42 Tenn. 534 | Tenn. | 1865
delivered the opinion of the Court.
This is a hill of revivor, filed in the Chancery Court at Nashville, against the executors of Joseph M. Swan, deceased, to revive a cause brought by bill in that Court, by the complainant in this case, against her husband, Joseph M. Swan, in his lifetime, for divorce and alimony, and to cause a decree for a divorce a vinculo, which, as it is alleged, rested, in the former ease, in the breast of. the Court, but was never announced, to be now declared, and entered nunc pro tunc. The application is one of singular novelty, and the argument on both sides, has been conducted wth great research and ability.
The record in the original .cause is not before us; hut enough appears from this record, to warrant the belief, that this unfortunate controversy is but a repetition of those relentless contests, that sometimes arise, even in the higher walks of life, which shock the moral sense of the community in which they occur.
The original bill, as it appears from the references made to it in the hill of revivor, charges the husband with adultery, cruel and inhuman treatment, and wilful desertion and abandonment. To this the husband
It is proper to say, that it further appears in the bill, that Joseph M. Swan, in his lifetime, was possessed of a large estate, most of which consisted in money, bonds, and obligations to pay money, and which amounted to about $75,000; and that before his death, by deeds inter vivos and Will, he disposed of his entire estate, without, in any manner, providing for his wife, except one-third interest in the house and lot upon which she resided in the city of Nashville, worth, as we may infer from the record, about $6,000.
Under this state of facts, various questions are presented in argument, among which, the first deemed necessary to be noticed, is, the right of the complainant to an order, directing the unannounced decree for divorce a vinculo, to be entered nunc pro tunc.
To sustain this position, various authorities have been referred to and relied on in argument; but, upon examination, none of them appear to carry the doctrine so far as it is contended for in this case. The English practice of drawing up, passing and entering decrees, is so different from ours, that but little direct authority can be drawn from them, which is applicable to the practice in this country. Most of the American cases will be found to rest upon applications made during the term, or upon a peculiar state
The Chancellor must, have heard the cause, even after the award. Arbitrators have no power, under the Statute, to grant divorces or set apart alimony, without the concurrence of the Court. The Code, sec. 2465, 2467 and 2468, in substance, expressly provides, if the Court, upon hearing the cause, is satisfied that the complainant is entitled to relief, it may be granted according to the ' circumstances of the case. Tlie marriage may be declared null and void ab initio, or the bonds of matrimony dissolved forever, or a perpetual or temporary separation declared; within either case, such support and maintenance to the complainant, as the nature of the case and the circumstances of the parties may require. We are, therefore, of the opinion, that the declaration of the arbitrators, in no aspect in this case, was such a decree, as a court of equity could, under any circumstances, after the close of the term, order to be entered as the decree of the Chancellor nunc pro tunc. No decree for a divorce having been pronounced, none can now be entered. The prayer of this bill in that respect, has been answered by the
The marriage contract, in all Christian countries, is peculiar, and in many respects, different from all others. It is for life, and the parties themselves have no power to dissolve it. The public has a direct interest both in the contract and its dissolution, not only on account of the good order and morality of the State, but on account of the increase and growth of its population. In Scotland, (and formerly, and perhaps still, in some of the States of the Union,) it is provided by Statute, (24 and 25 Vic., ch. 86, sec. 8,) “that it is competent for the Lord Advocate to enter an appearance as a party in action of decía-
Alimony, in the Ecclesiastical Courts, was only granted in case of divorce a mensa et thoro, and to continue during the joint lives of the parties. The marriage, in such cases, was allowed to be valid and operative, to vest the husband with the wife’s property, and consequently impose upon him the reciprocal duty of supporting her during the existence of the matrimonial obligation. But even in England, where the divorce was a vinculo, which was only declared where the marriage was adjudged void, ab initio, the woman’s property remaining unaffected by the void marriage, was always, as far as practicable, restored to her.
Under the English practice, it is perfectly apparent, both upon principle and authority, that no alimony can be granted, except as an incident to a divorce, a mensa et thoro; and, when granted, was only that allowance out of the husband’s estate, which was judi
But it is insisted that our Statutes totally change the English practice, as well as the general law, upon the subject of divorce and alimony; and that a bill for alimony will lie, independent of an application for a divorce, and as such, on the death of the husband, does not abate, but may be, under the Code, section 2845, revived against his personal representatives. The Code, as well as our Statutes, passed previous to its adoption, in many important particulars, has changed the English practice. By section 2465, the Court is authorized, on hearing the cause, to grant such relief as the complainant may be entitled to, “either by pronouncing the marriage null and void from the beginning, or by dissolving it forever, and freeing each party from the obligations thereof, or by separation
This allowance may be decreed to the wife, if the separation is perpetual, in solido, absolutely, or if otherwise, to be paid to her at stated periods, for a limited time, or for life. It may consist of, a part of' the Husband's real or personal estate, or it may be charged upon the former, as the Court may, in its sound discretion, under the circumstances of the case, think proper, having reference to the property that the husband received from his wife at the time of the marriage, or afterwards, as well as to the separate property secured to her by marriage contract, or otherwise.
Under the broad and comprehensive provisions of these Statutes, the wife, as in the case of Niceby vs. Niceby, 3 Head., 184, on a proper case made out, may, through the intervention of a Court of Chancery, have a suitable maintenance decreed to her out' of her husband's estate, even without an application for a divorce or decree of separation. But this right arises out of the marital relation, and the obligation of the
A contrary doctrine would. be at war with the settled practice of the State, and calculated to disturb the repose of society. Alimony, support or maintenance, either with or without an application for a divorce or separation, cannot be granted, unless the husband is brought before the Court, except in such cases as he cannot be served with process, and after bill or petition charging and proving him guilty of such gross misconduct as violates his marriage vow. If this could be done after the death of the husband, in a suit brought against or revived in the name of his personal representatives, it would be in the language of the case in 2 Des. Equity R., 198, 209, “putting it
Such is the unbroken current of authorities, as Well as of reason, in this class ol cases, and we do not, in this case, incline to violate either the reason or authority of the cases.
Affirm the decree of the Chancellor.