| Miss. | Oct 15, 1854
delivered the opinion of the court.
This is an appeal from a decree of the superior court of chancery, sustaining a demurrer by the defendant to the complainant’s amended and supplemental bill.
To understand fully the main grounds of demurrer, as applicable to the amended and supplemental bill, it will be necessary to notice briefly the important allegations of the original bill, and to determine whether the object sought to be accom
It appears from the allegations of the original bill, that the complainant, sometime during the year 1826, intermarried with the defendant. That in consequence of the adultery and cruelty of the husband, the complainant, sometime about the year 1838, was forced to separate from him, and soon thereafter filed her bill praying a divorce a vinculo matrimonii in the circuit court of Lowndes county. That her bill coming on for hearing on the 10th day of January, 1840, in said court, a decree was made dissolving said marriage. No decree was then asked or made by the court for alimony out of the husband’s estate, or for other allowance. That at sundry times during the marriage, she received as a gift from her father divers slaves and other personal estate, the title to which, in virtue of the law then in force, vested in the husband. The amended and supplemental bill, attempts to give identity and certainty to the slaves and property of the wife, and in this respect to supply a defect in the original bill. It also sets forth the names of certain slaves alleged to be the natural increase of the slaves of the wife. Also the names of others alleged to have been purchased with the money arising from the labor of said slaves, and finally, that the defendant has, since the decree granting the divorce, purchased a certain plantation with money and means arising from the same source.
Upon this statement of the case, two questions arise on the demurrer for our consideration.
First. Whether the superior court of chancery can, or ought now to entertain, jurisdiction of the matters embraced in the two bills; and, secondly, if the jurisdiction can be entertained, is the complainant entitled to a decree for the property, the title to which, during the marriage, vested in the husband.
In regard to the first point, it is argued on behalf of the defendant in support of the demurrer, that the complainant having failed to take her decree for alimony in the circuit court, at the time the divorce was granted, cannot institute a separate proceeding in another court for this purpose.
On the other hand, it is argued that while the circuit court
The constitution authorized the legislature to give to the circuit courts “ equity jurisdiction in all cases where the value of the thing, or amount in controversy, does not exceed five hundred dollars; also in all cases of divorce, and for the foreclosure of mortgages.” Art. 4, § 16. The legislature by the act of March 2, 1833, organizing the circuit courts, among other things declares, in the language of the constitution in defining the equity jurisdiction of these courts, that it shall extend to “ cases' of divorce,” &c. Hutch. Code, 739, § 6.
The question then comes up for decision, whether the law, by investing the circuit court with full power to decree a divorce, intended that the court might go further, and decree alimony or an allowance to the wife out of the husband’s property, when the amount thus decreed should exceed the sum of five hundred dollars.
The authorities on this subject, almost without exception, agree that alimony is allowed only as an incident to some other proceeding, which may be legally instituted by the wife against the husband, such, for instance, as an action for the restitution of conjugal rights, divorce, &c. In which cases, temporary alimony is allowed pending the suit, and permanent alimony on rendering the final decree in a divorce case in favor of the wife. 2 Story’s Eq. 908; Pointer on Marriage and Divorce, 86; Ball v. Montgomery, 2 Ves. Jr. 195; Jones v. Jones, 18 Maine, R. 311. What, then, must have been the intention of the legislature in conferring this jurisdiction on the circuit court? Can it be inferred, or even plausibly argued, that this court was to be clothed with full power to adjudicate upon the principal matter, and not to be allowed to adjudicate questions which were only incidental to the main questions ? When jurisdiction was clearly conferred as to the principal, was it not at the same time conferred as to the incidents ?
Having decided, then, that the jurisdiction of the circuit court was full and complete in the divorce case, as to the matters now in controversy, at. least so far as the claim for alimony is concerned, and the complainant having failed to ask a decree in this respect, the question is, whether the present bill shall be entertained by the superior court of chancery. While equity, inclines, at the proper time, and in the proper case, to administer justice on a liberal scale, in favor of an injured wife, against a guilty husband, yet it can dispense with none of those salu
It is only necessary to state that the complainant’s case -falls fully under the operation of this rule, and her bill cannot therefore be sustained.
We do not intend to intimate that there may not be cases in which an original bill, after a decree for a divorce, could not be maintained for alimony, but only that the present bill shows no sufficient reason for not taking, or at least asking, such a decree from the circuit court, touching the matters now in litigation. A good reason must be alleged why the alimony was not at the proper time allowed. What will be a good reason, must depend upon the facts of the case when presented.
There is one other question which we will notice. The bill is framed, as will be seen from the statement of the case, with a Ariew of obtaining a decree for alimony, and also for a restitution of the slaves, and other property, which the wife brought into the marriage. The first question has already been disposed
It is insisted, that the moment the decree of divorce was pronounced, the wife, became entitled to all the property which, in virtue of the marriage, had vested in the husband.
It is possible, and indeed probable, that the court in giving a liberal construction to the statute, (Hutch. Co. 496, § 7,) might make such a decree. The language of the law is, “ and the court shall and may make such order touching the maintenance and alimony of the wife, or any allowance to be made to her,” &c. “ as from the circumstances of the parties and nature of the case, may be fit, equitable, and just.” But it must be borne in mind, that the same law which gives this discretion to the court also provides that the order must be made by the same court pronouncing a decree for a divorce.
Under the operation of the principles already stated, this was a matter for the circuit court to adjudicate, and no good reason having been shown why it was not acted on, the bill cannot in this respect either be sustained.
If it be true, aside from the statute, the wife, upon being divorced, can reassert her original title to the property; according to well recognized principles of equity, the bill ought for this purpose to be maintained, as such title is not one of the incidents, as contemplated by the statute, which the court could decree, on an ordinary bill for a divorce. In the latter class of cases, the decree reaches or charges only the husband’s property, upon the ground, that notwithstanding the marriage is dissolved, yet, as he is the guilty party, the court will still continue to enforce his original obligation to maintain his wife according to his means, and to do whatever else may be consistent with equity. While he justly forfeits the benefits accruing from the marriage relation, the law has wisely said that he must still continue to bear its burdens, and hence to accomplish this object, a court of equity acquires jurisdiction over his property. In the latter case, however, the wife predicates her right to recover the property solely on the ground that the husband took the title sub
As a matter of course, if this is the nature of the title which the husband acquired in virtue of the marriage, no difficulty will be met with in sustaining the bill. In the investigation of this question, we have given to the argument of counsel, and the authorities cited, a patient and careful examination. We have done more; we have examined many others not cited in the briefs of counsel, and we deem it only necessary, without referring to them, to state the conclusions at which we have arrived. While we are compelled to confess that there is much dicta thrown out by the various courts in delivering their opinions sustaining the views of counsel, yet we have met with no case in which any court has ventured to decide, that a title perfected in the husband to the wife’s property before a divorce; could ever thereafter, upon any recognized rule of equity, be byi her reasserted. Our first impressions upon looking into the au-l thorities, were in harmony with the arguments of the complain-^ ant’s counsel. But we are compelled, upon a deliberate exam-; ination of the point, to declare that, as a principle of equity aside from statutory regulation, it has no existence whatever. Where the marriage is declared void, the wife, of course, can recover at law her property; because, in such case, the title never vested in the alleged husband. So where the title has not been perfected in the husband, even in case of a valid marriage, before a divorce, the wife may recover her property, upon the principle that to give him a title, she must be his wife at the time the title itself is perfected.
It is, however, unnecessary to pursue further the investigation of this question.
Decree affirmed.