52 Kan. 380 | Kan. | 1893
The opinion of the court was delivered by
The parties to this action were married in 1856, and were, at the time this action was tried, both over 70 years old; yet the plaintiff, in the late evening of life, has brought her suit, seeking release from the matrimonial bond entered into so long ago, charging her husband with abandonment, cruelty, and gross neglect of duty. The defendant answers with a denial of these charges, and counter charges of cruel treatment and neglect on the part of the plaintiff toward him. He also alleges that he was induced^ by threats and repeated importunities to deed to her the farm on which they lived, and that she thereafter abandoned him; and he asks for a divorce and decree annulling said deed, and restoring the title of the lands thereby conveyed. The court trying the case made special findings of fact, from which it appears that the parties were married, as stated, in New York, and moved to Kansas in the following year; that the plaintiff at that time had $80 in money, and the defendant a mili
As conclusions of law, the court found that the abandonment was mutual; that there was cruelty, but not sufficient to warrant a divorce; that the property was unequally divided, and was all, in reality, the property of both; that the parties were in equal wrong and ought not to be divorced, but that there should be an equitable division of the property; and thereupon the court rendered a judgment in favor of the defendant for $1,000, and providing that on payment each party should possess his and her own property without the interference of the other. Of this judgment the plaintiff complains, and asks that it be reversed by this court.
The complaint is first made that the evidence fails to support the findings of the court. We have patiently examined it, and find ample testimony to support the court’s conclusions of fact.
The power of the court to make an order with reference to the property of the parties is challenged. Section 643 of the code reads:
“When the parties appear to be in equal wrong, the court may in its discretion refuse to grant a divorce, and in any such case, or in any other case where a divorce is refused, the court
This section, as above quoted, is an amendment of the General Statutes of 1868. The section as it stood prior to the amendment was as follows:
“ Sec. 643. When the parties appear to be in equal wrong, the court may in its discretion refuse to grant a divorce; but in any such case, or in any other case where a divorce is refused, the court may for good cause shown make such order as may be proper for the custody, maintenance and education of the children, or the control and disposition of the property of the parties, as may be proper.”
In the case of Snodgrass v. Snodgrass, 40 Kas. 494, decided before the amendment of 1889 became a law, it was held that
“Where a wife wrongfully procures the title of the homestead and other property to be transferred direct from the husband to herself, and then drives him from the premises, and he afterward obtains a divorce because of her wrongs, the property should be divided equitably between the parties, and he should have a fair share of the same.”
We think, under the law as it now stands, there can be no-question as to the power of the court to make an equitable distribution of the property of the parties; certainly not of that which has been the result of the labors and care of both. If the wife has by any means or for any reason obtained the legal title to more than her due share of the property, we see no reason why, in case an unhappy separation takes place, as has happened in this ease, the husband should not be awarded his due and fair share. We find no fault in the judgment of the court, and it is affirmed.
