The opinion of the court was delivered by
Martin, C. J.
: I. We deem it unnecessary to decide whether the proceedings of the probate court in August and September, 1891, for the restoration of Alvin S. Rodgers to his rights as a sane man were valid or not. It appears that, during his residence *487in West Virginia, he was always regarded as sane, and, two years before this action was brought, he commenced proceedings for a divorce, and he actually obtained a decree on July 17, 1889, which was set up in his behalf as a bar to the present action. Under the circumstances, the defenses of insanity and a prior divorce are irreconcilable with each other. It is true that a presumption of continued insanity arises from an adjudication thereof, but this is not conclusive, and the evidence of the sanity of Alvin S. Rodgers ever since 1886 is. sufficient to overthrow the presumption arising from the adjudication hi 1883. An adjudication of restoration by the probate court is not indispensable, but the presumption of continued insanity may be overcome by other evidence. (Water Supply Co.v. Root, ante, p. 187, 42 Pac. Rep. 715.) The desertion of his wife and children by Alvin S. Rodgers was probably a manifestation of his mental disorder, and therefore originally not a cause for d¿voTce; but certainly he should be held to an abandonment, at least, from the date that he commenced his divorce proceedings at Wheeling, and abaiydonment for one year is a sufficient cause for a divorce in this state.
II. As a divorce against a non-resident of this state may be obtained on service by publication, comity requires that we should give full faith and credit to decrees of the courts of sister states of a like nature when authorized by law. In such cases we must treat them as judicial records, and under the protection of section 1 of article 4 of the .constitution of the United States. The question of jurisdiction, however, is always open' to inquiry. Under the laws of West Virginia introduced in evidence, as well as our own, the status of married persons comes within the range of the judicial power, although the parties may reside in differ*488ent states. ^But it will not be claimed that the title to land or the custody of children in one state can be settled by the decree of the courts of another ; and, while the West Virginia court did make a general order purporting to bar the rights of the wife in the real and personal property of the husband, yet this part of the decree could have no extraterritorial force so as to settle the title of any property outside of that state. Mrs. Rodgers had acquired a homestead interest in the land upon which she resided with her children, and this could not be divested by the decree of any court of another state. 'We must therefore hold that the district court of Cloud county had jurisdiction over the question of alimony and the custody of the children, notwithstanding the West Virginia divorce, which must be held valid to the extent of dissolving the marriage relation^/We think that the English common-law doctrine that alimony is an incident only to a sci^t for divorce, and cannot be the subject of an independen't action, should be regarded as modified in this state, where we recognize the validity of service by publication and the right of a wife to sue for alimony alone. The defendant is often entirely ignorant of the proceeding for divorce-, as in this case, and may know nothing of the place of residence of the plaintiff. The wife may have no opportunity of setting' up a claim for alimony no: for the custody of children ; and, if she had kncv 'edge of the proceeding, the court of another state would lack the power to deal effectually with these questions; and, as stated by the supreme court of Ohio in Cox v. Cox, 19 Ohio St. 502, 512, the wife may be still regarded as holding that relatioh for the purpose of enforcing her claim to alimony and the custody of children. We think our position in this respect is supported by principle and *489upon authority. (Cox v. Cox, supra; Cook v. Cook, 56 Wis. 195" court="Wis." date_filed="1882-11-21" href="https://app.midpage.ai/document/cook-v-cook-6603934?utm_source=webapp" opinion_id="6603934">56 Wis. 195, and cases cited.)
III. It was error for the court to give by its decree to the children the south half of the quarter-section. They were not parties to the action. Their mother brought suit for a divorce, for alimony, and for their custody, and the court had a right to award the whole quarter-section to her as alimony and for the support of the children; and it appears that the south half was intended to be given for their support, but it was error to attempt to vest the title in them. “ No one is an heir to the living.” The children could not in any event inherit any property from their living parents, and the court had no authority to vest the title in them.
For error of the court in granting to Mrs. Rodgers a divorce, and thus failing to recognize- the validity of the West Virginia decree in that respect, and the awarding of the south half of the quarter-section tothe children, the judgment will be reversed, and the cause remanded for further proceedings in accordance with this opinion.
All the Justices concurring.