Sherwood v. Sherwood

32 Conn. 1 | Conn. | 1864

Butler, J.

With one exception the errors assigned upon the record are not manifest.

1. It is assigned for error in the first place that the facts alleged in the bill do not justify the decree, for that the dioses in action therein described, consisting of notes due and payable to the wife and owned by her at the time of the marriage^ did not vest in the husband as trustee.

It must be conceded that the bill is founded on a claim of title to such notes as trustee, and such title must appear ; that at common law no such title would accrue by force of the marriage; and that such title could not accrue to the plaintiff at all unless by force of the statute of 1855.

That statute was enacted before the marriage took place, and is applicable to it; and we think it very clear on the facts averred and found, that such title accrued to the petitioner by force of it.

Like other statutes to which the ordinary rules of construction are applicable, the attention of the General Assembly must be ascertained from the language used, unless explained and qualified by the object and purpose of the law. The language is simple and comprehensive, and all that is material of it is— “ that the several provisions of the act of 1849, relative to the property and estate of married women, be extended and applied to all property owned by any woman previous to the time of her marriage.” The principal provision in the act of 1849 was, that property accruing to the husband during coverture, in right of his wife, should vest in him as trustee. The provision in that act was limited to property accruing during coverture. It was the purpose of the legislature to extend the provision to other property. What property ? The plaintiff in error says to property owned by her which. by force of the marriage vested absolutely in the husband, and that only. The law says “ all property owned by her before her marriage.” This language alone considered necessarily includes her ehoses in action ; and we are pointed to nothing, and discover nothing in the act, or the object and purpose of it, which indicate the intent claimed. On the contrary the use of the language “ owned by her before marriage,” instead of the language “ accruing to him,” used in the original act, is clearly indicative of an intention to include such property. And looking to the purpose of the law, we find that it was to protect the property of the wife against the husband, as well as his creditors, and secure the same for the support of her and her children ; and choses in action which he could immediately after the marriage vest in himself by reducing them to possession, were clearly within the object of the law. The language therefore being peculiar and unequivocal, and the object and purpose of the law in harmony with it, there is nothing to indicate an intention variant from its plain import, and to justify the construction claimed.

2. The plaintiff in error insists in the second place that the court erred in not requiring the petitioner to make provision for her support before directing her to deliver the property. We think the court would have erred if it had attempted to do so. The respondent had and has adequate remedy at law, as well upon the bond she had procured for her safety, as by application to the court of probate for his removal, if he failed to apply the income to her support. The court therefore could not make the supposed order without contravening the prohibition of an express statute and the well settled rules of equity. Moreover, if the court possessed the power to make such an order, the exercise of it was a matter of discretion and not of absolute duty, and therefore not assignable for error. And we may properly add that as she was otherwise abundantly secured the discretion was properly exercised.

8. The third error assigned is not manifest. We are not able to perceive how a man can be estopped against the exercise of a marital right by a mere declaration made before marriage that he should not want to exercise that right, although it .may have been one of the inducements to the marriage, (for it certainly could not have been the only one,) and was true when made and for a considerable period after the marriage. As a rule, even ante-nuptial agreements in restraint of the exercise of marital rights, are avoided by the marriage, unless of a nature to be saved and in fact saved by the intervention of as trustee. 1 Swift Dig., 28, 29. Moreover no foundation was laid by the averments of the cross-bill for the introduction of the testimony, and it was properly rejected.

4. Nor do we discover any error in the order of the court requiring the petitioner to deliver her choses in action to her husband. The decree must have a reasonable construction, and all parts be construed together. The court went into a hearing in respect to the property withheld. No claim was made in the petition or on that hearing for paraphernalia, and the court found what other property she had. Although the order to deliver is general, the property so found to be in her possession was obviously intended and no other. And so the decree was doubtless understood by all parties at the time. Besides, if the rule of construction claimed is to be applied to the decree it must be to the law also, and as the former is no broader in its terms than the latter it can not be impeached for error.

5. But that part of the decree which directs the sheriff to commit the respondent to prison, in the event she failed to comply with the order to deliver the property to her husband, is erroneous and must be reversed. It is said to be in conformity with an occasional and hitherto unquestioned practice ; but it is not in conformity with the analogies or policy of orrrlaw, and is liable to abuse. It does not conform to the analogies of the law, for although the court had power to imprison for the purpose of enforcing the decree, some finding or judgment by the court in such a case, that the party had in fact disobeyed it, and was in contempt, either on motion or by process of attachment, was essential to regularity, and required by precedent and the safety of the citizen. It does not conform to the policy of the law, for that requires that a mittimus, setting forth some actual and absolute judgment or finding or command as the ground of the imprisonment, shall accompany it. Here there was nothing of the kind directed, and no evidence which could properly be regarded that the contingency upon which the respondent was to be committed had occurred. The sheriff certified to a demand and refusal; but the duty •was not to be performed and the delivery made to him, or upon his requirement, but to the petitioner, nor does the decree contemplate a demand by him; and in making service in obedience to the order, upon a fair construction of it, it was sufficient for the sheriff to take the word of the party, for no one but the pai’ty was authorized to judge ; and indeed his authority, if the court could delegate any to him, was conferred not expressly but by implication.

And such an order is liable to abuse, for a person may be arrested and imprisoned under it at the will of the opposite party for an apparent failure to comply, when there has been a substantial though not literal compliance; or where compliance has been prevented by the party interested ; or where something has occurred subsequently to the making- of the order to prevent compliance and render it impossible, or to excuse it if the party could be heard. Obviously therefore, such an order leaves the respondent too much at the mercy of the other party, and in respect to the vital right of personal liberty.

The case of Lyon v. Lyon, 21 Conn., 185, cited by the petitioner, is not in point. That was a writ of “ ne-exeatand the contingent command to the sheriff to imprison in the event security in the nature of bail was not given by Lyon, that he would not depart from the jurisdiction of the court, was a necessary part of such a writ, and justified by the necessity and peculiarity of the case, and furnishes no analogy for other proceedings where no such necessity exists.

But that part of the decree is entirely distinct from and independent of the other portions of it, and it may and should be reversed without disturbing the rest.

Judgment therefore must be rendered reversing so much of the decree as orders the sheriff to imprison the respondent on default of compliance with the order to deliver up the prescribed property, and affirming the residue.

In this opinion the other judges concurred.