delivered the opinion of the court:
The appellant filed his hill in the court below for a divorce a vinculo matrimonii, on the ground of desertion for a period exceeding five years by the wife, the defendant, who is the appellee here. The latter, being a non-resident of the state, was proceeded against by order of publication, and upon the hearing at the May term, 1874, a decree was entered in accordance with the prayer of the hill. The cause was thereupon retired from the docket, hut, in the language of the decree, “to he reinstated at any time, to the end that, from time to time hereafter, the court may make such order as it may deem expedient and proper in regard to the care, custody and maintenance of the child, horn of said marriage, during her minority, and as well in regard to alimony, if any, and what amount shall he allowed to the wife.” Subsequently, on the 27th day of Sep*184tember, 1876, the defendant filed her petition, in which, referring to the proceedings that had been had, she denied that she had left the house and home of the plaintiff without good and sufficient cause, and prayed that the cause be reinstated, that she be allowed to take the necessary steps to protect her interests, and that a reasonable allowance for her maintenance be decreed her out of the estate of the plaintiff. The cause was accordingly reinstated on the docket, and afterwards, by leave of the court, the defendant filed her answer. In the answer she says: “It is true, as charged in the bill, that this respondent left the bed and board of the complainant in the summer of 1855, but she denies most emphatically the statement of the bill that the said abandonment and desertion was without just cause. On the contrary, she now solemnly asserts that but for the brutal cruelty of the said complainant, and the violation of his marriage vows, as he himself confessed to her, she would, on account of her then unborn daughter, have remained in the house of her husband, and been to him a faithful, true, and affectionate wife. She now solemnly states, that while she was the wife of the complainant, and living with him, that he cursed her, and used towards her the most profane and vulgar language; that he struck her in the face with his hand; that, on one occasion, he even raised a chair over her with the intention of striking her, and several times struck her with the lash with which he whipped his negroes; that he also kicked her, and this treatment being only a few weeks before the birth of her child, and she being utterly powerless to protect herself, she could do nothing else but leave the house of her cruel and unnatural husband, and seek the protection of her own father’s home; that she was frequently ordered to leave by the complainant, who told her that he would never give her any clothes, and that life should be no pleasure to her. And so she left the home of her husband, and went to ber father’s house with a blighted life and ruined hopes. And fearing to return to such a husband, and to trust herself and child within the power of his cruelty, she has *185since maintained herself and child by honest toil rather than return to him, who could not in his bill state that he had performed his covenant and been ever true to his marriage vows.”
The cause was referred to a commissioner to ascertain the value of the plaintiff’s property, and what would he a fair annual allowance for the support of the defendant to he paid by the plaintiff. The account was duly taken and returned by the commissioner, to which the plaintiff filed several exceptions, the ground of the second being that the commissioner estimated in the allowance, proper to be made the defendant, the acquisitions of the plaintiff subsequent to the date of the decree of divorce. The exceptions, however, were overruled, and the court, being of opinion that the sum of $25 per month would be a fair allowance for the defendant’s support, decreed that the plaintiff pay to her or to her attorney that sum on the first day of each month until the further order of the court, and from that decree an appeal was allowed by one of the judges of this court.
The statute, Code 1873, chapter 166, section 16, in respect to judgments and decrees against non-resident or other defendants not served with process, provides as follows: “ Any unknown party or other defendant who was not served with process, and did not appear in the case before the date of such judgment, decree or order, or the representative of any such, may, within five years from that date, if he he not served with a copy of such judgment, decree or order, more than a year before the end of the said five years, and if he he so served, then, within one year from the time of such service, petition to have the case reheard, and may plead, answer, and have any injustice in the proceedings corrected.” Upon the rehearing thus provided for, the right is given to make defence, and with the same effect as if made before the judgment or decree complained of was rendered. We have then to inquire, 1. Whether injustice was done the appellee by the decree of May term, 1874; and if so, then, 2. Whether the appropriate relief was afforded her by the decree of which the appellant now complains.
*186There is no doubt that, upon the proofs now in the cause, the abandonment of the plaintiff by the defendant was not without just cause, as alleged in the bill, but was justifiable under the circumstances. The evidence fully sustains the averments of the answer in respect to the harsh and cruel treatment she received at his hands, and which drove her to seek shelter and protection elsewhere. Her condition at the time of her arrival from his house at the home of her father, is described by the witnesses, of whom her mother, Mrs. Williams, testifies as follows: “She (the defendant) showed me the cruel marks and bruises on her arms and shoulder inflicted by the lash in his (the plaintiff’s) hands. I saw the bruises with my own eyes, and he himself confessed to me that he had treated her cruelly, and had struck her.” Similar admissions on his part are testified to by other witnesses who were examined for the defendant. And these admissions are not only competent evidence in support of the averments of the answer, but are evidence of the most satisfactory character. 2 Bishop on Mar. and Div., §664; Bailey v. Bailey, 21 Gratt. 43; 1 Minor’s Insts. 268.
The defendant was, therefore, justifiable in leaving the plaintiff as she did; and having been .thus compelled to leave for her own safety and protection, the desertion in the eye of the law was his, .not hers. And hence it follows that he, not she, was the guilty party when his suit was brought and the decree of divorce was rendered. Reeve’s Dom. Rel. 207, et seq.; 1 Bishop on Mar. and Div., § 791, et seq. Indeed, had she appeared in the suit before that decree was rendered, and by cross-bill denied his right to a decree, and prayed for such a decree in her own favor, accompanied by a provision for maintenance out of his estate, it would have been plainly the duty of the court, upon the facts as they now appear, to have decreed in her favor. The case is not, therefore, an application for maintenance by a wile who is the guilty party, although a decree in favor of the husband was rendered against her, but of one who having no notice of the suit, seeks now to have the.injustice corrected which has been done her in her absence.
*187It is true she is not asking to have the decree set aside, as she might have done, but for a support out of the plaintiff’s estate. But there is no reason why she should he refused the relief she seeks because less is asked than might have been claimed. Nor- is there any reason to withhold the relief to which she is justly entitled because of any objection to the pleadings in the form in which they are. It is the boast of equity that it regards the substance and not the forms of things. And hence it is that pleadings not technically in the form required by the strict rules of pleading will often he so treated as to attain the ends of justice. This is illustrated by the case of Mettert’s Adm’r v. Hagan, 18 Gratt. 231, where an answer was treated as a cross-bill, although not asked to be so treated by the defendant, and a decree entered according to the rights of the parties. ' And such instances are of frequent occurrence. Jor the same reason, therefore, the petition and answer in the present case may be treated as a cross-bill, and a decree entered accordingly. For the appellee being, as we have seen, not the guilty party, and herself entitled to a decree of divorce, the effect is the same as if, having originally appeared and filed a cross-bill for such a decree and obtained it, she were making in addition a similar claim to that she is now asserting.
We are of opinion, therefore, that the circuit court did not err in exercising the discretion conferred by the statute in respect to the estate of the parties, and in directing an account to be taken to ascertain a proper allowance to be made the appellee out of the plaintiff’s estate for her maintenance and support.
But the court did err in overruling the plaintiff’s second exception to the commissioner’s report. That exception was based on the ground that the commissioner estimated in his allowance the acquisitions of the plaintiff after the date of the divorce decree. It appears that after the date of that decree, and several years after the filing of the defendant’s petition, the plaintiff acquired certain estate by devise, which was included by the commissioner in his estimate as to the proper allowance for the *188defendant out of the estate of the plaintiff. The exception ought to have been sustained.
In Porter v. Porter, 27 Gratt. 599, it was held that the husband’s right of curtesy in the wife’s lands was barred by a decree of divorce a vinculo matrimonii. And in Harris v. Harris, 31 Gratt. 13, it was said that upon the principle asserted in Porter v. Porter, it would seem, by analogy, that the same rule would apply to the wife’s right of dower in the absence of any special provision in the decree in respect to the property rights of the parties. And the same doctrine is laid down by Bishop, who says that the effect of such a decree is to put an end to all rights depending upon the marriage, and not actually vested. 2 Mar. and Div , § 705, et seq. And Prof. Minor, while not fully concurring in these views, declares that the rights of neither party will extend to after-acquired property. 1 Insts. 278. Such being the effect of a decree a vinculo, and the defendant not asking that the decree in this case he set aside, it was error to include in the estimate of the commissioner such property as was acquired by the plaintiff after the date of the decree. To this extent, therefore, the decree complained of is erroneous and must be reversed, and in other respects affirmed.