Mr. Justice Moore
delivered the opinion of the court.
1. It is contended by the defendant’s counsel that, as the plaintiff voluntarily transferred his right of possession to the public land, he thereby relinquished all claim to the premises; and, this being so, no error was committed in ■denying the motion. The court, in granting the divorce, vacated as fraudulent and void the pretended assignments on the assumption that they were made in secret trust for the plaintiff’s use. To allow him now to assert that the [614]*614transfers were invalid might seem like permitting him to take advantage of his own wrong ; but, however this may be, as the determination of the ultimate right to the land necessarily devolves upon the officers of the land department of the United States, it is proper to leave to them the decision of the question whether or not the plaintiff can hereafter come into their tribunals with clean hands. Besides, the consideration by this court of the legal principle suggested would be equivalent to reviewing the merits of the original decree, and, as no appeal was taken therefrom,, the only question that can'arise at this time is an alleged want of jurisdiction.
2. Examining the principal inquiry, the appeal challenges the right of the court to provide for the maintenance-of the defendant by setting apart to her the possession of the real property specified. To understand the principle-whereby alimony was given in divorce proceedings, a cursory examination of the rules originally applicable thereto-in the country from which we derive the principles of common law may not be deemed inappropriate. In England, prior to 1858, no absolute judicial divorces were granted; but the ecclesiastical courts, assuming jurisdiction of the marital relation,-permitted legal separations, which were known as “a mensa et thoro”: Stewart, Mar. & Div. § 200. As an incident of such divorces and based on the husband’s duty to support the wife, the church courts granted her, when she was not in fault, alimony,, which consisted of an-allowance that was measured by the-social standing of the parties, proportioned by the wife’s-necessities and to the husband’s financial ability, usually amounting to one-half of their joint income; but, if there were children of the union, the allowance was generally limited to one-third of such income : Stewart, Mar. & Div. § 362. Thu ecclesiastical courts having been abolished during the Commonwealth, the authority to award alimony [615]*615was expressly conferred upon the equity judges, whose decrees in compliance therewith were ratified after the Restoration by an act of Parliament: 1 Bishop, Mar. & Div. § 1394. The law of England relating to marriage and divorce was brought by the colonists to this country, where the ecclesiastical courts were never recognized as possessing authority to allow alimony. As these immigrants did not bring their courts with them, the law adverted to, and which is here known as the unwritten or common law óf the several States, remained in abeyance until called into activity by the creation of tribunals on which such jurisdiction was directly or by implication conferred: Bishop, Mar. & Div. §§ 116,121. A few courts of last resort in the United States have maintained that a grant of power to sever the marital relation carries with it by necessary in-tendment authority to allow permanent alimony in the absence of any enactment to that effect: Stewart, Mar. & Div. § 363. The great weight of judicial utterances, however, is to the effect that all authority to award alimony on decreeing a dissolution of the marriage must be found in the statute expressly conferring the right, which legislation is in general declaratory of the ecclesiastical law: 2 Bishop, Mar. & Div. § 1039; Stewart, Mar. & Div. § 364; Weber v. Weber, 16 Or. 163 (17 Pac. 860); Houston v. Timmerman, 17 Or. 499 (21 Pac. 1037, 4 L. R. A. 716, 11 Am. St. Rep. 848.)
3. Our statute relating to the land owned by married persons which is required to he divided in certain instances when they are divorced, and providing for the maintenance of the innocent party, is in effect as follows : Whenever a marriage shall be declared void or dissolved, the party at whose prayer the decree is given shall be entitled to the undivided one-third part in his or her individual right in fee of the whole of the real estate owned by the other at the time of the decree: B. & C. Comp. § [616]*616511. In addition to such share of the real property, the court is empowered, whenever a marriage is declared void or dissolved, to provide for the future care and education of the minor children of the marriage, giving their custody in preference to the party not in fault, and for the recovery from the adverse party, when -not allowed the custody of the children, such an amount in money as may be just and proper to contribute for such purposes, and also for the further recovery of such an amount of money as may be just and proper for the party in fault to bear toward the maintenance of the other party : B. & C. Comp. § 513. Under the ecclesiastical law the wife only was entitled to alimony, and as a condition precedent thereto a valid marriage of the parties was indispensable : Stewart, Mar. & Div. § 362. A comparison of that law with our enactment on the subject discloses that in this State the husband as well as the wife may secure maintenance, and this, too, when the marriage is declared void, so that our statute is an enlargement of the ancient law : Henderson v. Henderson, 37 Or. 141 (60 Pac. 597, 61 Pac. 136, 48 L. R. A. 766, 82 Am. St. Rep. 741).
4. In construing the first provision of the statute referred to, it has been held that in granting a divorce a court cannot set off to the innocent party more than an undivided one-third of the real property (Rees v. Rees, 7 Or. 48), nor apportion any part of such land in severalty ; the decree making the parties tenants in common of the premises : Benfield v. Benfield, 44 Or. 94 (74 Pac. 495). Where the husband conveyed real property to a third person for his own use, to prevent the marital rights of his wife from attaching thereto in case she instituted a suit for divorce, it was ruled that the equitable estate of the husband in the premises made him the “owner” of the land, within the meaning of that term as used in the statute, and when the trustee was made a party to such suit the court pos[617]*617■sessed power to divest him of the legal title and to invest the wife therewith : Wetmore v. Wetmore, 5 Or. 469. In the case at bar the plaintiff was not the “owner” of the public land, the possession of which was given to the defendant. nor did he have such an equitable estate therein -as- could be reached or affected in any manner by the •decree rendered. It will be remembered that the court, adopting the averments of the supplemental cross-complaint, found that the improvements on the public land were purchased by funds jointly earned by the plaintiff .and the defendant. No finding was made as to what part •of the sum which was earned by the defendant was so employed, nor that she was entitled to the land or any part thereof by reason of the investment of her money therein.
Free access — add to your briefcase to read the full text and ask questions with AI
Mr. Justice Moore
delivered the opinion of the court.
1. It is contended by the defendant’s counsel that, as the plaintiff voluntarily transferred his right of possession to the public land, he thereby relinquished all claim to the premises; and, this being so, no error was committed in ■denying the motion. The court, in granting the divorce, vacated as fraudulent and void the pretended assignments on the assumption that they were made in secret trust for the plaintiff’s use. To allow him now to assert that the [614]*614transfers were invalid might seem like permitting him to take advantage of his own wrong ; but, however this may be, as the determination of the ultimate right to the land necessarily devolves upon the officers of the land department of the United States, it is proper to leave to them the decision of the question whether or not the plaintiff can hereafter come into their tribunals with clean hands. Besides, the consideration by this court of the legal principle suggested would be equivalent to reviewing the merits of the original decree, and, as no appeal was taken therefrom,, the only question that can'arise at this time is an alleged want of jurisdiction.
2. Examining the principal inquiry, the appeal challenges the right of the court to provide for the maintenance-of the defendant by setting apart to her the possession of the real property specified. To understand the principle-whereby alimony was given in divorce proceedings, a cursory examination of the rules originally applicable thereto-in the country from which we derive the principles of common law may not be deemed inappropriate. In England, prior to 1858, no absolute judicial divorces were granted; but the ecclesiastical courts, assuming jurisdiction of the marital relation,-permitted legal separations, which were known as “a mensa et thoro”: Stewart, Mar. & Div. § 200. As an incident of such divorces and based on the husband’s duty to support the wife, the church courts granted her, when she was not in fault, alimony,, which consisted of an-allowance that was measured by the-social standing of the parties, proportioned by the wife’s-necessities and to the husband’s financial ability, usually amounting to one-half of their joint income; but, if there were children of the union, the allowance was generally limited to one-third of such income : Stewart, Mar. & Div. § 362. Thu ecclesiastical courts having been abolished during the Commonwealth, the authority to award alimony [615]*615was expressly conferred upon the equity judges, whose decrees in compliance therewith were ratified after the Restoration by an act of Parliament: 1 Bishop, Mar. & Div. § 1394. The law of England relating to marriage and divorce was brought by the colonists to this country, where the ecclesiastical courts were never recognized as possessing authority to allow alimony. As these immigrants did not bring their courts with them, the law adverted to, and which is here known as the unwritten or common law óf the several States, remained in abeyance until called into activity by the creation of tribunals on which such jurisdiction was directly or by implication conferred: Bishop, Mar. & Div. §§ 116,121. A few courts of last resort in the United States have maintained that a grant of power to sever the marital relation carries with it by necessary in-tendment authority to allow permanent alimony in the absence of any enactment to that effect: Stewart, Mar. & Div. § 363. The great weight of judicial utterances, however, is to the effect that all authority to award alimony on decreeing a dissolution of the marriage must be found in the statute expressly conferring the right, which legislation is in general declaratory of the ecclesiastical law: 2 Bishop, Mar. & Div. § 1039; Stewart, Mar. & Div. § 364; Weber v. Weber, 16 Or. 163 (17 Pac. 860); Houston v. Timmerman, 17 Or. 499 (21 Pac. 1037, 4 L. R. A. 716, 11 Am. St. Rep. 848.)
3. Our statute relating to the land owned by married persons which is required to he divided in certain instances when they are divorced, and providing for the maintenance of the innocent party, is in effect as follows : Whenever a marriage shall be declared void or dissolved, the party at whose prayer the decree is given shall be entitled to the undivided one-third part in his or her individual right in fee of the whole of the real estate owned by the other at the time of the decree: B. & C. Comp. § [616]*616511. In addition to such share of the real property, the court is empowered, whenever a marriage is declared void or dissolved, to provide for the future care and education of the minor children of the marriage, giving their custody in preference to the party not in fault, and for the recovery from the adverse party, when -not allowed the custody of the children, such an amount in money as may be just and proper to contribute for such purposes, and also for the further recovery of such an amount of money as may be just and proper for the party in fault to bear toward the maintenance of the other party : B. & C. Comp. § 513. Under the ecclesiastical law the wife only was entitled to alimony, and as a condition precedent thereto a valid marriage of the parties was indispensable : Stewart, Mar. & Div. § 362. A comparison of that law with our enactment on the subject discloses that in this State the husband as well as the wife may secure maintenance, and this, too, when the marriage is declared void, so that our statute is an enlargement of the ancient law : Henderson v. Henderson, 37 Or. 141 (60 Pac. 597, 61 Pac. 136, 48 L. R. A. 766, 82 Am. St. Rep. 741).
4. In construing the first provision of the statute referred to, it has been held that in granting a divorce a court cannot set off to the innocent party more than an undivided one-third of the real property (Rees v. Rees, 7 Or. 48), nor apportion any part of such land in severalty ; the decree making the parties tenants in common of the premises : Benfield v. Benfield, 44 Or. 94 (74 Pac. 495). Where the husband conveyed real property to a third person for his own use, to prevent the marital rights of his wife from attaching thereto in case she instituted a suit for divorce, it was ruled that the equitable estate of the husband in the premises made him the “owner” of the land, within the meaning of that term as used in the statute, and when the trustee was made a party to such suit the court pos[617]*617■sessed power to divest him of the legal title and to invest the wife therewith : Wetmore v. Wetmore, 5 Or. 469. In the case at bar the plaintiff was not the “owner” of the public land, the possession of which was given to the defendant. nor did he have such an equitable estate therein -as- could be reached or affected in any manner by the •decree rendered. It will be remembered that the court, adopting the averments of the supplemental cross-complaint, found that the improvements on the public land were purchased by funds jointly earned by the plaintiff .and the defendant. No finding was made as to what part •of the sum which was earned by the defendant was so employed, nor that she was entitled to the land or any part thereof by reason of the investment of her money therein. The rule is well settled that as an incident to granting a divorce a court is empowered to restore to an innocent wife the entire property brought to the husband by reason •of the marriage, and it is also held in some States that in •dissolving the bonds of matrimony a partition of the accumulations may be made : 14 Cyc. 781; Stewart, Mar. & Div. § 375; Brandt v. Brandt, 40 Or. 477 (67 Pac. 508). This legal principle, however, cannot have any application to the case at bar, for the decree herein is based solely •on the ground of awarding to the defendant maintenance for herself and support for her children under Section 513, B. & C. Comp.
Maintenance and permanent alimony are synonymous terms, and mean an allowance in money to be recovered on decree of a divorce from the party in fault for the support of the innocent party: B. & C. Comp. § 513 ; Calame v. Calame, 25 N. J. Eq. 548. A text-writer, in discussing this subject, says : “Unless so provided by statute, no fixed portion of the estate of either party is to be allotted to the other upon a divorce”: 14 Cyc. 792. Thus, under a statute of New York which authorized provision to be made [618]*618for the support of an innocent party, and for tlie education of the children of the marriage, on decreeing a divorce, it was held that no power was conferred upon the court to set apart to the wife and daughter any specific household goods of the husband for the purposes specified, and that the decree should have compelled him to support them by supplying their daily needs: Doe v. Doe, 52 Hun, 405 (5 N. Y. Supp. 514). In Crain v. Cavana, 62 Barb. 109, a divorce a mensa et tlioro having been given, the wife was awarded $450, which sum the decree stipulated should be-“in lieu and satisfaction of all alimony, dower, right of dower, and all other claims which she (the complainant) may or can have, to the property of the defendant.” The-husband having died seised of certain lands, a suit was instituted to partition the widow’s dower, and it was held that the provision of the decree as to the condition of payment was void, in consequence of which the right of dower was not barred. In referring to the conclusion thus reached,, Mr. Vanfleet, in his work on Collateral Attack (section 733), makes the following observation : “ This case seems-to me to be wrong. The court had complete jurisdiction,, with authority to determine all the rights of the parties,, and a grant of money instead of specific property was merely an error of law which did not destroy the jurisdiction.” It is believed, however, that the better rule. is. that, as the right to maintenance is conferred by statute, which in this State authorizes the payment of a sum of money only to the innocent party on granting a divorce,, the court was without power to award to the defendant the possession of public land, and hence that part of the decree is void and vulnerable to collateral attack: 14 Cyc. 794.
5. The remaining question is whether or not the court erred in refusing to vacate the part of the decree so assailed. Though jurisdiction of valid judgments and de-[619]*619orees ceases with the close of the term at which they are given, unless authority over them is retained by motion or other appropriate proceeding (Deering v. Quivey, 26 Or. 556, 38 Pac. 710), superior courts possess ample power at all times to vacate void judgments, decrees and orders, and it is incumbent upon them to purge their records of the entries of such nullities when their attention is called thereto : Black, Judgments, § 307 ; 17 Am. & Eng. Ency. Law (2 ed.), 825; Evans v. Christian, 4 Or. 375; State ex rel. v. McKinnon, 8 Or. 488; Ladd v. Mason, 10 Or. 308 ; Slate’s Estate, 40 Or. 349 (68 Pac. 399); White v.Ladd, 41 Or. 324 (68 Pac. 739, 93 Am. St. Rep. 732); Conant’s Estate, 43 Or. 530 (73 Pac. 1018).
An error having been committed as indicated, the action of the court in denying the motion is reversed, and the-part of the decree complained of vacated. Reversed.