Tyson v. Tyson

Bowie, J., delivered the opinion of the Court. The decree, the subject of the appeal in this case, was passed upon the appellant’s hill; and in pursuance of the prayer for relief, divorced the appellant from the appellee, a mensa et thoro, and awarded her alimony to the extent of one hundred and fifty-six dollars per annum, during the joint lives of the husband and wife, hut omitted to award to the appellant, “ the property or estate she had when married or the value thereof,” as specially prayed by her bill. The separate property or estate claimed by the appellant, consisted of a legacy or bequest amounting to $2813.15 from her father, which was paid to the husband and wife jointly, by the executor of her father’s estate in the year 1864, during the coverture, and for which they executed a joint and several release under seal, and acknowledged the same as their act, before a justice of the peace. The appellant contends the Court erred in not granting the specific relief prayed as to her separate estate.

It is urged on her behalf, that under the provisions of the Code of Public G-eneral Laws, it was the imperative duty of the Court below, upon granting a divorce Ci a mensa,” to restore to her this separate estate, whether held by her at the time of her marriage, or acquired subsequently during marriage. On the other hand, the appellee insists that property acquired subsequently to the marriage, is not embraced by the language of the Code, hut if it is included, that said legacy was appropriated and converted by him jure ³⁷ mariti, with the knowledge and consent of the wife, without any agreement to repay or return it, or to hold it for her use and benefit. Yery ingenious and learned arguments are submitted by the counsel of the parties, in support of their respective theories, turning in part upon the facts of the case, but mainly upon the construction of the language of the •Code, defining the powers of the Court in cases of divorce. The clause relating to this subject is found in Article 51 of the Revised Code, sec. 13, title, Husband and Wife, sub-title, Divorce; its language is as follows: “ Divorces ■a mensa et thoro, may be decreed for the following causes, to wit: * * * * “And in all cases where a divorce is decreed, the Court passing the same shall have full power to award to the wife, such property or estate as she had when married, or the value of the same, or of such part thereof, as may have been sold or converted by the husband, having regard to the circumstances of the husband at the time of the divorce, or such part of any . such property as the Court may deem reasonable.” It is obvious from the most casiial reading of this •clause, that the power or duty of the Court, does not depend on the cause of the divorce, or the conduct of the defendant, but is made to depend on “ the circumstances ■of the husband at the time of the divorce.” Hor is the duty absolute and unqualified, hut the part to be awarded is such as the Court may deem reasonable.

However outrageous the conduct of the husband may have been, the law did not design the restoration of the wife’s separate property, as a punishment of his misdeeds, •or a penalty for his violation of his marriage vows; but its object is to reinstate the wife, as far as possible, to her rights of property, for future provision and support. It would he a legal absurdity to decree restoration of money or property, against an insolvent husband. ³⁸ Nor was it contemplated as we apprehend, to authorize the Court to annul ■ all previous disposition made hy the wife during coverture, hy gifts to her husband or others. Hence in ascertaining what property is subject to this discretionary power of restitution or compensation, it is necessary to inquire under what circumstances the same was appropriated or converted hy the husband. If the husband received and applied the fund, whether money, goods or chattels, or collected dioses in action, with the wife’s privity and;consent, and without anagree,’ment or promise to repay or restore it, no legal obligation rests on the husband to restore it; no right of action enures to her, and to that extent, her rights are extinct.

Edelen vs. Edelen, 11 Md., 420 ; Kuhn vs. Stansfield, 28 Md., 210 ; Oswald vs. Hoover, 43 Md., 360 . A decree for divorce has no retroactive effect; per se, it does not legally restore the “statu quo” of the parties before marriage, or annul their voluntary and legal acts during coverture. ; Bishop, treating of the consequences of divorce flowing hy law, says, “ coming now to consider the effect of the dissolution of a valid marriage upon property rights, we must remember, that the decree of divorce, so far from undoing the original marriage, expressly