituting a cause of divorce for the purpose of enabling the other to obtain a divorce," although, relying on such agreement, plaintiff did not appear in the divorce proceedings.
Appeal from Circuit Court, Brule County.
Action by Agnes Burgess against Myron E. Burgess. From a judgment for plaintiff, defendant appeals. Affirmed.
G.P. Harben, for appellant. James Brown, for respondent.
HANEY, P.J. This is an action to compel the specific performance of a contract to convey real property. The plaintiff in her complaint states the cause of her action as follows:
"(1)That at the times hereinafter mentioned the defendant was lawfully possessed of the following real estate, situated in the county of Brule, in the state of South Dakota, to wit: The southwest quarter of section 1, township 104 north, range 68 west fifth P.M., under and by virtue of a valid and subsisting entry of said land made by the defendant under the timber culture laws of the United States; that defendant was duly qualified to make such entry when the same was made, and said land was subject to entry under timber culture laws of the United States.
"(2)That on March 26, 1897, the defendant agreed in writing, to convey said tract of land to plaintiff as soon as he final proof of his compliance with the timber culture laws, and of his right to a patent for said land.
"(3)That in the month of December, 1899, the defendant made such final proof, which proof was duly approved by the proper officers of the Land Department of the United States, and a patent for said land has been duly issued to the defendant by the United States, and defendant is now the owner of said land, and the same is of the reasonable value of $800.
"(4)That plaintiff has duly performed all the conditions of the agreement for the conveyance to her of said land required by said agreement to be performed on her part.
"(5)That, at the time of making said agreement to convey said land to plaintiff, the defendant has fully complied with the timber culture laws of the United States under his said entry of said tract, and could then have made final proof for said tract, had he so desired.
"(6)That since he made said final proof, and received the patent therefor, plaintiff has duly demanded of defendant that he convey to her said tract of land in accordance with said agreement, but defendant refuses to make such conveyance, and he has not executed to plaintiff any conveyance of said land, or of any part thereof."
The first and third paragraphs of the complaint are expressly admitted in the answer, and the others are denied. The court below found the facts to be as alleged in the complaint, and gave judgement for the plaintiff. Defendant appealed from the judgement, and from an order denying his application for a new trial.
It was stipulated by the parties that the following statement of facts might be read in evidence by either party, "subject to any objections as to competency, relevancy, and materiality" that the other party might desire to make: "The plaintiff and defendant were married to each other on September 11, 1885 and lived together as husband and wife until about April 17, 1897, about which time the plaintiff left defendant and went to the state of Iowa, and on May 17, 1898, the defendant in this action obtained a divorce from plaintiff on the grounds of desertion; such divorce being obtained in this court after service of the summons upon the defendant in the state of Iowa. That in the month of March, 1897, the plaintiff herein was in the state of Iowa on a visit, and at that time the marital relations between the parties were unsatisfactory, and on March 26, 1897, the defendant herein wrote to the plaintiff herein a letter, in which, after relating the misery he had endured, owing to the incompatibility of their dispositions, he said: 'I am not to blame for being constituted so and cannot stand it as I have done longer. As to our dear one, I trust that she will be even better under your care alone than could possibly be with two extremes to guide her; but remember that she has some of her poor father's warmth in her heart and must be appreciated and not crushed, or her life will be one of misery, too, may God help you both. I shall furnish her support always, and send you any and all we have that you wish, and will prove up the land and send you the deed as soon as possible. All I ask is a mutual settlement and bill, for which I will pay all costs, using the lightest cause possible.' That the land referred to in said letter was the same land described in the complaint herein, and was the only public land on which the defendant had a subsisting entry or could prove up. That plaintiff, relying on the promise in said letter that the defendant would support their only child, and would convey to the plaintiff said land, made no appearance in said action of divorce, and made no claim for alimony or support either for herself or the child of the parties hereto. That the defendant has failed and refuses to convey to plaintiff said land (the same being the southwest quarter of section 1, township 104, range 68, in said Brule county), or any part thereof. That on November 12, 1900, plaintiff, through her attorney, James Brown, sent to defendant for execution a deed of conveyance of said land to plaintiff, and requested defendant to excecute the same, which he refused to do, and he has not conveyed said land to plaintiff."
Defendant objected to the introduction of the agreed statement of facts on the grounds (1) that the complaint failed to state a cause of action; and (2) that it appeared on the face of the statement and complaint that the contract sought to be enforced was illegal, contrary to public policy, and void. The overruling of this objection is assigned as error. It is clear from a mere inspection of the complaint that it states facts sufficient to constitute a cause of action. Assuming that the ruling on the introduction of the agreed statement properly involved a decision upon the legality of the contract sought to be enforced, we will proceed to consider the legal effect of the facts established by such agreed statement. A husband and wife cannot, by any contract with each other, alter their legal relations, except as to property, and except that they may agree in writing to an immediate separation, and may make provision for the support of either of them and of their children during such separation. Comp. Laws 1887, 2591. Marriage can be dissolved only by the death of one of the parties, or by the judgment of a court of competent jurisdiction, decreeing a divorce of the parties. Comp. Laws 1887, 2558. Divorces must be denied upon showing of collusion. Comp. Laws 1887, 2566. Collusion is an agreement between husband and wife that one of them shall commit or appear to committed, or to be represented in court as having committed, acts constituting a cause of divorce, for the purpose of enabling the other to obtain a divorce. Comp. Laws 1887, 2568. Contracts are unlawful which are contrary to the policy of express law, though not expressly prohibited, or which are otherwise contrary to good morals. Comp. Laws 1887, 3577. As the alleged unlawfulness of the contract sought to be enforced in this action rests alone on the ground of collusion, its validity should be tested by the legislative definition of "collusion," as given in connection with the granting of divorces. The law of this state expressly permits contracts between husband and wife with respect to the property of each, but forbids certain agreements, as collusive, which are intended to alter or to promote the dissolution of the relation of husband and wife. Contracts relating to alimony are being constantly made and enforced, whil agreements which contravene the policy of the law in relation to granting divorces are everywhere regarded as illegal. To which class does the contract in this action belong? The answer to this inquiry depends upon the intention of the parties as shown by the facts contained in the agreed statement. An interpretation which gives effect is preferred to one which makes void. Comp. Laws 1887, 4728. All person are presumed to have acted lawfully. Unless clearly inconsistent with any reasonable view of the agreed facts, it should be inferred that these parties did not intend to violate the law, or to do any wrongful act. This, in substance, is all that is shown, tending to prove collusion: The marital relations of the parties being unsatisfactory, the defendant wrote to the plaintiff: "I * * * will prove up the land and send you the deed as soon as possible. All I ask is a mutual settlement and bill, for which I will pay all costs, using the lightest cause possible." This was an unconditional promise to convey the land. The plaintiff was not asked to commit, or to appear to have committed, or to be represented in court as having committed, any act constituting a cause for divorce. She was not asked to refrain from appearing in the contemplated action for divorce, nor does it appear that she ever agreed to refrain from making a defense. It is true that she did not appear, relying, as she had a right to, on the defendants express promise, and was thus deprived of an opportunity to have her property rights and the property rights of her daughter determined by the court. But it does not affirmatively appear, and we think it cannot be inferred, that she made any agreement as a consideration of receiving the land, which, if shown, would have required the court to deny her husband a divorce on the grounds of collusion. We think the transaction can and should be regarded as an agreement merely affecting property rights, and not as one which contravenes the policy of the law, or which was otherwise contrary to good morals. The letter refered to in the agreed statement was itself received in evidence, but as it contained nothing different in effect from the contents of the agreed statement, it demands no further attention.
The judgement of the circuit court is affirmed.
Transcribed from The Northwestern reporter, Volume 95
West Pub. Co., 1903
I was able to follow Agnes and her daughter Cora after the divorce. Agnes never remarried and they lived in Maquoketa Iowa until Cora's marriage to Mahlon Miller in 1911. After the marriage the family moved to Montana near Baker. Cora, who was 10 years old at the time of the divorce, passed away in Baker at the age of ninety.
On a side note, I noticed that Agnes was noted as widowed rather than divorced on the census. An error, social pressure or keeping up a story? I do wonder what Cora was told about her parents' separation.
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