dissenting.
Snead, J., dissenting.
I cannot agree with that part of the majority opinion which holds that the trial court had jurisdiction in this proceeding, instituted for the primary purpose of obtaining a divorce, to determine the respective property rights of the litigants and partition their property.
The fact that the litigants do not contest jurisdiction is immaterial. If the court is without jurisdiction to do the things sought to be done, its actions are void and of no effect.
Neither in England prior to the matrimonial causes act of 1857, nor in Virginia prior to enactments giving equity courts jurisdiction, could divorces a mensa et thoro or a vinculo matrimonii be granted. Before enactment of such statutes, divorces in England were granted by an act of Parliament, and in Virginia by an act of the legislature. However, courts of equity in this Commonwealth, at a time when they had no general jurisdiction to grant divorces, did exercise jurisdiction to award alimony. There can be no doubt that equity has no inherent jurisdiction in respect to divorce. Jurisdiction in courts of equity, both as to divorces a mensa and a vinculo, is purely statutory Gloth v. Gloth, 154 Va. 511, 538, 539, 153 S. E. 879; Bray v. Landergren, 161 Va. 699, 704, 172 S. E. 252.
In McCotter v. Carle, 149 Va. 584, 592, 593, 140 S. E. 670, it is said:
“In Virginia, as in most of the States, it is an accepted doctrine, that, following the English theory of this branch of our jurisprudence, power to grant divorces originally resided in the legislature, that neither the law courts nor the equity courts have any inherent power to dissolve marriage, and that the authority in any court to decree a. divorce is purely statutory. Consequently in section 63 of the Virginia Constitution the legislature was directed to confer power upon the courts to grant divorces. Chapter 205 of the Code of 1919, as also similar legislation in previous Codes, has its place in our statutory law in obedience to the mandate of the *88Constitution. The statute (section 5105) provides that every court ‘exercising chancery jurisdiction’ shall have jurisdiction of divorce suits. The many limitations, both in respect to jurisdiction and procedure, placed upon divorce suits by the statute, differentiate the divorce case from ordinary suits in equity and render it a chancery case sui generis.”
On pages 591, 592, the court also observed:
“It is contended on behalf of the defendant, as plaintiff in error, that it is settled doctrine in Virginia that, when a court of equity has acquired jurisdiction of a case on any equitable ground, it will proceed to grant complete relief, even to the extent of enforcing legal rights. Such a principle is established and recognized. * * *.
“The difficulty of the application of these propositions or this line of argument, in the instant case, lays in the fact that the two basic premises upon which the argument rests are failing in the instant case. In the first place the court of equity did not acquire jurisdiction of the divorce suit upon any equitable grounds; its jurisdiction was entirely statutory and limited. In the next place, the court having denied the divorce, the property rights of the parties in no sense constituted demands, which properly belonged to the subject of controversy and might have been litigated.”
And on page 593 the court quoted with approval from Lile’s Equity Pleading and Practice (1922 ed.) § 18: “ ‘Such jurisdiction is generally termed a limited statutory jurisdiction. Here the bill must affirmatively allege, and the plaintiff must prove the jurisdictional facts; and the jurisdiction may be legally exercised only in substantial compliance with the statute—otherwise the case is coram non judice; * * #.’ ”
It is obvious that in divorce proceedings ordinary equity jurisdiction is not invoked. Chapter 6, Title 20, Code of 1950, designates the courts that shall have jurisdiction of suits for annulling or affirming marriages and for divorces. But the jurisdiction conferred upon the courts is a limited statutory jurisdiction and it cannot be carried bevond the limits of the statutes themselves. Incidentally involved are the questions relating to alimony, and to a certain limited and narrow extent property rights, which are hereinafter defined.
The law is well established in this Commonwealth that in the absence of a contract between the husband and wife, no specific property of the husband can be decreed to the wife under the theory that the court having power to decree alimony may direct specific *89property, real or personal, transferred to the wife. Barnes v. American Fert. Co., 144 Va. 692, 708, 130 S. E. 902; Bray v. Landergren, supra, at p. 707; Wilson v. Wilson, 195 Va. 1060, 1067, 81 S. E. 2d 605.
In Barnes v. American Fert. Co., supra, at p. 709 the court stated:
“In Gum v. Gum, 122 Va. 32, 94 S. E. 177, it was held that the term ‘estates’ as used in section 5111 embraces contingent right of dower, and the statute intended to give the court the right to settle the rights of each party in the property of the other, and if need be to extinguish them. Whilst we do not wish to be understood as saying that there might not possibly be some other property right than that of contingent rights of dower and courtesy which the court is empowered by the statute to settle in cases of divorce, we think it clear, certainly in the absence of agreement, that the power of the court is limited to the settlement of those property rights of the parties which have arisen by operation of law out of the marital relation, and the protection of their respective estates.”
The statutes concerning the estates of husband and wife in Chapter 6 relating to divorces are §§ 20-107, 20-111, 20-116, Code 1950.
Section 20-111 provides that the entry of a decree of divorce from the bond of matrimony, has the effect of extinguishing all contingent rights of either consort in the real and personal property of the other then existing or thereafter acquired, “including the right of survivor-ship in real or personal property title to which is vested in the parties as joint tenants or as tenants by the entirety, with survivorship as at common law, # * *, and such estate by the entirety shall thereupon be converted into a tenancy in common.”
It is to be noted that the first part of this section which relates to extinguishing contingent rights was originally the last sentence of § 5111 of the Code of 1936, having been added to that section after the revision of 1919, by successive amendments. Section 20-107 was section 5111 of the Code of 1919, which was also amended a number of times between the revision of 1919 and 1948.
Section 20-116 provides: “In granting a divorce from bed and board, the court may decree that the parties be perpetually separated and protected in their persons and property. Such decree shall operate upon property thereafter acquired, and upon the personal rights and legal capacities of the parties, as a decree for divorce from the bond of matrimony, except that neither party shall marry again during the life of the other.”
*90It is manifest from the history and wording of §§ 20-111 and 20-116 that they are intended to have effect solely upon the marital rights of the parties in and to the property of each other, that is those rights created by the marriage; except that under § 20-111, by force of the statute itself,, the divorce a vinculo has the effect of extinguishing “the right of survivorship in real or personal property title to which is vested in the parties as joint tenants or as tenants by the entirety, with survivorship as at common law, # * and such estate by the entirety shall thereupon be converted into a tenancy in common.”
It is to be noted that survivorship between joint tenants as well as tenants by the entirety has been abolished by Code § 55-20, with those exceptions mentioned in § 55-21. However, both types of tenures can exist where the deed or will creating such, expressly provides therefor. Therefore, these rights under such tenures do not arise by virtue of the marriage, but are created either by the acts of the husband and wife, or of some third person creating them.
The only possible argument which might be advanced in support of the proposition that a divorce court has jurisdiction under the statutes to settle the property rights of the parties is found in the language of § 20-107, Code 1950, which reads: “Upon decreeing the dissolution of a marriage, and also upon decreeing a divorce, whether from the bond of matrimony or from bed and board, and upon decreeing that neither party is entitled to a divorce the court may make such further decree as it shall deem expedient concerning the estate and the maintenance of the parties, # * #.”
Does this section give the court jurisdiction and power to decree the rights of the parties in respect to the estate of each other? The word “estate”, as used here, can have no meaning other than in respect to the rights of the parties resulting from and created by the marriage. Barnes v. American Fert. Co., supra, at p. 709; Watson v. Mose, 165 Va. 661, 666, 183 S. E. 428.
In Watson v. Mose, supra, at p. 666, Mr. Justice Gregory, speaking for the court said:
“# * * Did the court err in cancelling and annulling the deed from Barrett, special commissioner, which conveyed to Rosetta Green Mose the one-half interest of Edward Mose in this real estate? We think not. While in divorce proceedings the court is given the power under Code section 5111, to fix the rights of each party in the property of the other, these rights are such as are created by the marital *91relation, and there is no warrant of law by which the specific property of the husband can be assigned or transferred to the wife as alimony without an agreement between the parties to that effect. # * (itaücs supplied)
The words used in the statute (§ 20-107) “Upon decreeing the dissolution of a marriage, and also upon decreeing a divorce, whether from the bond of matrimony or from bed and board, * * * the court may make such further decree as it shall deem expedient concerning the estate * * # of the parties * # make no distinction between a decree of annulment, divorce a mensa or a vinculo, and yet §§ 20-111 and 20-116 actuallyspell out the effect of such decrees upon the property rights of each of the spouses. It seems clear to me that the word “estate” as used in this section means only those rights and interests created by the marital relation.
I cannot agree that because a court of equity has taken jurisdiction of a divorce case it is thereby empowered to do complete justice between the parties and settle all their property rights. Equity as such has never acquired that jurisdiction. The courts having equity jurisdiction, are by statute given a special limited statutory jurisdiction, yet upon invocation of this special statutory jurisdiction they can no more settle the property rights, other than marital rights, in such suits than they could sell an infant married woman’s real property, or have partition of property jointly owned by the husband and wife as is decreed in the case at bar.
I am convinced that in this proceeding the lower court was without jurisdiction to adjudicate that the property was owned “jointly and equally” between appellant and appellee, and order a partition thereof in this suit.
Miller, J., joins in this dissent.