Misc.] Supreme Court, January, 1896. J. A. Pease and S. M. Lindsley, for plaintiff. Charles G. Irish and Thos. S. Jones, for defendants Charles E. Barnard, Minnie E. Hughes and Nellie C. Barnard. WRIGHT, J. In 1883 Mr. Alden, a few weeks prior to his marriage with the plaintiff, obtained from her $700 upon the agreement that he would use the money in procuring an assignment to her of a mortgage then outstanding against his residence in Utica and overdue. A few weeks after their marriage he obtained another sum of $800 upon the agreement that he would use it in procuring the assignment to her of another mortgage outstanding against his residence and overdue. Instead of procuring assignments he procured, without her knowledge, satisfactions of the mortgages, and put them on record. A short time thereafter, upon her discovering the misappropriation of the funds, they made an agreement that the mortgages should stand as valid securities in her hands for the amount of the funds misappropriated, and that she should have the same interest in the land as if she held assignments thereof, and that as long as they should live together as husband and wife on the premises he should be released from the payment of interest. He had no other property, and they lived together in the enjoyment of the possession of the property until his death, which occurred in December, 1890. The defendants who have answered are the executor of the will of Mr. Alden and his children by a former marriage. They interpose the Statute of Limitations as a defense. As between the plaintiff and her husband these mortgages were never paid nor satisfied. Equity does not give his wrongful deflection of the fund the force of payment, but considers what ought to be done as done. By the use of her money as described, under the agreement to obtain assignments, she became at once the equitable owner of those mortgages, with the right to enforce them. Johnson Supreme Court, January, 1896. [Vol. 15. v. Parmely, 14 Hun, 398; Short v. Currier, 153 Mass. 182; 26 N. E. Rep. 444; Purser v. Anderson, 4 Edw. Ch. 18. If there were no subsequent agreement the Statute of Limitations would begin to run from that date. But the subsequent agreement above detailed, by which he conceded all of her rights, rendered litigation unnecessary. Her possession and right of possession under the agreement had a characteristic additional to that of a wife in the enjoyment of her husband's real estate, and it was so recognized by her husband on a subsequent occasion, when she complained of having been excluded by his children from the enjoyment of certain rooms, contrary to the agreement above mentioned, and proposed to leave the house unless he should rectify the matter, which was accordingly done. And since, under that agreement, nothing became due on the mortgages while they were in mutual possession and enjoyment of the premises, the Statute of Limitations did not begin to run against the plaintiff until the date of Mr. Alden's death. The statute never runs against a contractor while he is in the full enjoyment of his rights under the contract. While the plaintiff was in possession of the premises with her husband, she, under the agreement, was in the enjoyment of all the rights she had, or could have, as owner of those mortgages, according to their terms of payment as modified by the agreement. The executor and heirs occupy Mr. Alden's position. The complaint may stand as amended to conform to the proof. The plaintiff is entitled to judgment. Judgment for plaintiff. Misc.] New York Superior Court, December, 1895. SIGMONT SIMON, Plaintiff, v. JENNIE SIMON, Defendant.* (New York Superior Court - Equity Term, December, 1895.) 1. DIVORCE SEPARATION ABANDONMENT. The mere fact that a wife leaves her husband's house and refuses to return unless he consents to treat her with proper respect before the children and servants and to stop his relations from abusing her, is not sufficient to constitute an abandonment. 2. SAME. Ill-treatment of a wife by her husband by refusing to speak to her, humiliating her before servants and insisting upon having his relatives in the house when he knows they are offensive to her, will justify her in temporarily leaving him, but is insufficient to authorize a decree of separation. ACTION for a separation on the ground of abandonment. Howe & Hummel (A. H. Hummel and B. Steinhardt, of counsel), for plaintiff. Hays & Greenbaum (Samuel Greenbaum and Charles H. Truax, of counsel), for defendant. GILDERSLEEVE, J. The parties to this action are husband and wife. The husband brings the action for the purpose of securing a separation, upon the ground of abandonment. The wife denies that she ever deserted her husband, alleges that he deserted her, and demands judgment that the complaint be dismissed, and that a separation from bed and board forever be decreed to her. They have now lived apart for about one year and eight months. During this time the children of the marriage, of whom there are two, i. e., a girl of about ten years and a boy of about seven years, have been in the custody of the mother, with the privilege to the father of visiting them from time to time, and for a portion of this period he has had them with him certain hours during the day. The parties have been married for upwards of ten years. The testimony certainly discloses no desire on the part of the wife to again consort with her husband. The husband asserts, *Received too late for insertion in proper place. - [REPORTER. New York Superior Court, December, 1895. [Vol. 15. somewhat feebly we think, and with an absence of spirit born of devotion to the wife, that she is still welcome to his home, and that it is his wish that their marital relations should be resumed. We think, however, it may be truthfully said that one is as anxious for a separation as the other. It is manifest from the record that each has shown a desire, evinced by acts and by the nature of the correspondence between them, to keep within the rules of law favorable to his or her side. The correspondence between the parties and the manner in which it was conducted seem to indicate a disposition on the part of each to find or to establish in the acts and statements of the other some ground that would warrant a separation. It is clearly a case of an eruption in a home that for many years was well regulated and peaceful. The testimony discloses no acts of violence on the part of either, and nothing occurred between the parties that may justly be characterized as cruel and outrageous. The great trouble with the case arises from the fact that the conduct of the parties, while not beyond reproach, has been so decent and amiable that the facts seem too trivial and insignificant for judicial consideration. By degrees, however, their relations became strained, and they no longer lived happily together, and the acts followed which we are now called upon to characterize and construe. It is really a contest for the custody of the children, and each parent seeks a preference over the other in their care and management. Indeed, the learned counsel for the wife state in their brief that the only question in the case that concerns the wife is the custody of the children. It is not our duty, nor is it our privilege, to consult the wishes of the parties to this disagreeable controversy, nor must we be influenced in reaching a conclusion by the consequences thereof. In approaching the consideration of this case we must bear in mind the policy of the law, as well as the specific rules of law applicable. The family is the origin of all society and of all government. The happy family, well organized and successfully Misc.] New York Superior Court, December, 1895. discharging its functions by strengthening the parents for the proper discharge of life's duties, while it fits the children to succeed to those duties, is the highest type of human goodness and the surest source of human happiness. The whole framework of government and laws has been said to exist only to protect and support the family, so that it may develop and perfect the character of its members. The dearest interests of the whole community require that it should be made as far as possible inviolable. (People v. Olmstead, 27 Barb. 9.) It has been well said by Bishop, in writing upon the claims for a severance of the matrimonial contract upon the ground of incompatability of temperament (see 1 Mar. & Div. § 743) that "the causes of complaint must be grave and weighty. Mere turbulence of temper, petulance of manner, infirmity of body or mind are not numbered amongst those causes. When they occur their effects are to be subdued by management, if possible, or submitted to with patience, for the engagement was to take for better, for worse, and, painful as the performance of this duty may be, painful as it certainly is in many instances which exhibit a great deal of the misery that clouds human life, it must be attempted to be sweetened by the consciousness of its being a duty, and a duty of the very first class and importance." Again, it is said in McBride v. McBride, 31 N. Y. St. Repr. 631, that "necessity to endure is one of the evils attending the marriage state, and parties should not for such reasons be put asunder by judicial decree." A decree of separation cannot be awarded unless a legal ground therefor is established by a fair preponderance of credible testimony. The first question for determination, under the issues raised by the pleadings, is this: Did the defendant abandon the plaintiff, as alleged in the complaint, without justifiable cause? If the testimony calls for an answer of this question in the affirmative, a separation must be granted. Professor Dwight, in Uhlmann v. Uhlmann, 17 Abb. N. C. |