author: Walkur, V. C.

text:
    Irma Leigh Earl v. Binney Woodward Earl.
    [Decided November 3d, 1911.]
    When a wife in a suit for divorce against her husband petitions for alimony and counsel fee pendente Ute her sworn statement alone in proof of the alleged matrimonial offence is insufficient; for, in order to obtain preliminary relief she must make a prima facie case, and as a divorce in this state is never granted upon the uncorroborated testimony of the complaining party, a prima facie case is not made by her affidavit unsupported by other evidence.
    On application for alimony and counsel fee pendente Ute.

      Mr. John H. Baches, fov the petitioner.

      Mr. E chard P. Budd and Mr. Joseph II. Gaskill, for the defendant.
   Walkur, V. C.

This is a cause for divorce for alleged adultery on the part of the defendant. After instituting her suit the wife filed a petition for alimony and counsel fee pendente lile. On this application the only proof offered of the alleged matrimonial offence was the sworn statement of the wife. She testifies to facts, which, if true, point conclusively to the commission of adultery by the husband. He resists the application for preliminary allowances and denies on oath that he is guilty of the offence laid to his charge.

This is not a case in which the wife is required to preponderate in the proofs on the preliminary application in order to prevail (as in the case of Suydam v. Suydam, 80 Atl. Rep. 1057), for she sues for divorce a vinculo in apparent good faith and is a favored suitor. But, nevertheless, in order to entitle herself to alimony and counsel fee pendente lite she must make a prima facie ease, and the testimony of tlm injured party alone does not make a prima facie case in a suit for divorce. In this state a divorce is never granted upon the uncorroborated testimony of the complaining party. McShane v. McShane, 45 N. J. Eq. (18 Stew.) 341; Hires v. Hires, 61 N. J. Eq. (16 Dick.) 491; Garcin v. Garcin, 62 N. J. Eq. (17 Dick.) 189. Therefore, the oath of the petitioner alone is not a sufficient foundation for a decree, nor is it sufficient to entitle the petitioner to'preliminary relief, for she must on that application at least show the court that she has such a ease as, if proved on final hearing, will entitle her to the relief she seeks. And this, of course, is entirely aside from the defendant’s denial.

In Streitwolf v. Streitwolf, 58 N. J. Eq. (13 Dick.) 570, Judge Adams, speaking for the court of errors and appeals (at p. 574), said:

“A husband is bound to support his wife, though she is separated from him, unless she is in fault. When in apparent good faith she sues him for a divorce or for separation, and sets forth a prima facie case, there is no presumption that she is in fault. She is therefore entitled to alimony pendente lite."

The motion for preliminary allowances must be denied; bnt, under the circumstances, the denial will be without prejudice to the renewal of the application on sufficient proof.


source: Caselaw Access Project

author: Walker, Y. C.

license: Public Domain

text:
    William Campbell v. Charles O. Weber et al.
    [Decided December 2d, 1911.]
    When a husband conveys land to his wife through an intermediary and the wife joins in the deed to the intermediary and thus releases her inchoate right of dower, if the conveyances be set aside as' fraudulent in favor of a creditor, the subsequent sale of the premises to make the creditor’s claim will be free from the estates granted and conveyed, including the inchoate right of dower. Belford v. Grane. 16 N. J. Eq. (1 C. E. Gr.) 265, 273, distinguished.
    On final hearing on pleadings and proofs.

      Mr. John A. Goan, for the complainant.

      Mr. Edwin G. McKeag, for the defendants.
   Walker, Y. C.

This was a suit in aid of a judgment creditor to set aside fraudulent conveyances, which issue was determined in favor of the creditor, and the question reserved upon the hearing as to whether the wife of the defendant Weber was entitled to have an inchoate right of dower saved and protected to her.

From the cases of Den v. Johnson, 18 N. J. Law (3 Harr.) 87, 97; Frey v. Boylan, 23 N. J. Eq. (8 C. E. Gr.) 90; Boorum v. Tucker, 51 N. J. Eq. (6 Dick.) 135, 147; Goodheart v. Goodheart, 63 N. J. Eq. (18 Dick.) 746; Dowes’ Case, 68 N. J. Eq. (2 Robb.) 11, 16, it appears that the wife’s right of dower was extinguished when, she joined her husband in the conveyance to the intermediary who conveyed to her, and, being once extinguished, cannot be revived. Her present estate in the lands in question is one of fee arising under the conveyance to her by the person who became the conduit of title, and this estate must be swept away from her because it rests upon the conveyances made to defraud the complainant, a creditor; so much, at least, as is necessary, must be swept away, but the balance, if any, will be hers, as the conveyances are good inter partes, and she will be entitled to any surplus that may arise upon the sale.

Belford v. Crane, 16 N. J. Eq. (1 C. E. Gr.) 265, is not in conflict with the cases above cited, as I view it. In Belford v. Crane, Chancellor Green (at p. 273) remarked that the land there in question had been purchased with the money of the husband, and that there was a resulting trust in his favor. The title was in the wife, and he further observed that as no actual fraud was imputed to her her interest in the property, as against the husband’s creditors, would be secured to her to the extent of the value of her dower, the same as though title had been vested in the husband. Thus it appears that in Belford v. Crane the wife had never extinguished her inchoate ¡right of dower by deed of release, but that, on the contrary, she had taken the legal title to the premises in trust for her husband, and, upon its being held that the property was his in equity, the wife’s inchoate right of dower was also held to exist. However, if there be any conflict between Belford v. Crane, and the other cases referred to, as all of them except Den v. Johnson are later cases in this court, they must govern my decision.

A decree will be advised for the sale of the defendants’ lands free from the estates granted and conveyed by Weber and wife to the latter through the intervention of the intermediary, including the inchoate right of dower claimed by the wife.