14 Kan. 342 | Kan. | 1875
The opinion of the court was delivered by
The facts in this case are as follows: The court below granted to plaintiff a divorce on account of the fault of defendant on the charge of habitual drv/nkenness, but awarded the defendant the care, custody, nurture and education of the two minor children of the said plaintiff and defendant, one, as appears by the allegations of the petition, three-and-a-half years old, and the other only one year old. The court further decreed that the defendant should have and retain the possession of the homestead of the plaintiff during her natural life, and that plaintiff should forthwith deliver possession of said premises to said defendant. The court further adjudged that plaintiff should pay as further alimony $25 per month, and that there should be allowed, assigned and set off to the defendant, to her own sole and separate property, all the clothing of herself and said two minor children, and all the household and kitchen furniture in said house, excepting two medium-sized bedsteads, and the bedding thereof, to be retained by the plaintiff; and then ad
Upon this record two questions are presented. It is insisted in the first place, that “ the court could not lawfully decree possession of the homestead to defendant during her natural life, and require plaintiff to vacate it.” It appears that the title to the homestead was in plaintiff; and the argument is, that the defendant’s interest in the homestead arises from her relation as wife to plaintiff; that when that relationship ceased, as it did by the decree of divorce, her rights and interest therein ceased, and the property remained as the absolute property of the husband; that it was his homestead, he remaining the head of a family, and that being his homestead he could not under the constitutional provisions be in this way forced to surrender it to any one. The argument is ingenious, and forcibly put by counsel in his brief; but we are constrained to say is not sound. The divorce, and the adjustment of property-interests, are not to be regarded as transpiring at different times, but as cotemporaneous. The homestead of the plaintiff is not given to a stranger, destitute of all interest and right therein, but the homestead of the husband and wife (for it is equally the homestead of each,) is, upon their separation, assigned to one of them. There would be manifest impropriety in attempting ■ to continue it as the homestead of each after the divorce; and in awarding it to the wife the court is but choosing between conflicting interests. The fact that the title to the homestead-property is in the husband, does not give to him any greater interest in it as a homestead. His deed of it conveys no more than hers. He can no more incumber or alienate it by a direct proceeding than she. Perhaps by contracting for improvements thereon he may have more power than she to make it liable to judicial sale, though thus only indirectly does he affect it. That he has even this power greater than she, we do not now positively decide, leaving the question to be examined and decided whenever it is fairly before us. But whatever he may do, directly or indirectly, affecting the title, in so far as it is a
As a second question in this case, it is asserted that it was error to award the custody of the children to one found to be an habitual drunkard. Here also we labor under the disadvantage of having none of the testimony bearing on this question before us. We cannot say that the court erred, because we do not know what facts were before it. The character of the husband, the associations by which he was surrounded, his constant absence from home, may all have been so shown in evidence as to make it apparent that it was unwise to give him the custody, and it may have been awarded to her as the least of two evils. We do not mean to say that any such testimony was introduced, for the record is silent thereon; but we do hold that unless it affirmatively appears in the record that there was'none such, or similar, we cannot say that it was error to award the custody to the mother, rather than the father. The children were of tender years, and needed a mother’s care, and if she was at all suitable she ought to have the care of them during their infancy. The court reserved in the order, as it had the right to do, the
So far as the amount of alimony is concerned we suppose it was intended for the benefit of the children rather than of the wife. The law does not intend that a woman unfit to remain the wife, shall be supported in idleness by the toil of the husband. We however are not prepared to say that it was exorbitant when the custody and care of the children are taken into the account.
The judgment will be affirmed.
