William M. Lacy James Kent.

Commentaries on American law, Volume 2 online

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shall uttcrlv desert her, or groasly, or wantonly and cruelly refuse or neglect
to provide (if able) suitable maintenance for her. Mass. Revised Statutes^
1835. In Vermont, New Jersey, Kentucky, Mississippi and Michigan divorce
a mensa el ihoro may be granted for extreme cruelty, and in the latter state
for wilftil desertion for three years. Act of Michigan, April 4th, 1833. Lock-
ridge V. Lockridge, 3 Dana^s Ken. Rep. 28. Holmes v. Holmes, Walker^ s Miss.
R. 474. Elmer* s Digest, 140. Laws of Vermont, p. 364.

{e) Lord Eldon, 11 Fesey, 532.

" See previous note. If the parties have been living apart for seven yean
under a decree a mensa, &c., they may have a divorce a viticulo.



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fiad it stated, in Etxins v. Evans (a), that it is necessary there
should be a reasonable apprehension of bodily hurt. The conrts
keep the rale yery strict. The causes most be grave and weighty,
and show such a state of personal danger as that the duties of
the married life cannot be discharged. Mere austerity of temper,
petulance of m'anners, rudeness of language, a want of civil atten-
tion, even occasional sallies of passion, if they do not threaten
bodily harm, do not amount to that cruelty against which the
law can relieve. The wife must disarm such a disposition in the
husband by the weapons of kindness (6).

This being the rule of the English courts, it would appear that
divorces a mensa are placed, by the statute of New York, on rather
broader ground. They are not only for cruelty, but generally for
sQch condnct on the part of the husband towards his wife, as
renders it unsafe and improper for her to cohabit with him, and
be under his dominion and control. Probably the word unsafe,
in our statute, may mean the same thing as the reasonable appre-
heosion of bodily hurt in the English cases (c). It was consid-
ered, in the case of Barrere v. Barrere (d), that the danger or
iajniy must be serious, and the slightest assault or touch in anger
was not, in ordinary cases, sufficient It was likewise held, in
that case, that the separation need not be declared to be for any
specific time, but may be left general and indefinite,
with *liberty to the parties to be reconciled when they [ * 127 ]
please, and to apply to be discharged from the decree.
The decree of divorce is always, by the canon law, 8ub spe recon-
eiliationis (c).

The statute above referred to seems to have considered the wife
as the only infirm party who stands in need of such protection, .
for it confines the divorce a menaoy for cruelty, desertion, or other

(d) 1 HaggartPa Contid, Bep, 35.

(h) 1 Ihid, 364, 409, vol. ii. p. 148. Neeld v. Neeld, 4 Haggard's EccL Rep.
963. Miner, TraiU du OnUrat de Marriage, sec. 509. 2 Mass. Rep. 150. 3
Ihid. 321. 4 Ibid. 587. Bat it is cruelty, in judgment of law, if the wilfbl
oondact of the husband exposes the wife to bodily hazard and intolerable
hardship. D'Aguilar v. D'Aguilar, 1 Haggard's EccL Rep, 773.

(r) It has been so understood in Mason v. Mason, 1 Edv, Ch. Rep. 292.

id) A Johns. Ch. Rep. 187.

\t) Bwrns^ Ecd. Law, tit Marriage, ch. 11, sec. 4. Oughton's drdo Jud.
tit, 215, see 3. Bynk. Q. Jur. Priv. L 2, ch. 8.

12 VOL. n. KENT. 177


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improper conduct, to sach conduct in the husband (a);" but the
English ecclesiastical law makes no such distinction, and divorces
are granted, on a bill by the husband, for cruel usage by the
wife (6). Upon these separations from bed and board, ^the chil-
dren that the wife has during the separation, are bastards, for
due obedience to the decree is to be presumed, unless the con-
trary be shown (c). If however, cohabitation between the hus-
band and wife existed, the presumption of illegitimacy is de-
stroyed. This is the general law; and when the Neto York Be-
vised Statutes {d) declare, that a child begotten and born during
the separation of its mother from her husband, pursuant to a di-
vorce a mensa et thoro shall be deemed a bastard, it is to be taken,
as I apprehend, subject to the same qualifications which acoom-
panied the general rule.

These qualified divorces are regarded as rather hazardous to

the morals of the parties. In the language of the English
[*128] courts, it is throwing the parties back upon society, in *the

undefined and dangerous characters of a wife withoat a
husband, and a husband without a wife. The ecclesiastical law
has manifested great solicitude on this subject, by requiring, in
every decree of separation, an express monition to the parties *^%o
live chastely and continently, and not, during each other's life,
contract matrimony with any other person ; '' and security was
formerly required from the party suing for the divorce, to obey
the mandate (e). The statute allows the husband, on such a
bill by the wife, for ill conducts to show, in his defence, and in
bar of the suit, a just provocation in the ill behaviour of the
wife, and this would have been a good defence, eiven without the

(a) VaDveghten v. Vanteghten. 4 John^. Ch, Rep, 501. By a statnte of New
York, of April 10th, 1824, ch. 205, sec. 12, the court of chancery was aathor-
ized to decree a divorce a mensa, on the complaint of the hu^nd^ and that
provision is deemed to be in force, notwithstanding the subseqaent general
provision in the revised laws, confining that remedy to ^e wife. Perry v.
Perry, 2 Paige's Rep. 501.

(h) Eirkman v. Kirk man, 1 Haggard^ s Consist Rep, 409.

(c) St. George v, St. Margaret, 1 Salk, 123.

{d) Vol. i. p. 641.

[e] Barnes Ecel. Law, tit. Marriage, ch. 11, sec 4. Barrere v. Barrere, 4
Johns. Ch. Rep, 196, 198. Yanveghten v. Yanveghten, Ibid. 501.

** A single act is not sufficient. Perry v. Perry, 1 Barb. ch. 516, and see Pa.
Laws, 18M, May 8, where a divorce will be granted if life be rendered bur-
densome, or the condition of the husband intolei-able by cruel and barbarous



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aid of the statute (a).** And on these separations from bed and
hoard, the conrts introsted with the jurisdiction of the subject,
will make suitable provision for the support of the wife and chil-
dren, out of the husband's estate, and enforce the decree bj se-
questration; and the chancellor, in New York, may exercise his
discretion in the disposition of the infant children, and vary or
aannl the same from time to time, as circumstances may re-
qnire (b)." I apprehend there is not, in these United States, any
esseatiai difference in principle, or departure from the doctrines of
the EDgUsh law, on the subject of divorces a menaa et thoro (c).

M Niew York Beviaed SHahUes^ vol. ii. p. 147, sec 53. Waring v. Waring,
2Ba^gard'tOm8igL Bep, 154.

(b) New York Remmd SUUutes^ vol. ii. p. 147, sec 54, 55. Ibid, 148, sec 59,
60. Banere v, Barrere, 4 Johns, C%. Eep. 197.

(c) Reeves Dmestie Belaiums, ch. 16. Thompson v, Thompson, 2 DaUoB,
1%. Warren «. Warren, 3 Man. Rep. 321. 8taluU» ofDdaware^ 1832, ch. 144.

* 8m Calkins v. Long, 22 Barb. (N. Y.) 97.

*See4Band£ Ch. 493; 1 B. I. 212. See farther Bishop on Marr. & Dir.
aeetions 676—^91.



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The legal effects of marriage, are generally dedncible from the
principle of the common law, by which the hi^sband and wife are
regarded as one person, and lier legal existence and aathority in
a degree lost or su8p<9nded, daring the continuance of the matri-
monial union (a). From this principle, it follows, that at law no
contracts can be made between the husband and wife, without the
intervention of trustees; for she is considered as being ^u&pofes-
tate viri, and incapable of contracting with him; and except in
special cases, within the cognizance of equity, the contracts which
subsisted between them prior to the marriage, are dissolved (6).'
The wife cannot convey lands to her husband,' though she may

(a) Co. Liit. 112, a, 187, b. Liit sec. 168, 291. 1 Blacks. Com. 441. The
\m maritiy where it is not restrained by special contract, exists with eqaal
force and extent in the Scotch law. The husband acquires the same powei
over the p^ei-son and property of the wife, and she is sabjected to similar dis-
abilities. Erski^ie's Inst. b. 1, tit 6, sec. 19, 22. Stair'alnst. b. 1, tit. 4, sec
13, 16.

{b) The disability of husband and wife to contract with each other, is
founded in the wisest policy, and is an essential muniment to the inviola-
bility of the nuptial contract, and to the maintenance of the institution ol
marriage. The consequent dependence of the wife upon the husband, and
the continued liability of the husband to support the wife, and the other in-
capacity of the parties, by their own mere wiLl. to absolve each other from
the reciprocal rights and duties which the law of their contract imposes upon
them, furnishes powerful motives to the promotion of harmony and peace
ful cohabitation in married life. Marshall, J., in Simpson v. Simpson, 4
Dana's K. Rep. 142.

* But contracts that are to be performed after marriage are enforceable ii
equity when for the benefit of the parties and the future issue, if fair anc
reasonable, and not otherwise void. 10 Serg. & Rawle, 447. Even in favoi
of collateral relations, at the request of any party within the consideratioi
of the marriage. Pulvertofl v, Pulvertoft, 18 Vcs. 92; Bramash v. Gibb, \
Johns. Ch. N. Y. 550.

^ See under the New York statutes 1848, 1849, the case of Winans r
Peebles, 31 liarb. 371 , whei-e it was held that, although the act restricted th<
wife from taking from her husband as therein stated, yet her power of dis
position over her own estates is vested in her, and she can convey to anyone
including her husband, as M 9. feme sole. See, however, contra. White t?. Wager
32 Barb. 230 (Campbell, J., dissenting). Under the act of 18J0, ch. 90 (N



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release her dower to bis grantee; nor can the husband convey
lands by deed directly to the wife (a).' The husband may devise
lands to his wife, for the instrument is to take effect after his
death; and by a conveyance to uses, he may create a trust in
favour of his wife (6), and equity will decree performance of a
contract by the husbadd with his wife, for her benefit (c),* The
general rule is, that the husband becomes entitled, upon the mar-
riage, to all the goods and chattels of the wife, and to
the rents and profits ^ot her lands, and he becomes liable [ * 130 ]
to pay her debts, and perform her contracts.

Accordillg to the plan of these general disquisitions, I cannot
undertake to enter minutely into the numerous distinctions and
complex regulations which appertain to the relation of husband
and wife. My purpose will be answered, if I shall be able to col-
lect and illustrate the leading principles only ; and that I may be
able to do this clearly, and to the satisfaction of the student, I
shall consider the subject in the following order:

{a) Martin r. Martin, 1 GreerUeaf^s Rep, 394. Rowe v. Hamilton, 3 Ghreen-
leaf ^8 Rep. 63. Bat though such a conveyance would be void at law, equity
will uphold it in a clear and Batisfactory case. Wallingford v. Allen, 10
Pitere Sup. CouH R. 683. See infra, p. 162.

(h)Co.LitL 112 a.

(e) Moore v. EUi^, Bunb. Rep. 205. Livingston v. Livingston, 2 Johns. Ch.
Rep. 537. Shepard t?. Shepard, 7 Johns. Ch. Rep. 57.

Y.), she has power to sell and convey real estate, and make any contract re-
speetiDg the same, but her husband must assent or it is invalid, except when
SQch consent is unreasonably withheld; or, he is insane, in which case the
county court may order her to convey without such consent. In Gage v.
Danchy, 28 Barb. 622, it was held that the wife might give the use and in-
come oi her separate estate to her husband notwithstanding the act of 1848.

In order to render conveyances between husband and wife legal, they must,
by the rules of common law, in the absence of express provision to the con-
traiy, be made through the intervention of trustees.

' In Maine under Statute of 1847, a husband may convey to his wife un-
less with the intention of defeating his creditors. Davis v. Herrick, 37
Maine, 397 ; Johnson v. Stillings, 35 Id. iSlTI ; Motley v. Sawyer, 38 Maine,
68. So a conveyance to a wife will be upheld in equity where it will pre-
vent injustice. Simmons v. McElwain, 26 Barb. 419. And equity will,
although such conveyances are void at law, generally uphold and enforce
contracts by husband to wife without the intervention of trustees, as against
the husband and his administrator, but not as against his creditors. George v.
Bpeneer, 2 Md. Ch. Dec. 353 ; Mews v. Mews, 21 Eng. L. & Eq. 556 ; Dem-
ingr. Williams, 26 Conn. 626 ; Wells v. Tread well, 28 Miss. (6 Cush.) 717 ;
Lehr v. Beaver, 8 Watts A Sergt. 106 ; see further Herr's App., 5 Law Rep.
■ 4u8 (Pa.); Barron v. Barron, 24 Vt. 399 ; Seating v. Searing, 9 Paige, 284 ;
Reynolds v. Landsford, 16 Texas, 286.

* In Vermont it has been held that the husband has, after issue lx)rn,
such an estate in the wife's lands as may be taken in execution. Mattocks r.
Steams, 9 Yt. 326. But such execution may be defeated by a decree a rinctUo.
Stearns v. Steams, 10 V t. 540.



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The right which the hasband acquires by marriage in 1
erty of the wife.

The daties which he assumes in the character of hnsband

How far the wife is enabled by law to act daring covertni
feme sole.

Her competency, in the view of a cbnrt of eqnity, to dc

her property.

Other rights and disabilities incident to the marriai

lie right which the husband acquires by marriage in the pr

petty of the wife.
.) To her lands in fee.

the wife, at the time of marriage, be seised of an estate
ritance in land, the husband, upon the marriage, becom
Mi of the freehold jure uxoris, and he takes the rents and pi
luring their joint lives (a). It is a freehold estate in tj
)and, since it must continue during their jtdnt lives, and
y by possibility, last during his life." It will be an esta
im for the life of the wife only, unless he be a tenant by tJ
esy. It will be an estate in him for his own life, if he di
re his wife, and in that event, she takes the estate again in h

own right. If the wife dies before the husband, wiiho
31 ] having had issue, her heirs immediately * succeed to tl

estate. If there has been a child of the marriage boi
), the husband takes the estate absolutely for life, as tens
he curtesy, and on his death, the estate goes to the wife, (
heirs, and in all these cases, the emblements growing up<

Co. Lift 351, a.
'or the statutes affecting the rights and liabilities of married worn
ote at the end of this lectnre.

)uring her life he is so far master of it as to receive the rents and proti
Abr. Tit. Bar. & Fern.; 1 Roper Hus. & W. ch. 2d.; Bailey t\ Dunca
m. 260; Weller v. Baker, 2 Wils. 423; Kenney v. XJdall, 3 Cow, 5£
t may be taken away. The interest may be taken on an executi^
ist him. Mattock v. Stearns, 9 Vt. 326.

Oeorgia it would seem that all the wife's real estate owned by herbefc
iage vests in the husband in the same manner that personalty does, ai
se of herdecease intestate it passes and is distributed as personsal estai
>)bb*s Digest of 1851, pp. 305-6. This occupation of it, is evidence of i
ion into possession, if reduction is necessary in such a case. Koyston
;ton, 21 Ga. 161. A husband may give his wife^all his property and
be free from his subsequent debts. Horn v. Ross, 20 Ga, 210.
s estate as tenant by the curtesy may be conveyed. Thrask v. Pattereo
!e. 502. If he should convey the fee, a life estate will only pass to tl
haser. Miller v. Shackleford, 3 Dana (Ey.), 291.
e for the statutory provisions, the note at the end of this lecture*



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the land, at the termination of the liusband's estate, go to him,
or his repreeentatives.^

Daring the continaanoe of the life estate of the littsband, he
sues in bis own name for an injniry to the profits of the land ; bat
for an injarj to the inheritance, the wife must join in the suit,
and if the husband dies before recovery, the right of action sur-
yives tathe wife (a).^ If the hnsband himself commits waste, the
coTertnre is a suspension of the common law remedy of the wife
against him. The husband has an interest in the freehold estate
of his life, which may be seised and sold on execution, and if the
assignee, or creditor of the husband, who takes possession of the
estate, on a sale on execution of his freehold intprest, commits
waste, the wife has her action against him, in which the husband
must join; for though such assignee succeeds to the husband's
right to the rents and profits, he cannot commit waste with im-

(a) Weller and others v. Baker, 2 WVn. Bei). 423, 424. It is there said to
be difficult to reconcile the cases, as to the joinder of husband and wife, in
actions relating to the land.

' If, during her liffe real estate is converted by operation of law, into per-
sonal estate, the conversion will be treated as her own. Graham v. Dickin-
son. 3 Barb. Ch. 17U. Bnt see as to Maryland, Taggartv. Boldin, 10 Md. 104.

If husband and wife join in a conveyance of her real estate to trustees for
their use the husband takes absolute control of the proceeds of sale. Siter v.
JicClanachan, 2 Gratt. (Ya.) 280.

Aa to his right as tenant bv the curtesv, see Davis v. Mason, 1 Peters* U.
B. 503; Gentry v. Wagstaff, 3 Dev. N. C. 2*70; Jackson v. Sellick, 8 John. 202;
De Grey ». Richardson, 3 Atk. 469; Green v. Liter, 8Cranch, 249. In order
to entitle him at common law, to such an estate, there must be a legal mar-
riage, the wife must be seised of an estate of freehold; issue must be bom
alive capable of inheriting, and the wife mnst be dead. In Pennsylvania it
is not necessary under Stat. 8 April, 1833, that there should be issue of the
marriage, and it is not generally accepted that there should be actual seisin
on the part of the wife, constructive seisin being held sufficient where there
is no adverse possession. Kline v. Beebe, C Conn. 494; Tush v. Bradlee, 4
Day, 298; Stoolfooe v. Jenkins, 8 S. & R. 175; Ellsworth o. Cook, 8 Paige,
643; McCorry v. King, 3 Humphrey, 267; Davis v. Mason, 1 l*eters, S. C. 507.
Bat where there is adverse possession she must be seised. Mercer's Les.see v.
Belden, 1 Howard, 8. C. 54. Curtesy does not attach to a reversion. Stod-
dard V. Gibbs, 1 Sumner, 263. Nor to trust estates. Chew v, Comrs of
Soathwark, 5 Rawle, 161. The right of the husband to curtesy out of equi-
table estates is mostly governed by statute. 1 Greenl. Cruise, 157, 812; Page's
estate, 25 P. F. Smith, 87.

If they are divorced and the husband has sown the land before decree, he
is entitled to the emblements. Oland's Case, 5 Rep. 116. See also Mattock v.
Stearns, 9 Vt. 326. At common law the lease by a husband of the wife's
lands operates so as to give the tenant the right to emblements. Mooney's
Case, 2 Vern, 322; Gould v. Webster, 1 Tyler (Vt), 409.

^ The rents, issues and profits of her lands accruing during coverture belong
tj him absolutely at common law and he can sue alone therefor, and after
her decease maintain an action for use and occupation. Clnpp t7. Houghton,
10 Pick. 463; Jones r. Patterson, 11 Barb. 572.



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ponitj (a). So, also, the heir of the wife may eoe the husband
for the waste, and no doabt the court of chancery wonld stay bj
injunction the husband's waste, on behalf of the wife herself. But
it seems, that from want of priyity, the heir of the wife cannot
bring an action of waste against the assignee of the husband,
though it may be brought against the husband himself, for waste
done by his assignee, and he shall recover the land of the as-
signee (b). The subtle distinction in Walker^a case (c), and which
we have followed, was, that if the tenant by the curtesy assigns

over his estate, the heir of the wife can sue him for waste
[ * 182 ] done after the assignment; but if the heir * grants over

the reversion, the grantee cannot sue the husband, for
the privity of the action is destroyed. He can only sue tihe as-
signee of the husband, for as between them there is a privity of

If an estate in land be given to the husband and wife, or a joint
purchase be made by thehi during coverture, they are not pro-
perly joint tenants, nor tenants in common, for they are but one
person in law, and cannot take by moieties. They are both
seised of the entirety, and neither can sell without the consent of
the other, and the survivor takes the whola' This species of ten-
ancy arises from the unity of husband and wife, and it applies to
an estate in fee, for life, or for years. . If the grant be made to
the husband and wife and B., or to the husband and wife and B.
and C, the grantees are all joint tenants as between themselves,
but the husband and wife are tenants, by entireties, as between
each other; and as for all the purposes of ownership, the husband
and wife are but one person in law, they take only a moiety of
the land in the one case, and only a third of it in the other (d),^

(n) Bab and Wife t. Perley, 1 Greenleaf^s Rep, 6. Mattocks r. Stearns, 9
Vermmit B. 326.

{h) Bates v. Shraeder, 13 JohnA. Kep, 260. (c) 3 Co. 22.

id) Litt, sec 291. Barber v. Harris, 15 Johnson, 617.

• See hereon Harding r. Springer, 2 Sheplay, 407. The right cf survivor-
ship accmes to the wile, in Pennsylvania, as before the statute passed in
1848 in that state. Stnckey r. Keefe, 2 Casey, 297; Bates r. Seelev, 10
Wright, 248; Diver v. Diver, 6 P. F. Smith, 109; Ross r. Garrison, 1 Dana,
35; Rogers v. Grider, Id. 243. In Ohio they take as tenants in common.
Sergeant v. Steinberger, 2 Ohio, 305.

'^Johnson v. Hart, G Watts & S. 319. The tenancy by entireties can only
arise where the conveyance is made to them dnring marriage. Co. Litt, 187,
b. When the marriage is dissolved by divorce the tenancy is dissolved, and
they become tenants in common. At least this would seem to be the law in
Tennessee. Ames v. Nonnan, 4 Sneed, G83, 696. See 2 Bishop Marr & Div.
J 716.



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If they are tenants by entireties of a term for years, the husband
may alien the entirety so as to bind the wife (a). The same
words of oonYeyanoe, which wonld make two other persons joint ten-
ants, will make the husband and wife tenants of the entirety. This is
a nice distinction laid down in the old books, and it con-
tiDues to this day to be the law (&)." * The husband [ * 183 ]
alone may grant or charge the wife's land during their
joint liyes," and if he be tenant by the curtesy, during his own
life. He cannot alien or encumber it, if it be a freehold estate,
80 as to preyent the wife, or her heirs, after his death, from en-
joying it, discharged from his debts and engagements." But

(d) Grate v, Locrofl, Cro. Eliz. 287. When hnsband and wife hold the
entirety with right of sun'ivoTship he cannot alien ih^entire estate, but the
husband may execute a mortgage of his interest, or he may make a lease in
his own name, or join with his wife. Jackson v. M'Connell, 19 Wendell, 175.
In the State of Ohio, no joint tenancy exists, and the doctrine of survivor-
ship is unknown, even as to a devise to husband and wife, and they take as
tenants in common, and not as tenants of the entirety. Sergeant v. Steen-
berger, 2 Ohio Rep. 305. «

(6) WL sec 291, 665. Co, Litt. 187, b, 188, a, 351. Bro. Abr, tit. Cui in
rite, 8, 2, Blacks. Bep. 1214. Doe v. Parratt, 5 Term Rep. 652. 16 Johns.
Bep. 115. 5 Johns. Ch. Bep. 437. Barber v. Harris, 15 WendeU, 615. Den v,
Hardenbergh, 5 HalsUtd's Bep. 4St. 3 Randolph' s Rep. 179. bMass, Rep. 523.
1 DanaH Kentucky Rep. 37, 243. Taul v. Campbell, 7 Yerger, 319. Den t?.
Whitemore, 2 Dev. A Bat. 537. Greenlaw v. Greenlaw, 13 Maine B. 166,
Weston, Ch. J. See infra, vol. iv. p. 362. Mr. Preston {Abstracts of Title,
voL ii. p. 41, )gSaySy that as the law is now understood, husband and wife may,
by express words, hd made tenants in common, by a gilt to them during cov-
erture. The law in the text does not exist in Connecticut, but the husband
and wife are joint tenants in such a case^ and the husband may alone convey

Online LibraryWilliam M. Lacy James KentCommentaries on American law, Volume 2 → online text (page 22 of 108)