Wright v. Wright's Lessee

2 Md. 429 | Md. | 1852

Tuck, J.,

dissented in part, and delivered the following opinion.

The first inquiry which this record suggests is, whether the act of 1849, ch. 428, divorcing these parties, was a valid exercise of legislative anthority? If this be so, then the appellee is entitled to recover, because, for the reasons stated, and upon the authorities quoted in the opinion of the court, the property in controversy, on the dissolution of the marriage, reverted to the wife. But after carefully considering this question, and with every disposition to sustain the acts of a co-ordinate department of the government, I have not been able to persuade myself that it's legitimate powers have not, in this instance, been exceeded.

It is unnecessary, in my view of the case, tó inquire what effect the act of 1841, ch. 262 had in restraining or limiting the power of the legislature in the matter of divorces; nor is it material to examine whether the acts of 1829, dh. 202, and 1840, ch. 238, prescribed directions which it was incumbent on the legislature to pursue in the exercise of this jurisdiction. I admit that divorces in this Slate are to be considered as regular exertions of legislative power, 1 Gill $• John., 474, but I do not agree that the courts of justice must always presume that it has been rightfully exercised, and with a due regard to the rights of the parly against whom the application may have been made. Acts of Assembly like the proceedings of other branches of the government, should be supported by every fair legal intendment; and, therefore, it would be the duty of this court, in the absence of proof to the contrary, to presume that the act in question was passed under circumstances which afforded the appellant an opportunity of protecting his rights. But how can this presumption arise on the present case stated, when it contains a distinct admission that he had no notice of his wife’s application for a divorce, and consequently could not have defended himself under the charge alleged against him?

It is said, that the legislature may pass such laws as are not prohibited by the constitution of the United States, or by that of the State; but I imagine, that these instruments do not furnish the only limitations. In the case of The University of Md., vs. Williams, 9 Gill & Johns., 408, this court said, “Independent of the constitution of the United States, and of any express restriction in the constitution of the State, there is a fundamental principle of right and justice inherent in the nature and spirit of the social compact, (in this country, at least,) the character and genius of our government, the causes from which they sprang, and the purposes for which they were established, that rises above and restrains, and sets bounds to the power of legislation, which the legislature cannot pass without exceeding its rightful authority. It is that principle which protects the life, liberty and property of the citizen from violation in the unjust exercise of legislative power.” See also 2 Kent Com., 339, 340, and notes, which show, that this right to protection exists, independent of any constitutional provision, as founded in natural equity, and as an acknowledged principle of universal law.

The same principle, in my opinion, may be invoked for the protection of any other rights of the citizen: and what can be more valuable, or should be more cautiously interfered with, than those growing out of the marriage relation? “A man has just as good right to his wife as to the property acquired by the marriage contract He has a legal right to her society and her fortune, and to divest such right without his default, and against his will, would be as flagrant a violation •of the principles of justice, as the confiscation of his own estate.” Per Justice Story, 4 Wheat., 696. And, indeed, it is on the principle of the inviolability of the contract of marriage, that divorces are granted notwithstanding the 10th sec. of 1st .art. of the constitution of the United States, “because a law punishing a breach of contract by imposing a forfeiture of the rights acquired under it, or dissolving it because the mutual ■obligations are no longer observed, is in no correct sense a law impairing the obligations of the contract.” 4 Wheat., 696. There is no species of contract, or right, or property, that is not protected from legislative invasion. Even when the public .interests require a sacrifice of private property, it cannot be taken without making just compensation to the owner. 2 Kent Com., 339. Yet this court are now called upon to declare that the legislature may, on the application of one of the parties to a marriage, and without the knowledge of the other party, dissolve that relation, and, as a legal consequence of the dissolution, divest rights of property acquired by the contract of marriage.

If this power resides with the legislature in this unlimited degree, may we not ask for its origin. Tn the case of Crane vs. Meginnis, 1 Gill & Johns., 474, we are told that these acts have been .“performed by the legislature for the want, perhaps, of ecclesiastical authority to effect if, or borrowing, perchance, the power from the parliament of Great Britain, which sometimes granted divorces a viñado for supervenient causes arising ex post facto, a thing that the spiritual courts could not do.” It is immaterial to the question before the court ■whether the. jurisdiction be referred to the one source or the other; for in either case, it seems to me, that all the analogies that belong to the subject should be observed, and that the forms of proceeding adopted in the ecclesiastical courts or in parliament, for the purpose of properly and advisedly exercis- . ing the power, or some such, should be regarded by the legislature when acting in cases of this kind. The ecclesiastical courts of England, whose functions, pro hac vice, the legislatqre performs, would not act unless both parties were before the court, or had had an opportunity of appearing; nor does the parliament in its omnipotence, as Blackstone extols its authority, sever these bands upon bx parte proceedings. On the contrary the utmost circumspection is observed, by notice to the other party, and otherwise, l,est this estate, which is not to be entered into unadvisedly or lightly, may be inconsiderately destroyed by the exercise even of their sovereign authority, which is said to have no limit,

We are told, that a law which professes to act only on the person—such as an act of divorce—pass.ed without notice, may be valid, when one so pass.ed, affecting property, would be void. Can this be so? Are not rights of person as sacred as those of property ? and if so, why shall not the same forms and solemnities be required in the enactment of statutes affecting one as well as the other? But if there be such a distinction, can it apply to this case? The legislature cannot commit a wrong indirectly whifch could not be accomplished by direet means. If this act contained any provision as to the property of the parties it would be unconstitutional. 1 Gill fy Johns., 474. ’ It, in terms, professes only to separate the parties by á dissolution of the marriage; but the necessary le.gal effect is to divest rights of property acquired under the marriage. Those rights are thereby as much impaired as if they were destroyed by the very letter of the law. In the case pf Norris vs. Abingdon Academy, 7 Gill Johns., 7, it was held, that a resolution of the legislature transferring the govern:ment of the institution to a new board of trustees, was an interference with the vested rights of the old board, and void. The resolution did not profess to act upon the property or funds of the school, but the necessary effect of the new appointment was to transfer the property also. If an act, which in terms makes provision for the wife, however moderate the amount, would be void, I think the same objection may be urged against one which, by necessary legal consequence, takes the property of the wife from the husband and restores it to her.

It was also contended, that there was no infraction of the 21st art. of the hill of rights, in the passage of this act, because, if the appellee succeeds, the appellant will have lost this property by the finding of a jury, and in pursuance of a law of the land. We are informed by the Court of Appeals, in 9 Gill §- Johns., 412, what is understood by these terms. “They mean by the due course and process of law; the general law prescribed and existing as a rule of civil conduct, relating to the community in general, judicially to be administered by courts of justice. An act which only affects and exhausts itself upon a particular person, or his rights, or his privileges, and has no relation to the community in general, is rather a sentence than a law; a sentence that condemns without a hearing, and the very passing of which implies the absence of any general law or rule of civil conduct by which the same purpose could be judicially effected in a court of law.” 1 Bl. Com., 44. Does it require any argument to show, that an act of Assembly, divorcing a man from bis wife passed on allegations of gross misconduct on his part, and without his knowledge, is a sentence and not a law, in the sense in which we are now dealing with the term? Does it not exhaust itself in the particular case to which it applies, and, in the one before us, is it not a sentence which condemns without a hearing?

If the views presented on the part of the appellee are correct, the marriage tie, constituting a contract of the highest dignity, and of all others the most important to society, is the only one which can be dissolved; and the consequences of that measure, embracing the relation of husband and wife, parent and child, and valuable vested interests, visited upon the supposed offending party, without affording him an opportunity of asserting and protecting his rights when thus assailed. 1 know of no other species of legislation, or act of any tribunal affecting individual rights which would be sanctioned in a court of justice, if objected to for want of such notice, or what would be deemed equivalent to notice. “They are in violation to the first principles of justice, and null and void.” 2 Kent Com., 109.

I am of opinion, that the judgment should be reversed, but as a majority of the court has decided that this act of Assembly is valid, I concur in so much of their opinion as restores the property in question to the appellee.

Le Grand O. J..,

delivered the opinion of this court.

This was an action of ejectment instituted in Queen Ann’s county court to recover a tract of land. It was tried on a statement of facts, and judgment rendered by the court below in favor of the appellee. The statement of facts is as follows:

“It is admitted by counsel for plaintiff and defendant, that a patent regularly issued for the tract of land mentioned in the declaration filed in the above cause; that a certain Robert Gardner was seized in fee of the land; at the time of his death in the year 1828; that the said Robert died intestate of said land, &c.; that the same descended at his death to his daughter, the plaintiff in this cause, who was his only child and heir at law; that the said Jane after the death of the said Robert entered upon, and was seized in fee of the said land, and so continued to be seized in fee of the same; that on (he 10th day of May, in the year 1835, the said Jane intermarried with Samuel J. Wright of Queen Anne’s county; that the said Jane and Samuel lived together after their marriage for many years, but that there never was any issue of the said marriage; that the said Samuel has held possession of the land aforesaid, from the time of the said marriage to the present time; that on the 29th of April 1845, the said Jane exhibited in Queen Anne’s county court, sitting as a court of equity, a bill against the said Samuel J. Wright, praying to be divorced from him the said Samuel, and to be restored the possession and enjoyment of her maiden property, real and personal; to which said bill the said Samuel filed his answer in said court, on the 16th of July, in the same year 1845; and in which said case no further proceedings were had, until the May term of said court, in the year eighteen hundred and forty-nine, when the said Jane ordered the same to be dismissed; that at December session 1849, the said Jane presented to the General Assembly of Maryland, her petition, praying for a divorce, which petition set forth the facts hereinbefore stated, and alleged the adultery of her said husband, and his desertion of the said Jane for several years; and that at the said session of the General Assembly of 1849, a bill was passed divorcing the said Jane from the said Samuel, as follows:

“ ‘An act to divorce Jane E. Wright, of Queen Anne’s county, from her husband, Samuel J. Wright.

“ ‘ Be it enacted by the General Assembly of Maryland, that Jane E. Wright of Queen Anne’s county be, and she is hereby divorced from her husband, Samuel J. Wright, a vinculo matrimonii.’ ” That no notice of the said proceedings before and by the said legislature was given to the said Samuel; that the said Samuel never had nor has he now,-any interest in the said land,-other than such right or possession as he acquired by virtue of the said marriage; and that he has never made any provision for the support and maintenance of the said Jane. That the said Samuel J. Wright- is in possession of the said land. ’ ’

The first question which arises out of this state of facts, involves the right of the legislature to pass the act of 1849.

It is said that since the passage of the act of 1841, ch. 262, the legislature has been incompetent to take cognizance of cases of divorce, and, that all authority over such matters was by that act exclusively vested in the high court of chancery, and the courts of equity. If this be so, then the act of 1849 was, and is, unconstitutional and void.

According to the earlier law of England, a marriage valid at the time of its solemnization was held to be indissoluble. Conjugal infidelity only furnished a ground for separation, but nothing short of death could release the nuptial bond. A complete annulment of the tie could only be' obtained by the establishment of some antecedent impediment, such as undue consanguinity, physical incompetence or mental incapacity. Until about the commencement of the eighteenth century the ecclesiastical courts exercised exclusive jurisdiction over the subject of divorces. The ecclesiastical courts refusing to grant divorces a vinculo, even in cases of the grossest conjugal delinquency, induced applications to parliament, and, it is said, the first genuine example of a dissolution of the nuptial tie was in the case of the notorious mother of the highly gifted but unfortunate poet, Savage—the Countess of Macclesfield. Since that time the parliament have exerted the power of annulling, absolutely, the marriage bond.

In the case'of Crane vs. Meginnis, 1 Gill and Johnson, 474, the constitutional power of the legislature, under the old form of government to grant divorces was fully recognized. “Divorces,” say the court in that case, “in this State, from the earliest times, have emanated from the General Assembly, and can now be viewed in no other light than as regular exertions of legislative power.” This exercise of power may have grown' out of the circumstance of there being no ecclesiastical courts within the limits of Maryland, or may have been borrowed, by analogy, from the action’of the British parliament, which from the commencement of the eighteenth century, exercised the power of granting divorces a vinculo, for causes supervenient the marriage.

The granting of divorces being but a “regular exercise of legislative power,” the next inquiry is,—what effect had the act of 1841, chapter 262, on that legislative power?

The first section of the act provides, that from and after its passage, “the chancellor or any court of this State, as a court of equity, shall have jurisdiction of all applications for divorces,” and the second section specifies the grounds on which divorces a vinculo matrimonii, may be granted. They are, first, the impotence of either party at the time of the marriage; secondly, for any cause, which, by the laws of this State, renders a marriage null and void ab initio;- thirdly, for adultery; fourthly, where the party complained against has abandoned the party complaining, and has remained absent from the State five years. By the act of 1844, chapter 306, the courts aré authorised to decree divorces in Cases where the abandonment has continued uninterruptedly for three years.

It is contended on the part of the appellant, that this legislation divested the General Assembly of all power over the subject, and gave an exclusive jurisdiction' to the chancellor and the county courts, sitting as courts of equity. In this view, we do not concur.

The delegation of authority to the courts to act in certain enumerated cases, does not necessarily involve the negation of a reservation of power to the legislature to act either in the same or in other and a different class of cases. The acts of 1841 and 1844 were, at all times after their passage, subjects of legislative revision and repeal. It was competent for that branch of the government to repeal them in whole or in part, or to suspend, for a time, their operation. Whenever, therefore, the legislature’ granted a divorce for any of the causes mentioned in'those acts, they were pro tanto repealed. Except in the case of a grant or other contract there is no constitutional power residing in one legislature to limit the power of succeeding legislatures. Within the'purview of thé constitution—with the exception we have mentioned—all legislatures are co-equal; what one may do a succeeding one may also do or undo. If this were not so, in the very nature of things, it would be within the power of the legislature at one session to exhaust or part with the whole law-making power of the State. The organization of society, no less than the constitution, contemplates the existence of the legislative power as indestructible, and as co-existent with itself and the organic law.

The argument of counsel for the appellant sought to deduce from the case of Crane vs. Meginnis, principles in opposition to those which we have just announced. It was urged by them, that inasmuch as the legislature, in the year 1777, authorised the chancellor to hear and determine all causes for alimony, in as full and ample manner as such causes could be heard and determined by the laws of England in the ecclesiastical courts there, and inasmuch as the court determined that part of the act of 1823, which gave alimony to the wife, to be unconstitutional, by a parity of reasoning, since the act of 1841, such an act as that of 1849, divorcing the appellee from her husband ought to be regarded and held as unconstitutional and void. We think the learned counsel have wholly misconceived the grounds of the decision of the court in that case. After disposing of the question involving the right of the legislature to grant divorces, they observe, “ the suit for alimony in this State, as in Great Britain, is a distinct remedy from the proceedings to obtain a divorce, and for a series of years the wife’s maintainanee has been recoverable through the intervention of our judicial tribunals;” and they go on to remark, that so early as the year 1689, in the case of Galwith vs. Galwith, 4 Har. & McHen., 477, it was asserted in the supreme court of the province, that alimony is only recoverable in chancery or the court of the ordinary. The court evidently regarded the act of 1777 as but affirming the law of remedy as it had previously existed; declaring the allowance of alimony always to have been a judicial, and the granting of divorces within this State, as a regular exercise of legislative power. See also, Helms vs. Franciscus, 2 Bland’s Ch. Rep., 566.

Whilst we have no doubt on the general proposition, that the legislature, since the passage of the act of 1841, possessed the power to divorce man and wife, it is manifest under the statement of facts in the case now before us, that we must regard the act of 1849 as constitutional and valid.

Independently of the acts conferring jurisdiction on the courts in matters of divorce, the power of the legislature has not been questioned. And it has not been contended that the acts of 1841 and 1844 conferred on the courts jurisdiction in cases other than those specifically enumerated in them. Now this case comes before us on a case stated, and it is not allowed to this court to draw inferences of fact from those contained in the agreed statement, no such power having been given by the assent of the parties.

The act of 1849, divorcing the parties, nowhere states the grounds on which the legislature passed it. It is true, the statement of facts shows, that the wife, in her petition, alleged the adultery and desertion of her husband for several years. ■Now were it even conceded, that the legislature had parted with all jurisdiction in cases like those enumerated in the acts ■of 1841 and 1844, non constat the case in which it acted was of that character. The desertion may have been for a number of years less than that for which the courts are empowered to grant a divorce a vinculo, and if so, in any aspect of the argument of the counsel for the appellant, the legislature had jurisdiction of the subject. In the absence of all evidence to the contrary, we are to assume the action of a co-ordinate branch of the government has been within the limits prescribed by the constitution.

But, it is said, however this may he, the act is nevertheless null and void, because no notice was given to the husband of the application of the wife to the General Assembly. The acts of 1829, chapter 202, and 1840, chapter 238, authorise notice to be given to the party whose marital relations are proposed to be changed. So far as they are concerned, the observations we have made in regard to the repeal pro tanto of the act of 1841, are equally applicable to them. But, the objection to which we now refer is founded on a different principle; that is, that it would be contrary to the first principles of justice to bind a person by an action, when he had no notice any such was in contemplation. As a general proposition this is undoubtedly true, and accordingly it has been held, that a party cannot be personally bound by a judgment when he has not been summoned or had notice of the proceeding. Kilburn vs. Woodworth, 5 Johnson, 37. But the rule is different where the judgment operates in rem. It is also true, that all judgments rendered in any court against a, party who had no notice of the proceeding are void, and that sentences obtained by collusion are mere nullities, and that all other courts may examine into facts upon which a judgment has been obtained by fraud. 2 Kent, 108. The case, however, of legislative action is entirely different. If the passage of a particular act be but a “ regular exercise of legislative power,” notice is unnecessary. The legislature may, of its own motion, without suggestion from, or to any other body or person, exercise the power with which it is endowed by the constitution. In this particular the exertion of its powers is distinguished from that of those of the judicial branch of the government.

By the 21st section of the bill of rights of Maryland of 1776, it was declared: “That no free man ought to be taken or imprisoned, or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or in any manner destroyed, or deprived of his life, liberty or property, but by the judgment of his peers, or by the law of the land.”

Under this section of the bill of rights a person may be imprisoned, disseized of his freehold, &c., provided it be done by the judgment of his peers, or by the law of the land.

The words by .“the judgment of .his peers,” mean a trial by jury, and the words “by the law of the land,” which are copied from Magna Charta, are understood to mean due process of law, according to the course and usage of the .common law. 2 Kent’s Corn., 13. 9 Gill and John., 412. 1 Maryland Ch. Decisions, 252. By the third section of the bill of rights, the inhabitants of Maryland are declared to be entitled to the common law of England, “subject nevertheless to the revision of, and amendment or repeal by, the legislature of this State.” And by the sixth section of the same instrument it is said, “the legislative, executive and judicial powers of government, ought to be forever separate and distinct from each other.” The evident purpose of the declaration last quoted, is to parcel out and separate the powers of government, and to confide particular classes of them to particular branches.of the supreme authority. That is to say, such of them as are judicial in their .character to th,e judiciary; such as are legislative to the legislature, and such as are executive in their nature to the executive. Within the particular limits assigned to each, they are supreme and uncontrollable. If therefore it be but a “regular exercise of legislative power” for the Genera] Assembly to pass an act of divorce, it is not within the authority of the judiciary to pronounce its action in the premises null and void. In the passage of such an act, the legislative branch of the government but announces its will as it is authorised to do by the constitution, and there its power ceases. The legal consequences flowing from such a legislative declaration it is for the judiciary to determine. The legislature has annulled the marriage of the parties to this suit. This we have seen they had the constitutional right to do. It has not undertaken to deal with questions of property; if it had attempted to have done so, such attempt would have been an assumption of power unauthorised by the constitution. It has sipiply divorced the parties. All questions involving rights to property, they have submitted to the judicial branch of the government for its ascertainment. When the interposition of that authority is invoked, as it is in this case, the parties are entitled to be heard and to have their respective rights ascertained, according to the due course of the “law of the land.”

This being so, the question is, what are the rights of the former husband of the appellee?

The statement of facts informs us, that the appellee before, and at the time of her marriage, was seized in fee of the land in question, and that her former husband never had, nor has he now, any interest in the land, other than such right or possession as he acquired by virtue of his marriage. It also is admitted there was no issue of the marriage.

In regard to the rights of either the husband or wife after divorce, we are not enlightened by any decisions on the subject in England since parliament assumed and has exercised the power to annul marriages, and the reason of this, as we are told by Mac Queen on Husband and Wife, 210, f59 Law Lib., 138,) is, that it is the settled usage of parliament to introduce certain clauses, which may be called property clauses, in order to regulate the rights and liabilities of the parties after the nuptial tie has been dissolved.

In vol. 1, chapter 1, page 3 of Roper on Husband and Wife, it is said, “by the intermarriage the husband acquires a freehold interest during the joint lives of himself and wife, in all such freehold property of inheritance as she -was seized of at that time, or may become so during the coverture.”

This is undoubtedly true, if the author is to be understood as meaning that he becomes so entitled in right of the wife so long as the coveture lasts; but if he is to be understood as asserting, that by virtue of the marriage alone he acquires a freehold estate in his own right for the joint lives of himself and wife, regardless of the cessation of the coveture, we do not concur with him, nor do the authorities upon which he relies sustain him. Among them is Coke Litt, 351, where Lord Coke quaintly observes: “It is good to be seen what things are given to the husband by marriage. First, it appeareth here by Littleton, that if a man taketh to wife a woman seized in fee, he gaineth by the intermarriage an estate of freehold in her right, which estate is sufficient to work a remitter, and yet the estate which the husband gaineth dependeth upon uncertaintie, and consisteth in privitie, for if the wife be at-tainted of felony, the lord, by escheat, shall enter and put out the husband, otherwise it is if the felony be committed after issue had. Also, if the husband be attainted of felony, the king gaineth no freehold, but a pernancie of the profits during the coverture, and the freehold remaineth in the wife.” And in the same book, page 67, it is said, if the husband “hath issue by his wife, then he shall receive homage alone during the life of his wife, and the reason is, because he, by having of issue, is entitled to an estate for term of his own life, in his own right, and yet is seized in fee in the right of his wife, so as he is not a bare tenant for life. But if his wife die, then he hath only but an estate for life, and then he cannot receive homage.”

It is thus seen that the estate which the husband takes exists in privity, and when this ceases the estate must necessarily cease with. it. Again, in the case put by Lord Coke, where the husband be attainted of felony, the king gains no freehold, but a mere pernancy during the coverture; when this ceases there can be no freehold in the husband nor any pernancy o'f the profits. And in Greneley’s case, 8 Coke, 72, it was held under the words of 32 Henry 8, chap. 28, which provided, that no fine, feoffment, or other act by the husband only, of any manors, lands, &c., of the inheritance or freehold of his wife, during coverture, should make any discontinuance, or be prejudicial to the wife or her heirs, by the death of such wife, hut that issue of their two bodies might enter, that in all cases where the wife might have a cui in vita at common law, she should enter by force of the statute. And it is there ex-piessly said, “if the husband aliens, and afterwards is divorced causa prcecontr actus, or any other divorce which dissolves the marriage a vinculo matrimonii, there the wife during the husband’s life may enter; for the words of the act are, no fine, feoffment, &c., during coverture between them. And although the statute saith, ‘hut that the same wife,’ &e., that is to be intended of her who was his wife at the time of the alienation; for when the husband dies, she is not then his wife, but she is called wife to describe the person only who shall enter; and it is not said in the statute that the wife shall enter after the death of her husband, but generally that she shall enter ‘ according to their right and title,’ be it in the life of the husband after a divorce a vinculo matrimonii, or after his death.”

Now, if the interest of the husband be existent only during coverture, then, it is clear, a divorce a vinculo matrimonii, restores the wife to her estate as she had and enjoyed it prior to her marriage. It is supposed, however, that the case of Stephens against Totly, reported in Croke Elizabeth, 908, establishes a different doctrine. The reverse is precisely the case. It was decided in that case, if a husband and wife are divorced a mensa ei ihoro, and a legacy is left to her, the husband may release it. Such a divorce was held not to dissolve the marriage absolutely, as would be the case of a divorce a vinculo matrimonii, and it was on this consideration held that the wife’s legacy could be released by her husband, the divorce a mensa et thoro being nothing more than a separation.

The doctrine which we have announced, has been held and recognised in the courts of several of the States of this Union.

In the case of Gould vs. Webster, 1 Tyler, ( Vermont,) 414, decided in 1802, the Supreme Court of Vermont declared the operation of a divorce a vinculo matrimonii to be, to restore to the woman her interests entire in all the real estate which the husband held in her right by the intermarriage, and which by their joint act had not been legally conveyed during the coverture. And the same doctrine is held in Mattocks vs. Stearns and Wife, 9 Vermont, 326. Starr vs. Pease and others, 9 Connecticut, 541. Wheeler vs. Hotchkiss, 10 Connecticut, 225. Barber vs. Root, 10 Mass., 260. In the State of Massachusetts there was- in-force at the time the decision reported in 10 Mass.- Reports was made, a statute which authorised it, but the court held the doctrine independently of the statute.

On the whole we are of opinion, that the legislature was constitutionally competent to pass the' act of _ 1849, and that the legal effect of that act was to' restore'to the wife the real estate of which she was seized at the time of the marriage, and which had not been' conveyed away during- coverture by the joint act of herself and husband.

It may not be .deemed, it is to be hoped, officiousfor us to remark, that legislation on the relative'rights of divorced persons might be very properly had. We can very readily perceive that cases may arise'in which it woüld be but sheer justice to secure to the husband the pernancy of the profits of the whole, or of a portion of the estate of the wife.-- This, however, is a question for the' disposition of another branch of the government,, we c&nf only decide it according to the law as we find it.

Judgment affirmed.