Dickman v. Birkhauser

• Decision Date: 18 November 1884
• Citation: 21 N.W. 396,16 Neb. 686
• Parties: WILLIAM DICKMAN, PLAINTIFF, v. P. BIRKHAUSER, ADMINISTRATOR, ET AL., DEFENDANTS
• Court: Nebraska Supreme Court

21 N.W. 396

16 Neb. 686

WILLIAM DICKMAN, PLAINTIFF, v. P. BIRKHAUSER, ADMINISTRATOR, ET AL., DEFENDANTS

Supreme Court of Nebraska

November 18, 1884

APPEAL and cross-appeal from a decree of the district court of Richardson county, BROADY, J., presiding.

AFFIRMED.

John Saxon, for plaintiff.

C Gillespie and E. W. Thomas, for defendant Barbara Faller.

OPINION

MAXWELL, J.

This action was brought in the district court of Richardson county by the plaintiff against the defendant to obtain specific performance of an alleged contract to convey certain real estate described in the petition, which it is stated the deceased in his life time agreed to convey to the plaintiff. The widow of the deceased filed a cross petition claiming the land in question as a homestead, and also dower therein. The heirs at law also filed an answer, to which it is unnecessary to refer. The court below found against the plaintiff and dismissed the petition, and also found against the widow as to the right of homestead, and dismissed the cross bill. Both parties appeal.

It appears from the evidence that Baptiste Faller and Barbara Faller, one of the defendants herein, were married in 1862, and for fifteen or sixteen years thereafter lived together as husband and wife on the land in controversy; that in 1878 or 1879 she left her husband, and soon thereafter brought an action for a divorce. The case is reported in 10 Neb. 144. The decree of the court below granting a divorce was reversed for want of evidence, and the case remanded for further proceedings. No further action seems to have been taken in the case. From the time the action for a divorce was begun she refused to live with her husband, but went to Falls City, a distance of eight or nine miles from his residence, and there supported herself by her labor, purchased and paid for two lots in that city, and erected a small dwelling thereon, and was residing therein at the time of his death.

As a rule, the domicile of the husband is that of the wife. This rule is based, however, to a great extent upon the common law doctrine that by marriage the husband and wife become one person in law--that is, the legal existence of the wife is suspended during marriage. 1 Blackstone Com., 442. Co. Litt 112. 2 Kent Com., 129. Marriage necessarily implies a home and the right of each party to the society of the other. The parties promise in effect to live together as husband and wife, and the observance of this obligation is binding upon them. The identity of the wife's domicile with that of the husband is merely a legal fiction, based upon the supposed suspension of the legal existence of the wife during marriage. For many purposes, in this country at least, she may acquire a domicile distinct from that of her husband, as to bring an action for divorce and similar purposes. Jenness v. Jenness, 24 Ind. 355. Hanberry v. Hanberry, 29 Ala. 719. Harteau v. Harteau, 14 Pick. 181. Ditson v. Ditson, 4 R.I. 87. The question of the actual domicile of the wife in actions for divorce, and where she seeks to assert her individual rights against her husband or his estate, is one of fact and not of law. In such cases she is asserting her own rights, and must show that she is entitled to the relief prayed for. In this case she abandoned her husband years before his death, and purchased and paid for a home of her own. There was an actual and continued abandonment on her part, and the home of her husband by her own voluntary action ceased to be her home. A homestead in law means a home place, or place of the home, and is designed as a shelter of the homestead roof, and not as a mere investment in...