EMERSON, J.:
The appeal is from the judgment, and only the judgment roll is before this court.
It is claimed on the part of the appellant that the conclusions of law are radically wrong, and that upon the facts found she was entitled to a decree of foreclosure.
The first point made of the appellant is that the decree of the probate court of August 30, 1862, is a nullity, and John W. Jenkins and Emma Hardin áre yet husband and wife.
This decree was made by the probate court, in the exercise of a jurisdiction given to it by an act of the territorial legislature passed in 1852, to grant divorces for statutory causes. For more than twenty years the courts named had exercised this jurisdiction. It was many years before their authority to do so was even questioned. In the case of Kenyon v. Kenyon, decided in this court in 1861, and not reported, this jurisdiction was recognized and affirmed. In Cast v. Cast, 1 Utah, 112, the real question before the court related to the jurisdiction of the district courts in divorce proceedings for statutory causes. A majority of this court as then constituted decided that the district courts had jurisdiction, and that the probate courts did not, and that so much of the territorial act referred to as attempted to confer jurisdiction upon the probate courts was void.
An act of congress, entitled “An act in relation to courts and judicial officers in the territory of Utah,” approved June 23, 1874, in express terms confers this jurisdiction upon the probate courts concurrently with the district courts, so that the question is now no longer important; only so far as it affects marital and property rights arising out of the action of the probate courts in such cases, prior to its passage.^ Because this jurisdiction had been so long and so universally exercised, and so many marital and such vast property rights [128]*128have grown up under it, and also for the reason that the decision of this court in Cast v. Cast seems to be in conflict with that in Kenyon v. Kenyon, we have determined- to give this subject more consideration than we otherwise should.
We are all of the opinion that the act of the territorial legislature referred to, in so far at least as it granted to the probate courts jurisdiction in cases of divorce for statutory-causes, was valid, and that this jurisdiction was rightfully exercised by those courts.
The proposition contended for in Gast v. Gast, that the idea of a probate court necessarily excludes authority in matters of divorce, sounds strangely enough when it is borne in mind that our institutions come to us from a country where jurisdiction in matrimonial causes has always been exercised by the same judges to whom the law has confided authority in probate matters. It is true the ecclesiastical courts, which until recently have been the probate courts in England, were not empowered to grant divorces from the bonds of matrimony, but neither were any other courts; and so far as divorce was matter of judicial cognizance at all, it was left exclusively to the ecclesiastical tribunals: Bishop’s Mar. & Div., c. 3. Indeed, Blackstone, speaking of the jurisdiction of these courts, which in many other particulars had been frequently questioned, adds that “ matrimonial causes, or injuries respecting the rights of marriage, are another and much more undisturbed branch of the ecclesiastical jurisdiction;” and that’ causes matrimonial are now so peculiarly ecclesiastical that the temporal courts will never interfere in controversies of this .kind, unless in some particular cases, as when a marriage is called in question after the death of the parties, and when it would tend to bastardize and disinherit the issue: 3 Bla. Com. 92, 93.
And so thoroughly was the propriety of a union of probate and divorce jurisdiction fixed in the English mind, that when recently it was deemed best to confer authority to grant divorces from the bonds of matrimony upon the courts, the probate court was the court selected to exercise that jurisdiction : 3 Cooley’s Bla. Com. 95, note. And though the lord chancellor and the judges of the superior courts of common [129]*129law with the judge of probate compose this court, yet the latter is the judge ordinary, and may sit alone.
The English practice is, therefore, nearer in harmony with the territorial statute than with the opposite view.
There is no such thing as uniformity in the American states as to the jurisdiction that may be joined with that of the probate of wills, or on the other hand, as to the courts that shall take cognizance of applications for divorce. In some states the constitution or the laws have been careful to confine the probate courts to matters concerning the administration of estates; but in others the probate jurisdiction is united with that of common-law and chancery causes. In perhaps one half of the states of the Union, the courts having probate powers have also a somewhat multifarious jurisdiction, embracing in some cases criminal jurisdiction. It would be idle to undertake to deduce any general rule from the constitutions and laws of the several states, as to the classification of the probate and divorce jurisdiction, or as to the delegation of either to any particular description of courts; but this may be said in general, that divorce is sometimes a proceeding-in the common-law courts, sometimes in the equity courts, and may sometimes .be had in the courts exercising probate powers; so that the question of the delegation of divorce jurisdiction, when not determined by the state constitution, seems to have been always regarded as one addressed to the legislative discretion, and to be determined not according to-any fixed rules, but according to the legislative view of what was most expedient. The organic law did not specifically provide for cases of divorce, and it became necessary, therefore, for the territorial legislature to prescribe the jurisdiction when it prescribed the causes.
A case of divorce is not intrinsically a law case, for it was unknown to the common law; it is not intrinsically a chancery case, for it was unknown to equity jurisprudence.
The New York cases of Wightman v. Wightman, 4 Johns. Ch. 343, and Perry v. Perry, 2 Paige, 505, relied upon in Cast v. Cast, are not authority further than this: that a court of equity, when a supposed marriage is not such in fact, but is void from its inception, may declare it so, as they may declare any other contract void. The true doctrine undoubtedly [130]*130is that stated by Mr. Bishop, that no judicial tribunal in this country can take jurisdiction of divorce cases without the authority of a statute: Bishop’s Mar & Div., 4th ed., sec. 71. It is a proceeding mi generis, and its being so regarded accounts for the diversity in American legislation.
It is not denied that the territorial legislature possesses a general authority to legislate on domestic concerns. Indeed, that right has been most fully recognized by the supreme court of the United States in the case of other territories as well as this, and the question is no longer open to argument: Miners’ Bank v. Iowa, 12 How. 1; Vincennes University v. Indiana, 14 Id. 268; Clinton v. Englebrecht, 13 Wall. 434.
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EMERSON, J.:
The appeal is from the judgment, and only the judgment roll is before this court.
It is claimed on the part of the appellant that the conclusions of law are radically wrong, and that upon the facts found she was entitled to a decree of foreclosure.
The first point made of the appellant is that the decree of the probate court of August 30, 1862, is a nullity, and John W. Jenkins and Emma Hardin áre yet husband and wife.
This decree was made by the probate court, in the exercise of a jurisdiction given to it by an act of the territorial legislature passed in 1852, to grant divorces for statutory causes. For more than twenty years the courts named had exercised this jurisdiction. It was many years before their authority to do so was even questioned. In the case of Kenyon v. Kenyon, decided in this court in 1861, and not reported, this jurisdiction was recognized and affirmed. In Cast v. Cast, 1 Utah, 112, the real question before the court related to the jurisdiction of the district courts in divorce proceedings for statutory causes. A majority of this court as then constituted decided that the district courts had jurisdiction, and that the probate courts did not, and that so much of the territorial act referred to as attempted to confer jurisdiction upon the probate courts was void.
An act of congress, entitled “An act in relation to courts and judicial officers in the territory of Utah,” approved June 23, 1874, in express terms confers this jurisdiction upon the probate courts concurrently with the district courts, so that the question is now no longer important; only so far as it affects marital and property rights arising out of the action of the probate courts in such cases, prior to its passage.^ Because this jurisdiction had been so long and so universally exercised, and so many marital and such vast property rights [128]*128have grown up under it, and also for the reason that the decision of this court in Cast v. Cast seems to be in conflict with that in Kenyon v. Kenyon, we have determined- to give this subject more consideration than we otherwise should.
We are all of the opinion that the act of the territorial legislature referred to, in so far at least as it granted to the probate courts jurisdiction in cases of divorce for statutory-causes, was valid, and that this jurisdiction was rightfully exercised by those courts.
The proposition contended for in Gast v. Gast, that the idea of a probate court necessarily excludes authority in matters of divorce, sounds strangely enough when it is borne in mind that our institutions come to us from a country where jurisdiction in matrimonial causes has always been exercised by the same judges to whom the law has confided authority in probate matters. It is true the ecclesiastical courts, which until recently have been the probate courts in England, were not empowered to grant divorces from the bonds of matrimony, but neither were any other courts; and so far as divorce was matter of judicial cognizance at all, it was left exclusively to the ecclesiastical tribunals: Bishop’s Mar. & Div., c. 3. Indeed, Blackstone, speaking of the jurisdiction of these courts, which in many other particulars had been frequently questioned, adds that “ matrimonial causes, or injuries respecting the rights of marriage, are another and much more undisturbed branch of the ecclesiastical jurisdiction;” and that’ causes matrimonial are now so peculiarly ecclesiastical that the temporal courts will never interfere in controversies of this .kind, unless in some particular cases, as when a marriage is called in question after the death of the parties, and when it would tend to bastardize and disinherit the issue: 3 Bla. Com. 92, 93.
And so thoroughly was the propriety of a union of probate and divorce jurisdiction fixed in the English mind, that when recently it was deemed best to confer authority to grant divorces from the bonds of matrimony upon the courts, the probate court was the court selected to exercise that jurisdiction : 3 Cooley’s Bla. Com. 95, note. And though the lord chancellor and the judges of the superior courts of common [129]*129law with the judge of probate compose this court, yet the latter is the judge ordinary, and may sit alone.
The English practice is, therefore, nearer in harmony with the territorial statute than with the opposite view.
There is no such thing as uniformity in the American states as to the jurisdiction that may be joined with that of the probate of wills, or on the other hand, as to the courts that shall take cognizance of applications for divorce. In some states the constitution or the laws have been careful to confine the probate courts to matters concerning the administration of estates; but in others the probate jurisdiction is united with that of common-law and chancery causes. In perhaps one half of the states of the Union, the courts having probate powers have also a somewhat multifarious jurisdiction, embracing in some cases criminal jurisdiction. It would be idle to undertake to deduce any general rule from the constitutions and laws of the several states, as to the classification of the probate and divorce jurisdiction, or as to the delegation of either to any particular description of courts; but this may be said in general, that divorce is sometimes a proceeding-in the common-law courts, sometimes in the equity courts, and may sometimes .be had in the courts exercising probate powers; so that the question of the delegation of divorce jurisdiction, when not determined by the state constitution, seems to have been always regarded as one addressed to the legislative discretion, and to be determined not according to-any fixed rules, but according to the legislative view of what was most expedient. The organic law did not specifically provide for cases of divorce, and it became necessary, therefore, for the territorial legislature to prescribe the jurisdiction when it prescribed the causes.
A case of divorce is not intrinsically a law case, for it was unknown to the common law; it is not intrinsically a chancery case, for it was unknown to equity jurisprudence.
The New York cases of Wightman v. Wightman, 4 Johns. Ch. 343, and Perry v. Perry, 2 Paige, 505, relied upon in Cast v. Cast, are not authority further than this: that a court of equity, when a supposed marriage is not such in fact, but is void from its inception, may declare it so, as they may declare any other contract void. The true doctrine undoubtedly [130]*130is that stated by Mr. Bishop, that no judicial tribunal in this country can take jurisdiction of divorce cases without the authority of a statute: Bishop’s Mar & Div., 4th ed., sec. 71. It is a proceeding mi generis, and its being so regarded accounts for the diversity in American legislation.
It is not denied that the territorial legislature possesses a general authority to legislate on domestic concerns. Indeed, that right has been most fully recognized by the supreme court of the United States in the case of other territories as well as this, and the question is no longer open to argument: Miners’ Bank v. Iowa, 12 How. 1; Vincennes University v. Indiana, 14 Id. 268; Clinton v. Englebrecht, 13 Wall. 434.
In this country it has been customary to confer the authority to grant divorces upon the courts, but in the colonial period it was exercised by the legislature, and the overwhelming weight of American authority is, that the right of divorce pertains to the legislature when not expressly delegated to the courts: Bishop’s Mar. & Div., c. 34, and cases cited; Cooley’s Const. Dim. 110; Levins v. Sleator, 2 G. Greene, 604.
This is so well understood, and has been so often judicially declared, that whenever it has been deemed necessary to establish a different rule, express constitutional provisions have been adopted for that purpose; and these either name a court to exercise the authority, or they prohibit the legislature from exercising it, so that it becomes a necessity that some law should be passed conferring jurisdiction upon the courts. In other words, the settled American doctrine is, that the granting of a divorce is not of necessity a judicial act, so that it may still be done by the legislature, though all judicial power has already been conferred upon another department : Shaw v. Prose, 8 Cow. 541; Crane v. Meginnis, 1 Gill & J. 463; Gaines v. Gaines, 9 B. Mon. 295; Dixon v. Dixon, 1 Yerg. 110; Wright v. Wright, 2 Md. 429; Bishop’s Mar. & Div., sec. 686.
It was within the legislative power of the territorial legislature not only to declare what should be grounds for a divorce, but to name the probate courts as the proper courts in which proceeding should be taken to procure one. The [131]*131right of these courts to exercise this jurisdiction is not denied by either the language or reasoning of Ferris v. Higley, 20 Wall. 375.
The terms of the act of congress of June 23, 1874, above referred to, confirm the view here taken.
In that act, congress, after declaring, that the district courts should have exclusive original jurisdiction in all suits or proceedings in chancery, and in all actions at law in which the sum or value of. the thing in controversy shall be three hundred dollars or upward, adds, “ and they shall have jurisdiction in suits for divorce.” Thus plainly indicating that the jurisdiction in divorce proceedings, thus granted in terms, was not included in either the chancery or common-law jurisdiction before given. In the same section, in fixing the jurisdiction of the probate courts, and limiting them to the usual probate proceedings, it declares that they shall have no civil, chancery, or criminal jurisdiction whatever, and then, without an exception or proviso, immediately adds, “they shall have jurisdiction of suits of divorce for statutory causes concurrently with the district courts.”
The decree of the probate court of August 30, 1862, is not a nullity, and the defendants John W. Jenkins and Emma Hardin are not, and at the time the mortgage was given were not, husband and wife.
Section 6 of the territorial statute, under which this divorce proceeding was had, provides, among other things, that “ when a divorce is decreed, the court shall make such order in relation to the children and property of the parties, and the maintenance of the wife and such portion of the children as shall be awarded to her, as may be just and equitable. * * * Provided further, that when it shall appear to the court at a future time that it would be for the interest of the parties concerned that a change should be effected in regard to the former disposal of children or distribution of property, the court shall have power to make such change as will be conducive to the best interests of all parties concerned.” Section 3 of “An act in relation to guardians,” also in foree at that time, provides: “When a divorce is decreed or obtained, such order in relation to the children and property of the parties, and the maintenance of the [132]*132wife, may be made as shall be deemed right and proper; subsequent changes may be made by the probate court or selectmen in those respects when circumstances render them expedient.”
By the second finding of fact, it appears that the court in the divorce proceedings, in conformity with the provisions of the statute above quoted, awarded the use of a portion of the property, included in the mortgage which it is now sought to foreclose, to the respondent, until the happening of a certain contingency, namely, her marriage. This contingency it is found did happen on the first day of December, 1873, and which, without further proceedings, terminated her right to and interest in the property. No change in the distribution made on the granting of the divorce was sought until long after the giving of the mortgage to the appellant, then a judgment was obtained against John W. Jenkins for a definite amount, and unless ‘paid in a certain time, this property was ordered sold to satisfy that judgment. This could not and ought not to have the effect or postponing the lien created by the mortgage to the appellant in favor of this judgment.
It is true, the court is authorized to modify any order for the distribution of property; but this does not necessarily apply to the identical property held at the time of granting the divorce, but generally to any property held by the party against whom the modification is sought, or rather to his ability to answer any such modification. Otherwise a decree of divorce and any distribution of property thereon would operate as a perpetual injunction against the absolute disposition of the remainder. Whatever real estate a party might own at the time a decree was obtained against him, modifying a former order in divorce, could be subjected to any such decree, the same as in the case of any other decree or judgment. The right of one party to procure the modification of such an order against another does not create a lien upon the property of the latter, without the proper proceedings in court. The statute giving the right to have the order modified does not of itself create a lien.
The lien arising out of the appellant’s mortgage is anterior to any arising out of the proceedings supplementary to the divorce, and should be first satisfied.
[133]*133If any right of dower existed prior to the act of 1872, which declared that it should not exist, the respondent’s right was barred by the absolute divorce from her husband.
This is the result of a divorce a vinculo by the common law. That the common law, so far as it is suited to our condition and is consistent with the constitution and laws of the United States, is in full force here,-“and that it is to be resorted to as furnishing to that extent the measure of personal rights and the rule of judicial decision,” has been repeatedly decided by this court.
Upon the facts as found by the court below, the appellant is entitled to a decree of foreclosure against all the defendants.
The judgment of the third district court is reversed, and the cause is remanded, and the third district court is hereby directed to enter a decree of foreclosure in favor of the appellant and against all the defendants for the amount that shall then be found to be due on said note and mortgage.
Hunter, C. J., and Twiss, J., concurred.