023-NLR-NLR-V-07-DONDRIS-v.-KUDATCHI.pdf
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DONDRIS v. KUDATCHI.
C. B., GaUe, 2,474.
Husband and wife—Divorce—Effect of, on common property of spouses.
1902.
December 3,and
1903.
October 20.
A wife divorced from her husband on the ground of her adulteryforfeits for the benefit of the innocent spouse everything which,according to theCommon Law or byante-nuptial contractor otherwise,
would have been acquired by her out of his property.
Where D got judgment against L, the only child o'f A, deceased, whoowned a certain land, and seized in execution a moiety of this land as theproperty of L, and E claimed it as the purchaser under a writ issued inanother case against the administratorof A, whose wife Nwasdivorced
from A for adultery,—
Held, in an action brought by D against E to have an undivided halfof the land declared liable to be sold in execution as the property of Lthe daughter of A and N, that all the property brought into communityby A vested inhim exclusively upon the dissolution ofhismarriage
with N on the ground of her adultery, and that the land claimed by Epassed absolutelyto him by the salein execution againstA’sadminis-
trator.
1HE plaintiff sued the defendant to have an undivided half-
share of 31 kurunies of a land declared liable to be seized
and sold in execution of a judgment entered in his favour againstone Lydia, the only daughter of W. A. Aberan, who was allegedto be originally the sole owner of the entire land.
The defendant claimed this land as his, by virtue of a Fiscal’sconveyance, dated 7th March, 1900, granted to him as purchaserunder a writ issued in another case against the administrator ofthe said Aberan’s estate. It was alleged by the defendant thatAberan and his wife Nona were the parents of Lydia; that themarriage between her parents was dissolved on the ground of theadultery of Nona; that upon the dissolution of such marriagethe property in dispute became Aberan’s solely and exclusively;that the administrator of Aberan’s estate was Jagodage Amaris.the husband of Lydia; and that both these persons as well as theirjudgment-creditor, the plaintiff, were estopped from denyingthat Aberan-died possessed of the entire land, in as much as theadministrator had inventorized it in the testajnentary »suit (asbelonging to Aberan’s estate.»
The District Judge gave judgment for ’ plaintiff, holding that*on the dissolution of Nona’s marriage with Aberan on the groundof her adultery, her half vested in Aberan in trust for the childof the marriage, Lydia, the execution-debtor; that only half ofthe land could have been sold in execution against Aberan; and
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ii
1902
December 31903.
October 20.
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that on Aberan’s death in 1895 the other half held in trusts byhim vested in Lydia absolutely.
The defendant appealed. The case was argued on 3rd December,
1902.
Sampayo, K.C., for dependant, appellant.
Samarawickrama, for plaintiff, respondent.
Cur. adv. vult.
20th October, 1903. Wendt, J.—
This appeal raises an important question as to the effect of adivorce on the common property of the spouses. The questionarises on the following facts:—Aberan and Nonohamy weremarried in 1870 in the community of property. Nonohamy, so.far as appears, brought no property whateve into the community.The only issue of the marriage was a daughter, Lydia. In 1876Aberan acquired by purchase the land in question. In 1882, atthe suit of Aberan, the District Court of Kandy dissolved themarriage on the ground of his wife’s adultery. The decreecontained no directions as to the property of the community.Aberan died intes.ta.te, possessed of the land, in 1895, and lettersof administration to his estate were granted to Ainari§,i’ ’thehusband of Lydia. In 1899, in execution of a decree dgainstAmaris as such administrator passed upon a debt of Aberan’s, theland. was sold in execution and purchased by the defendant, whoduly obtained the Fiscal’s conveyance in March, 1900. InAugust, 1900, the present plaintiff, who had obtained a decree fordebt against Amaris and Lydia, caused the Fiscal to seize in.execution an undivided half of the land as the property of Lydia.A claim preferred by the defendant was allowed by the Court,and hence the present action is brought under section 247 of .theCivil Procedure Code.
The contention for .the plaintiff, which the Commissioner has-upheld, is that upon the dissolution of the marriage the guiltyspouse’s moiety of the common estate became vested in herhusband in trust for the child of the marriage, and that Lydiabecame absolute owner of that moiety on Aberan’s death. ' For sodeciding the Commissioner relies on the authority of Perezius(Ad Codf, 5, 18, 10) and Voet (Ad Pand. 24, 3, 19) to which. I shallpresently refer. t ‘The case of Philips v. Philips (5 S. C. C. 36) wascited to him, but he dismissed it with the remark that in that casethere was no issue pi the^ marriage. That is true, but it is not acircumstance which in my opinion, renders the principle therelaid down inapplicable to the present case. It was therefore arauthority binding upon the Commissioner, ,as it is binding upor
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me, even if there was reason for considering that 'the case waswrongly decided. In my opinion no such reason exists.
Van Leeuwen in his Commentaries, which were published in1678, lays it down (3, 1, 20; 4, 24, 10), that the adulterous spouseforfeits for the benefit of the innocent spouse everything thatwould otherwise have been enjoyed by him or her under theCommon Law or by ante-nuptial contract; and after enumerat-ing the punishments for the crime of adultery, he states that “ inaddition the injured party, whether husband or wife, retains hisright against the adulterer for a dissolution of the marriage aswell as otherwise for compensation and reparation according tolaw, which consists herein, that the adulterer forfeits to theinjured party everything which according to the common law orby ante-nuptial contract or otherwise would have been acquired byhim out of the properly of his spouse.” (BTc. 4, 37, 8.) Thesame author in his Gensura Forensis published in 1662 states thelaw thus (Bh. 1, 15, 9—I quote from Dr. Clarke’s Translation,p. 176):—"Forfeiture of dower on the part of the adulterous wifefollows upon a separation of wedlock, and the forfeiture belongsto the husband, unless he also has been guilty of adultery, orunless the wife’s adultery has been with the consent and pimpingconnivance of the husband. So also, an adulterous husbandforfeits bis donation propter nuptias and the third part of hisante-nuptial present, and is further compelled to repay herdowry to his wife. If there has been no dowry or donationpropter nuptias between the parties, then he or she who hascommitted adultery can be compelled to pay as penalty a fourthpart of all their goods [i.e.. his or her goods, quartam partemomnium bonorum] to be applied to the benefit of the injuredparty, if there be no children; or where there are children, tobe kept saved for them. Nor has .this rule been changed bycustom.”
The present is a case where there was no dowry or donatiopropter nuptias, but even a superficial examination of the textshows that it affords no ground for the contention that thepenalty *of a fourth part of her goods, which the guilty spouse isto pay to the innocent partner, and which is to be saved forthe benefit of the children, is .to confe out of the property, of theinnocent partner himself when .the guilty one ljas contributednothing to the common estate. The guilty jvife forfeits (as shownin the first passage above cited) her Common* Law right in herhusband’s property generally, as well as her special right to herdos. The dos, upon a dissolution of the marriage by death, wouldbe repayable to the wife or her heirs, *and upon a dissolution on
1002.
December 3,1903.October 20
Wendt, J.
1002.
December 21903.
October 20.Wendt, J.
( no )aceounjt of her adultery this right is forfeited to the innocenthusband. Where the guilty spouse has brought property into .thecommunity, half of it by the Common Law of community of estatewill pass to the innocent spouse, and upon the dissolution of thepartnership on account of adultery the guilty spouse will take theother half, subject to the deduction of the fourth, of whichVanLeeuwen speaks. The children of the marriage will, besidesreceiving that fourth, eventually succeed to the innocent parent’sentire estate.
Voet, whose Commentaries were published in 1698, dealing withthe subject of divorce, says (?4, 2, 9) that upon a dissolution of themarriage tie by reason of malicious desertion the deserter forfeitsall “ profits which he might have obtained from the property of thedeserted spouse, either by virtue of .the dotal pact or by statute, andis moreover bound to restore all gifts to him by the innocentparty before the marriage or at the time it was contracted, as. alsoa moiety of the marriage expenses.” Commenting later on thetitle soluto tnatrimonio dos quemadtmodum petatur, he says(24, 3, 19); “ The right of reclaiming the don is terminated if adivorce has been decreed owing to the fault of the wife, unless thehusband have slain the wife when taken in adultery, or unless hebe himself guilty of adultery or have connived at his wife’smisconduct, or the woman have children for whom the dowry isto be preserved.” These last words are strictly confined to thecase of dos brought in by .the wife, and are not applicable to anyinterest derived by her through the community of property fromthe husband, and besides they refer to some special agreement.entered into when .the dos was constituted prior to the marriage.The passage therefore affords no support to the view of theCommissioner. The matter is made still clearer by Voet in a laterpassage (48, 5, 11), where he .thus sums up wh'a.t he had said in thepassage last cited:—Dotem vel propter nuptias donationem nocenticonjugi ademptam innocenti cedere, una cum quantitate terticepartis dotis ex reliquis bonis, nisi extent liberi. Quod et moribushodiemis obtinet.
t
The passage from Perezius, properly understood, is in no wayopposed to the authorities already cited. (He is much the oldestwriter, ^iis Commentary on the Code having been published in1651:) I tranrlate it thus :“ But by our modern customs the
>adulterous wife loses .not only her paraphernalia, but1 also allother property of •• whatever kind which belongs to her bycontract or by privilege of community. And so .the FrenchLegislature (Parisiensis Senatus) has determined that she shall bedeprived of that privilege of e'ommunity' which by custom is
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induced between the spouses, and the laws of Spain punishthe woman convicted of adultery with forfeiture of her property Dece^fr ’and also of a half of those gains (lucra) which used to belong to1*03-
the wife, and give them to the husband, unless there be children ” ’
[of the wife] -by that marriage or by another. For in that case the Wendt, Jhusband during life will have the usufruct of that properly, buton his death the children will succeed to the property of theadulteress.” In the first part of this passage the learnedcommentator deals with the Boman-Dutch Law, and in stating itgoes no further than what is contained in the other authors
already cited by me. But in the latter part, in _ which occur thewords that the plaintiif relies upon, the law stated is the Law ofSpain as the grammatical construction of the sentence shows, andGomez, to whose work he gives a reference, was, so far as I am ableto ascertain, a writer on Spanish Law. In any case I should notbe prepared to act upon Perezius’s authority unsupported by thebetter-known jurists who followed him.
The same may be said of Brouwer, whose work De Jure- Comm-hiortim was published in 1664. He states (2, 33, 24) that somecommentators deprived the guilty wife of- arrhae sponsaliiiale,tTi'arinm. dos, augment-urn, dotis, and whatever might- have cometo her by the community of estate or by pacta dotalia, and thatothers even took away her paraphernalia, but he does not agreewith either view. He points out that the Civil Law gave nothingto the husband beyond dos, donatio propter nuptias, and, wherethere were no children, a portion of. the adulteress’ other propertyequivalent to a third of the dos. He states that the true dos andante-nuptial donation of the Civil Law are unknown in Belgium,and after referring to the saving in Article 18 of the PoliticalOrdinance of 1580 of all punishments and penalties enacted in theImperial and written laws, he gives it as his opinion that besidesdoarium (which by the agreement constituting it is to pass to thesurviving spouse) and all property acquired during the marriageby the industry of the spouses, a fourth part of all the offender’sproperty should be adjudged to the injured spouse, but so thatsuch part does not exceed in1 value a hundred pounds of gold, andthat the ownership of it all is reserved for the children of themarriage.,
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Groenewegen. De Legibus Abrogaiis (commenting on Nov. Il7,cap 8) says. “ soluto autem ex causa adultcrii matrimonio adultera tnon modo dotem omittit veruni etiam, qvicqtiid ex conventioneaut conjugali bonorum communions lucrata fuisset. " But headds nothing about a trust for the children. (Groenewegen sgreat work was published in 1648.}*
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1002.
December 31903.
October 20.Wknot, J.
I follow the opinions of VanLeeuwen and Voet and hold that inthe present case all the property brought into the community bythe husband vested in him exclusively on the dissolution of themarriage, and that the land now in question, by the sale in executionagainst his administrator, passed absolutely to the defendant. Itherefore reverse the decree of the Commissioner and dismiss theaction with costs.