CARR v. CARR.

5. Resulting

dence conduced to show that he bargained for trust-When pay the lots before he paid for them; the payments not being completed until the deeds were

ment to be made.

made. This court, in Sale v. McLean, 29 Ark., 612, and in Duval v. Marshall, 30 Id., 230, said, in effect, that in order to create a trust of this nature, payment of the purchase money must be made at the time of the purchase. By this it was meant that the trust must arise, if at all, from the original transaction, at the time it takes place and at no other time; and that it cannot be mingled or confounded with any subsequent dealings. Some of the cases use the language, 'at the date of the payment of the purchase money,' others, 'at the time of the execution of the conveyance.' But all of them mean the same thing, namely: that it is impossible to raise a resulting trust so as to divest the legal estate of the grantee or his heirs, by the subsequent application of the funds of a third person to the satisfaction of the unpaid purchase money. Botsford v. Burr, 2 John. Ch., 406; Rogers v. Murray, 3 Paige, 390; Lead. Cas. in Eq., supra, 338.

"The trust arises out of the circumstance that the money of the real purchaser, and not of the grantee in the deed, formed the consideration of the purchase and became converted into land.

"Every case of this class ultimately turns upon the question whether it was the intention of the person who paid the money to confer the beneficial interest upon another or to secure a trust for himself. Perry on Trusts, § 151.

6. Same-Intention of parties.

"In the present case the proof is satisfactory that Milner did not intend an absolute gift of the land to his wife. Hence results a trust which a court of chancery will execute in his favor.

"Our decision is not based upon Milner's misapprehension of the legal operation of the deed. He and his wife

JONES v. JONES.

evidently supposed that it would have the same effect as a deed to them jointly, and that the survivor would take the whole. And in Wallace v. Bowen, 2 C. L. Williams (28 Vt.), 638, almost a duplicate of this case, and one which has escaped the researches of the learned counsel who argued it, Chief Justice Redfield said that such being the mutual understanding, a court of equity would be justified in compelling the parties to allow it to have that operation. But it is a mere circumstance in evidence, negativing Miner's intention to make an absolute gift to Mrs. Milner, and disclosing his purpose to reserve an interest for himself."

The two opinions from which I have quoted at considerable length, are conclusive of the cause under consideration.

Some of the same doctrines have been announced in a more recent case, in which Mr. Justice Riddick delivered the opinion.3

The decree will be for plaintiff, as prayed, when he shall have filed a bond conditioned as required by section 5877 of the Digest.

(3.) Camden v. Bennett, 64 Ark., 155.

E. H. JONES V. C. E. JONES.

DIVORCE-COMPLAINT

RESIDENCE-DOMICILE

DEGREE OF PROOF.

1. Residence of Plaintiff in Divorce-Pleading—

Residence in the county at the institution of the suit, and residence in this State for the period of one year next before the commencement of the action are jurisdictional facts to be alleged and proved in divorce proceedings. (Page 129.)

2. Same-Character of Residence-Domicile

In divorce proceedings, the residence which under our statutes is jurisdictional, denotes the same status as domicile does in

JONES v. JONES.

private international law; and it must be something more than actual residence in the State for the prescribed period. It must be accompanied by the elements of an abode of some degree of permanency. (Page 129.)

3. Same-Sufficiency of Evidence of Domicile or Residence—

A stricter degree of proof of domicile is required in divorce proceedings than in other proceedings involving domicile; and where the evidence shows that plaintiff has been in the State for the required period, but as a commercial traveler, purely because his business required him to be there and holding himself in readiness at all times to go elsewhere at the direction of his employers, the plaintiff has shown no such residence in the State as is required by our statute. (Page 133.)

Statement of

case.

The complainant, who seeks a divorce a vinculo matrimonii, in his complaint alleges: that he has been a resident of the State of Arkansas for more than one year next before the commencement of his action; that the defendant has willfully deserted, and absented herself from him, without cause, for more than two years; that the desertion occurred in the State of Tennessee, where desertion for the period of two years is a statutory ground for divorce. Service of process was had upon defendant by the publication of a warning order; an attorney ad litem for defendant was appointed, who filed his report as required by statute. The cause is submitted upon the complaint, the evidence of plaintiff and of Mrs. Wood, a sister of defendant, living in Iowa. He swears that he and defendant were married at Nordhoff, in the State of California, March 3, 1874; that she deserted him at Nashville, Tenn., more than two years before the institution of this action; that he came to Arkansas as a commercial traveler, and in that capacity worked in this State more than one year before the commencement of this suit, holding himself in readiness to obey the direction of his employers to go into other territory at any time; and that he was in this State because his business required him to be here. Mrs. Wood swears, that defendant deserted plaintiff at Nashville, Tenn., in May,

JONES . JONES.

1894, and has remained away from him since that time; that defendant deserted him without cause so far as she knows.

Mr. James A. Watkins for the plaintiff.

THE CHANCELLOR:

1. Residence

-Requirement of.

The complaint nowhere alleges, and the evidence fails to show, that plaintiff at the time of the institution of the action was, or is now, a resiIn county-In State dent of Pulaski County; and the proof that plaintiff ever had a residence in Pulaski County, or the State of Arkansas, in the sense in which that is a prerequisite to the jurisdiction of the court, is wanting. Our statutes require that a suit for divorce be brought in the county in which the plaintiff resides at the time of its institution1; and that "The plaintiff to obtain a divorce must allege and prove, in addition to a legal cause of divorce:

"First. A residence in the State for one year next before the commencement of the action."2

Residence in the county, by the plaintiff, where the action is commenced, at the time of its institution, and residence in the State for a period of twelve months next before its commencement are jurisdictional facts.

2.

cile.

The status whose meaning is conveyed by the words. "reside" and "residence," as used in our statutes relating to Residence proceedings for divorce, is not the technical required Domi "domicile," as that term is understood when employed in discussing international or interstate jurisprudence; but is more nearly related to it than the word indicates when it is understood according to its strict technical meaning when applied to some other legal subjects. Unaffected by a particular subject, these terms are not in law exact synonyms, or precise equivalents in meaning. The statutes of this State relating to divorce do not themselves

(1.) Sandels & Hill's Digest, § 2507. (2.) Sandels & Hill's Digest, § 2511.

JONES v. JONES.

undertake to define the terms "reside" and "residence," as they are used in them; and, as is said by the Supreme Court of the State, "No exact definition of these terms, to fit all cases, is practicable, for the reason that their meaning varies with the subject-matter to which they are applied."3

In the same case, discussing the meaning of the words "residence" and "nonresident," as employed in our attachment laws, the court, by Cockrill, C. J., say that, "residence implies an established abode, fixed permanently for a time for business or other purpose, although there may be an intent existing all the while to return at some time or other to the true domicile; but, so difficult is it found to provide a definition to meet all the varying phases of circumstance that the determination of this question may present, that the courts say that, subject to the general rule, each case must be decided on its own state of facts."4

Mr. Bishop says: "In divorce law, which is a branch of the private law of nations, and in conformity with which it should therefore be interpreted, the statutory term 'reside' or 'residence,' including 'inhabitant,' as employed to denote the jurisdiction for divorce, should be rendered to mean the same thing which 'domicile' does in the international law unless the contrary is affirmatively manifest from the other words of the statute. And so our courts commonly regard this question."5

This, from Mr. Bishop, with slight modification, seems to be an accurate statement of the true doctrine. And there is nothing in the words of our statute affirmatively manifesting an intent to authorize the courts to decree a divorce to

(3.) Krone v. Cooper, 43 Ark., 547, 548.

(4.) Krone v. Cooper, 43 Ark., 547, 551.

(5.) 2 Bish., Mar., Div. and Sep., § 109; citing, Carpenter v. Carpenter, 30 Kan., 712; 46 Am. Rep., 108; Whitcomb v. Whitcomb, 48 Iowa, 437; Hanson v. Hanson, 111 Mass., 158; Winship v. Winship, 16 N, J. Eq. (1 C. E. Greene), 107; Williamson v. Parisien, 1 John. Ch., 389; Smith v. Smith, 4 Greene (Iowa), 266; Coddington v. Coddington, 20 N. J. Eq. (5 C. E. Greene), 263; Hinds v. Hinds, 1 Iowa, 36, 49. And see People v. Dawell, 25 Mich., 247; 12 Am. Rep., 260; Hendricks v. Hendricks, 72 Ala., 132; Lyon v. Lyon, 2 Gray, 367; Kruse v. Kruse, 25 Mo., 68; Schonwald v. Schonwald, 2 Jones, Eq., (55 N. C.), 367; Ashbaugh v. Ashbaugh, 17 Ill., 476.