Garland v. Garland , 51 Miss. 16 ( 1875 )

Tarbell, J,

delivered the opinion of the court.

This is a proceeding by a feme covert under § 1791 of the code, which statute reads as follows: “If the husband shall abandon his wife, and cease to live with her, she may petition the chancery court of the county in which she resides, and by proving it, obtain an order to enable her to act in all things as an unmarried woman, in the control, management and disposition of her separate property, and in the institution and defense of suits at iaw or in equity. The petition shall be sworn to, and the husband personally served with summons to answer it, or publication must be made for two weeks in some newspaper in the county in which, the petition is filed; or, if there is no such paper, and affidavit is made by the petitioner that her husband’s whereabouts is not. known to her, or that he is out of the state, notice posted one. month on the court house door shall be sufficient.”

The petition in the case at bar is by a married woman against her husband. It is charged that she has a separate property, and that her husband has abandoned her. It is further charged that the control of her separate estate is necessary to enable her to-provide for the support of herself and family. The prayer is, in. the language of the code, for a decree to enable the petitioner to act in all things as an unmarried woman, in the control, management and disposition of her separate property, and in the institution and defense of suits at law or in equity, or for such other-relief as the petitioner may be entitled to.

Process was personally served on the husband, who appeared and demurred to the bill or petition. The causes of demurrer are these: 1. The bill has no equity on its face. 2. The petition asks the court to confer a power of sale of real estate of a married woman in a mode not permitted by law. 8. The bill shows that the defendant is tenant by the courtesy in the land sought to be sold by complainant alone, without asking to join her husband in disposing of or conveying the same, and asks relief not authorized by law.

Prom the decree overruling the demurrer, the respondent in the action prosecutes this appeal. It is observed that the argument in support of the demurrer proceeds upon the idea that property rjghts are involved in and to be decided by this proceeding. Such a theory is believed to be erroneous. A decree in favor of the wife simply establishes her abandonment by the husband, and, in the language of the Code, enables her “ to act in all things as an unmarried woman, in the control, management and disposition of her separate property, and in the institution and defense of suits at law or equity.” The wife is thus rendered sui juris, and the statute quoted is, therefore, an enabling act. The terms of the statute indicate tbe issue to be tried and tbe decree to be rendered. It is supposed that a decree for the wife gives her no additional rights of property, nor does it abridge any of the property rights of the husband. These rights, so far as affected by the decree, remain open and unadjudicated. Beyond the letter of the statute, the chancery court makes no decree with reference to the sale of the property of the wife, and a sale or disposition by her of her estate has none of the attributes of a judicial sale. If she «disposes of her estate, and the husband complains, his rights can there be settled. In other words, a decree in favor of the wife, tinder this statute, simply establishes judicially her abandonment «by the husband, and fixes her legal status. This result is obtained in a single proceeding upon an issue for that purpose. And this is the evident and simple object of the statute — which is not understood to be extraordinary, peculiar, or of questionable propriety. It is very justly a part of the modern legislation for tbe protection of married women. At common law, the wife, when abandoned by the husband, retained, or carried with her, his credit, which she could use for her support; but the abandonment, and her right to act as feme sole, were involved in every action against the husband, whether by herself or those advancing her supplies. These questions were settled only in each particular case. Hence, the mischief remedied by tbe code. That the reports are full of these cases is familiarly known to the profession. A few of the numerous adjudications with reference to the right of the wife at common law, when abandoned by the husband, to act as a feme sole, are cited, merely to vindicate the propriety and justice of the statute authorizing the proceeding at bar, and to show that the enactment rests on a solid foundation. That the cases are conflicting, and that the rights of the wife in case of abandonment are involved in difficulties, are cumulative reasons in support of this statute. Without regard to the rule in England, where it has not been uniform, it would seem that in most of the states of the Union, abandonment by the husband must be followed by his residence in another state or country, to authorize the wife to act as a feme sole. Hence, another argument in behalf of the provision of law by which the proceeding at bar 'is instituted. The adjudications upon the right of a wife to act as feme sole, when abandoned by her husband, affirm the very great propriety and justice of the statute referred to. As already observed, property rights are not now involved. These can be contested in another issue. 1 Bish. M. & D., § 550 et seq.; id., §§ 557, 568, 572, 610 et seq.; Schouler’s Dom. Rel., pp. 63, 295, and cases cited in note 1; 2 Bright’s H. & W., p. 5, et seq.; id., p. 69 et seq.; 30 Iowa, 310.

Decree affirmed, and cause remanded, with leave to answer in forty days.