| Va. | Apr 21, 1892
delivered the opinion of the court.
The case, so far as it is necessary to state it here, is as follows :
In 1840 one Mai’y Arnett, the then wife of Joseph Arnett, brought a suit for divorce from bed and board against her said husband on account of cruelty and abuse, driving her from home, and putting her in fear of bodily injury.
The said Joseph Arnett answered, denying cruelty, and charging infidelity upon his wife.
During the pendency of this suit the parties thereto — plaintiff' and defendant — after taking their evidence, in the form of depositions, on the 15th day of May, 1840, entered into an agreement in writing to the following effect: after stating the pendency of the suit, and their willingness to adjust all matters embraced in the suit; “that Joseph Arnett agree to assign over to-, for the benefit of the aforesaid Mary Arnett, good bonds to the amount of $650, payable on or' before the last day of October, 1840, one-third part of the land in the bill mentioned, according to quantity and quality, beginning at -, on the upper part of the area, to include the spring and ten acres of cleared land, on which there is to be built a log house, say, eighteen feet square, hewed down, inside and out, with a plank floor above and below; the one below to be laid square edge and nailed down, the other to be laid in the rough state, &c., &c.'; furnish the said Mary Arnett Avith a bed and stead, &e. (Avhich she iioav has in possession); one hundred pounds of bacon and two barrels of corn, one pine table, three good split-bottom chairs, utensils for cooking, &e.,
This was the final decree in the cause, and the parties ever after perpetually lived apart. The wife died in 1865, and the husband in 1883.
It so happened that four years after this decree of final separation in 1843, in the year 1847, the woman, Mary, purchased one-half interest in a tract of land of Motley and wife, containing 169-| acres, lying in the county of Pittsylvania, Virginia, and three years after sold the said tract of land, in'the year 1850, to
The foregoing statement is not controverted, the facts being admitted. The errors assigned are: First, that the court erred in holding that the parties, Joseph and Mary, his wife, were not legally separated by the decree of 1843, and that the deed of Mary to Paul Marshall was invalid. Secondly, that if there was no divorce a mensa et thoro, between the parties that still the agreement between them of 1840 should have been held binding, and estopped Joseph, after the death of his wife, from claiming after-acquired land of hers, and that whatever right the children of Mary Arnett had accrued to them at the death of Mary in 1865, and they were barred in 1890, when they brought their suit; and, thirdly, the form of the judgment was erroneous, and should be set aside, as it was a judgment for their term yet to come in the land, and not a judgment for the land, the premises described in the declaration.
As to the first assignment of error, our Code, section 2264, provides: “ In granting a divorce from bed and board, the court may decree that the parties be perpetually separated and protected in their persons and property. Such decree shall operate upon property thereafter acquired and upon the personal rights and legal capacities of the parties, as a decree for a divorce from the bond of matrimony, except that- neither party shall marry again during the life of the other.”
Mr. Minor, in his Institutes, Vol. 1, p. 272, states the effect on the legal capacities or incapacities of the parties wrought by a divorce, a vinculo matrimonii, annuls the marriage, leaves
In Virginia the effect of a divorce, a mensa et thoro, when there is a decree for the perpetual separation of the parties, “ Such decree of perpetual separation is expressly declared by statute to operate upon the personal rights and legal capacities of the parties as a decree of divorce a vinculo matrimonii, except that neither party can marry again during the life of the other. Va. Code, 1873, chap. 105, sec. 13; ” 1 Min. 275. Section 13, chapter 105, is the same as section 2264 of the Code, supra.
Mr. Conway Robinson, in the second volume of his Old Practice, speaking of this statute, says: “ A decree of perpetual separation from bed and board shall have the same effect upon the rights of property which either party may acquire after the decree and upon the personal rights which either party may enjoy after such decree as a divorce a vinculo matrimonii would have, save only that no such decree of separation from bed and board shall authorize either party to marry again during the life-time of the other.”
The decree in question of 1843, confirming the parties’ agreement and decreeing in accordance therewith, is, we think a decree in substance for divorce a mensa et thoro, by which the parties are perpetually separated, because operating during the life of the wife it is perpetual. It was not a decree upon admissions of either party, but was in suit when the usual proceedings were had, depositions taken, and it was argued by counsel, and that the decreee was in accordance with the resolution of the parties, made three years before pending the suit, does not make it a decree founded upon.their admission, but upon the court’s judgment. It was binding upon the parties to the suit, it was not appealed from, has never been set aside, and it is binding upon the parties claiming-here under the parties to that suit. ■ It excluded the rights of the husband to courtesy, and whatever rights .Mary Arnett’s children had to this after-
It is not necessary to go further into an examination of the questions raised on the second ground of exception. AYhat has been said is conclusive of the case. As to the third assignment of error, see Alvey v. Cahoon, 86 Va. 173" court="Va." date_filed="1889-06-13" href="https://app.midpage.ai/document/alvey-v-cahoon-6808344?utm_source=webapp" opinion_id="6808344">86 Va. 173, and authorities cited.
For the foregoing reasons vre are of opinion to reverse the judgment complained of here, and to render such judgment here as the circuit court ought to have rendered.
Judgment reversed.