77 Md. 189 | Md. | 1893
delivered the opinion of the Court.
The appellant, Rebecca Wagoner, by her next friend, filed her bill against her husband, Elijah Wagoner, praying for a separate maintenance and support for herself and daughter, out of the rents and profits of certain real estate mentioned therein, and also for an injunction to restrain him from collecting such, as might be set apart for her, and also from interfering with the property' until the final hearing of the case. Upon the filing of this bill, the Court, on the thirtieth of March, 1885, ordered the injunction, and the writ was accordingly issued on the following day. The defendant answered the bill on the thirtieth day of September following, and moved to dissolve the injunction. While this motion
The charges of the amended bill, briefly stated, are ■ as follows: Thai; she was married to the defendant in the year 1846, and lived with him until 1876; that three children were born of the marriage, who now survive, all of whom now reside apart from her; that she inherited from her father, who died in the year 1852, certain real estate, described in the bill, and was entitled from his estate to certain funds, which passed into the hands of her husband, of which only a small part now remains; that up to the year 1878, he received all the rents and profits of the said real estate, and provided for the support and maintenance of his family; that in May, 1879, he became an insolvent, and since then has been possessed of no properly, except some personal property of small value; that he ceased to provide for his family during the year 1878, and from May, 1879, has contributed nothing for their maintenance, and from that period has abandoned all care and management of said real estate, so that she was compelled to assume the management of it, rent it in her own name, and herself receive the rents and profits thereof; that, in addition to that which she inherited from her father, she acquired by purchase in 1878 from Mr. McKellip, and now owns, two small lots in Westminster, the net income from which is about $65; that she has no other means of support than the income from these several parcels of real estate, inherited from her father and purchased from Mr. McKellip; that the defendant is addicted to the excessive use of ardent spirits, which renders him incompetent to transact busi
The prayer of the hill is, “that out of the rents, &c., arising from the said property and hank stock, before mentioned, and intrusted and acquired by her, as aforesaid, a suitable and sufficient provision for the support and maintenance of your oratrix, may, by the decree of your Honors, be made and secured to her, and that the defendant may be enjoined and restrained from, in any wise interfering with the same, and from collecting and interfering with the said rents, issues and profits arising from said property and bank stock, as aforesaid, until the final hearing, or until the further order or decree * * * in the premises. ” On the 19th day of August, 188T, the Court passed an order refusing the injunction prayed for by the amended bill. Subsequently to the passage of this order, the defendant filed his answer, in which after denying many of the averments of the bill, he admits he has demanded, as of right, the rents and profits of the property inherited by his wife from her father in 1852, but alleges he has no wish or purpose to divert
It was contended at tbe argument, that notwithstanding the order of the Court refusing the injunction asked for in the amended bill, and the final decree making that refusal permanent, and dismissing the bill, the injunction granted upon the original bill is still continuing. But we cannot assent to this. The amendment to the bill in this ease, was made, not by filing a paper containing only such averments as were amendatory; but by an entirely new bill, complete in all its parts, containing substantially the same averments and praying for the same relief as the original bill. It was clearly intended by the complainant, and understood by the Court as a substitute for the original complaint. In her petition praying leave to amend, the complainant states “that she has embodied said amendments and supplementary statements in a paper or bill of complaint herewith shown * * * and prays leave to file” the same “for an amended and supplemental bill of complaint in said cause ;” and the Court thereupon ordered that “the same be taken and received as an amended and supplemental bill.” The order therefore passed upon this bill ■was in effect a refusal to continue tbe injunction previously granted. Even if it could be considered, that the
We do not deem it necessary to advert to the testimony contained in the record, nor to the many objections to the proceedings raised by the solicitor for the appellant at the argument, for the reason that upon the allegations of the bill the Court had no jurisdiction to grant the relief prayed for.
The bill prays for a separate maintenance out of property mentioned therein. This property it is stated, consists of that which the complainant acquired by the death of her father in 1852, and that which was purchased by her in 1878 from Mr. McKellip. The injunction is also asked, not only to restrain the defendant from interfering with such property as may be set apart for her maintenance, but also with any of the property until the final hearing. It is difficult to conceive, upon what theory, it can be claimed, that the averments of the bill are sufficient to justify a Court in allowing an injunction as to the property acquired from Mr. McKellip. It is not clearly alleged, that the defendant has made any effort to collect the rents from this projserty, nor is it charged, that she is in danger of irreparable injury as a consequence of any act of his. Having been acquired by purchase since the adoption of the Code of 1861, she holds it as if she were a feme sole, and it can therefore not be subjected to a decree for a separate
The vague charge that the defendant has recently demanded of some of the persons to whom she had rented parts of the property, payment to himself, even if it could be held to refer to these lots, would be, as a foundation for the action of the Court, far from sufficient to entitle the complainant “to this high and extraordinary power of a Court of equity.” The only mode of obtaining an injunction is by a bill, which shall state a case of plain right, in probable danger of being irreparably injured or altogether defeated, unless the injunction be granted as prayed. Binney’s Case, 2 Bland, 104.
The remaining property referred to in the bill, is that which she acquired from the estate of her father in 1852. In this he retains all marital rights by the law, as it existed prior to the adoption of the Code of 1860. By virtue of these rights, the rents and profits of the lauds inherited by his wife and referred to in these proceedings, were his property, 2 Kent, 129, et seq., and the personal property vested in him absolutely. Peacock vs. Pembroke and Clarke, 4 Md., 280.
As to this property the injunction asked for, is ancillary to the main purpose of the bill; that being, to secure a separate maintenance for the wife, out of its rents and profits. If that purpose be of such a character as to be beyond the equitable jurisdiction of the Court, the injunction obviously must not be allowed. Spear vs. Orendorf, 26 Md., 43.
It is not alleged that the appellant was compelled, by the misconduct and cruelty of the husband to separate from him, and in the case of Helms vs. Franciscus, 2 Bland, 568, the Chancellor, in determining the authority of the Court under the Act of 1777, ch. 12, (codified in Article 16, sec. 14,) has said, “it (the Court) cannot allow itself to receive any matter as a sufficient ground for
In Wiles vs. Wiles, 3 Md., 8, this Court in speaking of the wife’s equity, and citing from 2 Kent, 141, says: “It does not, according to the adjudged cases, attach, except upon that part of her personal property in action, which the husband cannot acquire without the assistance of a Court of equity; * * if the husband can acquire possession without a suit in law or in equity, or by a suit at law without the aid of a Court of chancery, (except perhaps as to legacies and portions by will or inheritance,) the husband will not be disturbed in the exercise of the right.”
So in Schindel vs. Schindel, 12 Md., 294: “None of the property involved in this controversy is of an equit
The decree must therefore be affirmed.
Decree affirmed.