12 Del. Ch. 169 | New York Court of Chancery | 1920
On December 16,1919, the complainant,, bill was filed to recover back from her husband, the defendant’ moneys belonging to her, being the proceeds of sale by him of property belonging to her. In 1904, while living as husband and wife with the defendant, the complainant was arrested and since then has been in jail serving a sentence of imprisonment for life. She alleges that he owns real estate in Dover bought with her money, and that he has refused to account to her; that she had obtained a decree nisi in a suit for divorce from him, and feared that he would dispose of his real estate to defeat the recovery by her of the money due her. It was also alleged that the complainant had paid premiums on a policy of insurance on her life, and that he refused to give her possession of the policy. The prayers were for an account and injunction to restrain a conveyance by him of the real estate pending the hearing of the cause. A rule for a preliminary injunction was granted, and the defendant was restrained pending the hearing of the rule.
At the hearing of the rule on February 5, 1920, no evidence was offered by the complainant, except an affidavit made by herself. The defendant had filed on January 6 an affidavit made by him denying the allegations of the bill, alleging a settlement on Febrauary 14, 1904, with the complainant, and the giving by her of a release to him which release had been stolen from the defendant in 1918 and was not produced. A copy of the record of the suit of the complainant for a divorce was annexed to the affidavit of the defendant, and by it it appeared that in the petition
It was argued by the solicitor for the defendant that the main subject-matter of the bill had been adjudicated in the Superior Court, and that that judgment was a bar to the maintenance of the cause in this court, all of the requisite conditions being present, viz. Identity (1) of the thing sued for; (2) of the cause of action; (3) the persons and parties to the action; and (4) of the quality of the persons fqr and against whom the claim is made. This is turning an affidavit into a plea, but for the purposes of the rule this does not matter. Sill v. Kentucky, etc., Co., 11 Del. Ch. 93, 97 Atl. 617. The four conditions are present, as to the claim of the complainant against the defendant set up in the bill except as to the policy of insurance on her life. But the complainant’s solicitor urges that the Superior Court did not have jurisdiction to restore to her her personal property, and that the award of five hundred dollars to her must necessarily have been intended as an allowance to her from his property, and that he must still account to her for her property.
To be a second suit it must be shown either by the record, or by extrinsic evidence, that the same question was necessarily raised and determined in the former suit. Russell v. Place, 94 U. S. 606, 24 L. Ed. 214; Hudson v. Layton, ante p. 106, 107 Atl. 785. Does it so appear here from the record ? The answer to this depends on a consideration of the statute. By paragraph 3018, p.
“That when a divorce shall be decreed in the case of the agression of the husband, the woman shall be restored to all her lands and tenements, and be allowed out of the husband’s real and personal estate, such share as the court shall think reasonable, having regard to the personal property that came to him by the marriage, and his estate at the time of the divorce." •
In 1832, and also in 1852, the rights of a husband over his wife’s estate were those given at common law unaffected by the statutes. When those acts were passed it was not appropriate to provide for a restoration to the woman of her personal property, for if he had taken it it was his absolutely, and so allowances to her were made from his estate. But in these latter days when the fullest power has been given to a married woman over her own property, it seems odd that the statute should not have been changed so as to restore to her any of her property which he may have taken and held from her. The answer to the question is, thát when granted a divorce she could by proceedings at law enforce her rights, and during coverture enforce them in Chancery.
Had the Superior Court jurisdiction to require the defendant to pay to his wife in money an equivalent for the property belonging to her which she alleges he took and holds? After an examination of the decisions of the state, I find only one case bearing on the subject. In Kingsberry v. Kingsberry, 3 Har. 8 (1839), the court not only restored to the wife, the petitioner, her lands, but also “directed the transfer to her of certain securities that belonged to her before the marriage, and the restoration of a servant boy; and allowed to her out of her husband’s estate the sum of one thousand dollars.” The report does not state more
The questions here discussed were raised on a rule to show cause why a preliminary injunction should not be awarded, and that also involves a continuance of the restraining order.
It further appears that the demands are very stale and might have been enforced at any time during the last fifteen years. Also there is no denial of the settlement and release referred to in the affidavit of the defendant.
For all of these reasons the discretion of the court to grant or continue injunctive relief is not moved to assist the complainant further, and the rule will be discharged and the restraining order dissolved.
The questions of law raised are discussed more fully than is usual at such preliminary hearings, but it seemed best to do so in this case in denying the relief, and an expression of my views may assist an amicable settlement of the differences between the parties without prolonging the litigation.
The rule will be discharged and the restraining order dissolved.
