144 S.E. 875 | W. Va. | 1928
In this divorce proceeding by Mrs. L. V. Philips against W. R. Philips, the trial court granted the complainant a divorcea vinculo on the ground of adultery; awarded her the custody of the minor children; ordered that the husband pay alimony of $30.00 per month; and under the authority of section 11, chapter 64, Code, decreed that the title to certain real property valued, according to the evidence, at $7,000.00, with a lien against a portion thereof, of $1627.51, should remain in the wife, and that she should deed her half interest in a lot described as lot 11, block 10, to her husband. This property was valued at about $10,000.00 with liens against it of $3900.00. The complainant excepted to the court's decree requiring her to make this conveyance.
The sole question presented on this appeal is whether the trial court could, under the authority of section 11, chapter 64, provide in a divorce proceeding for a division of real estate acquired by them during the marriage between the complainant and defendant.
As a general rule, a court cannot in a divorce action decree a division of property between husband and wife. The authority exists only by statutory enactment. 19 C. J. section 770, p. 331. Our statute on this subject, section 11, chapter 64, Code, provides, in part: "Upon decreeing the dissolution of a marriage, and also upon decreeing a divorce, whether from the bond of matrimony or from bed and board, the court may make such further decree as it shall deem expedient, concerning the estate and maintenance of the parties, or either of them. * * *"
This Court in Norman v. Norman,
In a number of States by statutory enactment the trial court may in a divorce proceeding make a division of the property between husband and wife. These statutes are quite different from ours and are not very helpful in aiding us to determine the power which the trial court in this state can exercise under section 11, chapter 64, Code. The clear purpose of this section was to give the court power to determine and adjudicate the questions naturally arising upon a dissolution of marriage or the granting of a divorce a mensa et thoro, or a vinculomatrimonii, concerning the estate and maintenance of the parties or either of them, and the care, custody and maintenance of the children, if any there be, resulting from the marriage. Just how far the court may decree concerning the "estate" of the parties is not clear. What is the meaning of "estate" in this statute? Shall it be construed to mean only the dower or curtesy interest which one spouse has in the real estate of the other, and thus confine the power of the court to decree only concerning the "estate" of the parties arising out of and by virtue of the marriage relation? Or shall it be construed more liberally to include the estate of the parties, or either of them, acquired while living together as man and wife? We are not unmindful of the holding of the Virginia Court in Barnes v. American Fertilizer Company,
The decree of the lower court will be affirmed.
Affirmed.