The opinion of the Court was delivered by
Gibson, C. J.The record of divorce was not necessarily a part of the plaintiff’s title, and it might have been irrelevant when it was offered, had it not been set forth in the declaration which is inconveniently prolix. An action on a recognizance, like an action on a bond, is founded on the penalty which is prima facie a title to the money, subject however to the defeasance stated in the condition; and it was unnecessary, therefore, to set out either the divorce or the proceedings in partition. Had the dissolution of the marriage become a material fact in the progress of the trial, it might have been shown by evidence without being pleaded; but as the divorce was laid as a part of the plaintiff’s case, it was necessary perhaps to prove it: certain it was not so irrevelant as to make the reception of the proof erroneous. Of the validity of the sentence, there can not be a doubt. The court had jurisdiction of the subject matter, and its decision, however erroneous, could not be reversed in a collateral proceeding. The confession of the libel in this instance was pregnant with evidence of collusion; and to withhold its sanction from what may, at bottom, be a voluntary separation, no court ought to decree a divorce on less than proof by witnesses of the facts charged; still, where it has done otherwise, its sentence, though liable to be vacated, is not void; and we cannot say that the record was, in this evidence, improperly admitted.
To admit the auditor’s adjustment of the advancements or to exclude its being offered after .the evidence was closed, was within the discretion of the court; and the decision, in regard to it, is not a subject of error.
Nor are the exceptions to the direction given on the points pro*340pounded founded in point of law. The sentence of divorce, though not void in the first instance, might be avoided by proof of collusion. If, therefore, it was, as alleged, procured by covin to prevent the husband’s debts to the intestate from being taken out of his wife’s portion, it was necessary only to discover the trick to defeat it. This is all that was delivered to the jury as direction, and it is'all that the defendant required the court to give. The second instruction was also proper. Had the wife, or her husband during the coverture, received money from the intestate as an advancement, or had she, being of age, received it when she was sole, it would have been proper to deduct it; but no loan to the husband, during the coverture or not, could affect her chose in action after she was divorced from him; and this direction, also, was a substantive compliance with the defendant’s prayer. Besides, there was no proof before the jury to raise the question, and an error in regard to it would have been immaterial. As to the rest, it cannot be pretended that the decree of partition fixed the right to the money irrevocably in the husband, or that an action cannot be maintained on the recognizance for the use of any one else. The name of the commonwealth is used in it as a common trustee, not for the use of any one nominaiim, but for the use of the intestate’s heirs, and consequently for those who should be entitled at the time of actual payment; it is therefore immaterial that the decree vested the title on terms of paying or securing the purchase-money, among others, to the husband by name. Being thus enabled to call for the security, he might doubtless have taken it to himself, and such a step would have been equivalent to payment to him, or reduction to his possession. But the direction in the decree to give security to the husband was not a judgment for the money which operated upon the right, but a condition precedent to the vesting of the title in the child w{io had elected to take at the valuation. Having full power over the money, therefore, and choosing to leave it outstanding on a recognizance acknowledged to the heirs generally, or those who had owned the land, he allowed her part of the security to be made her chose in action. The money never was his, for he never assumed the ownership of it. He might have sued for it, or released it, but he did not; it was a thing in action, and he suffered it to remain so. This disposition of the wife’s title over which he had dominion as the representative of her person, would be good even against his creditors; for he was not bound to reduce her choses to possession for their benefit. As indicative of his will, the form of the recognizance is every thing, and the condition prescribed in the decree nothing. He might elect to leave the ultimate ownership to the contingency of survivorship; and, by acquiescing in a security to his wife by the designation of an heir, he did so. The court, therefore,' could not, with propriety, have directed that the decree of partition vested the purchase-money in him, and that no suit could be brought on the recognizance but to his use. If *341the divorce was valid, the wife was entitled to sue for her portion disburthened of his debt to the intestate.
Judgment affirmed.