Oliver v. Oliver

Supreme Court of Alabama

Oliver v. Oliver

5 Ala. 75

DecidedJanuary 15, 1843

StatusPublished

This text of 5 Ala. 75 (Oliver v. Oliver) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Oliver v. Oliver, 5 Ala. 75 (Ala. 1843).

Pincite

Opinion

ORMOND, J.

This was a bill filed by the defendant in error by her next friend, against Creed T. Oliver, her husband, for a divorce a vinculo matrimonii, and settlement of her dower interest hr her former husband’s estate.

The answer denies the acts of cruelty charged in the bill, but it is fully sustained by the proof, and we are of opinion that such a case is made out, as justified the chancellor in dissolving the bonds of matrimony existing between the parties.

It is however insisted, that as it appeared that the husband had discharged debts to a considerable amount, which existed against the wife previous to the marriage, that an account should be taken between the parties, and an allowance made to the husband, out of the estate of the wife.

Whether it might not have been proper to consider this fq ct on an application for alimony, it is not necessary to consider, as no such application was made, or allowance granted. Waiving therefore, the consideration of the question, whether the husband could, in any case, upon a divorce, claim to be reimbursed for debts paid for his wife, contracted by her, previous to the marriage, it is very clear no such decree could be made upon the pleadings in this case. A defendant in chancery, can only pray to [76]*76be dismissed the court. If he has any relief to pray against the complainant, or discovery to seek, he must do so by a cross bill. [Lube’s Eq. Pleading, 39.] The same principle was affirmed by this Court, in the case of Cullum v. Harding, at the last term.

It might, .nevertheless, be proper, that a court of chancery should refuse relief, even upon an application for a divorce, unless the party seeking its aid, should, as a condition precedent, do what justice demanded. In this case, it appeared from the answer and the proof, that the husband had made a settlement of certain securities for the separate use of his wife and her children. Under the circumstances of this case, it was not equitable that she should have retained this after being divorced from her husband, and we are informed by the chancellor, that she has relinquished all her interest in that fund.

There being no error in the decree of the chancellor, it is affirmed.

Free access — add to your briefcase to read the full text and ask questions with AI

ORMOND, J.

This was a bill filed by the defendant in error by her next friend, against Creed T. Oliver, her husband, for a divorce a vinculo matrimonii, and settlement of her dower interest hr her former husband’s estate.

The answer denies the acts of cruelty charged in the bill, but it is fully sustained by the proof, and we are of opinion that such a case is made out, as justified the chancellor in dissolving the bonds of matrimony existing between the parties.

It is however insisted, that as it appeared that the husband had discharged debts to a considerable amount, which existed against the wife previous to the marriage, that an account should be taken between the parties, and an allowance made to the husband, out of the estate of the wife.

Whether it might not have been proper to consider this fq ct on an application for alimony, it is not necessary to consider, as no such application was made, or allowance granted. Waiving therefore, the consideration of the question, whether the husband could, in any case, upon a divorce, claim to be reimbursed for debts paid for his wife, contracted by her, previous to the marriage, it is very clear no such decree could be made upon the pleadings in this case. A defendant in chancery, can only pray to [76]*76be dismissed the court. If he has any relief to pray against the complainant, or discovery to seek, he must do so by a cross bill. [Lube’s Eq. Pleading, 39.] The same principle was affirmed by this Court, in the case of Cullum v. Harding, at the last term.

It might, .nevertheless, be proper, that a court of chancery should refuse relief, even upon an application for a divorce, unless the party seeking its aid, should, as a condition precedent, do what justice demanded. In this case, it appeared from the answer and the proof, that the husband had made a settlement of certain securities for the separate use of his wife and her children. Under the circumstances of this case, it was not equitable that she should have retained this after being divorced from her husband, and we are informed by the chancellor, that she has relinquished all her interest in that fund.

There being no error in the decree of the chancellor, it is affirmed.

Cite This Page — Counsel Stack

Bluebook (online)

5 Ala. 75, Counsel Stack Legal Research, https://law.counselstack.com/opinion/oliver-v-oliver-ala-1843.