
    Chunn vs. Chunn.
    Husband and Wife. Divorce a mensa — alimony. ‘Upon a divorce a mensa etthoro, the marriage is allowed to have been valid, and to have invested the husband with the wife’s property, and, therefore, the practice is not to decree the wife absolutely a part of the husband’s real- and personal estate, but only to allot her some portion of his income for her support, securing the payment, if neceseary, by charging it upon his estate.
    Same. Divorce a vinculo — decree thereupon — 1799, c 19, construed. But, upon a divorce a vinculo,the marriage is adjudged void ah initio, and the title to the lady’s property remaining, therefore, unaffected by it, the possession is restored to her. And the same rule is to be observed in decreeing a divorce under the act of 1799, c 19, though it allows a divorce a vinculo for superve-nient causes.
    SAME. Debtor and Creditor. A husband, who is sued for a divorce and alimony, cannot resist a decree, beeause his creditors may be affected by it; nor, in ascertaining the alimony, will the court take an account of his debts.
    Constitutional Law. Partial laws. An act of assembly is not unconstitutional, as a partial law, because it excepts, from its operations, existing suits.
    William Neilson died many years ago, seized and possessed of a considerable real and personal estate. He left three infant children, bis heirs at law, of whom Catherine Jane, the petitioner was one. In November, 1825, she intermarried with Joseph 8. Churn, of Jefferson county, by whom she had several children. On lhe20ih of January, 1S3G, she filed her petition in Jefferson circuit court against her husband, charging him with cruelty, with offering her personal indignities, and with adultery; stating that her property, at the time of her marriage was of the value of eighteen or twenty thousand dollars, and consisted of twenty-two slaves, an interest in the Warm Springs in Buncomb county, North Carolina, afterwards sold by her husband for ten thousand dollars, and several thousand dollars in money, bonds, &c.; that her husband had sold ten of the slaves; that he had bought three others, partly, at least, wiih the proceeds of her estate, and SOD or 1000 acres of land; that he had wasted her estate to a considerable extent, &c. &c.; and praying for a divorce a vinculo matrimonii, and for such part and portion of the real and personal estate of the defendant as the court might think proper.
    To this petition the defendant filed a demurrer, which was overruled at September term, 183G. On the 18th of January, 1S37, he pleaded, 1 — Not guilty of the several charges of adultery, or either of them, and this, &c. 2 — That the petitioner, before filing her petition, to wit, on the 1st of November, 1827, and on divers other days and times, after the intermarriage, did commit adultery with a certain William N. Gillispie, and this, &c. 3--That she did, on the 1st of November, 1827, &c. commit adultery with a person unknown to defendant, and this, &c. To these pleas the petitioner replied and tendered issues to the county. 1 — That the.defendant is guilty of the adultery laid to his charge in the petition. 2 and 3 — That she did not commit adultery, in the terms of the pleas.
    At May term, 1S37, the petitioner moved the court to order that the issue tendered in the replication be tried by a jury, which was ordered accordingly. On a subsequent day of the term, the defendant moved to reject orjstrike out the replications, hut the court tefused to do so, and decided that the cause was at issue upon said replications, and that no ■similiter, or other answer was necessary on part of the defendant, which decision was excepted to by the defendant.
    June 21.
    At .May term, 1838, the cause was tried upon the issues joined, before his Honor Judge Anderson, of the twelfth circuit, and a jury of Jefferson county, to whom evidence was submitted by the petitioner, tending to prove the charges in the petition. The jury returned the following verdict:—
    That the defendant is guilty of adultery as charged in the petition, and as alledged by petitioner in her replication to the defendant’s first plea; that the petitioner is not guilty of adultery with William N. Gillispie, as in her replication to the second plea she hath alledged: and that she is not guilty of adultery with any person known or unknown, as in her replication to the third plea she hath alledged.
    On the 12th of IV ay, 1838, his Honor pronounced a decree dissolving the marriage and restoring the petitioner to all the rights of a feme sole; divesting the defendant of title to certain enumerated and described tracts of land, and vesting it in her and her heirs for ever; and also of title to eighteen slaves by name, and vesting them in her and her heirs for ever; directing that a certain pleasure carriage and harness be transferred to.the petitioner, all said property having been received by the defendant as the property of his wife, or as the proceeds thereof; and that the hire of certain negroes, who had been taken into the hands of the sheriff, and hired out by hitn •under a previous order, be paid to the petitioner; and that the defendant pay the costs, &c.
    From this decree the defendant appealed in error.
    Peck and G. S. Yerger, for petitioner.
    J. A. McKinney and Hynds, for the defendant.
   Turley J.

delivered the opinion of the court.

The facts upon which petitioner’s right to a decree pends, were submitted to a jury in the court below, and were all found in her favor. The propriety of the finding has not been questioned, and it is unnecessary for us in relation thereto, to say more, than that there is nothing, which, in our estimation, tends to sully the purity of one, who seems to bo esteemed and loved by all who know her, except her husband.

The decree, however, is sought to be impeached upon the ground, that more property has been given to the petitioner than is authorised by law, or is consistent with the rights of the defendant and his creditors. It is said, and no doubt truly, that all the property, remaining in the possession of the defendant, has been by this decree secured to the petitioner. But then the proof shows, most clearly, that it all belonged to her at the time of the marriage, and that it constituted but a small portion of the property, which the defendant received by her; the balance of which has been, by him, sold and appropriated.

By the provisions of the tenth section of the act of 1799, c 19, “it is made the duty of the court, on making up their decree, to decree to the wife divorced such part of the real and personal property as they shall think proper consistent with the nature of the case.” It is said, for the defendant, that this discretion on the part of the court, is not to be exercised capriciously, but in deference to the rules of practice, and that no case can be found, in the English authorities, where more than one half of the husband’s income has been allotted as alimony for a divorced wife. This is true, but it is to be observed, that in England, divorces a vinculo matrimonii are not’allowed by law, but for causes which vitiate the marriage in its inception and render it void ab initio; therefore all the questions as to what amount of alimony shall be allowed the wife, have arisen upon divorces a mensa et thoro, and the practice, in such cases, has been, not to decree to the wife absolutely a portion of the real and personal estate of the husband, but only to allot a certain portion of his income for her support, the payment of which may be secured by being charged upon his estate. The reason for this practice seems to be, that the bonds of matrimony have ■not been dissolved; that the parties are not intended to be restored as near as may be to the same situation they occupied' before the marriage; that the wife, not having it in her power to establish herself in life again by marriage, has no need for any thing more than a comfortable maintenance; and that the law still looks to a reconciliation between the parties, which would be rendered almost impracticable, if the property were divided absolutely, each one taking his own. Yet it may be observed that, in the case of Smith vs. Smith, Arches court, M. T. 1813, and T. T. 1814, referred to in Poynter on Marriage and Divorce, 87, n. (l), Law Lib. Ed., the court says, “as it is a rule of equity, that no man shall take advantage of his own wrong, perhaps it would be just, that where the husband violates the matrimonial engagement, and the fortune originally belonged to the wife, he should give back the whole of it.” There seems to be much reason in this remark, a contrary practice, however, has prevailed in England, which, as applicable to divorces a mensa et thoro, we would have no disposition to unsettle.

But, in our opinion, a very different rule of practice ought to be applied to cases of divorce a vinculo matrimonii. There, the bonds of matrimony are dissolved; there, the parties are intended to be restored, as near as may be, to the same situation they occupied before the marriage; there, the wife has it in her power to establish herself again by marriage; and there, the law looks to no future reconciliation between the parties. Accordingly it has always been held, in England, that in cases of divorce, a vinculo matrimonii, the wife shall take all the property, which belonged to her, at the time of the marriage. But it is said, this was because the marriage was void ab initio, and the husband acquired no right to her property, by the marriage. This is true, and, therefore, there is no necessity of a decree of a court divesting his title; but this proves nothing more than the truth of the proposition, that the husband acquired no right by the marriage. It does not prove, nor tend to prove, that it would not have been equity and justice to have divested these rights, if he had acquired any. On the contrary, no one can doubt, that where the bonds of matrimony are dissolved, the parties ought to be placed, as near as may be, in the same situation they occupied before the marriage.

The act of 1799, c 19, enumerates, as causes for a divorce, a vinculo matrimonii, impotency, bigamy, adultery, and two years desertion. Here are causes, which vitiate the marriage at common law, and statutory causes, for a divorce a vinculo, enumerated in the same section. Can it be, that the legislature, when they declared that all of them should alike constitute good grounds for a divorce aiinculo, intended a rule, as to the disposition of the property, to be applied in one case, which was not to be applied in another? When the bonds of matrimony are dissolved, no matter for what cause, there is just reason for restoring, at least, the injured party to the same situation, as near as nifty be, occupied by him or her, before the marriage. This, we think, the court has the ¡lower, in its discretion} to do, Under the provisions of the act of 1799, c 19.

But it is said, that, this act is repealed by the act of 1S35, c 26, which makes different provisions, and only authorises the court to allot alimony, in cases of divorce a vinculo, as in cases of divorce a mensa. By the twenty-third section of that act, it is provided, that it shall be in force from and after its passage, and that nothing therein contained, shall be so construed as, in any way or manner, to effect any suit, that may be already brought and undetermined, in any of the courts of this state, for a divorce either total or partial; but said suits shall remain and be proceeded in, heard and determined, by said courts, according to the laws in force at the time of bringing the same. This suit was pending before the passage of the act; but it is said, that the proviso is unconstitutional and void. We do not think so. It is, we apprehend, for the first time, contended, that the legislature has hot the power, when about to establish a new rule of action, to give to it an operation entirely prospective. We think, therefore, there is no law either written or unwritten which forbids this decree.

But 2. has any injury been done by the decree to the defendant? Surely not- Shall a man, who has violated his matrimonial vows, in every disgusting form, and, by harsh and unkind treatment, force his wife to seek protection in a recission of her nuptial contract, be heard, when he asks a support out of her estate? It is mockery, worse than mockery.

But it is said 3. that there are creditors, whose rights ought to be protected, and that, for this purpose, an account ought to be taken. The rights of creditors stand in a very different light from those of the defendant, and the court would be disposed to protect them, so far as it could, but it does not see how this can be done by taking an account. The creditors are no parties to this suit, and, therefore, no action of the court can effect their rights, and it cannot possibly decree a satisfaction of their debts; and, to leave a portion of the property in the hands of the defendant, for that purpose, would be no security at all. The defendant has nó right or power to resist the decree, by constituting himself the guardian of his creditors.

But still this court will, so far as it can consistently, attend to their interest, and will, for that purpose, leave out of the decree, the lands of the defendant, because they, having been sold, there is nothing but an equity of redemption, of which he cannot deprive his creditors, and because we do not consider it necessary or prudent, to involve the petitioner in any controversy which may arise out of an offer, on her part, to redeem under the decree. And the tract of land of -one hundred acres, said to belong to the father of the defendant, will also be left out of the decree.

The decree of the court below, with the exception of this modification, will be, in all things, affirmed.  