| Wis. | Jan 15, 1879
In the case of Damon v. Damon, 28 Wis., 510" court="Wis." date_filed="1871-06-15" href="https://app.midpage.ai/document/damon-v-damon-6600757?utm_source=webapp" opinion_id="6600757">28 Wis., 510, this court held that, in an action for divorce by the wife, in which she claimed alimony from the husband, it was proper to make a party defendant, who knowingly and without consideration took g conveyance of the husband’s property before the action was commenced, but after the cause of action accrued, for the fraudulent purpose of defeating a recovery of alimony in such action. This case establishes the rule for this court, that, in an action for divorce, a third person may be made a party to the action, when it is necessary in order to protect the rights of the wife, or to make a proper distribution of the property between the husband and wife; and that it is not sufficient to defeat the right of such joinder, to say that she might, after the judgment of divorce was obtained, maintain an action against such third person in order to obtain the same or similar relief.
The case at bar presents a case in which a court of equity would, upon the general rules applicable to equitable actions, interfere to prevent the fraudulent acts alleged to be contemplated by the defendants.
The plaintiff shows that she had a valuable cause of action in tort against the defendant Martin S. Gibson, which had accrued to her previous to her marriage with the defendant Sewell 0. Gibson; that such action was and still is pending and undetermined; that Sewell 0. Gibson, her husband, has willfully deserted her, and refused longer to provide for her as his wife; that he has no property out of which she can secure
In actions for divorce commenced by the wife, it is the common practice for the court to enjoin the husband from proceeding in the collection of the choses in action belonging to the wife previous to his marriage. This is done, not solely for the purpose of preserving a fund out of which alimony may be secured to her on the granting of a divorce, but also upon the ground that it would be inequitable and unjust to permit a husband, who had violated his marital obligations to support and care for his wife, to make use of a right which came to him solely through his marital relations, to the injury of her estate.
In the case of Van Duzer v. Van Duzer et al., 6 Paige Ch., 366" court="None" date_filed="1837-03-21" href="https://app.midpage.ai/document/van-duzer-v-van-duzer-5548275?utm_source=webapp" opinion_id="5548275">6 Paige, 366, cited in Damon v. Damon, supra, although the court held that a party who had obtained a judgment lien upon the property or estate of the wife which came to the husband by his marriage with her, previous to the husband’s commission of any acts which would entitle the wife to a divorce, could not be restrained from such lien, it also held that if such lien had accrued after the husband had been guilty of an act which entitled the wife to a divorce, her equity would be preferred to the lien of such judgment. The learned chancellor, in his opinion in that case, says:
“Had the husband, therefore, before the recovery of the judgments, been guilty of any act which entitled the wife to a decree for a divorce or separation, and for support for herself and children out of his estate, and had this bill been filed for that purpose also, I should have found no difficulty in giving*458 effect to that prior equity against the general lien of the judgments, as well as against the acts of the husband himself.
“ In such cases, this court considers the husband as having, by his misconduct and criminality, forfeited all equitable right to the wife’s property which he acquired by virtue of his marriage, whether the same be in possession or action. And, upon the ground that she is in equity entitled to a restoration of the property, which he has forfeited by a willful breach of the marriage contract, the court may, upon the dissolution or permanent suspension of the marriage contract, restore the injured wife to the whole of her property which has not already passed into the hands of bona fide purchasers. Upon the ground, also, that her equitable claim relates back to the time of the commission of the offense which entitled her to a divorce, . . . the court may not only protect that equity against the husband himself, but also against all others, except bona fide purchasers or others who have obtained a specific lien upon the property, without notice of her equitable rights and that she intends to enforce them by a bill for separation.”
The same rule is laid down by Bishop in his work on marriage and divorce, § 299. See also Foster v. Hall, 2 J. J. Marshall, 546; McCrocklin v. McCrocklin, 2 B. Monroe, 370; Kashaw v. Kashaw, 3 Cal., 312" court="Cal." date_filed="1853-10-15" href="https://app.midpage.ai/document/kashaw-v-kashaw-5432599?utm_source=webapp" opinion_id="5432599">3 Cal., 312.
It would be a reproach to a court of equity if it could not lay its restraining hand upon the unfaithful husband who, having violated his marriage contract, was yet making use of the same for the purpose of acquiring the possession and enjoyment of the property and rights of his wife, or who, from malice against the wife, or friendship towards a third person, should threaten to destroy her rights, or transfer her property to such third person, without any consideration.
The right of the plaintiff to maintain the action for slander against the defendant MaHin 8. Gibson, is one which survives to the plaintiff in case of the death of her husband, or in case of her divorce from him. This is not questioned by either
But it is urged by the learned counsel for the defendants, that because this is a mere right of action for a wrong done by the defendant, it is not property in the ordinary sense in which that word is used, and that therefore the circuit court, in an action for divorce, has no power to interfere with the husband in any disposition he may see fit to make of such right.
Suppose this right of action was for an injury to the plaintiffs person, by which she had lost an arm or had been otherwise maimed for life, and the person charged with the commission of the injury was abundantly able to pay any judgment for damages which might be recovered in the action, and the husband of the plaintiff, after having violated his marriage contract, should, for the purpose of depriving her of the benefits of such action, and for the purpose of getting a small sum for himself, threaten to compromise the claim with the person who committed the injury: would the court be powerless to prevent such wrongful acts, which might deprive her from recovering several thousand dollars? It is admitted that, under the same circumstances, the court could and would interfere to prevent the husband from collecting a promissory note for ten dollars, which came to his possession from the wife by reason of his marriage. The statement of the question shows the absurdity of an affirmative answer.
We are satisfied that no distinction should be made on account of the nature of the claim which the court is called upon to protect for the wife. If the claim or right is a valuable one, and upon which the wife may recover damages more or less, it should be protected against the acts of a husband whose sole right to the same depends upon the marriage contract, which í’ight he has forfeited by a breach thereof which entitles the wife to a divorce.
It is urged that, admitting the right of the wife as against
This she does not know, and has no means of knowing. She alleges in her complaint that the defendant Martin is confederating with her husband to defeat her action, and that she believes that he has released or will release the cause of action ; and she further alleges that, if it is so released or shall be hereafter released, it is or will be done fraudulently, and for the purpose of injuring her in her rights. Upon these allegations it seems to us that the ease comes within the rule recognized in Damon v. Damon, supra.
The defendant Martin admits, for the purpose of his demurrer, the truth of all the allegations in the complaint; he admits the confederating, and that he either has obtained a release of the cause of action against him, or intends to get such release from the other defendant, in fraud of her rights. And the answer of the defendant Sewell C. Gibson does not expressly deny, either that he has given the release, or that he intends to give one. If, therefore, it should turn out, upon a trial of this action, that a release has been given by the defendant Sewell 0., the plaintiff has the right in this action to have such release set aside, if she can prove that the same was made in fraud of her rights. She is entitled to know what the fact is, before she shall be compelled to proceed to the trial of her action of slander against the defendant Martin, in which the production of such a release by the defendant might be fatal to her action.
It seems to ns that there is no hardship in compelling the
It is also urged that this is an action to annul the marriage between the plaintiff and Sewell C. Gibson, and not an action for a divorce, and that therefore there is no reason for interfering with the prosecution of the slander suit; for if there never was a lawful marriage, a release given by Sewell 0. Gibson would not bind or prejudice the plaintiff.
We are of the opinion that the facts set out in the complaint do not form a basis for a judgment annulling the marriage, and that it must be treated as a complaint for a divorce and alimony. The facts alleged are sufficient to justify the court in giving a judgment of divorce, and are entirely in-sufficent to justify a judgment annulling the marriage; and as the prayer for relief is for a divorce and alimony as well as for a judgment declaring the marriage void, the complaint must be held to be a complaint for that relief which the facts set forth in the complaint show the plaintiff is entitled to.
By the Court. — The order of the circuit court is affirmed.