delivered the opinion of the court. The proceedings in this casé are erronéous, and must be reversed. It is an application for alimony, and there can be no doubt, the courts of equity in this state have jurisdic,tion in such cases, and will decree relief, where a proper foundation is laid for it. Their authority1 depends not merely on the constructive powers given to our courts of. chancery, but is expressly delegated by the act of 1777¡ ch. 12.
Alimony is a maintenance afforded to the wife, where the husband refuses to give it, or where from his improper conduct compels her to separate from him. It is not a portion of his real estate, to be assigned to her in fee simple, subject to her control,' or to be sold at her pleasure, but á provision for her support, to continue during their joint lives, or so long as they live separate. Upon the death of either, or upon their mutual consent to live together, it ceases, and the amount of this allowance must de*489pend upon the value of the husband’s estate. Before a decree can be passed for alimony, the court should be in possession, either by the admission of the parties, or by testimony, of all the facts necessary to form a just decision. It must be proved that the separation was not by the voluntary act of the wife, but from the misconduct of the husband; aful unless testimony Is offered (in the absence of admissions by the party,) to show the value of his property, what data is given to ascertain the amount of her allowance? The decree in this case does not assign an income for the maintenance of the wife, but directs a sale of part of the real estate of the husband, and no disposition is made of the proceeds of such sale.
If then this decree is founded on the petition for alimony, independent of any agreement between the parties, it cannot be sustained. The record does not present any admission or evidence to ascertain the value of the husband’s property. The decree does not direct an income to be paid for the maintenance of the wife. It does not create a personal liability in the husband to pay any sum of money, but orders in the first instance his land to be sold.
Let us see if this decree is entitled to more respect, if the agreement was the foundation for it?
By the agreement the husband was to give the wife, or to trustees for her use, property to the value of 82000.
This property was to be selected by her, and was tobe valued by two persons named in the agreement, John S. Magru - der and John Hodges, of Thus, and in consideration of this property, the wife was to relinquish all her right of dower in her husband’s estate. This agreement was signed by the husband, but not by the wife; it was signed by an attorney.
"Whether an agreement for a separate maintenance will be enforced, where such agreement rests in articles between. the husband and wife, appears not to be settled; those agreements ai’e generally carried into efiect by the intervention of a third party. In one case it was determined, such articles may be enforced at the suit of the wife. Fitzer vs Fitzer, 2 Atk. 511. But it is said, this decision was disapproved by subsequent chancellors; and Legard vs Johnson, 3 Ves. 361, St. John vs St. John, 11 Ves. 532, and Wilks vs. Wilks, 2 Dick. 791, are referred to as evidence of it. The wife, however, is wot bound by a *490deed Of separation, and a specific performance cannot bo enforced as against her. St. John vs St. John, 11 Ves. 533. It is riot necessary to decide this .question in the case before us, ñor do we mean to express an opinion upon it. For whatever effect might be produced by an. agreement signed by the husband and wife, it is very clear, she could make lío agreement by her attorney.
But suppose this to be a valid contract between the parties, has the court dec.reéd a specific performance of it? The agreement was¿ that the property to be selected by the wife was to be valued by Magruder and Bodges; they are named in it for that purpose; that it should be valued by them, was a condition on which the husband agreed to give up his property, and formed an essential part of the contract: The court had no authority to substitute others in their place, in the manner staled in the proceedings. What is the case before us? The land was not valued by Magruder and Hodges, but by other persons, substituted by the court for them, without the consent; and per* haps without the knowledge of the husband, at least the appointment of one of them. The court have made a new contract for the parties, and have decreed a specific performance, not of an agreement made by them, but of one made by the court for them, without the assent of one of the contracting parties.
But again — If this was a binding contract on the parties; and the valuation had been rhade by Magruder and Hodges^ how could the court decree a specific performance of it in the case then before them? That was a petition for alimony, and on that petition alimony alone could be decreed: If á special agreement wás made between the parties, and accepted by the wife in lieu of her alimony; that agreement per se, superseded all proceedings in the case then depending; she had accepted another remedy; and if the husband did not perform his agreement, a new bill ought to have been filed against him, to enforce a a specific performance of it. Here the petition was filed for-alimony on the 30th of April 1821. The court lose sight of the facts and prayer stated in the p'etition, and decree the specific performance of an agreement made on the 14th of September following, more than four months after the case had been depending before them.
The decree is reversed, without prejudice to the rights of the parties. deor.ee reversed, &e-