#### *Thomas G. Duke*vs. *John A. Fulmer &*others, *adm’rs.*

One with whom plaintiff’s wifo lived in concubinage, received considerable sums of money belonging to the wife, and purchased property in his own *name:*— Held, that plaintiff’s claim to the money or the property was barred by the statute of limitations — his bill having been filed moro than oight years after the payment of the money.

A marriage contracted in South-Oarolina is indissoluble, oithor by th'e consent of the parties, or by the judgment or statuto of any foreign tribunal or legislature. Per IVaedlaw, Ch.

*Before*Wardlaw, Ch. *at*Lexington., June, 1852.

The Circuit decree is as follows:

Wakdlaw, Ch. In this suit the plaintiff, as husband of the late Louisa Duke, calls upon the defendants to account for certain moneys received by their intestate in behalf of said Louisa, with whom the intestate long lived in concubinage.

About June 23, 1820, the plaintiff married, in Fairfield District, in this State, Louisa Webb, illegitimate daughter of Morning Dickson. After a short residence in Lancaster, the pair removed, in February, 1821, to Jones county, in the State of Georgia. In March, 1822, the wife eloped with one Samuel Godby, and the husband never saw her afterwards; nor, so far *122as appears in testimony, made any inquiries about her. On August 12, 1822, he instituted proceedings for divorce, in the Superior Court of Jones county, on account of the adultery of his wife. And, after a delay consequent, partly, on the necessity of making her a party by publication, at .October term, 1824, obtained a verdict from a special jury, sustaining his allegations. Afterwards, at his instance, the Legislature of Georgia, by an Act, assented to by Governor Troup, November 29, 1825, enacted: *“*That the matrimonial contract, or civil contract of marriage, made between Thomas G. Duke and Louisa, his wife, late Louisa Webb, shall be completely annulled, set aside, and dissolved, as fully and effectually as if no such contract had ever heretofore been made and entered into between them; and that the said Thomas G. Duke and Louisa Duke, late Louisa Webb, shall in future be held as separate and distinct persons, altogether unconnected by any mystical union or civil contract whatever, at any time heretofore made or entered into between them.” Soon after this divorce the plaintiff removed to Alabama ; and he is now living m Chambers -county, of that State, where he is the reputed husband of another woman, and the father of three children; the eldest a daughter of about fourteen jmars fof age. He made a visit to South-Carolina, in 1849, and filed this bill, June 9,1849, within eight months after the death of his wife Louisa.

Louisa Duke, within a few years after her elopement, is found to be again residing with her mother. Before 1830, she and the intestate, William Fulmer, lived together in a state of concubinage; and in 1835, the form of marriage passed between them. She died in October, 1848, and he died in December, 1848, both intestate, and without children, legitimate or natural. Under an Act of 1826, (6 Stat., 284,) her husband was her sole distributee. At the time of the filing of this bill, A. G. Summer had applied for letters of administration on her estate, and having subsequently obtained a grant of them, he has filed an answer denying the possession of assets, and taking part, not improperly, with the plaintiff. William Fulmer left as his dis-*123tributees two brothers and a sister, viz : Abram, John A., and Elizabeth, wife of Joseph Counts ; and John A. Fulmer and Joseph Counts have administered upon his estate.

The circumstances from which this claim of the plaintiff arises must be further stated. James Webb, of Fairfield, who died in January, 1820, made his will December 10, 1819, containing the following bequest: “ I give and bequeath to my daughter, Morning Dickson, and the heirs of her body, the profits and earnings of the following property, viz :■ £ seven ne-groes.’ I also will that the whole of the property mentioned, to my said daughter Morning, be, or remain, in the hands of my executors, for the separate and sole use of my said daughter Morning and her children, during her natural life; and her present husband, John Dickson, is forever excluded from any claim or interest in the same; and, after the decease of my said daughter Morning, I will the said negroes and their increase to be equally divided between her four children, viz : *‘*Louisa Webb, Bazzil McKnight and William W. McKnight, and Henry Dickson.’ ” Abner Fant and Jonathan Davis were the executors of this will, the former managing the estate.

In 1820, under proceedings instituted in this Court by Duke and wife, a decree was made, that one-fifth of the hire of said slaves be paid to said Louisa. In 1829, William W. McKnight died an infant and intestate.

On February 22, 1836, an agreement, under seal, was made by Morning Dickson, Louisa Duke, Bazzil McKnight and Henry Dickson, that the first should surrender to the other three her life estate, under said bequest, and that they should secure to her by bonds, with sureties, the payment of $350, annually, during her life. On March 1, 1836, the said Morning Dickson, by deed reciting that she held the bonds of William Fulmer, David Aiken, and Bazzil McKnight, to secure the payment of said annuity, surrendered her life estate in said slaves to said Louisa, Bazzil and Henry.

On April 8, 1835, Bazzil McKnight and Henry Dickson filed their bill in the Court of Equity for Fairfield, against the execu*124tors of James Webb, for shares of the income from said slaves; and afterwards, on June 23, 1836, said plaintiffs filed an amended bill, suggesting the surrender by Morning Dickson of her life estate in said slaves, and praying partition of the slaves between themselves and Louisa Duke,.and process to answer, in addition to the executors, against Duke and wife ánd Morning Dickson. That Duke was made a party, according to the procedure of the Court, does not appear, unless it may be inferred from the deposition of Commissioner McCants, that he was made a party; which, I suppose, means only that he was named as a party on the record. At July sitting, 1836, the Court decreed the partition prayed for, and for that purpose ordered a sale of the negroes by the Commissioner. The ne-groes were accordingly sold on January 2, 1837, for the aggregate sum of $11,415. At July sitting, 1837, the Court further ordered, by consent, on motion of plaintiffs’ Solicitor, “that David Aiken be appointed trustee for Louisa Duke, a party interested in the funds arising from the sale of personal estate in this case, and that the Commissioner of this Court pay over to him her distributee share of the funds as they come into his hands.”

Under this last order, David Aiken received at various times considerable sums of money from the Commissioner; and paid over to Louisa Duke, sometimes on her own receipts, generally on the receipts of William Fulmer and herself, and sometimes on the receipts of Fulmer alone, the aggregate sum of $3,588 17; if some of these receipts be not re-duplicated, which is not meant to be determined, the dates of these receipts range from July 12, 1837, to April 30, 1841. Aiken, who is not pursued by the plaintiff as a party, and is made a witness by him; deposed that all the payments were made to Louisa, personally, or to her written order, and that she approved of the payments to Fulmer, and of every payment.

I conclude from the evidence that William Fulmer did employ some of the money paid by Aiken in the purchase of property— afterwards sold as Fulmer’s estate by his heirs and representa-*125fives — the Counts tract of land, the slaves Jerry, Isaac, Anny, Amy, (of 'whom Isaac and Amy are dead, Amy being offspring,) a barouche and a horse. Fulmer was a tailor, and industrious and frugal; and by his trade and by farming made profits— partly expended in the maintenance of Louisa, especially for the last three yeavs of her life, during which she suffered much from disease, and was expensively attended by physicians. Louisa herself was generally industrious and frugal, but, in certain moods, was extravagant and wasteful, even destructive of property. Morning Dickson died in February, 1848.

In this state of facts, the plaintiff insists that he is entitled to recover from the administrators of William Fulmer, all the moneys received from David Aiken, with interest from the times of the receipt; and to follow up the property in which the moneys were invested. The defendants deny his rights as husband, but mainly rely upon the statute of limitations.

The first point in the case is, whether plaintiff remained the husband of Louisa (women have no surnames) until her death in 1848, notwithstanding he and she were professsedly divorced by the Act of the State of Georgia, and both afterwards in form assumed conjugal relations to new consorts. In my judgment, a marriage contracted in South-Carolina is indissoluble, either by the consent of the parties, or by the judgment or statute of any foreign tribunal or legislature. I am not aware that there has ever been in this State an authoritative decision, that a foreign divorce, regularly obtained, will not dissolve a marriage contract here; but the negative *dicta*and indications are numerous. In *Boyce*vs. *Owens,*1 Hill, 10, it was said: *“*The marriage contract in this State is regarded as indissoluble by any human means. Nothing short of the actual or *presumed*death of one of the parties, can have the effect of discharging its obligations and legal effect.” The intimation in this *dictum,*that the presumption of the death of one of the consorts, from absence for seven years, during which he is not heard from, will excuse the'other consort from the obligations of the marriage contract, must be confined, as doubtless it was intended to be *126confined, to exemption from charges of bigamy, or other crime, and unintentional violations of the marriage vows. If the absent consort return, or be proved otherwise to be living at the time of the second marriage, the second marriage is void, and the issue spurious. 1 Hag. Cons. R. 135 n.; 3 Man. & Ry., 329 n.; *McCarty*vs. McCarty, 2 Strob. 6. In the last case it was held, that presumption of divorce could not arise from any lapse of time. See 1 Des. R., Intro. 54; 2 Des. 646, n.: Caro. L. J. 377. The common law, as declared by the Judges of England, is clear against the recognition of foreign divorces as dissolving marriages contracted in England. *Lolley’s case,*1 Russ. & Ry. Cases, 236 ; *Warrender*vs. Warrender, 9 Bligh, 89 ; *Tovey*vs. *Lindsay,*1 Dow, 117 ; Story Confi. L. § 205. In my judgment, Thomas *G.*Duke was the lawful husband of Louisa during her whole life.

1 am of opinion, even more strongly than on the latter point, that the plaintiff is barred from his claim by the statute of limitations. His claim, in all its substance and effect is, that the intestate, William Fulmer, received from the plaintiff’s wife money for the plaintiff’s use. It is a mere legal demand for money had and received — would be barred in the Court of Law if demanded in *assumpsit,*by the statute of limitations ; and is barred in this Court, in' obedience or analogy to the statute, by the lapse of more than eight years after the receipt of the money before bill filed. Suppose plaintiff had been living with his wife, and she had given away his money to her lemán — and surely the case he makes is not so strong as the one supposed— he would still be liable to the operation of the statute, for no exception in favor of an injured husband in such case is made by the legislature. The notion that the lemán is a trustee for the husband, in such circumstances, and not entitled in Equity to the protection of the statute, is more sublimated morality than has ever been recognised .by human tribunals. It makes no difference in what estate the adulterer invests his unhallowed gains. He is at most an implied trustee, within the protection of the statute, and not an express and technical trustee, who is *127inhibited by the principles and practice of this Court from availing himself of the bar of the statute.

The argument for the plaintiff, that the statute does not begin to run against him before the death of the life tenant, Morning Dickson, in 1848, does not impress me. The plaintiff seeks to recover money received in virtue of the surrender of the life estate ; and his right and the consequent bar proceed from the date of the surrender.

It is ordered and decreed, that the bill be dismissed.

The plaintiff appealed, and moved this Court to reverse the decree, upon the grounds :

1. Because his Honor erred, in decreeing that the claim of the plaintiff was barred by the statute of limitations, more than seven years having elapsed from the time that William Fulmer received the proceeds of property sold for partition, though the plaintiff was not made a party, according to the practice of this Court, in the proceedings under which the life estate of Morning Dickson was sold.

2. Because, according to the decree of his Honor, the plaintiff was the legal husband of Louisa; and William Fulmer had no right, legal or equitable, to receive the property of the life estate — the same being the property of the plaintiff — and, by receiving it, he became a trustee for the plaintiff.

3. Because the property bequeathed to Morning Dickson did not vest, according to the terms of James Webb’s will, in the children of Morning until her death, and was not subject to division until after the death of the tenant for life.

4. Because the plaintiff had a right to pursue the property, or the proceeds of the sale thereof, into the hands of those in whose possession he could trace the same.

5. Because the decree is contrary to the principles of Equity and the facts of the case.

*JET. Slimmer,*for appellant.

*Boozer,*contra.

*128*Per Curiam.*

We concur in the decree of the Chancellor; and it is ordered that the same be affirmed, and the appeal dismissed.

Johnston, Dunkin and Dargan, CC., concurring.

*Decree affirmed.*