Almond v. Almond

• Decision Date: 21 July 1826
• Parties: Almond v. Almond
• Court: Virginia Supreme Court

25 Va. 662

Almond v. Almond

Supreme Court of Virginia

July 21, 1826

Appeal from the Chancery Court of Fredericksburg.

Elizabeth Almond, by Cox, her next friend, filed a bill against David Almond, her husband. The whole nature of the subject is fully unfolded in the following opinion.

Decree affirmed.

Briggs for the appellant.

Harrison and Stanard, for the appellee.

The case was submitted without argument.

OPINION

JUDGE CARR

This is a bill filed by Mrs. Almond, by E. Cox, her next friend against her husband, for alimony. It states that she brought him seven or eight Negroes, which have all been wasted by him in riot and drink: that her brother gave her a girl after her marriage, who has had three children that her husband treated her with great cruelty, beating her in his drunken fits, which became so frequent and intolerable, that she was at length obliged to leave him, and throw herself upon the charity of her son: that when she went, her husband told her to take her present along, meaning the woman: that the woman and her children soon after joined her at her son's: that her husband, though he had disclaimed any right in the property, came to her son's, took the children, and sold them out of the State; saying, at the time, that he left the mother at her free disposal; but, he has since brought suit against the said Cox for her, and recovered a judgment for her at law, which he will enforce, unless prevented. The bill prays, that the Court would decree her a separate maintenance, that she may be quieted in the possession of the slave, and the judgment enjoined.

The answer denies, that the defendant ever treated his wife amiss: that she became morose and ill-tempered, and at length, without cause, left him: that he was anxious for her return, and solicited her often to come back to him: that she did so, and remained with him from 1815 to 1818, when she again, without cause, left him: that ever since her last separation, he has been entirely willing, and still is so, to receive her back; and while she behaves as a wife, will treat her with the kindness due to one: that as she has voluntarily separated from him, she has no right to a separate maintenance; and he submits, whether, by the law of the land, and the constitution of Courts of Equity, that Court has jurisdiction of the case, where there are no articles of separation between the parties, no divorce, nor any trust fund for the use of the wife, the disposition of which the Court might control; and where, by their interposition, the Court would take from him the only means of discharging the claims of his creditors; the funds tied up by his wife being by far the greater part of what he is worth.

There is evidence in the record of the defendant's bad habits: that he is addicted to drinking, beyond the hope of reform: that he has treated his wife badly, beating and abusing her in his drunken frolics; and that she cannot, in the opinion of the witnesses, live in peace and safety with him; also, that he has wasted his whole property, that now in contest in this suit excepted; and that the negro woman is dead. There certainly is nothing like an agreement between the parties for living separately; nor any arrangement as to their property in case of separation. It is proved by four witnesses, that when the defendant went to take, and did take, the children forcibly from Cox, he said he left their mother for his wife's use. Some say he said he had no claim to her; others, that she was free to dispose of her as she pleased. But, there is nothing like a contract; nothing in such a form, that equity could act upon it under the idea of executing an agreement. The Chancellor dissolved the injunction, and dismissed the bill.

Can we say that he erred? In England, matters of this kind belonged principally to the Ecclesiastical jurisdiction. It was only incidentally, that Courts of Equity acted upon it. Where there have been articles of separation between man and wife, by which she is allowed so much for her separate maintenance, there Equity will, at her suit, carry these articles into execution, while the separation continues; or where a woman applies to the Court upon a supplicavit, for security of the peace against her husband, and it is necessary that she should live apart; as incidental to that, the Chancellor will allow her a separate maintenance.

In Head v. Head, 3 Atk. 295, Lord Hardwicke says, " The principal grounds for bills of this kind, are an agreement for maintenance, or a trust for this purpose, and in either of these cases, the Court will entertain a suit for alimony and maintenance; and even after sentence in the Ecclesiastical Court for it, when the husband, in order to evade it, is going out of the kingdom, will, upon a bill filed by the wife, grant a ne exact regno."

The same case afterwards came before the Court again. 3 Atk. 547. Sir Francis Head had written to his wife's father saying, " I am willing to send her 1001. and no more, between this and Christmas, and to continue her such quarterly payments, when it shall best suit my convenience, so long as we shall continue separate." Lady Head brought her bill for execution of this, as an agreement for separate maintenance, and prayed liberty to live separately, and that the Court would decree payment of the money. Lord Hardwicke said, " as to the liberty prayed, it is not in the power of the Court to decree it, and I do not find that this Court ever has made a decree for establishing a perpetual separation between man and wife, or to compel a husband to pay a separate maintenance to his wife, unless upon an agreement between them, and even upon this, unwillingly." He went on to decide that the letter of the defendant was not an agreement to continue during their...