Jolly v. Jolly , 1 Iowa 9 ( 1855 )

Weight, C. J.

-This cause appears to have been beard on oral testimony, according to tbe rules of practice established in tbe court below. A portion of tbe testimony is embodied in a statement of the judge who tried tbe cause, wbicb we find as a part of tbe record. This statement, however, expressly states tbat all tbe testimony is not embodied in tbe bill. From tbe bill, answer, replication and testimony, we gather tbe facts to be these: tbe parties have been married about thirty-six years; have bad seven children, all of whom are married and living to themselves, except one son, aged about fourteen years. Tbe age of tbe wife is fifty-three, and tbe husband fifty-nine years. Tbat tbe wife bad property at tbe time of the marriage, of tbe value of say three hundred dollars, and tbe husband but little, if any. Tbat this property of the wife, as well as some wbicb tbe parties accumulated, was sold in Indiana, and they removed to this state, and invested tbe proceeds in land. It appears that the wife has been dutiful and industrious ; and tbat tbe husband has, until a few years past, been attentive to bis farm, and trade, and generally industrious ; tbat, within tbe last seven years, be has become intemperate*, has greatly abused Ms wife; kept intemperate associates about bis bouse; tbat this treatment and violence of tbe husband injured, to some extent, the mind of tbe wife, and tended to, and did, alienate her affections. When under such mental aberration, she was perhaps unkind to tbe husband; but, at all other times, she clearly appears to have been the innocent and injured party. This conduct is fully shown to have produced an entire estrangement of mutual regard. The testimony also shows that for several months before the filing of the petition, the parties lived in separate and distinct apartments, wholly disconnected in all their domestic relations. The husband owned three hundred and forty-five acres of land, valued at twelve dollars per acre, about four hundred dollars in personal property, and was in debt perhaps three hundred dollars.

The appellant does not seek to disturb the decree, so far as the divorce is concerned, nor, indeed, could he with any reason; for the whole record shows a very strong case in favor of the wife, and fully fortifying the decree in this respect. All that is now claimed is, that the court below, instead of giving the wife a specific portion of the land in fee, should have given her an annual or other allowance in money, to be made from his estate in default of payment. The power of the chancellor to make such a decree, in fact, is denied; and we are now asked, in making a final decree, not to deprive the wife of alimony, but to make it alimony in the strict legal sense of that term, instead of a portion in fee of the husband’s lands.

Under all the circumstances of this ease, we could not change this decree, and feel satisfied that we were doing right. Alimony in its original, legal signification, meant other than a portion of the husband’s lands, it is true. It is the nourishment — the maintenance — the allowance made for the support of the wife, which is given and fixed by the proper court out of the husband’s estate, when they are legally separated. See Tomlin’s Law Dictionary; 1 Blackstone Com. 355. In many of the states, this' character of support is strictly recognized. In others, however, by statute and the practice of their courts, portions of the husband’s estate, other than money, have been decreed. The case of Thornbery v. Thornbery, 4 Littell, 252, in which the latter kind of a decree was made, is in many respects very similar to this. The parties were aged, had lived together for about thirty-five years, and raised a number of children, most of whom bad arrived at years of discretion at tbe time tbe bill was filed. Tbe separation was caused by tbe unprovoked and baxsb treatment of tbe husband. And it was held to be equitable and just to give her one-third of his slaves and lands for life, and one-third of the chattels absolutely.

But without looking for precedents in other states, how stands tbe matter under our own law ? And this involves a construction of section 1485 of tbe Code. That provides, that “ when a divorce is decreed, the court may make such order in relation to the children and property of tbe parties, and the maintenance of tbe wife, as shall be right and proper.” By section 26, tenth division, “ The word property is defined to include both personal and real property,” and by the eighth division of the same section, “real property includes lands, tenements and hereditaments, and all rights thereto, and interests therein, equitable, as well as legal.” It would appear, then, that all of tbe property of the parties may be reached by the order of the court, whether it be personal or real, and whether it be held in fee simple or otherwise. By tbe whole spirit of our law, also, the wife is recognized as having a right to hold and control property, and to have an existence in the marital relation, not merged into that of the husband. This is clearly shown by chapter 84 of tbe Code, as well as other provisions. While our law in no manner weakens the obligations of this most sacred relation; yet in its letter and spirit, it does recognize that she may have a separate property, which she can hold exempt from the debts of the husband; that she may be authorized to transact business in her own name, when abandoned by her husband; that she cannot be removed from their homestead without her consent; and that courts will protect her rights, and give her, either in property or otherwise, what is right and proper. When these separations unfortunately take place, the important question is to properly dispose of the children. They are their joint offspring, and their proper education and support, when the family is thus separated, should demand the first inquiry of the court. Then comes the question as to the property. It has been accumulated in most instances by tbe joint labor of the parties, each in their appropriate sphere. While technical" ly, perhaps, it is recognized as the husband’s, yet rightly and properly, it is also the wife’s. He cannot convey or dispose of it without her consent, nor do any act that would directly incumber her interest therein. It is not his nor hers, but theirs. It is upon this property that these decrees are to operate. And with reference to this property, our law gives the court the power to make such order as may be right and proper. And in addition, the -court is to make the same order with reference to the maintenance of the wife. It may be claimed with some plausibility, that the term “maintenance,” as here used, relates to the alimony, and that the court makes the order as to the property, and also gives what was formerly known as alimony. However this may be, we are clear that under our law, the court has full power to give to the wife in these cases, a specific portion of the husband’s property, and that this may be real or personal. And is it not clearly equitable and just, that the 'wife shall be given a home — a place to reside — if the circumstances justify it, rather than be turned from that which she has assisted'to obtain, improve, and make pleasant and comfortable, with an annual or other allowance, to seek a new home ?

Not to further enlarge, we conclude, that there is nothing to show, but that the court below did make such order as was right and proper with regard to the property of the parties.

Decree affirmed.