#### COLLIE JOYNER v. EVERETT JOYNER.

(Filed 20 October, 1909.)

1. Marriage and Divorce — A Mensa — Wife’s Separate Property— ' Improvements by Husband — Equity.

A husband, from whom a decree of divorce a mensa et thoro lias been obtained by bis wife, because of Ms misconduct, cannot assert any equitable right or claim for improvements made by him and with his money, on lands conveyed by her to a trustee in trust for her separate use and enjoyment, in contemplation of the marriage, without request or inducement on her part. The decree is the result of his own acts, the imxirovements were made without suggestion of fraud or inducement on the part of the wife, and forms no basis for any equitable relief in his favor.

2. Marriage and Divorce — A Mensa — Wife’s Separate Property— Trusts and Trustees — Contingent Interests.

It appearing that a wife, in contemplation of marriage, executed a deed in trust for her use and benefit providing a certain contingent estate, between herself - and husband, which may be defeated by the happening of an event upon which it was made to' depend; and that a decree for divorce' a mensa et thoro; was. obtained by her on the ground of the misconduct of the husband, the courts will not pass upon the contingent interests as the question may never arise. The possibility of condonation and resumption of the marriage relation is recognized by statute. Revisal, 2111.

Appeal from Lyon, J., May Special Term, 1909, of WayNB.

Tbe plaintiff brought tbis action for divorce a mensa et thoro from defendant, and alleged that prior to and in contemplation of marriage with tbe defendant, they, on 27 May, 1895, executed a deed to B. F. Aycock, conveying certain described land in tbe town of Goldsboro, of wbicb plaintiff was seized in fee, and declared tbe following trusts: For tbe solé use and benefit of the plaintiff during tbe existence of tbe marriage, and, in the event she should survive tbe defendant, then to the plaintiff in fee simple, with a direction to tbe trustee to convey; but in the event tbe defendant shall survive plaintiff, then tbe trustee should bold tbe same, in equal proportions, for tbe use and benefit of such child or children of tbe plaintiff (whether born of a former marriage or born of tbe marriage with tbe defendant), and tbe issue of such as may then be dead, and the defendant, provided the defendant shall insure and keep insured bis life in tbe sum of $1,000 for tbe benefit of tbe plaintiff. Tbe plaintiff bad three children by a-former husband, living at tbe date of tbe second marriage. Upon tbe trial of the issues arising on tbe allegations in tbe .complaint, upon which the divorce was sought, tbe jury *182answered them in favor of tbe plaintiff. A decree of divorce from bed and board was entered, and tbe question of alimony and tbe rights off defendant under tbe deed in trust, and also for improvements made by bim on tbe property, were referred to M. T. Dickinson. Tbe referee duly made bis report to tbe court, finding tbat tbe rental value of tbe property bad been increased froiii $12 per month at tbe time of tbe marriage to $44 per month at the date of tbe report, by reason of the improvements and repairs made thereon by defendant, out of bis own means and tbe rents which were collected by bim; tbat tbe improvements were worth $1,500; tbat defendant has no income and is not more than able to support himself; tbat defendant has kept in force tbe insurance on bis life of $1,000 for tbe benefit of tbe plaintiff. Tbe referee concluded: (1) That tbe plaintiff was not entitled to alimony; (2) tbat tbe defendant is not entitled to recover tbe value of tbe improvements put by bim on tbe land; (3) tbat tbe contingent estate in plaintiff’s land was settled upon defendant solely in consideration of tbe marriage; (4) tbat defendant has fdrfeited his right to tbe contingent interest in said land.

The defendant duly excepted to tbe second, third and fourth conclusions of tbe referee, and upon tbe bearing by bis Honor be overruled tbe exceptions, confirmed tbe report and adjudged as follows: “Tbat tbe defendant is not entitled to recover improvements ; tbat tbe contingent interest of defendant in tbe land was based upon tbe sole consideration of marriage, and was defeated by tbe divorce granted plaintiff, and tbat the trustee, í>. F. Ayeock, bold said land in trust for tbe plaintiff and her children, and tbat tbe defendant be excluded from any interest therein.” To tbe above provisions in tbe .judgment tbe defendant excepted and appealed to this Court.

F. A. Daniels and Aycoclc & Winston for plaintiff.

George E. Hood and W. G. Munroe for defendant.

MANNING, J.,

after stating tbe case: ~We think it clear tbat tbe defendant is not entitled, by tbe application of any equitable principle, to have tbe value of tbe improvements made by bim upon tbe land held by tbe trustee, Ayeock, assessed against tbe land, or any judgment therefor against tbe plaintiff. We are referred by bis learned counsel to three cases (Baker v. Carson, 21 N. C., 381; Albea v. Griffin, 22 N. C., 9; Pitt v. Moore, 99 N. C., 85) tbat lay down certain equitable doctrines which, they submit, might fit tbe present case and give tbe defendant aid. An examination of these cases, as well as Luton v. Badham, 127 N. C., 96, in which case many of tbe previous decisions of this Court are reviewed, will disclose tbat tbe basis of tbe relief granted in each *183of these cases was a parol agreement to convey certain land, or an interest therein, which induced an expenditure of money, in good faith, in its improvements and the enrichment of the land, the repudiation of the agreement to convey, and the attempt thereby to perpetrate a fraud. Not'one of the facts essential to the support of the equitable’ doctrine declared in those cases is present here. The plaintiff and defendant, before and in contemplation of marriage, join in the execution of a deed to B. F. Aycock, conveying plaintiff’s property, to be held upon the trusts declared. Subsequent to the marriage, with the deed operative and without any request, promise or inducement, as appears, made to him, the defendant, from the rents and his other sources of income, pays the taxes, occupies the property and makes improvements on the land; later he offers.Ms wife such indignities as render her condition intolerable and her life burdensome; she obtains a divorce a mensa et thoro, because of his misconduct; yet he would have the value of the improvement declared a charge upon the property. When did this equity of the defendant begin? When the attempt to perpetrate a fraud upon him ? It would seem that the defendant, 'by his own misconduct and his own wrongdoing, has brought upon himself his present misfortune. It is the result of his own acts, that ought to have been known by him. Revisal, sec. 2111; Taylor v. Taylor, 112 N. C., 139; Hallyburton v. Slagle, 132 N. C., 959. We can see no ground upon which relief can be extended to him by the equitable power of the court.

We do not think his Honor, however, should have attempted to pass upon the contingent interest of the defendant in the property conveyed to Aycock, trustee. The defendant’s interest in that property may be defeated altogether by the happening of the event upon which it is made to depend, or he may lose it by failing to comply with the condition in the deed. We do not pass upon this question. The deed to Aycock is still operative and obligatory; it is necessary that the estate of the trustee be continued to preserve the contingent interests and carry out the terms of the trust; but the plaintiff is entitled, under the deed, to all the rents from the property during her life, and the defendant cannot interfere in any way now with the property or with the rents. Even the statute (section 2111, Revisal) recognizes the possibilities of condonation and the resumption of the marriage relation.

In attempting, therefore, to finally determine the contingent interest of the defendant, his Honor was in error, and his judgment will be so modified, and, as modified, is affirmed. The defendant, however, will pay the costs of this appeal.

Modified and affirmed.