Crane v. Meginnis, 1 Gill & J. 463, 19 Am. I not only empowered the court to exercise the Dec. 237. For at common law, and by the jurisdiction which the ecclesiastical courts dictates of reason, in the absence of statu- of England had been accustomed to exercise, tory enactment, to justify the allowance of but auded to it a new jurisdiction unknown alimony, the relation of husband and wife to the courts of England, that of granting must continue to subsist, although the par- divorces from the bond of matrimony; and, ties are separated from each other. moreover, it annexed to both the incident In the case just cited of Crane v. Meginnis, which theretofore had appertained only to 1 Gill & J. 463, 19 Am. Dec. 237, the court the ecclesiastical courts and the judicial sepof appeals of Maryland said: "Divorces in arations allowed by them, that of the allowthis state from the earliest times have ance of alimony. In granting this latter auemanated from the general assembly, and thority however, it must be presumed to have can now be viewed in no other light than as done so as it was then judicially understood regular exertions of legislative power. and with all the qualifications and limitaOn the other hand, the suit for ali- tions that were then inherent in it. The aumony in this state, as in Great Britain, is a thority was to grant alimony, if the court distinct remedy from the proceedings to ob- saw fit to do so, and no distinction was made tain a divorce, and for a series of years the in this regard between the two classes of diwife's maintenance has been recoverable vorce. It is very plain, therefore, that the through the intervention of our judicial allowance of such alimony in all cases was tribunals. So early as the year 1689, in the to be in accordance with the rules and case of Galwith v. Galwith, 4 Harr. & M'H. methods then prevailing in the ecclesiastical 477, it was asserted in the supreme court of courts or in the courts of chancery exercis the Province, that alimony is only recover-ing the ecclesiastical jurisdiction or the juable in chancery, or the court of the ordi- risdiction conferred by the act of Maryland nary; and in the year 1777, the act of as of 1777. sembly was passed which expressly authorized the chancellor to hear and determine all causes for alimony, in as full and ample manner as such causes could be heard and determined by the laws of England in the ecclesiastical courts there. Since this last period, such causes have been continually acted upon by the chancellor, and in some instances appeals have been taken to the appellate courts, and decided on by them." And in the case of Tolman v. Tolman, 1 App. D. C. 299, where it was held by this court that the chancery courts of Maryland and the District of Columbia "have had and exercised full and complete jurisdiction to decree alimony against a delinquent or of fending husband, who had deserted or maltreated his wife, and refused to provide her reasonable maintenance," and that the jurisdiction was not limited to cases in which the ecclesiastical courts of England had jurisdiction to grant divorces from bed and board; yet it appears plainly throughout the whole opinion, as announced for the court by Mr. Chief Justice Alvey, that apart from the statute alimony could only be allowed where the relation of husband and wife continued to subsist. In fact, the whole theory of the allowance of alimony is based upon the ground that the relation of husband and wife continues in full force, and that the moral and legal obligation of the husband to provide for the support and maintenance of his wife remains unimpaired; and alimony is only a commutation of the support and maintenance provided under normal condi tions. But when Congress, by the act of June 19, 1860, conferred upon the supreme court of the District the legal authority to grant divorces of both kinds, and provided that, in all cases, both those of divorce from the bond of matrimony and those of divorce from bed and board, the court should have power, if it saw fit, to award alimony to the wife, it Illustration of the subject may be had by reference to the provision of the Federal Constitution for trial by jury. The provision is that "the right of trial by jury shall be preserved;" but there is no attempt to define what is meant by the expression "trial by jury." But the courts have long since held, and it is well-settled law, that it means trial by jury such as that institution existed at the time of the formation of the Constitution, with all its substantial incidents of the introduction of testimony under the direction and control of a court, of its receiv. ing the law in each case from the court, of secret deliberation, and the requirement of unanimity in decision, as well as that the jury should always be composed of twelve men, no more and no less. And numerous other similar illustrations might be adduced. So, with reference to the subject of alimony now under consideration; when the legislative authority provides for the allowance of alimony in all cases, without otherwise explaining or qualifying the jurisdiction, it is very clear to us that it was meant that the courts should proceed in that regard in accordance with the usages and customs of the ecclesiastical courts and of the courts of chancery at the time of the passage of the act. Now, what were the usages and customs, and what was the jurisdiction of the ecclesiastical courts, and of the courts of chancery in the matter of alimony at and before the time of the passage of the act of Congress of 1860? Beyond all question, the jurisdiction of these courts was not exhausted by the rendition of the original decree. The decree for a separation was final; the adjudication that alimony to some extent was payable may have been final; but it was never contended or maintained that the amount of alimony then fixed was absolutely final and conclusive for all time, and could not afterwards be modified; on the contrary, the au thorities appear to be unanimous to the effect that the adjudication was a continuing one, and that the courts retained the whole subject under their control, increasing or diminishing the amount of alimony from time to time, as might seem just under changed or changing circumstances; and this without reference to the fact that the original decree might have been entirely silent in regard to the reservation of the right to the parties, or either of them, thereafter to apply to the court for a modification. Bishop, Marr. & Div. § 593; 1 Am. & Eng. Enc. Law, title, Alimony, where numerous cases on the subject are collected. This position, it is presumed, will not be impugned or contravened even now with reference to divorces from bed and board, under the statute. We presume that, as to these the rule will apply which applied to judicial separations in the ecclesiastical courts, and which gave those courts continuous jurisdiction over the matter of alimony. The argument seems to be that a different rule must govern in cases of divorce from the bond of matrimony, and it is very true that in these cases the result of the adjudication is in some respects radically different from that of the adjudication in the cases of limited divorce. For, by a decree dissolving the bond of matrimony, the parties are in law absolutely and irrevocably separated from each other, and they become to each other as total strangers. The relation of husband and wife is at an end; and the legal liability of the husband to provide for his wife is definitely terminated. Apart from the statute no suit for alimony could be maintained in such a case; and the allowance of alimony would be radically inconsistent with the changed relations of the parties. But the statute, for obvious reasons of public policy and upon equitable grounds, authorizes the allowance of alimony even in these cases, and the question is, whether in the allow ance of alimony in cases of divorce from the bond of matrimony the character of the decree is of more rigid and absolute finality than that of the decree in cases of divorce from bed and board. The statute contains no intimation of any difference. On the contrary, the intimation is quite the reverse. The implication is that alimony in cases of divorce from the bond of matrimony is placed precisely on the same basis as alimony in cases of divorce from bed and board. Nor is there any good ground in reason for the application of a different rule in the different classes of -cases. The argument would seem to be that, because a decree dissolving the bond of matrimony is, or may become, absolutely final and conclusive, therefore the added provision for alimony must be equally final and conclusive. But this argument is wholly untenable. It is nothing unusual in equity for a decree in equity to be absolutely final in some respects or with regard to some matters, and to be interlocutory and subject to modification in other respects; nor is there any inconsistency in combining an interloc utory order for further proceedings with a final decree. This is in common practice in equity. Now, there is very much greater reason why, in divorce cases, more than in any other class of cases, the interlocutory or incidental portion of the decrees should continue to remain indefinitely under the control of the court. Decrees of divorce from the bond of matrimony adjudicate only one permanent right-the right of the complainant to have the bond of marriage dissolved and to be in law placed in the position of an unmarried person. But there is no right of property involved, and none is adjudicated. The decrees affect the status of the parties, not necessarily their financial affairs. There is but one contract in controversy,the contract upon which the matrimonial relation is based; and if the courts assume, as they may do, under the statute, to set apart a portion of the husband's property for the use of the divorced wife or to require him to contribute a certain sum periodically for her support, which is called alimony, it is not in pursuance of any such specific right or contract as obtains in other cases, but upon broad grounds of public policy, because the husband has failed to perform the legal and moral obligation which he assumed when he entered into the matrimonial state, of providing suitably for his wife in accordance with his resources and their station in life. The decree for alimony is based upon the conditions existing at the time at which it is rendered; but these conditions are subject to change. The faculties of the husband at and before the time of the adjudication to discharge his legal and moral duties may have been ample. Through circumstances beyond his control, and by no fault of his, they may have afterwards become greatly impaired. Assuredly it would not be just, even towards a greatly injured wife, who has been compelled to seek the protection of the law against his misconduct to hold him to the same rigid liability in the days of his poverty as in the days of his prosperity and to punish him, as for contempt of cour, for not doing that which it has become im possible for him to do. The injustice that might thus be done by a rigid and inflexible decree for the payment of alimony might even be greater in the case of divorce from the bond of matrimony than in that of divorce from bed and board. In the latter case the wife remains a wife; the matrimonial relation continues to subsist; the moral obligation of the husband to support his wife remains; and they may at any time reconcile their dif ferences, and become one again in fact, as they remain in law. But, in contemplation of the statute, a husband and wife divorced from the bond of matrimony become strang. ers to each other, and there is no possibility of reconciliation. The divorced wife is free under the law to contract other matrimonial alliances. She is free to act for herself, to retain her own earnings, to control her own property. And yet it is claimed that, no matter how much her financial condition court is now powerless in the premises. Undoubtedly it would have been better in the original decree to have included a reservation to both parties to move at any proper time thereafter for a modification in the matter of alimony upon good cause shown for such modification. And yet it is not quite apparent how the court could have well reserved to itself the authority to modify a decree if that authority was not already vested in it by law. If parties are entitled to a final decree it is the duty of the courts to render such a decree, and not to hold the parties or their cause indefinitely by means of interlocutory or continu may have been improved, no matter how much her circumstances may have changed, no matter how much her divorced husband's circumstances may have been impaired, and even if he has, through no fault of his own, been reduced to absolute poverty and penury, he still remains legally and morally liable to pay alimony for the support of his divorced wife, living perhaps in luxury, and subject to imprisonment if he fails in such payment. This would be so grossly unjust as to shock the conscience. And yet to this injustice the courts would necessarily be led in many cases, if the cast-iron rule prevailed of absolute finality in the matter of the allowance of alimony. We do not think that the stating orders. And such undoubtedly would be ute contemplated anything of that kind. It is conceded on the part of the appellant, that upon good cause shown of inability on the part of the husband to pay the alimony, the court might order a suspension of payment, and would not, or rather should not, punish him as for contempt of court. But it seems to us that this concession virtually concedes the whole case. If the decree for the allowance of alimony is of the rigid, inflexible, and unchangeable character claimed for it in the bill of review now be fore us, it is not apparent how it can be suspended any more than it can be modified by a reduction of the amount. Suspension is just as much an alteration of the decree as is reduction of the amount, and it would seem to be an absurdity for a court to hold that it could indefinitely suspend the payment of alimony to the amount of $50 a month, because it was shown that the divorced husband could not pay the amount, but that it could not modify the decree so far as to authorize the substitution of $30 for $50 when it appeared that the husband could pay the $30, but could not pay the $50. We fail to see wherein this would serve the interest of the divorced wife, or the requirement of public policy. If there is a power in the court to suspend the payment of the alimony, there is undoubtedly a power to reduce the amount. The one can be inferred the duty of the courts in ordinary cases. The maxim of the law is: Interest reipublicœ ut finis sit litium. But this maxim does not apply with the same force to proceedings for divorce as to other cases. In proceedings for divorce the jurisdiction of the courts is in some things necessarily continuous. In the case of the custody and maintenance of the children of the unhappy marriage the court must necessarily retain a continuous jurisdiction. The enforcement of the payment of alimony implies a continuous jurisdiction. And the express provision of § 749 of the Revised Statutes for the District that, after a decree of divorce from bed and board, a divorced wife committing adultery might be deprived of alimony, also implies the exercise of continuous jurisdic tion. Nor is this last provision a denial by implication of the authority which we have sought here to show as existing, as it might possibly be claimed to be. That provision seems to have been intended to obviate the force of some decisions which had held that a wife divorced from bed and board, who thereafter committed adultery, should not on that ground alone be deprived of alimony. The case is not where the assertion of one thing implies the exclusion of all other things. Undoubtedly decrees for the allowance of alimony are in a certain sense to be regarded from the statute as well as the other. And as final. They are final and conclusive unif it be argued that the power to suspend is til for good cause accruing thereafter they only indirectly exercised by the refusal of are changed or modified; and, in general, it the court to punish the party as for a con- is only for after-accruing cause that they tempt during the continuance of his inabil- may be modified; and the modification ity, this position is also untenable; since no usually takes effect only from the date of the one should be required to wait until he is in accrual of such cause, and does not go back a position of apparent contempt of court. of it. Instalments of alimony, when they And moreover, if the court may decline to have become due and are in arrears, may be punish for contempt, and thus virtually sus- enforced extraterritorially as foreign judgpend the payment of alimony, it may basements ordinarily are enforced. Barber v. its action or refusal upon a condition that Barber, 21 How. 582, 16 L. ed. 226; Cheever the party will pay the lesser amount, which v. Wilson, 9 Wall. 108, 19 L. ed. 604; Tolit is shown that he can pay; and thus by a man v. Leonard, 6 App. D. C. 224. And in subterfuge the same result would be reached. various other respects a decree for the pay We believe that it is also conceded that if ment of alimony, with reference to the inthere is a reservation to the husband in a stalments that have become due, may be redecree for the allowance of alimony that he garded as a finality. And yet that they are may apply to the court at any time for a re-not merely money debts in the full sense of duction, the court would then have the authority to make such reduction. And it is claimed that as there was no such reservation in the original decree in this case, the those words, and that a decree for the payment of alimony is not a decree for the payment of money, with the conclusiveness incident to an adjudication of right, is very clear from the fact that the court which awards the alimony may enforce its payment by imprisonment of the delinquent husband, which it could not lawfully do in the face of the statute abolishing imprisonment for debt, if the decree were a money decree with the finality incident to such decrees. Tolman v. Leonard, 6 App. D. C. 224. In this last-cited case this court said: "The allowance of alimony is not in the nature of an absolute debt. It is not unconditional and unchangeable. It may be changed in amount, even when in arrears, upon good cause shown to the court having jurisdiction." And while this was said rather by way of illustration and argument than because the question now before us was distinctly involved in that case, yet it ex. presses what we believe to be the well-founded law and the well-established practice in all such cases. Apparently opposed to the views here expressed are certain decisions cited from the courts of Maine, Rhode Island, New York, Ohio, Alabama, and Kansas, and one also from the supreme court of this District. But as all these decisions except the last rest upon provisions of local law, they afford no safe criterion for our action. In most of them, as will be seen by examination of the cases, the so-called alimony allowed was not alimony in the proper sense of the term, as we understand it, but was an arrangement of property interests between the parties. It was said in one of them, for instance, the case of Smith v. Smith, 45 Ala. 264: "This 'allowance' to the wife is not, in fact, alimony in the sense of the ecclesiastical law of England; but it is more strictly an arrangement in lieu of a division of the estate of the parties, so as to return to the wife her just portion of that property which mutually belonged to both during the marriage, and which the labor and care of both may have equally contributed to procure and preserve.' In the case of Sammis v. Medbury, 14 R. I. 215, a portion of the husband's estate consisting of one half of the rents of the realty for life, and one half of the personal property absolutely, was set apart as the property of the wife upon the rendition of a decree in her favor for divorce from the bond of matrimony. Of course, this was not alimony in our sense of the term, or in the sense of the ecclesiastical law of England; and the decree for the allowance was properly held absolute and final, and not to be modified on subsequent application by the husband. So, likewise, in the case of Petersine v. Thomas, 28 Ohio St. 596, and in the case of Mitchell v. Mitchell, 20 Kan. 665, there was an allowance to the wife of a sum in gross out of the husband's property, payable, it is true, in instalments, but still a sum in gross to be paid within a definite time; and it was held that the decree for such allowance was a final and irrevocable decree. And such also was the case of Fries v. Fries, 1 MacArth. 291, in the supreme court of this District. There, in a decree for the dissolution of the bond of matrimony between the parties, there was a provision inserted by agreement between the parties, that the husband should convey to his wife a certain house and lot in the city of Washington, upon her payment to him of the sum of $500 within ninety days. After the lapse of two terms of the court, it was sought to have this period of time extended, upon the theory that the matter of alimony was always within the control of the court; and it was held that the decree was final and absolute, and could not be changed as desired. But that was plainly not alimony in the proper sense of the term, but an arrangement of the property between the parties. It is true that in the opinion of the court in that case it was said: "It was suggested on the argument that the modification of this decree was in reference to alimony, and that that matter was always under the control of a court of equity. This doubtless is so during the pendency of the suit; but after a final decree it is no longer subject to alteration or revision on petition or ex parte affidavits any more than is the divorce itself, unless, as is often provided in the final decree, either party be at liberty thereafter to apply to the court for a modification of such decree in respect to alimony." This undoubtedly was a correct statement of the law as applicable to the case under consideration; but it is very clear that the generality of the language used would have to be restricted in its application to other and different cases. In only two of the cases on behalf of the appellant, that of Sampson v. Sampson, 16 R. I. 456, 3 L. R. A. 349, and that of Smith v. Smith, 45 Ala. 264, was there alimony decreed of monthly payments of indefinite continuance, such as we have in the case under consideration; and in both cases the courts are careful to base their decisions upon the rigid requirements of their several statutes, while admitting that the rule under the ecclesiastical law of England would be entirely different. Now, we think that Congress, in the enactment of the statute of 1860, intended to incorporate, and did in fact incorporate, into it, the provisions of the ecclesiastical courts of England and of the courts of chancery of Maryland and this District in regard to alimony; and that it intended to make, and did in fact make, the allowance of alimony in accordance with the rules and usages of those courts an incident in the granting of divorces both from the bond of matrimony and from bed and board, however inconsistent in theory the allowance of continuing alimony may be to the new relation created between the parties in the former class of cases. While it is competent for the court that grants a divorce from the bond of matrimony to commute the alimony and to assign a sum in gross or a specific portion of the husband's property to the wife for her support and maintenance, and thereby to make the decree for such allowance final in every respect, yet, under the statute, which | in this regard seems studiously to make no difference between the two classes of divorce, if the court in fact allows to the wife divorced from the bond of matrimony the same kind of alimony which it would allow to a wife divorced merely from bed and board, it is not apparent why it should lose control of the one when it does not lose control of the other. Certainly there is no warrant for any such distinction in the statute, and we find none in reason. The fact that in the one case the parties become strangers to each other in law, while in the other case they remain husband and wife, although separated, would seem to be irrelevant and immaterial, when the question is merely a collateral one of a provision for the subsistence thereafter of the wife. That provision, under the statute, may be made equally well by the adjudication of an allotment once for all to the wife, when the adjudication in its very nature becomes final, or by the award of periodical allowances, payable from time to time indefinitely, under the control and supervision of the court. We think that a decree for the payment in payments periodical and of indefinite continuance was necessarily a decree for continuing superintendence by the courts, and which, therefore, for good cause accruing afterwards, the court might properly modify so far as concerned its future execution. And being of this opinion, we are necessarily led to the conclusion that the decree appeuled from should be affirmed, with costs; and it is so ordered. •1. 2. FLORIDA SUPREME COURT. William P. STACKPOLE et al. v. William S. HANCOCK et al. (........ Fla.........) Where the parties to a chancery suit, after a plea is filed and set down for argument, fail to bring it on for hearing, but proceed to take testimony as to the merits of the plea, and further bring the case on for final hearing, the decree rendered will not be reversed unless there is error on the merits. Ordinarily, the mere expression of an opinion as to value, or a statement as to the uses for which real estate is wanted, will not, unless used as part of fraudulent means to mislead and prevent an examination of the property, suffice to set aside a deed thereto on the ground of fraud. 3. By the rule of the common law, a vendee who has information of a mine on the land of another, of which the latter is ignorant, is under no legal obligation to disclose such fact in making the purchase. Under such circumstances, the vendee may remain silent, and not disclose facts in his knowledge, or answer inquiries as to such facts, but, if he undertakes to do so, he must disclose the whole truth, without concealment of material facts, and without doing anything calculated to prevent an investigation on the part of the vendor, especially if he does not reside near the land and the vendee does. 4. While a vendee, under the circumstances stated in the preceding headnote, may remain silent and purchase, yet a very little is sufficient to affect the application of this principle, and statements ordinarily 5. 6. Where an answer in chancery contains the usual general denial found in such a pleading, it is sufficient to make an issue on material allegations in the bill not admitted, and to which no direct response is made; and as to them there must be, at least, a preponderance of sustaining proof. The separate answer of one defendant cannot be used as proof against the others, in the absence of showing that he occupied such a relation to them as to bind them by his representations. 7. A bill charging an agreement and combination on the part of several defendants to fraudulently obtain a deed to them to real estate will be sustained by proof of the fraudulent representations of one in securing the deed, if in fact he was acting for the others, though they did not authorize such representations, and did not know of them when the deed was made to them. 8. Where some of the representations made by a vendee in procuring a deed to land are true, and some are false and sufficient to set aside the sale, and it ap pears that the latter might and did influence the vendor in the disposition of the land, the sale should be canceled. 9. Under chapter 3681, Acts 1887, when land is returned to the assessor by an owner, and the assessor acts upon the return in assessing the property, it must be assessed to the party making the return. Under such circumstances, an assessment toa party not the owner, and not the one making the return, is void. (December 3, 1898.) garded as an expression of an opinion may be CROSS-APPEALS from a decree of the Circuit Court for Hernando County in considered as sufficient when calculated to a suit brought to cancel certain deeds to mislead and prevent an examination of the real estate; defendants appealing from so property on the part of the vendor. Headnotes by HOCKER, J. NOTE. For expression of opinion as fraud, see note to Hedin v. Minneapolis Medical & Surgical Inst. (Minn.) 35 L. R. A. 417; also note to Fargo Gaslight & Coke Co. v. Fargo Gas much of the decree as set aside the deed of W. P. Stackpole, and plaintiffs appealing & Electric Co. (N. D.) 37 L. R. A. on page 604; Andrews v. Jackson (Mass.) 37 L. R. A. 402; and Gustafson v. Rustemeyer (Conn.) 39 L. R A. 644. |