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McGill v. McGill-Opinion of Court.

cated or intemperate. But this testimony does not controvert the unimpeached testimony of the dozen witnesses who prove that at his house, with his family, he has a persistent habit of becoming intoxicated—is habitually intemperate within the meaning of the statute, and that his conduct has been such as to fully justify this appeal of his wife for liberty. The offence contemplated by the statute is the habit, and frequent recurring drunkenness proves it. 1 Bish. Mar. and Div., §813; Golding vs. Golding, 6 Mo., App. 602; Blaney vs. Blaney, 126 Mass., 205.

III. The decree requires the surrender of the separate property of Mrs. McGill to her by the defendant, together with the notes taken for the rent of the lands. It is insisted that this is erroneous.

Schouler on Husband and Wife, $560, thus gives the American doctrine upon this subject: "Upon the dissolution of the marriage all the husband's claims to the wife's lands, which depended on the marriage, become extinguished, and she is entitled to possession; and her statutory disability to alienate such lands is removed. Porter vs. Porter, 27 Gratt., 599; Piper vs. May. 51 Ind., 283.

No one can doubt that when the bonds of matrimony are dissolved the parties ought to be placed as near as may be in the same situation they occupied before the marriage. 2 Bish. Mar. and Div., $475. But the appellant says that a court of equity is not the proper forum in which the possession of land should be recovered. That rule, as applicable to the recovery of lands generally, has been several times enforced in this court in cases where bills were filed in equity, and the suit should have been ejectment. This is not that case. Here the wife seeks a divorce from the bonds and prays to be restored to the possession of her separate property as against the marital rights of the husband, (and it is confessed here that he has only marital

McGill v. McGill-Opinion of Court.

rights,) such rights being extinguished by the decree of divorce, the court having power over the whole subject should make its decree effective by giving her the full control of such separate property. His estate being terminated by the decree, the same court should dispose of it according the legal rights and status of the parties. There is no controversy as to the title. Such decree is conformable to the usual practice in similar cases. 2 Bish. Mar, and Div., $475.

IV. As to that part of the decree which requires the defendant to surrender notes taken by him for the rent of the lands of complainant, (which lands by the ante-nuptial agreement and by the statute were under the care and management of the defendant as her husband.) the first mention made of such notes is in the decree. We know nothing of their origin except they are treated as notes taken "for rent:" whether for the past or the future use of the land is not stated. There is no testimony on the subject. If there are such notes in existence, given to the defendant for accrued rent, they are beyond the reach of the complainant by force of the statute. The act of 1845 provides that the separate property of the wife shall remain in the care and management of her husband, and that she shall not maintain a suit against him for the rent, hire, issues. proceeds or profits of said property. The policy of this statute is to give to the husband the current use and proceeds of the land received during coverture, and he is under no obligation to account to her therefor. It is therefore beyond the reach of the court in a proceeding for a divorce. V. The next question considered is whether the decree is proper in respect to placing the infant child in the exclusive custody of the mother until the further order of the court.

The rule in such cases is thus stated in brief in 2 Bish.

McGill v. McGill-Opinion of Court.

on Mar. and Div., 6 Ed., §528, b.: "On the question of the custody of a child, as between father and mother, his claim is by one unwritten law superior to hers, of course also superior to any third persons; but by ill conduct he may forfeit this, his superior right, or the custody may be given to the mother out of regard to the interests of the child." And see numerous authorities cited by Bishop in notes. In addition to the power of the Court of Chancery in divorce suits over the property of the parties there is another relating to the custody of minor offspring. The court here exercises discretion, as generally, in the chancery award of custody, the power being often reserved to open, alter and modify the decree of divorce in this respect from time to time. Schouler on Husb, and Wife, $555.

The court will interfere, for the due protection and education of children, with the ordinary rights of parents as is natural guardians in cases where it is found that the father guilty of gross ill treatment or cruelty, or that he is in constant habits of drunkenness, or that he otherwise acts in a manner injurious to the morals or interests of children. Story's Eq. Jur., §§1341, 1341 a., et seq.; English vs. English, 32 N. J. Eq.. 738; Anon, 55 Ala., 428; State vs. Smith, 6 Greenleaf, 462; and see notes to thee latter case in 30 Am. Decisions, 330, containing a voluminous collection of cases relating to the care and custody of infants, and the power and discretion of courts of law and of equity over them.

VI. Upon the filing of the bill the Chancellor made an order restraining the defendant from entering upon the premises occupied by the complainant in Quincy without her consent or otherwise, molesting her or her children or interfering with her custody, control or management of them during the pendency of the suit. This order was rade without previous notice to defendant of an applica

tion therefor.

McGill v. McGill-Opinion of Court.

This is claimed to be error, first, because the order was improper; and, second, because of the want of notice.

We think the allegations of the complainant in the bill clearly warranted the order enjoining the defendant from annoying or molesting her in the house she occupied with her children in Quincy, and from interfering with her care and management of her family.

Whether the Chancellor in making this restraining order acted with perfectly sound discretion in dispensing with notice to the defendant, and whether the order here made is properly a subject of review, is not material at this stage of the case. It does not affect the merits of the controversy. A final decree has been entered, and this decree is not controlled or affected by that order, whether regularly or irregularly made. If irregular, it is no ground, therefore, for reversing the final decree.

The decree appealed from is affirmed except as to so much thereof as directs the defendant to surrender to the complainant the notes received for rents accrued during coverture, which is reversed. Costs to be paid by appellant.

SECOND APPEAL.

THE CHIEF-JUSTICE delivered the opinion of the court. On the 7th day of June, 1881, a decree was rendered in behalf of the appellee dissolving the marriage between the parties, and also directing appellant to surrender to the complainant, appellee, all the property she was entitled to under the marriage settlement and the notes taken for rent of the lands mentioned therein, and decreeing the custody of the child of the parties, and enjoining him from interfering with the care and custody of the child, &c., and that he pay the costs.

McGill v. McGill-Opinion of Court.

From that decree an appeal was taken within ten days. by this appellant who executed a bond in the sum of one hundred and fifty dollars with sureties, which bond was duly approved by the clerk, conditioned to "pay the condemnation and costs in case said final decree of the Circuit Court shall be confirmed by the Supreme Court."

Afterwards on the 9th day of September, 1881, upon the petition of the complainant the Judge made an order that eleven bales of cotton, the amount of rent due on the land of petitioner, be surrendered and delivered to the sheriff of Gadsden county by the said John W. McGill or by John McLaughlin, the party from whom the rent is due, and in default thereof, upon demand made, that said sheriff do seize and hold in his custody the said eleven bales of cotton until the further order of this court, or until the said John W. McGill shall execute and deliver to said sheriff a good and sufficient bond in the sum of $1.000, with securities to be approved by him, conditioned for the delivery to him of the said eleven bales when demanded under and by the authority of the court.

This appeal is taken from the last mentioned order, upon the following grounds, and a reversal is prayed:

1. Because said order destroys the effect of the supersedeas which had been obtained to the final decree mentioned in appellee's petition.

2. Because there was no case made either in the original bill or petition authorizing the court to appoint a receiver and direct him to take possession of the eleven bales of cot

ton.

3. Because no notice was given of the application upon said petition for such order.

The first question presented upon this appeal is, whether the appeal from the final decree operated as a supersedeas as to the decree of divorce and the disposition of the prop

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