Lyon v. Lyon

Fish, J.

1. While courts of equity are reluctant to interpose in controversies growing out of merely personal or domestic relations, and will ordinarily leave the parties to pursue the remedies open to them in the courts of common law, still when “property rights or questions concerning property arise between husband and wife, parent and child, [or] guardian and ward,” jurisdiction will be taken, in a proper case, in order that full and adequate relief may be granted to the injured party. See 1 Pom. Eq. Jur. (2d ed.) § 99. Thus, “ where a husband, by a post-nuptial deed, settles a house and business to the separate use- of his wife, to be managed by her for the benefit of herself as if a feme sole, he can be restrained from in any way interfering with the business, and .even from entering the house.” 10 Am. & Eng. Ene. L. 984, citing Wood v. Wood, 19 W. R. 1049. “The aid of equity by injunction is most frequently sought, as between husband and wife, in cases of application for divorce from the bonds of matrimony; and it may be stated, as a general rule, that pending proceedings for divorce, a proper case of emergency being shown, the husr batid may be enjoined from interfering with the custody of the children or of property in possession of the wife.” 2 High, Inj. (2d ed.) '§1393, citing Wilson v. Wilson, Wright (Ohio), 129, and Edwards v. Edwards, Ibid. 308. See also, in this connection, Holmes v. Holmes, 4 Barb. 295, in which Barculo,J., on page 297, said: “The rule of the court of equity, in such cases, follows that of natural justice: the husband, by his violation of the marriage contract, forfeits all equitable right to the wife’s property. Even when the property has belonged to her before the separation, and has been reduced into actual possession by the husband, courts of equity will restore it. to the wife. Much more, in a case like the present, when the property falls to the wife after the separation, should the equitable power of the court be interposed to prevent the husband from receiving it by virtue of that relation which he himself has disregarded and violated. It would be difficult to conceive of a more plain and palpable outrage upon justice than to permit this old lady to be deprived of her whole share of her father’s estate, by an exercise of his marital rights on the part of a husband whose cruelty has driven hep from an honorable home and occasioned a permanent suspension of the marriage contract. The authorities are full on this subject.” Citing Van Duzer v. Van Duzer, 6 Paige, 366; Fry v. Fry, 7 Id. 461; Renwick v. Renwick, 10 Id. 420. This same equitable doctrine is recognized and enforced in the English Courts of Chancery. See Symonds v. Hallett, 24 L. R. Ch. Div. 346, s. c. 53 L. J. Ch. 60, 49 L. T. 380. There it appeared that: “On a marriage a leasehold house was settled upon the usual trusts for the wife for life, for her separate use, and the husband and wife continued to reside in the house. Differences arose between them, they ceased to cohabit, and the wife instituted proceedings for divorce or judicial separation. ‘ The husband claimed the right to go to- and use the house when and ás he thought fit, not for the purpose of consorting with his wife, but for his own purposes. In an action by the wife against the trustees and her husband, claiming administration of the trusts of the settlement and an injunction to restrain the husband from entering the house, [it was] held that, under the circumstances, the wife was entitled to an interim injunction.”

When, pending a libel for divorce instituted by the wife, she is living in a state of separation from her husband, it may be said that the latter’s marital rights are, for the time being, suspended, as he is not at liberty to interfere either with her person or- her property. “One carrying on a suit for any form of divorce can not be cohabiting with the defendant; for thus he would condone the offence, or affirm the marriage sought to be set aside, or otherwise contravene in pais his act in court.” 1 Bish. Mar., Div. & Sep. § 1757. It is not only the privilege, but the duty, of a wife to live apart from her husband, when he has been guilty of conduct entitling her to a divorce which she has not condoned. Harper v. Harper, 29 Mo. 301; Burns v. Burns, 60 Ind. 259; Sykes v. Halstead, 1 Sanford (N. Y.), 483. For “a regard for public decency, as well as the settled usage of the court, requires that under such circumstances the parties should not live together.” Marsh v. Marsh, 14 N. J. Eq. 315. It must oftentimes prove a hardship upon the wife to leave her husband’s house and seek an asylum elsewhere. To compel her to give up a home which she herself has provided with her own separate means would amount to intolerable injustice. So, in such a case, the husband having by his own gross misconduct forced the wife to bring about a separation, it must follow that he, 'and not she, must go forth into the world, leaving the home they had previously shared in common to the enjoyment of its rightful owmer. To protect the wife, under such circumstances, against unlawful interference on the part of her husband, during the pendency of a libel for divorce brought against him, would seem to be peculiarly within the province of a court exercising equity jurisdiction.

Under the practice which obtains in this State, a prayer for the requisite equitable relief may be joined with the wife’s application for divorce in one and the same petition. In Georgia, since the passage of the married woman’s act of 1866, the husband has absolutely no interest, legal or equitable, in property belonging to a wife’s separate estate. She is not now—indeed she has never been—under any legal duty to provide for her husband’s support. Ainsworth v. Ainsworth, 37 Ga. 627, 634. Upon what pretense, then, can a husband who has cruelly wronged his wife and thus relieved her of even any moral obligation to provide for him, claim the right to occupy with her premises of which she is the sole and undisputed owner, during the pendency of proceedings whereby she seeks a total divorce?

2. In the present case, it appears that much evidence which was clearly inadmissible was admitted over proper objections thereto urged by the plaintiff. The reporter’s statement sets forth the evidence alluded to, much of which was palpably hearsay, and a portion of which consisted of mere conclusions on the part of the witnesses and was otherwise objectionable. The error thus committed demands that the case should undergo another investigation, which should be conducted in the light of the law as above announced.

Judgment reversed.

All the Justices concurring.