While dissenting from the conclusion reached by the majority of the Court as embodied in the foregoing opinion, we entirely concur as to the greater part of the views therein expressed, and for that reason it becomes appropriate to state concisely the extent of the accord the point of departure, and the reasons therefor.
In so far as the questions arising as to the power of the Court to modify the decree of May 29th, 1911, and that the provisions therein made for the plaintiff, Emelie A. Emerson, were not alimony in the legal signification of that term, but rather a division of property and the creation of an annuity, we fully concur with the doctrines adopted.
What then is the situation? The proceeding in the Circuit Court of Baltimore City was one for a divorce and alimony *Page 600 as an incident thereto. Such are the clearly expressed prayers of the bill. The Circuit Court was, therefore, acting in the exercise of its function as a divorce court, not as a court of general equity jurisdiction. In this capacity its powers were those formerly exercised by the Ecclesiastical Courts of England, with such additional ones as may have been conferred by statute, and none other. The parties could not, by agreement, either enlarge or diminish the jurisdiction, and the fact that the Court in its decree incorporated certain provisions which had apparently been agreed upon by the parties, could give them no sanction or validity unless the Court, independent of the agreement, had the jurisdiction which would have enabled it, under the pleadings and evidence, to have entered the like decree. The Court in the exercise of its divorce jurisdiction in Maryland is limited to the following matters: It may by its decree determine the marital status of the parties to the cause; it may in an appropriate case award alimony; it may decree as to the property or estate of the wife which she had when married, and also may order and direct as to the guardianship and custody of the children of the parties, and impose their support or maintenance upon the husband or wife. Code (1912) Art. 16, sec. 38. But in so far as the decree attempts to exceed these matters it is nugatory and void. It is a familiar rule of equity that the relief granted in a decree can not go beyond the scope of the bill. It is not enough that the proof may show that the plaintiff is entitled to some relief, for unless that is the relief warranted by the allegations in the bill the plaintiff has failed to make out her case. 16 Cyc. 485, and cases there cited.
In the present case the bill was for a divorce a vinculomatrimonii and alimony. There was no allegation or prayer upon which to base a diversion of the property of the husband, or create an annuity in favor of the wife. Therefore, if this were to be regarded merely in the light of a proceeding under the general equity jurisdiction of the Court, the relief given by the decree was different in kind from that *Page 601 appropriate to the case as made out by the bill, and with greater force does the equity rule apply when the Court is in the exercise of its narrower and more limited jurisdiction as a divorce court.
This does not leave the plaintiff remediless. It is true she was awarded no alimony by the decree, nor was there any evidence produced to the Court upon which to base any decree therefor. She had seen fit to enter into an agreement with her husband for certain numerated property and for the settlement on her of an annuity.
So far as appears from the record in this case, the agreement has all the vitality today that it had at the time it was executed. If it is departed from or broken by Mr. Emerson, there is nothing before us to show that Mrs. Emerson does not possess every legal or equitable right thereunder which she ever had, and is therefore entitled to pursue every remedy for a breach of the agreement that she ever could.
It is certainly a dangerous rule to establish, and particularly in a divorce Court, that parties may enter into whatever agreement they choose, independent and beyond the jurisdiction of the Court, and foreign to the case made by the bill, and then in case they succeed in procuring it to be incorporated in the decree, to accord to the decree a force which it could not have had but for such agreement, nor could their assent give the decree a force greater than it would have had in the regular exercise by the Court of its divorce jurisdiction. Southworth v. Treadwell, 168 Mass. 511; Harvard Law Review, (page 441), March, 1913.
In our view the insertion of the property provisions in the decree of May 29th, 1911, was improper, and that in so doing the Court exceeded its jurisdiction, and accordingly the decretal order of November 14th, 1912, should be reversed, and the prayer of the petition granted; but without prejudice to the plaintiff to pursue such remedy as she may be entitled to for a breach of the agreement in case the same has been, or shall hereafter be, violated. *Page 602