(concurring specially). I think the time has come for deciding the question; and if it should not be done here, I cannot imagine a case wherein the question would have to be decided. Does our statute give power to modify an allowance of “gross” or “permanent” alimony? Before considering that question, eliminations should be made.
We are not concerned with the numerous decisions holding there can be no alteration or modification unless the power to alter or modify is reserved in the original decree, and that there may be alterations or modification if such reservation be made. For the decree at bar makes no reservations. We obtain no help from the long list of cases where a modification of permanent alimony was respectively denied or granted, and the action was taken upon statutes that plainly gave the power, or as plainly denied it. And we enter upon considering the major question in the case upon a well-made concession that the application to have the permanent alimony in this case enlarged must be denied, unless we can say that our statute authorized a change up or down as to “permanent alimony” allowed. See McFarlane v. McFarlane, 43 Ore. 477 (73 Pac. 203); Rigney v. Rigney, 62 N. J. Eq. 8 (49 Atl. 460); Henderson v. Henderson, 64 Me. 419, 421; Cariens v. Cariens, 50 W. Va. 113 (40 S. E. 335); Sammis v. Medbury, 14 R. I. 214, 216; Stratton v. Stratton, 73 *502Me. 481, 483; Mayer v. Mayer, 154 Mich. 386 (117 N. W. 890); Bassett v. Bassett, 99 Wis. 344 (74 N. W. 780, at 781).
It is conceded we have never settled whether our statute authorizes a change as to permanent alimony. In Spain v. SpaAn, 177 Iowa 249, at 258, we declare this point has never been decided, and expressly decline to decide it. Full investigation has satisfied us that, while it might have been decided repeatedly, it was not done.
II. Dealing with it, then, as matter of first impression in this court, we have to decide whether our statute gives any power to change a decree allowance of “permanent alimony,” merely because a change in circumstances would be met by such modification. The statute does not contain the word “alimony.” It gives power, when a divorce is decreed, to make “such order in relation to the children, property, parties, and the maintenance of the parties as shall be right.” And “subsequent changes may be made by it in these respects, when circumstances render them expedient.” Code Section 3180. In these words must be found authority to do what appellant asks. If not found there, such power does not exist.
We start in with the conceded fact that “maintenance of the parties” is very often arranged by an order for stated payments to be made periodically in future, and that, as to such provision, the right is' reserved to make such modification as future change may necessitate. Therefore, it does mot necessarily follow that giving power to make subsequent changes “in these respects,” i. e., “maintenance of the parties,” authorizes change in gross or permanent alimony. The grant may, so far as expression in terms goes, be authority for no more than to change orders that periodical payments for support be made. The terms do not compel a construction that there is power as well to modify a decree allowance of permanent alimony. Should that be the interpretation, though the statute does not in terms compel it? Assume that such should be the construction if “support and maintenance” of the one spouse is the equivalent of “alimony” or of “gross alimony” or of “permanent alimony,” and we have the question whether these and the statute phrase are equivalents. My research establishes that allowance for the future support of the divorced wife is not, in fact, ali*503mony, in the sense of the ecclesiastical law of England, but is more strictly an arrangement in lieu, owing to the size of the estate of the parties, so as to return to the wife her just portion of that property which belonged to both during the marriage, and which the labor and care of both may have equally contributed to procure and preserve. Smith v. Smith, 45 Ala. 264. Permanent alimony is regarded as the equivalent of a partition, as an allotment of a portion of the husband’s estate to which the wife is equitably entitled. Audubon v. Shufeldt, 181 U. S. 575 (21 Sup. Ct. Rep. 735). In State v. Cook, 66 Ohio St. 566 (64 N. E. 567), the court said that such allowance “is in the nature of a partition. Recognizing the right of the wife to participate in the accumulations which are presumably the result of their joint efforts and joint economies;” that the allotment decree treats the allowance as part of the estate standing in the name of the husband, and in which the wife has a right to share; and the court seizes her share, appropriates it to her, and makes her legally entitled thereto. In Miller v. Clark, 23 Ind. 370, the gross allowance is said to be a decree making a just and equitable settlement between the parties as to their marital relations, in view of all the circumstances of that relation, and of the property of the parties and their joint labors and accumulations during the marriage; and that the sum so given to the wife thereupon becomes her absolute property, as upon an equitable partition between them. That is the effect of Mahoney v. Mahoney, 59 Minn. 347 (61 N. W. 334) ; and of Beard v. Beard, 57 Neb. 754 (78 N. W. 255, at 256) ; and of Bauman v. Bauman, 18 Ark. 320; and of Andrew v. Andrew, 62 Vt. 495 (20 Atl. 817); and Lyon v. Lyon, 21 Conn. 184, 185. In Daniels v. Morris, 54 Iowa 369, we held that “alimony was subject to the control of the court in adjusting the property rights of the parties;” and that, in suit for divorce and alimony, the court may adjust the rights of the parties by “making such a division or disposition of the homestead between the parties as may appear to be just and equitable.”
Adjustments in the nature of division or allotment, or in the nature of money equivalent for division or allotment or partition, ordered when decree of divorce is entered, are not “orders in relation to the maintenance of the parties;” and author*504ity to make changes in orders relating to maintenance is not authority to change an allotment, a partition, ,a sequestration, or a money allowance made in the stead of these. An order that payments shall be made to maintain the former wife is a draft upon the resources of the former husband, whereby, despite the divorce, there is to be continued such duty to support the wife from day to day as existed while the marriage subsisted. It is an income granted. The lump allowance is a sequestration, which is to be capital from which the divorced wife is to make income which, in whole or in part, is to be a substitute for what the former husband was bound to furnish, prior to the divorce.
2-a
On reason, an order for maintenance and an allowance of permanent alimony should not be treated alike as to permanency. The decree of divorce places the parties as if they had never been married. It terminates both privilege and duty, and the woman has no more claim upon the former husband than upon any other member of the community. Plaster v. Plaster, 47 Ill. 290, at 294. The duty is so utterly abrogated that her subsequent adultery will not warrant a return of any part of the permanent alimony. Cariens v. Cariens, 50 W. Va. 113 (40 S. E. 335). As utterly abrogated is privilege. Neither retains any right in after-acquired property of the other. Mitchell v. Mitchell, 20 Kan. 665, at 667; Storey v. Storey, 125 Ill. 608 (18 N. E. 329). And it is plain that, if the permanent allotment may be changed, it could well happen that an interest in after-acquired property will result. It is on reasoning such as this it has been said that the judgment for permanent alimony is as absolute and permanent as is the decree of divorce. Mitchell v. Mitchell, 20 Kan. 665, at 667. It is declared by Smith v. Smith, 45 Ala. 264, that an award of permanent alimony is a provision then and there finally made, to meet the changed status; is a final provision made while the bonds still subsist, furnishing capital wherewith the former wife may commence life anew, after her expulsion from the household of her husband and the withdrawal of his liability for her maintenance and support; and it is the consensus of opinion that this object can best be accomplished by making such an allowance absolute *505and permanent. This reasoning establishes as a premise that the award of gross alimony contemplates the future, and deals with it. Unlike a provision for periodical payments, ordered made to furnish the former wife support, the court, in making the commutation, takes into consideration what changes in health, earning capacity, or property the future may bring. If it err, by making an allowance that proves too large, or too small an allowance, on the happening of possible contingencies, it is an error such as may be committed in any judgment adjusting human affairs, and the remedy is by direct attack, such as by appeal. It can no more be set aside or modified merely because the future has been misapprehended than can any other judgment. But in making provision for future periodical payments, the case stands different. The court does not and need not consider changes that the future may bring, because the provision made contemplates payments to be made in the future, and because the judge knows that, if the allowance made be too large or too small, there is power to mold it to changed conditions. It is said in Plaster v. Plaster, 47 Ill. 290, that, had it been a yearly sum, then the alteration of the- circumstances of the parties might, in many cases, be such as would require its reduction or increase in amount. But where a gross sum is received for or in lieu of alimony,-it must be held to be in full discharge and satisfaction for all claim for future support of the wife. In a word, in the one case future contingencies are considered; and, if the future shows they were not properly weighed, it is an erroneous judgment, which becomes final if not appealed from. On the other hand, a provision for future maintenance payments is but an adjustment made to meet conditions as they exist at the time, and the court does not closely scan the future, because review in future is not foreclosed. See Narregang v. Narregang, 31 S. D. 459 (139 N. W. 341); and Read v. Read, 28 Utah 297 (78 Pac. 675).
2-b
And it is not amiss to devote a word to public policy. If, on allotment of a gross or permanent so-called alimony, the right remains to enlarge it on proof of changed conditions, it will be the enlargement of capital, instead of income. And, if permitted *506at all, there is little tangible limitation upon how large the increase may be. Even if the divorce were granted for the gross fault of the wife, the divorced husband would at no time know how much of a potential lien exists upon property that he owns or may own in future. If the right to such modification remains, all buyers from him must take subject to the possibility that the modification will be made; and, as said, being an increase of capital, great increase in the wealth of the husband and the-needs of the wife might work a very great enlargement, and so there would be an inchoate cloud upon every title standing in the name of the former husband. True, on the same reasoning, there is peril from an increase of support money. But, in the nature of things, the possible increase of that is negligible, compared to what an increase of the fund from which income is derived might be, and, unlike permanent alimony, the statute declares in plain words that orders for mere maintenance may be changed.
Indeed, if a decree awarding a lump allowance is as much subject to change as is an order that maintenance shall be furnished by periodical payment, it is difficult to understand why the lump allowance should ever'be sought or granted. As said in Narregang v. Narregang, 31 S. D. 459 (139 N. W. 341) :
‘ ‘ If it were not expected that there would be a final termination of the rights and obligations of the parties, so far as the ■support of the wife is concerned, we doubt if any court would ever grant a gross allowance.”
2-e
There is a long line of decisions, including Spa/in v. Spain, 177 Iowa 249, to the effect that, whatever be the statute, there ■can be no modification giving the applicant an allowance of permanent alimony where, in the original decree, no alimony was allowed. See McFarlane v. McFarlane, 43 Ore. 477 (73 Pac. 203); Cody v. Cody, 47 Utah 456 (154 Pac. 952, 954); Spain v. Spain, 177 Iowa 249; Cullen v. Cullen, 23 Jones & S. (N. Y.) 346; Bassett v. Bassett, 99 Wis. 344 (74 N. W. 780); Henderson v. Henderson, 64 Me. 419, 420. Is there a difference between the standing of a judgment which refuses to make any allowance for alimony and one which allows but a small part of what is *507claimed? Is not the refusal to allow the larger part an adjudication that not more is due than is awarded? If it be sound doctrine that, where there is no allowance of permanent alimony, the refusal is final and res adjudicata, unless reversed on appeal, it would seem to follow this should, on reason, be so where a large amount is claimed for permanent alimony, and but a small allowance is made. It would seem that such decree, in denying what is denied and allowing what is allowed, as much adjudicates finally that no more than the amount allowed is due as does a total refusal adjudicate that nothing is due. See Narregang v. Narregang, 31 S. D. 459 (139 N. W. 341).
III. Our own statute provides that, when a divorce is decreed, the court may make such order in relation to the children, property, parties, and the maintenance of the parties as shall be right. And subsequent changes may be made by it in “ these respects,” when circumstances render them expedient. The Narregang ease was decided under an identical statute.
In Guess v. Smith, 100 Miss. 457 (56 So. 166), there was a decree of absolute divorce; temporary and permanent alimony were commuted to a gross sum of $250, and decreed to be paid at once; and execution was awarded, should there be failure of payment. The statute provision on which a modification of permanent alimony was declined was this:
“When a divorce shall be decreed from the bonds of matrimony, the court may, in its discretion, having regard to the circumstances of the parties and the nature of the case, as may seem equitable and just, make all orders touching the care, custody, and maintenance of the children of the marriage, and also touching the maintenance and alimony of the wife, or any allowance to be made to her, and may, if need be, require sureties for the payment of the sum so allowed; and the court may after-wards, on petition, change the decree, and make from time to time such neiv decrees as the ease may require.” Section 1673, Mississippi Code of 1906.
The court declares that the statutes of New York and of Illinois are substantially the same as the Mississippi statute, and that what it holds has been held in those jurisdictions. In Kerr v. Kerr, 59 How. Pr. (N. Y.) 255, $1,800 was allowed for the “wife and maintenance of her three children.” Modification *508except as to the children was refused. In Gane v. Gane, 14 Jones & S. (N. Y.) 218, it was held that an-allowance of $800 will not be modified by so much as adding that, unless security for its payment was given, the husband should be held to be in contempt of court. In Shaw v. Shaw, 59 Ill. App. 264, it was held that, as to whatever was a gross allowance of alimony, and even though the statute permits new orders as to “allowance of alimony and maintenance, and the care, custody, and support of children,” such gross allowance is in full discharge and satisfaction of all claims for future support; and that there could be no modification of such decree at a subsequent term. To like effect is Barkman v. Barkman, 94 Ill. App. 440, and Cole v. Cole, 142 Ill. 19.
Section 5351, Cobbey’s Annotated Statutes of Nebraska is:
“After a decree for alimony or other allowance for the wife and children, or either of them, and also after a decree for the appointment of trustees to receive and hold any property for the use of the wife or children, as before provided, the court may, from time to time, on the petition of either of the parties, revise and alter such decree respecting the amount of such alimony or allowance, or the payment thereof, and also respecting the appropriation and payment of the principal and income of the property so held in trust, and may make any decree respecting any of the said matters which such court might have made in the original suit.”
It was held in Beard v. Beard, 57 Neb. 754 (78 N. W. 255) (the syllabus being by the court):
“Where, in a divorce proceeding, a decree is entered dissolving a marriage, and awarding the wife a judgment against the husband for $......in full of all her claims upon him or his property by reason of their former marriage relations, it seems that the courts have no jurisdiction to vacate or modify such a judgment, after the term at which rendered, solely because of a change in the circumstances, financial or otherwise, of either of the parties thereto. Such a judgment is a judicial determination of the share of the husband’s property to which the wife is entitled as permanent alimony, and is final and conclusive, unless modified or vacated in a direct proceeding. ’ ’
It is expressly added that said statute provision does not *509apply “to such a judgment as mentioned above, but to an award for alimony payable so much weekly, monthly, etc., until the further order of the court.”
It would seem that these are sustainable only on the reasoning’ that the money judgment is a commutation of what would be required for future support if the marriage relation had not been severed, and that such gross allowance is not alimony, in the technical sense, but is a sequestration, by way of provisions to take care of the new status with reference to support that would have been given had the status not been altered: in other words, that, even on statutes more plenary than our own, the courts are not empowered to amend as to gross allowances termed alimony or permanent alimony.