16 Ala. 121 | Ala. | 1849
The plaintiff in error filed her bill in the Chancery Court of Monroe county, against her husband, Joseph Q. Guild, and William A. Lash and John Bonner, who she charges are the administrators of her deceased uncle, William Boyles, late of North Carolina. The bill charges, that
The husband answered and admitted the allegations of the bill, and a decree pro confesso was entered against Lash and Bonner, the administrators of Boyles. The chancellor at the May term 1847, dismissed the bill for want of jurisdiction, and that decree is assigned in this court as error.
It appears in this case, that the wife is without any provision made by the husband for her maintenance, and the question is, whether she can file a bill against her husband and those holding property which descends to her, but which the husband has not reduced to possession, so' as to have a settlement or provision decreed to her out of it.
A similar question came before the English court of chancery in the case of Lady Elibank v. Montolien, 5 Ves. 737-743, which was a bill by the wife against her husband, and the administrator of an intestate, (to a share in whose personal estate she was entitled as one of the next of kin) for a provision out of her share, to be set apart for her, and it was re-fered to the master, to see that a proper settlement was made apon the plaintiff and -her children. So also an injunction has
Judge Story speaks of the wife’s right to relief, as plaintiff against her husband, or his assignees, in respect to her equitable interests, as an admitted equity, which the court enforces to prevent an irreparable injustice. 2 Story’s Eq. Jurisp. § 1404: and he holds that 1he doctrine is firmly established, that whenever the wife is entitled to this equity for a settlement out of her equitable interest against her husband, or his assigns, she may assert it in a suit, as plaintiff, by bringing a bill in the name of her next friend, (ib. § 1414.) See also note 1, 867, vol. 2, 4th edition,where the cases are collated; 5 Johns. Ch. Rep. 446; Van Duzer v. Van Duzer, 6 Paige, 366. From these authorities we think it very clear, that the wife’s right to her bill is in dispul able in the present case, and that the chancellor erred in dismissing it for want of jurisdiction, unless he was authorised to do so upon the ground, that the estate out of which she sought the provision was without the jurisdiction of the court. We will therefore, briefly consider this, which is the remaining proposition.
In Toller v. Carteret, 2 Ver, 494, the bill was that the defendant might redeem a mortgage, executed by Sir Philip Carteret, on the Island of Sarke, or be foreclosed. The defendant pleaded to the jurisdiction of the court, that the Island was part of the Bntchy of Normandy, and had laws of its own, and was under the jurisdiction of the courts of Guernsey. The Lord Keeper, (Sir Nathan Wriglit) overruled the plea, observing lhatas the defendant was served with process, the court had jurisdiction upon the maxim, “ aquilas cigit irt-personam.” In Penn v. Lord Baltimore, 1 Ves. 440, it was held, that the Court of Chancery in England, having'jurisdiction of tiie parlies, could decree the specific execution of a contract entered into in respect to the boundaries of Pennsylvania and Maryland. 1 Story’s Eq. Jurisp. § 473, 899; 1 Ver. 77. Indeed, it is well settled, tnat the Court of Chancery has jurisdiction to decree the specific execution of contracts in respect to the sale of lands, or incorporeal lieredi-
In the case at bar, the husband being within the jurisdiction, and served with process, it was competent for the chancellor to compel him’to do what was equitable and just in respect to the property of the wife, and to havé restrained him in the exercise of his marital rights over the property, unless he would make-a suitable provision for her; so that as to him, the court had jurisdiction, and the bill was improperly dismissed. But as to the administrators of Boyles, the decedent, they being without the jurisdiction of the court, and in possession of the subject matter of the suit, it is very clear, that the court had no jurisdiction as to them. The bill was therefore very properly dismissed so far as they were concerned, and the decree as to them must be affirmed; but as to the husband, Joseph Q,. Guild, it must be reversed and remanded, that the chancellor may proceed to make a suitable provision for the wife’s maintenance, vesting so much of the property in a trustee, for her benefit, as under the circumstances, shall be deemed adequate to her support.
Let Joseph Q,. Guild, the husband, pay the cost of this court.