McNutt v. McNutt , 78 Ark. 346 ( 1906 )

Wood, J.,

(after stating, the facts.) The court permitted the amendment to the complaint, after decree, to conform the pleadings to the undisputed proof in the cause. To present the issue as both sides have presented it in the testimony without objection by an amendment to the pleadings after verdict or judgment is not error. Section 6145, Kirby’s Digest; Hanks v. Harris, 29 Ark. 323; Healy v. Conner, 40 Ark. 352; Ry. Co. v. Triplett, 54 Ark. 289; Frizzell v. Duffer, 58 Ark. 612; Texarkana Gas & Electric Light Company v. Orr, 59 Ark. 215; Ry. Co. v. Dodd, 39 Ark. 317; Shattuck v. Byford, 62 Ark. 431; Bank of Malvern v. Burton, 67 Ark. 426.

As we understand the pleadings, the proof, and the decree, the question for our determination is, did the court err in refusing to decree to appellant any property to which he was entitled under section 2684, Kirby’s Digest, and in allowing appellee to retain same ? That section, so far as applicable here, is as follows:

“In every final judgment for divorce from 'the bonds of matrimony granted to the husband, an order shall be made that each party be restored to all property not disposed of at the commencement of the action which either party obtained from or through the other, during the marriage and in consideration and by reason thereof.”

Section 462 of the Civil Code of Kentucky in 1854 is as follows : “In every final judgment for a divorce from the bond of matrimony, an order shall be made that each party be restored to all property not disposed of at the commencement of the actions which either party obtained from or through the other during the marriage and in consideration or by reason thereof.” Kentucky Code of Practice (1854), § 462. See Kentucky Statutes 1894 (Barbour and Carroll), p. 772, § 2121. Meyers, Ky. Code (1867), § 462.

The language of the two statutes “that each party be restored to all property not disposed of at the commencement of the action which either party obtained from or through the other during the marriage, and in consideration and by reason thereof” is almost identical.

The Supreme Court of Kentucky, in construing the word 'consideration’ in this act, held it to mean “the act of marriage, or some agreement or contract touching or relating to the act of marriage,” and the expression “by reason thereof” “to relate to such property as either party may have obtained from or through the other by operation of the laws regulating the property rights of, husband and wife.” Phillips v. Phillips, 9 Bush (Ky.), 183. In Flood v. Flood, 5 Bush (Ky.), 167, the husband conveyed to a trustee for the use and benefit of his wife a large amount of real estate. This was in pursuance of a compromise in a suit by the wife for divorce, in which a perpetual decree of divorce from bed and board was agreed upon, and the compromise was confirmed by the judgment of the court. After divorce from bed and board the wife married another man. The husband sued for a divorce a vinculo matrimonii, and also for a restoration of property. Pie obtained his divorce, but the court refused to restore the property, saying: “Our statute requires that all property remaining in kind which one party may have obtained from or through the other, during the marriage, in consideration of, or by reason thereof, shall be restored on granting a divorce. But here she did not get the property in consideration of, or by reason of, her intermarriage with him, but because they could not live in the proper conjugal relations and were severing the same.”

In the Code of Civil Practice of Kentucky of 1876, the section of the Code of 1854 under consideration was amended so as to read as follows:

“Every judgment for a divorce from the bond of matrimony shall contain an order restoring any property not disposed of at the commencement of the action which either party may have obtained directly or indirectly from or through the other, during marriage, in consideration, or by reason thereof; and any property so obtained, without valuable consideration, shall be deemed to have been obtained by reason of marriage.” Code of Practice (Ky.), 1876, § 425.

In Irwin v. Irwin, 52 S. W. 927, a husband had deposited a Louisiana lottery ticket in a certain bank, probably in the name of his wife. The ticket drew $15,000, and the proceeds were invested in real property in the name of his wife. Afterwards, in a suit between them in which both parties asked for divorce, the husband also sought restoration of the real property, contending that the property was not obtained by the wife directly or indirectly from or through the husband during marriage, in consideration or by reason thereof, and therefore that the provision of the Code of 1876, § 425, did not apply. The court, in disposing of that contention, said: “The earlier cases, under section 462 of the Civil Code of Practice of 1854 tended to support this theory. Citing Flood v. Flood, and Phillips v. Phillips, supra. “But,” the court continues, “in view of the decision in Phillips v. Phillips, the words directly or indirectly, were inserted in section 425 of the present Code (1876) and it was further provided that “any property so obtained without valuable consideration shall be deemed to have been obtained by reason of marriage.” And the court further said: “If the property was obtained directly or indirectly through the husband, and there was no valuable consideration moving from her, it must have been obtained by reason of the marriage, and the statute must apply, ’ etc. _ ,

_ , The Legislature in passing our statute, section 2684, Kirby s Digest (act of 1893), instead of adopting the provisions of the Code of Ky. of 1876, chose rather to adopt the language of the Code of Ky. of 1854; and as this provision of the Code had been construed by the Kentucky Court of Appeals in the manner indicated supra, we must presume that the Legislature adopted it with that interpretation. McKenzie v. State, 11 Ark. 594; Nebraska Nat. Bank v. Walsh, 68 Ark. 433, 438.

In Massachusetts, under a statute authorizing the court after a divorce to make a decree restoring to the wife the whole or any part of her personal estate that had come to her husband by reason of the marriage, it was held “that the statute did not apply to property which came to a husband by a trust deed made by his wife after marriage and in settlement of differences between them.” Phillips v. Culliton, 26 N. E. Rep. 137.

The proof sliowed that on account of “unhappy differences” the appellant and appellee, long before the institution of -this suit', had signed articles of separation, in which, among others, occurred the following paragraphs:

“It shall be permitted either party at any time to sue for an absolute divorce, but in such suit no alimony shall be prayed for or granted, the considerations herein given being given, accepted and received in full for all interest either one may' have in the estate of the other.”

“The said husband has and nbw pays to the said wife the sum of $4,141.50 in cash, being a full one-third of the worth of. all the property, money or choses in action of the said husband; and the same is here and now accepted by the said wife in full of all her dower or marital rights in the present or any future estate of the said husband, and the balance of the present or future estate of the said husband shall belong absolutely to him free from any interference or claim! by the said wife thereto.”

A few weeks after their separation, they concluded to live together again, upon condition that the husband would deed her one-half of the farm on the “State Line,” and that she should be satisfied, do “what was right” by her husband and the children, and would “help to improve the farm with the money she had.” The deed was executed by him to a third party, and by this party conveyed, according to previous understanding, to appellant and his wife jointly. Some time after that he purchased another place, and had the deed made to himself and wife jointly. At the time of the separation he paid her in cash, according to his testimony, $3,719. The proof showed that she had an insurance policy on her husband’s life worth $1,150. “She did not turn over to her husband, when they resumed living together, any of the property she got o'n separation.-”

It follows from what we have said that the property in controversy was not in consideration and by reason of the marriage, and can not be restored to appellant under the statute. But appellant contends that the consideration upon which the property was given and conveyed to appellee failed when appellee failed to live with appellant and conduct herself properly as his wife, and that the property should be restored to him, regardless of the statute. ' -

In Kinzey v. Kinzey, 115 Mo. 496-502, the Supreme Court of Missouri said: “A court of equity can and will interfere to restore to a party injured property which has been obtained from him by imposition or deceit. But in this case no property was obtained from the plaintiff by imposition or deceit. He was simply mistaken in the moral worth and virtue of one of the objects of his bounty. From the consequences of such a mistake of judgment a court of equity can not relieve him.” The only assignment of fraud and imposition is in the amendment to the complaint, where appellee is charged with “having failed and refused to return the insurance policy or any of the other property as she agreed to do when said agreement was set aside and they resumed living together and said last conveyance of the ‘State Line’ property made.” There is no definite allegation in this that the conveyance of the State Line farm was made in consideration that appellee would return the insurance policy or any other property. But the proof upon this point is more indefinite than the allegation. Appellant testifies that i-t was agreed upon the separation that he was to have the insurance policy, and it was after that, and when they had agreed to live together again, that the conveyance of the State Line farm was made. There is no clear preponderance of the evidence in appellant’s favor, to say the least of it, thqt appellee acquired her interest in the State Line farm upon consideration that she would return the insurance policy, or any other property, and that she practiced a fraud upon appellant in failing to perform her agreement.

The proof fails to show by a preponderance that there was any such agreement. Appellee testifies positively that there was no such agreement.

As we gather from the whole of appellant’s pleadings and proof, he seems to have relied mainly upon the statute for a restoration of property, and, as we have already shown under the statute, he can not recover. The decree is therefore affirmed.

Hill, C. J., and Riddick, J., not participating.