Page:Federal Reporter, 1st Series, Volume 3.djvu/481

 %li FEDERAL REPORTER. �taining the divorce in the land of the other, and also the duty of the court to make the decree accordingly ; but did not de- cide what effect, if any, the omission to provide for the mat- ter in the decree would have upon such right. However, in my judgment, the amended section, like the original one, gives the right upon the entry of the decree, without any men- tion of it being made therein, and that the clause in the former, concerning the nature of the decree to be entered, is, Bo far as this matter is concerned, merely cumulative, and that in no event need there be any allegation or proof con- cerning the lands to be affected by the decree ; but only, if there is a decree for a divorce, that it shall contain a provis- ion to the effect that the party ohtaining it is thereupon and thereby entitled to one-third of the real property then owned by the other, whatever it may be. If any question should arise as to what property was so owned by such other, it can, as it should be, determined by appropriate proceedings between the parties interested. �If, then, the decree of divorce in Barrett v. Barrett had been pronounced by a court of this state, in a proceeding under title 7 of its Code of Civil Procedure, concerning "suits to declare void or dissolve the marriage con tract," I should have no hesitancy in holding that this. suit could be main- tained, unless the ruling in Bamford v. Bamford, supra, should prevent me. �But counsel for the plaintiff go further, as they must, to maintain this bill, and contend that the right conferred by said section 495 on the prevailing party in the lands of the other is given to such party, not only by the mere operation of the statute, and as a resuit of the decree, and not by it, but in ail cases of divorce, whether obtained in the courts of this state, under its Code of Procedure, or elsewhere; that the declaration in said section 495, "whenever a marriage shall be declared void or dissolved, the party at whose prayer such decree shall be made, shall, in ail cases, be entitled to the un- divided one-third part * * of the whole of the real estate owned by the other at the time of such decree," is a general rule, of universal application, like the provision in the statute ����