Hubbard v. Hubbard

• Decision Date: 15 September 1904
• Court: Vermont Supreme Court
• Parties: HUBBARD v. HUBBARD.

58 A. 969

77 Vt. 73

HUBBARD

v. HUBBARD.

Supreme Court of Vermont. Addison.

Sept. 15, 1904.

Appeal in Chancery, Addison County; Tyler, Chancellor.

Petition by Susan W. Hubbard against Asabel H. Hubbard for permission to sell plaintiff's real estate by separate deed. From an order granting the petition, defendant appeals. Reversed.

Argued before MUNSON, START, WAT. SON, STAFFORD, and HASELTON, JJ.

W. H. Davis, for appellant.

W. H. Bliss, for appellee.

STAFFORD, J. The question is whether No. 49, p. 42, of the Acts of 1890, is constitutional. It provides that "the court of chancery, in its discretion, upon the petition of a married woman, may empower her to convey her real estate by separate deed" as effectually as if the deed were executed by herself and her husband. In the present case the petition set forth the marriage of the petitioner to the petitionee; that the petitioner was then the owner in fee simple of a piece of land described; that since her marriage she had bargained the land to a party named, and needed the proceeds for her support and to meet her obligations, and thereupon prayed for authority under said act. These, so faras the case shows, were the only averments' in the bill. There was an answer, but there is nothing before us to show what it contained. The cause was referred to a special master to hear and determine the issues of fact, and the master, having beard the testimony, made his report to the court of chancery. The printed "case" purports to give the substance of the findings, as well as certain concessions, from which it appears that the parties were married in 1899; that the petitioner then owned the land described in the petition, holding the same by ordinary conveyance and not to her sole and separate use; that the parties lived together for about a year, and since that period have lived apart in the circumstances and for the reasons stated by the master, which need not be noticed further than to say that they seem to show a case of separation begun and continued through the fault of the husband; that the property, free of incumbrances, is worth about $900; that the husband brought a petition for divorce, which was dismissed, and that the wife brought one which was discontinued; that she bargained the land, and that the petitionee refused to join in the deed. The cause was heard in the court of chancery upon the report and the petitionee's exceptions thereto (what the exceptions were does not appear) and a decree was entered empowering the petitioner to convey the real estate by her separate deed "pursuant to the provisions of No. 49, p. 42, of the Acts of 1896," from which decree this appeal was taken.

It will be observed that the petition is brought and the decree rendered strictly under and pursuant to the act in question. The petition does not attempt to make a case under the provisions of V. S. 2650, nor does the court of chancery treat the case as arising thereunder. That statute provides that when a married man is incapacitated by intemperance, insanity, or otherwise for supporting his family, or deserts, neglects, or abandons his wife, or by ill usage or criminal conduct gives her cause to live apart from him, the chancellor may, upon her petition, if she is of full age, authorize her to sell and convey her real estate or any personal estate which came to the husband by reason of the marriage. How the case might have stood under that enactment we have, for the reason stated, no occasion to inquire. Even in this court the petitioner's counsel does not rely upon, or even refer to, that provision.

If the decree is valid, what is its effect? We are still living under the common-law rule which gives the husband a freehold estate for the joint lives of himself and his wife in her lands which she held at the time of her marriage, except such as she held to her sole and separate use. In this land therefore, the petitionee has such a freehold interest. In that sense and to that extent it is his estate. He is entitled to the rents and profits thereof. Dietrich v. Hutchinson 73 Vt 134, 50 Atl. 810; Hackett v. Moxley, 68 Vt 210, 34 Atl. 949; Chapman v. Long, 66 Vt. 656, 30 Atl. 3. Such estate is still recognized and protected by statute, for the wife may not convey nor mortgage her real estate except by deed duly executed by herself and her husband. V. S. 2646. The effect of the decree, then, is to deprive the husband of his estate. This, of course, cannot be done without due process of law. Const. U. S. Amend. 14, § 1. Does the act in question provide or contemplate due process of law? It declares that the husband's estate may, in effect, be taken from him and bestowed upon the wife, upon her petition, by the court of chancery, "in its discretion." Legitimate judicial discretion is, without doubt, due process of law. Consequently the exact question is whether the power attempted to be vested in the court of chancery is a permissible instance of judicial discretion. Many attempts have been made to define the term, and there is no harmonizing the results. See 6 Enc. Pl. & Pr. 819, tit "Discretion"; Id., vol. 2, pp. 409-420, tit "Appeals"; and 9 Am. & Eng. Enc. of Law, p. 473. One court treats it as nothing more than the power to determine finally and without appeal upon the question of fact, treating the legal rule as settled and binding. Bundy v. Hyde, 50 N. H. 120. Another declares that it can have no meaning whatever unless it extends to the determining of the rule of law itself, and be recognized as final and conclusive in that respect also. Judges v. People, 18 Wend. 99. Others treat it as a freedom to determine both the rule and the fact within certain bounds, which bounds are inviolable, and are not to be overpassed without redress. All agree that by judicial discretion is never intended the whim or caprice of the magistrate, nor a course...