162 have tended strongly to prove his allegation, that Hale had agreed to release the land; but it was not produced, and no attempt is made *to account for its nonproduction. But if there had been such an agreement, and such proof to establish it, it is really surprising that he should have gone to the executor, and, without even mentioning such an agreement, and insisting upon it, have proposed to him to release the lien upon an entirely new consideration. But the statement of this defendant, as to the result of the interview with the executor, and the assurar ces which he gave him of the consent of Mrs. Hale to release the land upon his giving the additional personal security he proposed, is wholly irreconcilable with the depositions of James D. Johnston, Albert G. Pendleton, Lorenzo Hale, and Mrs. Beatrice A. Hale; so that, if his answer positively negatived the allegations of the bill, and was directly responsive, and not merely affirmative matter which it was incumbent on him to prove, unsupported as it is by any evidence in the cause, it could not weigh as a feather against such a weight of testimony. It does not appear, therefore, that Edward Hale agreed to release his recourse upon the land. And we think it is proved beyond all question, that Mrs. Hale did not, but that she positively refused to release the land; though she consented that additional personal security might be given, provided it should not prejudice her recourse upon the land, which she was not willing to surrender for any personal security. And, indeed, she agreed with Mr. Pendleton, who appears in this matter to have acted as the counsel and agent of A. J. Hare and his wife, and their trustee, to allow the additional security to be given, only upon his assurance, that it would not prejudice her lien upon the land, if she had any, but would rather strengthen it. At the same time, it is very evident that Andrew J. Hare and wife, and their trustee, finally concluded the contract, accepted the conveyance which was made, and paid the purchase money, with perfect reliance 163 upon the *information and assurances they had received, that the deed would invest them with a good title, and that they were entirely safe in accepting it. And yet it is a plain inference, from the evidence, that they must have known that Mrs. Hale held James F. Hare's bonds for the purchase money, and that she claimed a lien upon the land for their payment, which she was not willing to surrender. What was the ground of their reliance, unless it was the opinion of their counsel, which he intimated to Mrs. Hale, that she had no lien upon the land, there is nothing in the record to show. Nor is there anything in the record to show that Isaac Hare, in executing the deed of conveyance, did not act in perfect good faith, or that any culpability attaches to Mrs. Hale. If she had such a lien, or right of recourse upon the land, it is very evident that she did nothing to surrender it. It is contended by the appellees, in the cross appeal, that no such lien existed. That is the only remaining question. Before our statute, ch. 119, 1, p. 567 of Code, it was well settled, that a vendor who conveyed the land to the vendee had a lien upon it for the unpaid purchase money in the hands of the vendee, or a volunteer claiming under him, or purchasers for valuable consideration with notice. Where a conveyance is made now, by the statute, the lien is abolished, unless expressly reserved on the face of the conveyance. But when no conveyance is made, the case is not within the purview of the statute, and the law is the same as it was before the statute was enacted. And in such case it is well settled that the vendor has recourse upon the land, notwithstanding the vendee gave personal or other security for the purchase money, and notwithstanding the subsequent purchaser, or incumbrancer, had no notice that the purchase money, or any part of it, was unpaid. Yancy v. Mauck & als., 15 Gratt. 300; citing Hatcher's adm'x v. Hatcher's ex'ors, 1 Rand. 53; and Lewis v. Caperton's ex'or, 8 Gratt. 148. 164 *In Beirne's ex'ors v. Campbell, 4 Gratt. 125, Campbell had but an equitable title, which he sold to Burke, and which Burke conveyed, with other lands, to trustees for the benefit of creditors. At the time of Burke's conveyance the legal title was in Estill, which was afterwards conveyed, by the direction of Campbell, to Burke. At the sale by the trustees, Beirne became the purchaser of this tract. This court held that the land was chargeable in the hands of Beirne for the balance of purchase money due from Burke to Campbell, though he had obtained the legal title, and had no notice that purchase money was due to a previous vendor. That case, we think, goes very far in support of the lien of the vendor of an equitable title-much farther than it is necessary to go in this case, to enforce the lien of Edward Hale against the purchasers from his vendee, having notice of the purchase money due him, and that his representative insisted upon her lien, and refused to surrender it for any personal security, unless the mode of transferring the equitable title, by an assignment of the title bond, makes a difference. In this case it is not averred in the pleadings, nor proved in the cause, except by recital in one of the deeds, to which the appellee, Beatrice A. Hale, was not a party, that the equitable title of Edward Hale was transferred to James F. Hare, by the assignment to him of the title bond of Isaac Hare, under which Edward Hale, by assignment, held the equitable title to the land in question. But assuming that to be the fact, has the assignor a lien upon the land for the purchase money? It seems to be well settled, that one who sells an equitable right to land, retains a lien upon it for the consideration, when, under the same circumstances, the vendor of the legal title would have an equitable lien. The lien is recognized to the same extent in case of a sale of an equitable title as of a legal one. 1 Lead. Cases in Eq. side p. 270, top 363; Steward v. Hulton, 3 J. J. Marsh. R. 165 178. If the vendor had *sold the legal title, but had not conveyed, the land would have been charged with the purchase money, as we have seen, in the hands of a subsequent purchaser or incumbrancer, even without notice, and notwithstanding the vendor had taken personal security. same should be insufficient to satisfy the same, and then only for the deficiency. But inasmuch as there were other judgments against the said Isaac Hale, which charged the land, the decree is right in directing the same to be sold. We are of opinion, therefore, that the decree of the Circuit court should be reversed so far as it is herein declared to be erroneous, and in all other respects affirmed. The decree was as follows: In Ligon v. Alexander, &c., 7 J. J. Marsh. The court, for reasons stated in writing R. 288, the case was this: Ogden, having and filed with the record, is of opinion that title, executed a title bond for a piece of the decree of the Circuit court is erroneous land to Ligon, who, having paid therefor, in holding that the tract of land sold by assigned the bond to Morgan, who assigned Edward Hale to James F. Hare, and by him it to Alexander, with notice of the non- to Daniel Hale, trustee of Wilmoth Hare, payment of the purchase money due from is not chargeable with the purchase money Morgan to Ligon, and of the lien asserted due from James F. Hare to Beatrice A. by the latter on the land for its payment. Hale, the widow and legatee of Edward The court held that the land in the hands Hale, deceased; and in dismissing the suit of Alexander was bound for the purchase as to the defendants, Andrew J. Hare and money due Ligon. The court says: "Before his wife, Wilmoth Hare, by her trustee, any assignor can have such a lien, he must show himself to have been the beneficial 167 owner of the property by payment of the purchase money to his vendor. With this borne in mind, there can be no difficulty in recognizing any number of distinct liens, from the first assignor to the last assignee of the bond." This decision is recognized in Gallway v. Hamilton's heirs, &c., I Dana R. 576, (see also Stewart v. Hulton, 3 J. J. Marsh. R. 178,) in the following language: "This court has decided that the assignor of a bond for title to a tract of land is entitled to a lien on the land to secure the purchase money, notwithstanding the assignee has parted with the bond by transfer to another, provided he had notice of such lien." that Eustace Gibson, with costs; and that *there is no other error in said decree. It is therefore decreed and ordered, said decree of the Circuit court be reversed and annulled, so far as it is herein declared to be erroneous, and in all other respects affirmed; and Beatrice A. Hale, appellee in the appeal of Isaac H. Day, and the appellant in the cross appeal, recover her costs in this court: which is ordered to be certified to the Circuit court of Giles county, for further proceedings to be had therein. Decree upon Day's appeal affirmed. Decree upon B. A. Hale's, reversed. 168 *Carr v. Carr. March Term, 1872, Richmond. The case of Ligon v. Alexander strikingly resembles the case in hand; and it is supported by the well settled principle that the 1. The construction of § 7. ch. 109, Code of 1860, in lien in case of a sale of an equitable title is recognized to the same extent as in the relation to divorces a mensa et thoro, given in Bailey v. Bailey, 21 Gratt. 43, approved and acted on. sale of the legal title, and is in harmony, 2. Husband and Wife Legal Grounds for Wife's Deser except that it does not go as far, with The court is also of opinion that the said tract of land is primarily liable to the payment of the said purchase money; and that, although the decree is right in setting aside the deed from Isaac Hale to Isaac H. Day, as fraudulent and void as to creditors, the said land can only be subjected to the payment of the purchase money which was due from James F. Hare to Edward Hale for the land he sold him, and upon which he retained a lien for its payment, in case the tion.* That a husband is rude and dictatorial in his speech to his wife, exacting in his demands upon her, and sometimes unkind and negligent in his treatment of her, even when she was sick, and worn and weary, in watching and nursing their sick child, is no legal grounds for her leaving him. 3. Same-Same-Alimony.-A wife having left her husband without good legal grounds is not entitled to alimony. *Husband and Wife-Legal Grounds for Wife's Desertion.-Desertion is a breach of matrimonial duty. and is composed, first, of the breaking off of matrimonial co-habitation; and, secondly, an intent to desert in the mind of the offender. Both must combine to make the desertion complete. and a mere separation by mutual consent is not a desertion by either party. Latham v. Latham, 30 Gratt 307, and note. In Harris v. Harris, 31 Gratt. 13, it was held that the circumstances must be very peculiar indeed, if any such case there could be, which justifying a decree for an absolute divorce in behalf of the husband for wilful desertion of the wife, would at the same time warrant a decree in her behalf. See also. Throckmorton v. Throckmorton, 86 Va. 768, 11 S. E. Rep. 289. was entitled to dower, which had not been laid off to her; and subject to her dower, it was the property of Thomas E. Carr and his sisters. He took his wife to this house, where they continued to live until she left him. 4. Same Same-Custody of Children.*-A wife having | one sister, on a farm in which the mother left her husband without good legal grounds, and taken their child with her, though there is no other imputation upon her conduct, upon a decree for a divorce a mensa et thoro at the suit of the husband, on the ground of desertion, the child will be restored to the husband, though it is a female and but three years old; and though the husband's treatment of his wife has been coarse, rude, petulant, close, exacting, and penurious, leaving her to bear alone burdens and trials which it should have been his highest pleasure to share and to relieve. Thomas E. Carr was honest, industrious, sober, and correct in his dealings; but he was penurious, selfish, illtempered, and unsocial. His wife, who seems to have been quite young, was virtuous, correct, of affectionate temper, fond of her friends, social in her nature, and withal spirited, and This was a suit in equity, brought in quick to feel. It is easy to imagine that July 1869, in the Circuit court of Loudoun the lives of two persons so unlike in dispocounty, by Thomas E. Carr, against his sition, and yet so closely united, would not wife, Ascenith Ann Carr, for a divorce a glide on without a ripple. Their collisions mensa et thoro, and the recovery of the seem to have been frequent. He was somechild of the marriage. The only ground times rude and dictatorial in his speech to on which the divorce was asked was deser- her, and exacting in his demands, and tion. This was admitted in the answer, sometimes unkind and negligent in his and proved in the cause. The defendant treatment of her, even when she was sick, insisted that she went with his consent.or worn and weary with watching and The parties, who seem to have been raised nursing their sick child. She, on the other within a half mile of each other, were mar-hand, was quick to feel his treatment, not ried on the 20th of May 1867. A fe- very patient to bear it, nor with the self169 male child was born *to them on the denial to endeavor to accommodate herself 7th of April 1868; and on the 12th of to his disposition and wishes. The conseJuly she left her husband, taking her child quence of these disagreements was, that with her, and went to her father's house, she twice left him. The first time she rewhere she has since lived. turned after a day or two, upon his request. The second time she has remained away. Thomas E. Carr was the only son of his mother, and she was a widow, and he had three sisters. At the time of his marriage he lived with his mother, and, probably, *Same Same-Custody of Children. As to the custody of the children when the wife has deserted the husband without good legal grounds, see Latham v. Latham, 30 Gratt. 307, and note. ALIMONY. Definition.--Alimony is an allowance made to the wife out of the husband's estate or income upon a decree of separation. Latham v. Latham, 30 Gratt. 338. Origin of Alimony.-"Alimony had its origin in the legal obligation of the husband, incident to the marriage state, to maintain his wife in a manner suited to his means and social position." Harris v. Harris, 31 Gratt. 17. Amount of Alimony-Discretion of Court-General Rule. Says the court, in Bailey v. Bailey, 21 Gratt. 57, "In regard to allotment for alimony, there is no fixed rule. It is a matter within the discretion of the court. Yet, it is not an arbitrary but a judicial discretion, to be exercised in reference to established principles of law relating to the subject, and upon an equitable view of all the circumstances of the particular case. The general rule in respect to alimony is, that the wife is entitled to a support corresponding to her condition in life and the fortune of her husband. And in the language of NELSON, C. J., in Burr v. Burr, 7 Hill (N. Y.) 207: When the delinquency of the husband has been established, and the wife is the injured party driven by his cruelty or other wrongful conduct, from the comfort of domestic enjoyments, she should be liberally supported.' "But while alimony is commonly defined a proportion of the husband's estate, yet the duty of a There are letters from the husband to the wife, filed by him, urging her to return to him, and assuring her of his continued husband to maintain his wife does not depend alone upon his having visible tangible property. While the parties are living together, they are bound to contribute by their several personal exertions to a common fund, which in law is the husband's, but from which the wife may claim support. If she is compelled to seek a divorce on account of his misconduct, she loses none of her rights in this respect, only she is to draw her maintenance in a different way; that is under a decree for alimony, based, if he has no property, upon his earnings or ability to earn money." Cited and approved in Miller v. Miller, 92 Va. 200, 23 S. E. Rep. 232: Harris v. Harris, 31 Gratt. 17; Cralle v. Cralle, 84 Va. 202, 6 S. E. Rep. 12. Income of Husband, the Fund from Which Alimony Is Granted. In respect to alimony the general rule is that the income of the husband, however derived or derivable, is the fund from which the allowance is made. Heninger v. Heninger, 90 Va. 274, 18 S. E. Rep. 193, citing Bailey v. Bailey, 21 Gratt. 43; Cralle v. Cralle, 84 Va. 198, 6 S. E. Rep. 12. "The general rule undoubtedly is, that the income of the husband, whether derived or to be derived from his personal exertions or from permanent property, or from both, is the fund from which alimony is decreed, and the amount, as already said, will depend upon the particular circumstances of each case." The court, in Cralle v. Cralle, 84 Va. 202, 6 S. E. Rep. 12, citing Harris v. Harris, 31 Gratt. 13; Carr v. Carr, 22 Gratt. 168; Myers v. Myers, 83 Va. 806, 6 S. E. Rep. 630. Instances of Amount Allowed.-Twenty dollars a month is not too much, where husband owns a farm of the value of $2,500, personalty of $500 value, is affection. The first is dated November 3d, | April term, 1871, in a chancery suit insti1868, and to this he received no answer. tuted in said court by Thomas E. Carr, The second is dated March 25th, 1869, and against Ascenith A. Carr, his wife, seeking to this he received a reply, with a very a divorce a mensa et thoro, on the ground 170 decided refusal to return, *and which of abandonment or desertion by the wife; evinces that she was still smarting and seeking also to obtain the custody of under the ill treatment she at least con- his infant daughter, the only child of the sidered she had received. The third is dated marriage, who had been taken from her March 20th, '71. In this he tells her that father's home by the mother. from the day she left him-then nearly three years to the present time, there had been no hour in which he would not gladly have taken her back to his home and his heart. He says the time is near at hand for the hearing of their case, and he beseeches her to come back and let him prove to her that he can and will be her loving and devoted husband. The cause came on to be heard on the 24th of April 1871, when the court made a decree giving to the plaintiff a divorce a mensa et thoro from the defendant, and giving to him the custody of the child, and refusing alimony to the wife. And leave was granted to either party to come into the court and apply for any further relief in the cause. From this decree Mrs. Carr obtained an appeal to this court. Harrison, for the appellants. BOULDIN, J., delivered the opinion of the court: This is an appeal from a decree of the Circuit court of Loudoun county, at its strong and in good health, between 40 and 45 years of age, and the wife is delicate with five young children. Owens v. Owens, 96 Va. 191, 31 S. E. Rep. 72. One hundred and fifty dollars per annum is reasonable alimony, where it is shown that the husband is of good business habits and owns property of $3,500 value. Cralle v. Cralle, 84 Va. 198, 6 S. E. Rep. 12. Six dollars a month to the wife who has an infant child is little enough, where the husband owns a farm of the value of about $1,250, two horses, and other personal property of no great value, and is an able-bodied man of 35 years. Trimble v. Trimble, 97 Va. 217, 33 S. E. Rep. 531. Alimony May Be Granted Independently of a Suit for Divorce.-"In Virginia the statutes allow alimony as incident to a decree for a divorce. But this court has gone farther, and held that equity has jurisdiction in an independent suit to decree in favor of the wife in proper cases-as, for example, when she has been abandoned by the husband, or driven from his house by ill treatment, and compelled to seek an asylum elsewhere." The court, in Latham v. Latham, 30 Gratt. 338. Alimony may be granted independently of any divorce or application for one, as where the misconduct of the husband drives the wife from her home, or he turns her out of doors, or perhaps for any cause for which a divorce a mensa would be granted if asked for. 1 Minor's Inst. (4th Ed.) 308; Purcell v. Purcell, 4 H. & M. 507; Almond v. Almond, 4 Rand. 662; Spencer v. Ford, 1 Rob. 648. In Almond v. Almond, 4 Rand. 662, JUDGE CARR, delivering the opinion of the court, said: "Suppose the husband turns his wife out of doors, or treats her so cruelly that she cannot live with him; suppose The divorce as prayed for was granted by the court; the child was remanded to the custody of the father, and alimony was denied to the wife. From this decree an appeal was allowed to this court, and the following errors are assigned by the appellant: 171 "1st, It was error to grant a divorce a mensa et thoro *upon the pleadings and proofs in this cause, it appearing therefrom that the petitioner had cause for leaving, and that she left her husband with his consent and concurrence. "2nd, It was error not to grant something for maintenance to the petitioner, under the circumstance of the case. "3rd, It was error to take from the petitioner, and give to the complainant, the custody of the child. "4th, There was no provision for the mother to have access to her child." The questions thus presented for our consideration have been discussed with much learning and ability by counsel on both sides, and numerous authorities have been cited; but as their solution depends on the construction of a statute of this State of him to persevere in refusing to take her back, or to provide a cent to feed and clothe her. Surely, in a civilized country, there must be some tribunal to which she may resort. In such a case a court of equity would unquestionably stretch out its arms to save and protect her." Alimony Pendente Lite. The court in term or the judge in vacation may at any time pending the suit, in the discretion of such court or judge, make any order to compel the husband to pay any sums necessary for the maintenance of the wife and to enable her to carry on such suit. Va. Code, § 2261. Pending Appeal-Lower Court Allowing Wife Counsel Fees to Prosecute Appeal.-In Cralle v. Cralle, 81 Va. 773, HINTON, J., in delivering the opinion of the court, intimates that after an appeal is taken to a decree, the lower court has no right to allow the wife money to defend such appeal or for maintenance pending the appeal, saying, "Thenceforth (i. e. after supersedeas is allowed) the cause is regarded as pending in the appellate court, and any order or decree that is made by the subordinate court must be simply null and void." The case however was dis missed for want of jurisdiction, so the action of the lower court in allowing the alimony was not passed on. Alimony Allowed-Husband Dies Pending AppealThe Rule. A certain sum monthly having been allowed as alimony to the wife, the husband appeals from the decree, and pending the appeal dies. The appellate court affirming the decree, the wife is entitled to the allowance up to the time of his death. Francis v. Francis, 31 Gratt. 283. Estimating Alimony-What May Be Considered-Instance. -In estimating the husband's property in comparatively recent date, and as that statute has received judicial interpretation by this court in the case of Bailey v. Bailey, decided at Wytheville, June term, 1871, and reported 21st Gratt. 43, the court deems it unnecessary to comment in detail on the previous authorities. The 7th section of chapter 109, Code of 1860, p. 630, authorizing the chancery courts to decree divorces from bed and board, is as follows: "¿7. A divorce from bed and board may be decreed for cruelty, reasonable apprehension of bodily hurt, abandonment or desertion." Sections 12 and 13, of same chapter, confer on the courts full power, on granting a divorce, to make such orders as may seem just and proper under the circumstances, in relation to alimony to the wife, the custody and maintenance of the minor children, and the property of the parties. The case of Bailey v. Bailey, 21 Gratt. 43, above cited, in which this statute was considered and construed by the court, was just the converse of the case under consideration. It was a suit by the wife 172 against the husband, *seeking a divorce a mensa et thoro, for abandonment and desertion by the latter. The fact of desertion by the husband, proved almost exclusively by the letters of the parties, was considered by the court as satisfactorily established, and the divorce was decreed. Alimony was allowed the wife; and the reference to the amount of alimony to be allowed the wife, it is proper to admit evidence of a decree for a legacy in favor of the husband. Cralle v. Cralle, 84 Va. 198, 6 S. E. Rep. 12. Capacity of Wife to Earn Money Not to Be Considered. -In considering the amount of alimony to be allowed the wife, the capacity of the wife to earn money, is not a question, and therefore not a proper subject of inquiry by the commissioner. Cralle v. Cralle, 84 Va. 198, 200, 6 S. E. Rep. 12. Wife Not Entitled to, When Her Suit Fails.Where the wife sues for divorce. and such a suit fails, she is not entitled to alimony. Latham v. Latham, 30 Gratt. 307, 339, although in this case STAPLES, J., intimates that there may be cases where the court would grant to the wife alimony, and yet not allow her a divorce. Wife May Forfeit by Her Misconduct.-Although alimony is the right of the wife she may by her misconduct forfeit it; and where she is the offender she cannot have alimony on a divorce decree in favor of her husband. Harris v. Harris, 31 Gratt. 17. The wife is entitled to no alimony if she leaves the home her husband has provided for her, without sufficient cause. Carr v. Carr, 22 Gratt. 168. Mr. Minor defines such sufficient cause, as any cause for which a divorce a mensa would be granted, if asked for. 1 Minor's Inst. (4th Ed.) 308. Where a wife leaves her husband without good legal cause, she is not entitled to alimony. The reasonable or justifiable cause which will warrant a willful separation and refusal to return to the home of her husband, must be such as would authorize a suit for divorce a mensa et thoro. Martin v. Martin, 33 W. Va. 695, 11 S. E. Rep. 12. custody of her only child, an infant of very tender age, was given to her. But the In considering that case the court say that "under our statute no particular period is prescribed in which the desertion shall continue, to entitle a party to a divorce a mensa et thoro;" that the courts had not laid down "any particular rules of evidence for determining whether a separation does or does not, as a matter of proof, amount to desertion." And they go on, very propadmit of such rules, but each case must erl,y to say, that the question does not rest on its own circumstances.” following proposition is affirmed by the court, as the result of the English and American cases on the subject: "We think it may be safely asserted, as a general principle of law, to be extracted from the English and American cases on the subject, that wherever there is an actual breaking off of matrimonial cohabitation, combined with the intent to desert in the mind of the offender, in such case desertion is established, and the party is entitled to a divorce a mensa et thoro." 21 Gratt. 48-9. Such being the law, there can be but little difficulty in applying it to the facts of this case. Without recapitulating those facts, which we deem wholly unnecessary, it is enough to say, that the pleadings and proofs in the cause abundantly establish "an actual breaking off of matrimonial cohabitation, combined with the intent to desert," on the part of the wife, without legal cause or excuse- an intent deliberately formed, Court Will Not Allow Alimony Where Wife Is Well Off.-Where the wife owns an estate amply sufficient for the support of herself and children and of much greater value than that of the husband, the court should not decree that the husband shall contribute to their support. Myers v. Myers, 83 Va. 806, 815, 6 S. E. Rep. 630. Deed in Lieu of Alimony No Bar to Costs of Suit.Where the wife by deed for an adequate consideration releases all her claims for alimony for the husband, such deed does not preclude her from asking the court to decree her all costs and expenses in a suit for divorce against her by her husband, where such suit has failed. Engleman v. Engleman, 97 Va. 487, 34 S. E. Rep. 50. Allowing the Wife Counsel Fees-Instance.--The appellate court will not allow counsel of the wife an additional fee for representing her, in the appellate court, where the record does not show the ability of the husband to meet and pay such fee. Engleman v. Engleman, 97 Va. 494, 34 S. E. Rep. 50. Wife Has No Right to Any Specific Property of Husband.-A claim for alimony on the part of the wife does not give her a right to any specific property of the husband. Almond v. Almond, 4 Rand. 662. Marriage a Prerequisite.-Marriage is of course a prerequisite to alimony, but it may be proven from circumstances, such as co-habitation, name, and reputation. Purcell v. Purcell, 4 H. & M. 507. After Decree Court Should Not Enjoin Husband from Disposing of His Property. Where the court allows the wife alimony it is improper to enjoin the husband from disposing of or encumbering his real estate. Such conditions are harsh and impressive. The sums decreed to be paid the wife from time to |