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decree is to be presumed, unless the contrary be shown." If, however, cohabitation between the husband and wife existed, the presumption of illegitimacy is destroyed.
These qualified divorces are regarded as rather hazardous to the morals of the parties. In the language of the English courts, it is throwing the parties back upon society, in the undefined and dangerous characters of a wife without 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" to live chastely and continently, and not, during each other's life, contract matriniony with any other person ;" and security was formerly required from the party suing for the divorce, to obey the mandate. The statute allows the husband, on such a bill by the wife, for ill conduct, 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, even without the aid of the statute. And on these separations from bed and board, the courts intrusted with the jurisdiction of the subject, will make suitable provision for the support of the wife and children, out of the husband's estate, and enforce the decree by sequestration; and the Chancellor, in this state, may exercise his discretion in the disposition of the infant children, and vary or annul the same from time to time, as circumstances may require.d I apprehend there is not, in these United States, any essential difference in principle, or departure from the doctrines of the English law, on the subject of divorces a mensa ct thoro.e
a Salk. 123.
b Burns' Eccl. Law. tit. Marriage, ch. 11. sec. 4. Barrere v. Barrere, 4 Jons. Ch. Rep. 196. 198. Vanveghten v. Vanveghten, ibid. p. 501. c2 Haggard, 154.
d Laws f N. Y. sess. 36. ch. 102. s. 11. sess. 38. ch. 221. Barrere v. Barrere, 4 Johns. Ch. Rep. 197.
e Reeves' Domestic Relations, ch. 16. Thompson v. Thompson, 2 Dallas, 128. Warren v. Warren, 3 Mass. Rep. 321.
OF HUSBAND AND WIFE.
THE legal effects of marriage, are generally deducible from the principle of the common law, by which the husband and wife are regarded as one person, and her legal existence and authority in a degree lost or suspended, during the continuance of the matrimonial union. 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 sub potestate viri, and incapable of contracting with him ; and all the contracts which subsisted between them prior to the marriage, are dissolved. The wife cannot convey lands to her husband, though she may release her dower to his grantee; nor can the husband convey lands by deed directly to the wife. 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, and equity will decree performance of a contract by the husband with his wife, for her benefit.d The general rule is, that the husband becomes entitled, upon the marriage, to all the goods and chattels of the wife, and to the rents and profits of her lands, and he becomes liable to pay her debts, and perform her contracts.
a Co. Litt. 112. a. 187. b. Litt. sect. 168. 291.
ò Martin v. Martin, 1 Greenleaf, 394. Rowe v. Hamilton, 3 Greenleaf, 63.
c Co. Litt. 112. a.
d Moore v. Ellis, Bunb. 205. Livingston v. Livingston, 2 Johns. Ch. Rep. 537. Shepard v. Shepard, 7 Johns. Ch. Rep. 57;
According to the plan of these general disquisitions, I cannot undertake to enter very minutely into the numerous distinctions and complex regulations which appertain to the law of husband and wife. My purpose will be answered, if I shall be able to collect 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:
1. The right which the husband acquires by marriage in the property of the wife.
2. The duties which he assumes in the character of husband.
3 How far the wife is enabled by law to act during as a feme sole.
4. Her competency, in the view of a Court of Equity, to deal with her property.
5. Other rights and disabilities incident to the marfiage union.
1. The right which the husband acquires by marriage, in the property of the wife.
(I.) If the wife, at the time of marriage, be seised of an estate of inheritance in land, the husband, upon the marriage, becomes seised of the freehold jure uxoris, and he takes the rents and profits during their joint lives." It is a freehold estate in the husband, since it must continue during their joint lives, and it may, by possibility, last during his life. It will be an estate in him for the life of the wife only, unless he be a tenant by the curtesy. It will be an estate in him for his own life, if he dies before his wife, and in that event, she takes the estate again in her own right. If the wife dies before the husband, without having had issue, her heirs immediately succeed to the estate. If there has been a child of the marriage born alive, the husband takes the estate absolutely for life, as tenant by the curtesy, and on his death,
a Co. Litt. 351. a.
the estate goes to the wife, or her heirs; and in all these cases, the emblements growing upon the land, at the termination of the husband's estate, go to him, or his repre
During the continuance of the life estate of the husband, he sues in his own name for an injury to the profits of the land; but for an injury to the inheritance, the wife must join in the suit, and if the husband dies before recovery, the right of action survives to the wife. If the husband himself commits waste, the coverture is a suspension of the common law remedy of the wife against him. If the assignee, or creditor of the husband, who takes possession of the estate, on a sale on execution of his freehold interest, 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 impunity." So, also, the heir of the wife may sue the husband for the waste, and no doubt the Court of Chancery would stay by injunction the husband's waste, on behalf of the wife herself. But it seems, that from want of privity, the heir of the wife cannot bring an action of waste against the assignee of the husband. The subtle distinction in Walker's case, 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 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 the assignee of the husband, for as between them there is a privity of estate.
If an estate in land be given to the husband and wife, or a joint purchase be made by them, during coverture, they are not properly joint tenants, nor tenants in common, for they are but one person inlaw, and cannot take by moieties. They are both seised of the entirety, and neither can sell
a Babb and wife v. Perley, 1 Greenleaf's Rep. 6. b Bates v. Shraeder, 13 Johns. Rep. 260.
c 3 Co. 22.
without the consent of the other, and the survivor takes the whole. The same words of conveyance, which would make two other persons joint tenants, will make the husband and wife tenants of the entirety. This is a nice distinction laid down in the old books, and it continues to this day to be the law. The husband alone may grant or charge the wife's land during their joint lives, and if he be tenant by the curtesy, during his own life. He cannot alien or incumber it, so as to prevent the wife, or her heirs, after his death, from enjoying it, discharged from his debts and engagements. But from the authorities, when closely examined, says Mr. Preston, it seems, that the husband has the power to transfer the whole estate of his wife, and the estate will be in the alienee of the husband, subject to the right of entry of the wife, or her heirs, and which entry is necessary to revest the estate after the husband discontinues it. She was driven at common law to her writ of right, as her only remedy; but Lord Coke says, he found that in the times of Bracton and Fleta, the writ of entry cui in vita, was given to the wife, upon the alienation of her husband, and this was her only remedy in the age of Littleton.d That writ became obsolete after the remedial statute of 32 Hen. VIII. c. 28., which reserved to the wife ber right of entry, notwithstanding her husband's alienation; and the writ of entry lay even if she had joined with her husband in a conveyance by feoffment or bargain and sale, for such conveyances were deemed the sole act of the husband, as the wife was not separately examined,e
a Litt. sect. 291. 665. Co. Litt 187. b. 188 a. 351. Bro. Abr. tit. Cui in vila, 8, 2 Blacks. Rep. 1214. 16 Johns. Rep. 115. 5 Johns. Ch. Rep. 437.
b Essay on Abstracts of Tille, vol. i. 334. 435, 436.
c 2 Inst. 343
d Lilt. sect. 594. The extent of the remedy under this ancient writ, Abr, tit. Cui in vila, and F. N. B. 193. h. t.
may be seen in Bro.
e Co. Litt. 326. a.