#### Damon vs. Damon, impleaded, etc.

Dxvoece AND ARImohy : (1) *Joinder of causes of 'action.*(2) *Joinder of parties defendant.*

1. In a complaint *by*a wife for divorce, an application for alimony, with an averment of facts to show what amount of alimony should he granted, does not constitute a misjoinder of causes of action; such application being, by our practice, merely an incident to the divorce suit.

2. In such an action, one who knowingly and without consideration took a conveyance of the husband’s property, made before the action was commenced, but after the right of action had accrued, for the purpose of defeating a recovery of alimony, may (under R. S. ch. Ill) be joined as a defendant, and subjected to such judgment in respect to said property as plaintiff’s equities may require.

APPEAL from tbe Circuit Court for *Dane*County.

Tbe appeal was taken by tbe defendant *Asenoth A. Damon,*from an order overruling ber demurrer to tbe complaint as not stating a cause of action against said defendant, and for a mis-joinder of several causes of action. Tbe character of tbe complaint will fully appear in tbe opinion.

*Wm. F. Vilas,*for appellant,

argued that the powers of tbe court in divorce cases, and tbe methods of pleading and pro-ceedure, are to be determined simply by tbe statute *(In re Gill,*20 Wis., 686; *Burtis v. Burtis,*Hopk., 557); that tbe complaint attempts to assert, two causes of action; one for a divorce with an award of alimony, and tbe other in tbe nature of a credit- or’s bill, to. obtain tbe real estate of the appellant in part satisfaction for such alimony; that tbe former of these affects Calvin A Damon only, while tbe latter affects tbe appellant only, since tbe complaint shows tbe legal title in ber, and that Calvin A, Damon has no claim to tbe land as against ber *(Faesi v. Goetz,*15 Wis., 231); that these causes of action are improperly joined, because they do not “affect all tbe parties to tbe action,” nor do they both belong to any one of tbe classes enumerated *511by tbe statute (R. S., cb. 125, secs. 29, 80; see cb. Ill, sec. 15); and tbat tbe statute relating to divorce nowhere intimates tbe possible existence of a third party to tbe suit, but all its provisions suppose tbe husband and wife to be tbe sole contestants (R. S., cb. Ill), while tbe court is supplied with sufficient means of enforcing its orders and decrees, by execution, by process for contempt, by tbe sequestration of property, by tbe appointment of a receiver, etc. (R. S., cb. Ill, secs. 16,27; *Basset v.*Warner, 28 Wis., 673). 2. Counsel further argued tbat no valid cause of action was alleged against tbe appellant; tbat under tbe statute plaintiff could not claim a resulting trust in her favor on tbe ground that tbe land in question was partly paid for by tbe avails of tbe alleged sale of her property (R. S., cb. 84, sec. 7); tbat tbe land could not be claimed under sec. 22, cb. Ill, either as a following of tbe personal estate tbat may have come to the husband by reason of tbe marriage — since tbe complaint does not allege any personal estate to have so come to tbe husband— or as a following of tbe avails of her real estate sold, because tbe statute specially directs tbat tbe value in such case shall be “ paid by tbe husband *in money*” (cb. Ill, sec. 22); tbat if tbe theory of tbe complaint is tbat tbe land was in fact bought by tbe defendant Calvin A. Damon, and tbat tbe conveyance to tbe appellant may therefore be adjudged fraudulent as to tbe plaintiff, as if she were a creditor, then plaintiff is not entitled to such relief until she has first obtained a judgment of divorce, and for alimony, and has exhausted tbe, ordinary remedies against tbe husband directly to enforce payment of tbe judgment — especially as there is no allegation tbat tbe husband is insolvent. 8. Counsel further contended tbat under sec. 29, cb. Ill, R. S., tbe court has no power, in divorce suits, *“*to divest any party of their title to or interest in any real estate, further than is *expressly*specified ” in said chapter; and tbat tbe statute nowhere authorizes tbe court to take title from a *third party. Donovan v.*Donovan, 20 Wis., 586.

*Carpenter &*Chase, for respondent,

argued tbat under tbe *512statutes and practice of tbis state there can be no question that the demand for alimony is properly made in the action for a divorce ; that the title to real estate of the husband may be passed to the divorced wife as a part of the judgment for alimony; that the proper amount and nature of the allowance for alimony could not be determined in this action without determining whether the property of the husband had been fraudulently conveyed to a third party, and whether, if so, the title to the whole or a part of such property should be vested in the plaintiff ; and that the defendants had *“*a common interest centering in the point in issue in the cause,” and were properly joined as parties defendant. 18 Wis., 456; 4 Cow., 682; 2 J. J. Marshall, 546; 2 B. Mon., 370 ; 20 Ala., 599 ; 32 Miss., 279; 27 ’d., 630.

LyoN, J.

This action was brought by’ the plaintiff for the purpose of procuring a divorce from her husband, Calvin A. Damon, and the complaint contains averments of fact, which, if true, entitle her to that relief. The complaint also prays that alimony be adjudged to the plaintiff out of the estate of the husband, and contains allegations in support thereof, which, if true, entitle her thereto.

It is further charged in the complaint that, in 1868, the defendant purchased certain lands therein described, situated in the county of Dane, of Ellen H. and William P. Fitzgerald, for $2,100, and paid for the same from the avails of the sale of certain property in' the state of Massachusetts belonging to the plaintiff — such avails being $600,— and from his own earnings, *“*and that no part of the purchase price thereof was paid by the defendant *Asenoth A. Damon.'”*

The complaint also contains the following allegations : “ That the defendants, fraudulently contriving and combining together to cheat and defraud this plaintiff, and to prevent her recovering of and from the defendant Calvin A. Damon support for herself and children, alimony, suit money, and the avails of the *513sale of ber property received by him as aforesaid, caused tbe said Ellen H. Eitzgerald and "William P. Eitzgerald to deed tbe said real estate so purchased and paid for by tbe defendant Calvin A. Damon, as ■ aforesaid, and hereinbefore described, to tbe defendant *Asenoth A.*Damon, and tbe defendant *Asenoth A. Damon,*in pursuance of said fraudulent purpose and design, accepted said deed and caused tbe same to be recorded on tbe 25th day of May, 1868, in tbe office of tbe register of deeds for Dane county, Wisconsin, in volume 80 of Deeds, on page 338.”

*“*Tbe plaintiff further shows, that tbe defendant *Asenoth A. Damon*knew tbe plaintiff and defendant Calvin A. Damon, while they lived together as man and wife in tbe state of Massachusetts, and before then- removal to tbe state of Wisconsin, and knew tbe relation that subsisted between them.”

“ Tbe plaintiff further shows, upon information and belief, that- tbe defendant *Asenoth A.*Damon, prior to tbe purchase of tbe property of tbe said Ellen H. and William P. Eitzgerald by tbe defendant Calvin A. Damon, as hereinbefore stated, knew that tbe defendant Calvin A. Damon took tbe avails of tb® sale of tbe plaintiff’s property in Massachusetts, as hereinbefore alleged, and that be brought tbe same to Wisconsin, and at tbe time of said purchase knew that" tbe same was used in paying tbe purchase price of tbe real estate hereinbefore described.”

“ Tbe plaintiff further shows that tbe defendant Calvin! A. Damon has threatened that if this plaintiff in any way interfered with, or commenced proceedings against him, be woxdd dispose of all bis property, leave tbe country, and never return.”

“Tbe plaintiff further shows that she has now no property in ber own right, but is entirely dependent for tbe support, of herself and children, and their education, upon ber own exertions and tbe kindness of ber friends; that tbe present value of tbe property of tbe defendant Calvin A. Damon, as she is informed and believes, is about thirty-fivé hundred dollars.; that tbe real estate hereinbefore described, has been much improved since tbe same was purchased by tbe defendant Calvin A. Damon,, as *514before stated, and tbe same is now worth about three thousand dollars.”

The defendant *Asenoth A. Damon*demurred to this complaint, on the grounds, first, that it does not state facts sufficient to constitute a cause of action against her •; and, second’, that several causes of action have been improperly united therein; and she appeals to this court from an order of the circuit court overruling her demurrer.

Were the husband the sole defendant in this action, it is not claimed that there is any improper joinder of causes of action in the complaint. Although it is, perhaps, not absolutely necessary, in an action for divorce and alimony, to set forth the amount of the husband’s property, the particulars of its situation, and the sources from whence it was derived, yet it seems to be the usual practice in this country — though not in England— to do so. In England alimony is made the subject of a special application or petition, separate and distinct from the libel for divorce. But we think that ours is the better practice, in that it accords with the analogies of equity procedure by including in the same bill or complaint all of the allegations of fact upon which it may be necessary for the court to adjudicate for the purpose of a complete determination of all matters involved in the action.

This form of pleading is not a joinder of two distinct ca-uses of action. A claim for alimony is not the subject matter of a separate suit, but is only ancillary to, or an incident of, an ¡action for a divorce. *Rockwell v.*Morgan, 2 Beasley, 119; 2 Bishop on Marriage and Divorce, secs. 350 to 356; *Van Duzer v. Van*Duzer, 6 Paige, 366.

In the latter case a wife filed a bill against her husband and •two judgment creditors of the husband, to restrain the latter from selling the husband’s interest, as tenant by the courtesy initiate, in her real estate which belonged to her before her marriage; the husband being insolvent and worthless, and neglecting to provide for her and her children, an injunction had *515been granted, but the chancellor (Walworth) dissolved it, bolding that a court of equity had no power *“*to seize upon property which formerly belonged to the wife, but in which the husband has without fraud obtained a vested legal interest in possession, by virtue of his marital rights; *unless he has forfeited his right by a breach of the marriage contract, so as to entitle the wife to a decree of*separation.”

These authorities would seem to dispose of the objection taken by the demurrer, that several causes of action are improperly united in the complaint.

The remaining question is, whether the complaint states a cause of action against the appellant. Or, stated in another form, the question is, whether, in an action by a wife for a divorce and for alimony, it is competent to join as a defendant therein, a party who knowingly and without consideration took a conveyance of the husband’s property before the action was commenced, but after the cause of action accrued, for the fraudulent purpose of defeating a recovery of alimony in such action ?

"We are of the opinion that this question must be resolved in the affirmative. We do not perceive how, in such cases, the court can fully adjudicate upon and enforce the rights of the wife to alimony, or to a portion of her husband’s estate, if she prevails in the action, unless the court has power to bring before it as a party any person who has taken a conveyance from the husband of the very property in question for the purpose of defrauding the wife of her rights. How else can the court compel him to surrender the property thus fraudulently acquired? The learned counsel for the appellant argues, and with much plausibility, that the wife must wait until she obtains her decree of divorce and for alimony, and then she may bring into court the fraudulent grantee of the property out of which her alimony is to be collected, and compel him to disgorge. But why delay until be has an opportunity to dispose of the property and leave the country? 1 It is urged that the power of the court in these divorce cases is limited; that it *516cannot exercise full equity powers, but only such as are conferred by tbe statute; and, inasmuch as tbe statute does not expressly provide that third parties may be made defendants in divorce suits, that therefore no person can be made a defendant in those actions other than a party to the marriage contract. We do not so understand the statute. We think that when the court is empowered to award alimony to the wife out of the husband’s estate; to adjudge to her property, or the value of it, that came to her husband by reason of their marriage; to sequester his personal estate, and the rents and profits of his real estate, to enforce compliance with its judgment; and to divide and distribute the whole estate between the parties— that the power to bring before it as a party defendant in the same action any person who is attempting fraudulently to keep the estate over which the court has such absolute control, away from the jurisdiction of the court and out of the reach of its judgment, must necessarily follow.

It is to be observed in this connection, that the statute provides that this class of actions “shall be conducted in the same manner as other actions in courts ; and the court shall have power to award issue, to adjudge costs, and *to enforce its judgments, as in other cases.”*R. S., chap. 111, sec. 15.

In an action for a divorce, the statute gives the court power to divide the estate between the parties. R. S., chap. Ill, sec. 29. Under this statute the court may divest the title of the husband to real estate, and vest it in the wife. *Donovan v.*Donovan, 20 Wis., *586.*It is perfectly clear that in any other action having for its object the transfer of property *from*a defendant to the plaintiff, a person who holds the title to such property fraudulently, against the plantiff, is a proper party thereto. This is necessary to enable the court to enforce its judgment, if it adjudges a transfer of the property to the plaintiff. It seems to follow that in this case the appellant is a proper party to the action, to enable the court to “ enforce its judgment as in other cases,” should it adjudge a transfer to the *517plaintiff of tbe property wbicb tbe complaint alleges sbe bolds in fraud of tbe rights of tbe plaintiff.

So far as we are advised, it bas been tbe universal practice in this state, to bring in third persons as parties in actions for divorce and alimony, where it was necessary to do so in order to settle completely tbe rights of tbe parties in tbe estate of tbe husband; and tbe cases are quite numerous in which tbe same practice bas been adopted and judicially sanctioned in other states under statutes similar to ours. See 2 Bishop on Marriage and Divorce, sec. 299, and cases cited; also *Brooks vs. Caughran,*3 Head, 464; and *Questel vs. Questel,*Wright (O.), 492. "We have seen no case which directly bolds a contrary doctrine.

*By the Court.*— Tbe order of tbe circuit court overruling tbe demurrer to tbe complaint, is affirmed.