
    JACKSON vs. JACKSON.
    Equity.
    No. 2915.
    I. Where real estate has been purchased by the joint earnings of husband and wife, and the title taken in the name of the wife alone, an equity by way of trust may be deduced for the benefit of the husband.
    II. In a petition for divorce by the wife in which no alimony is asked, and a cross-bill by the husband charging adulteryupon the wife, and that the property was acquired since the marriage by their joint earnings, the divorce was granted upon her petition. Still it was held that under the 9th section of the statute regulating divorces, the court has power to set off to the wife such q>art 0f the property as may be reasonable, in view of the resources and circumstances of the husband.
    STATEMENT OE THE CASE.
    Tlie petition in this case is for a divorce on the ground that the defendant is an habitual drunkard, and is guilty of cruelty toward plaintiff, but no alimony was asked. The defendant answered and filed a cross-bill, charging the plaintiff with having committed adultery on several occasions, and also alleging that plaintiff holds in her own name certain real estate in this city, a description of which and of the improvements thereon is set forth in the cross-bill. The defendant in his cross-bill also sets up that the said property was acquired since the marriage with his money and earnings. He asks for a divorce, and that plaintiff may be decreed to convey said property to him.
    In her answer to the cross-bill the plaintiff denies all the charges of adultery, and alleges that she bought the property and built the houses thereon with her own money, derived in part from her father, and in part from the rents of the property and her earnings, and denies that defendant contributed anything toward the same.
    Both parties took testimony, which showed that the plaintiff had some money at the time of the marriage, and that she was engaged in washing and ironing. She also rented a house and kept boarders. That the defendant worked as a laborer when the first and second houses were building, earning about $30 a month, and was employed in the Patent-Office at $60 a month for about the period of six years, and while the third house was building; that he was in the habit of giving a portion of his earnings every month to the plaintiff, and that three houses in all were built on the premises in question by the money and earnings of both, and that the same were paid for in small installments extending through several years.
    On the hearing the court below decreed a divorce on the petition of the plaintiff, and dismissed so much of the cross-bill as charged the plaintiff with adultery and asked for a divorce on that ground. The court also found that the real estate was paid for with money belonging in part to plaintiff, and by moneys earned by their joint industry and labor, and decreed that the title acquired by the plaintiff was held in trust for their joint benefit, and ordered a partition and conveyance of the west forty feet, or about one-half, of the property to the defendant.
    From so much of this decree as directs a conveyance of a part of the property to the defendant, the plaintiff appeals.
    
      A. G. Riddle and L. G. Hine, for plaintiff, in their printed brief, made the following points:
    I. The statute authorizes a court, when it decrees a divorce, to allow the wife alimony out of the husband’s property, or order a return of her ante-nuptial property. But a court has no power, under any circumstances, to decree her property, whenever or however acquired, to the husband. Sec. 9, act of 1860, 12 Stat., 59.
    II. The property described in the cross-bill is the property of the wife, acquired and accumulated by her as hers, and so treated and regarded by both herself and husband. The title was taken by her in her own name for herself, and with his consent, and is hers and not his.
    
      F. Miller and W. A. Meloy for defendant.
   Cartter, C. J.,

delivered the opinion of the court:

The property in controversy belongs apparently to the separate estate of the wife, but there can be no doubt upon the testimony that the united earnings and industries of husband and wife contributed to its purchase and improvement, and an equity by way of trust may therefore be deduced for the benefit of the defendant. But it is argued that though this may be so, yet no division of the property can be made, as. no alimony is asked in the original bill. The 9th section of the statute regulating divorces in this District is as follows:

“ In all cases where a divorce is granted, the court allowing the same shall have power, if it see fit, to award alimony to the wife, and to retain her right of dower, and to award to the wife such property, or the value thereof, as she had' when she was married, or such part or the value thereof as the court may deem reasonable, having a regard to the circumstances of the husband at the time of the divorce.”

If a narrow rule of construing this statute were adhered to, perhaps it might be held that the wife alone was to be considered on the question of property. But we deem it the more just and equitable meaning of this section, that the court is to award to the wife, upon her obtaining a divorce,, only such part of the property, by whatever title the same may be held, as is reasonable, in view of the circumstances of the husband. If the wife has acquired the legal title when it has been paid for by their joint earnings and industry, it must be regarded as a trust for the benefit of the husband as. well as of the wife. When, therefore, the statute directs that we shall allow the wife a reasonable portion of it, the power is given to divorce the property as well as the parties. And although alimony is not asked, it is nevertheless germane to the subject-matter of the petition, aud is directly presented by the cross-bill. The statute makes the matter of an equitable allowance, relative to a complaint in such a case, in order to prevent circuity of action. Both parties being interested in the property, it is our duty to set it off in such proportions as may be fair and reasonable under the circumstances of the litigants.

As to the amount and value of the interest to be partitioned, the justice who tried the case could estimate it properly, and we are satisfied with his conclusion.

The decree appealed from must be affirmed.

Wylie, J.:

I wish to express my view as to a single question. It is objected on behalf of the complainant, in whose favor the decree of divorce was granted, that the court should not consider the property question which was raised by the cross-bill of the defendant, since nothing is proper to be set up in a cross-bill which is not pertinent to the matter of the original bill.

In my opinion, this subject is not only pertinent to the subject of divorce, but when it is presented by either party in the pleadings it cannot be separated from it, but must be settled by the court. This is expressly made the duty of the court by the act of Congress. Here the title to all the property is in the name of the wife. The husband claims that in equity he is the owner of the whole or at least a moiety of this property. It was all bought after the marriage; and if the wife’s money and earnings acquired subsequent to the marriage belong to the husband, it seems there is good ground for this claim on his part. Both parties took proofs on this subject, and the court below gave the wife about one-half of the property and the other half to the husband. Had the claim of the husband been rejected in this suit, the wife, holding as she did the legal title, would hold the whole simply by force of the decree of divorce, and it would have been res adjudicata against him in any future suit he might bring or the property.  