
    Case 43 — PETITION EQUITY
    May 12.
    Tipton v. Tipton.
    APPEAL PROM MADISON COURT OP COMMON PLEAS.
    1. The PLAINTIFF IN AN ACTION FOR DIVORCE MUST ALLEGE AND PROVE an actual residence in this State for one year next before the commencement of the action, and not merely a legal residence.
    In this case the actual residence of the plaintiff, the husband, being out of the State, his legal residence in the State did not entitle him to maintain an action for divorce.
    2. A legal residence, as distinguished from an actual residence, defined in the opinion.
    WI. LINDSAY for appellant.
    Change of domicile is determined by the intention of the party and by the acquisition of a domicile elsewhere by the exercise of acts of citizenship. (State v. Judge, 13 Ala., 806; Harbrough v. Ciscott,33 Mich., 241; McCrary on Elections, section 40; McDowell’s Case, 3 Penn L. P., 310; Mitchell v. U. S., 21 Wall, 253; Demond v. U. S., 93 U. S., 605.)
    A. J. KEED op counsel on same side.
    W. B. SMITH for appellee.
    Brief not in record.
   JUDGE BENNETT

delivered the opinion of the coort.

The appellant, a citizen of Madison county, Kentucky, and owner of real estate on which he lived with his wife and children, in May, 1880, abandoned his wife and children, and left the State, and remained out of the State until November, 1883, when he returned to Madison county and remained there about three months, not, however, visiting his former rest dence, which had remained in the occupancy of his wife and children. He then again left the State and did not return until April or May, 1885, when he remained in Madison county until the first of January, 1886, but did not visit his former home, where his wife and children still resided. He, on the first of January, 1886, again left the State, and has remained out of it ever since. Since he left the State in 1880, and during his absence, except one year, when he was in Maryland, he has lived on one of the West India islands, in the employment of a phosphate company.

He says in his deposition, which by consent .was read in this case, that he always regarded Madison county as his home, and never voted at any other place since he left the county, and did not leave the county with the intention of “remaining away any great length of time — not any longer than I could get things in a shape to return.” The evidence also shows that he paid poll-taxes, through his brother, in Madison county, and during his second visit he voted at the August election, 1885; that when he left in 1886 he told his brother that he was going away for a year or two, but would return. On the fourth of October, 1886, he commenced this action against the appellee, his wife, for a divorce, upon the ground of a continuous separation for the period of five years. The chancellor dismissed his petition, for the reason that he was not a resident of this State for one year next before the bringing of this action. He has appealed to this court.

Section 423 of the Civil Code provides: “The plaintiff, to obtain a divorce, must allege and prove, in addition to a legal cause of divorce—

“1. A residence in this State for one year next before the commencement of the action.”

There is a broad distinction between a legal and actual residence. A legal residence (domicile) can not, in the nature of things, co-exist in the same person in two States or countries. He must have a legal residence somewhere. He can not be a cosmopolitan. The succession to movable property, whether testamentary or in case of intestacy, except as regulated by statute; the jurisdiction of the probate of wills; the right to vote; the liability to poll tax, and to military duty, and other things, all depend upon the party’s legal residence or domicile. For these purposes he must have a legal residence. The law will, from facts and circumstances, fix a legal residence for him, unless he voluntarily fixes it himself. His legal residence consists of fact and intention ; both must concur; and when his legal residence is once fixed, it requires both fact and intention to change it. As contradistinguished from his legal residence, he may have an actual residence in another State or country. He may abide in the latter without surrendering bis legal residence in tbe former, provided be so intends. His legal residence, for tbe purposes above indicated, may be merely ideal, but bis actual residence must be substantive. He may not actually abide at bis legal residence at all; but bis actual residence must be bis abiding place.

His. legal residence subjects bim to tbe duties, and confers upon bim tbe rights and privileges above-mentioned; but, nevertheless, be may, in fact, be a non-resident; for it is well-settled, that, although he may have a legal residence in this State, yet if bis actual residence is in another State, tbe latter fact is sufficient to authorize an attachment against bis property upon tbe ground of non-residency. His domicile or legal residence may be in this State; but, in fact, be may be a non-resident. It is upon this distinction that a proceeding is allowed against bim as a non-resident.

Had tbe appellee motioned bim in this case to execute a non-resident’s bond for costs, doubtless, it would not be denied that tbe motion should have prevailed. Tbe mere fact of bis legal residence — bis actual residence being out of tbe State — would not have been a sufficient response to tbe motion. Doubtless tbe appellee could have proceeded against bim as a non-resident for a divorce.

According to these views, we think that tbe residence required by the section of tbe Code supra means that of an actual residence; and that a mere legal residence in this State, with an actual residence out of tbe State, is not sufficient to entitle tbe appellant to maintain his action.

Tbe judgment of tbe circuit court is affirmed.  