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MARCH 13, 1985




This is an appeal from a decree granting a divorce absolute of the parties after seventeen years of marriage. The sole issue in this case is whether the chancellor was acting beyond his authority in requiring appellant to grant a deed to the appellee for an undivided one-half interest in twenty acres of real property. This tract of land was purchased during the course of the marriage, adjoining a thirty acre tract which had been given to appellant by his father. Appellant had been employed at a regular job which paid well, until he was disabled with a back injury. Afterwards, he lived on his compensation benefits and proceeds from a pear orchard. Appellee is a nurse and in the course of the marriage she also worked as a baby-sitter, seamstress, produce seller and other odd jobs in order to care for her infant children. When the children were older, she returned to her employment as a nurse. The twenty-acre tract was put in appellant's name alone although the wife signed the mortgage and contributed payments toward it. It should be noted that appellee sold her house and land when she married appellant, contributing these proceeds to the marriage. The domicile of the parties was destroyed twice, with the insurance proceeds insufficient to rebuild.

This Court feels compelled to address the asserted doctrine that the chancery court cannot divest a spouse of title to property, forcing that spouse to deed it to the other spouse by judicial decree. McRaney v. McRaney, 208 Miss. 105, 43 So. 2d 72 (1950). While that is the general rule, it is not an absolute rule. Our decision here will not create new law, nor overrule any old law; but it will elucidate established exceptions to this rule.

 The first such exception to this general rule of law is where there is a consent decree wherein the parties agree to such a division of realty and it is incorporated into the divorce decree itself. Wray v. Langston, 380 So. 2d 1262 (Miss. 1980). In Wray this Court cited, Griffith, Miss. Chancery Practice, 618, at 664 (2d ed. 1950), to the effect that:

 A consent possesses the attributes of a contract and, when duly authenticated, and especially after being filed, it is binding on consenting parties, if competent to contract, and cannot be set aside or reviewed, except on a clear showing that it was obtained by fraud or the substantial equivalent thereof or was based on mutual mistake.

 This Court went on to establish the following circumstances under which a consent decree may be set aside in Guthrie v. Guthrie, 226 Miss. 190, 84 So.2d 158 (1955), to-wit:

 (1) [T]he facts constituting the fraud, accident [or] mistake or surprise must have been the controlling factors in effectuation of the original decree, without which the decree would not have been made as it was made.

 (2) The facts justifying the relief must be clearly and positively alleged as facts and must be clearly and convincingly proved.

 (3) The facts must not have been known to the injured party at the time of the original decree.

 (4) The ignorance thereof at the time

 must not have been the result of the want of reasonable care and diligence.

 The second exception to the general rule against divestiture of realty is where the property has been jointly accumulated by the parties, and the chancellor makes an equitable division of it. Chrismond v. Chrismond, 211 Miss. 746, 52 So. 2d 624, cert. den. 342 U.S. 878, 72 S. Ct. 167, 96 L.Ed. 659 (1951). This Court addressed the issue of joint accumulation in Cox v. Cox, 183 So. 2d 921 (Miss. 1966). There, the parties were denied a divorce by this Court. There the wife had done manual labor on the farm of the parties, which was their financial livelihood. This court found that the wife's physical labor was a right of the husband as a reciprocal, marital obligation to that of the wife's right of support from her husband. The wife's duties to care for the husband, and labor to advance his interests, including domestic duties without compensation, are called for under the doctrine of consortium. This Court went on to state:

 Quoting from 54 Am. Jur. page 159 section 204, we have pointed out in the case of Brabham v. Brabham, 226 Miss. 165, 84 So. 2d 147 (1955) that:

 " A resulting trust arises, if at all, in the same transaction in which the legal title passes, at the time that legal title passes, on consideration advanced before or at that time, and not from matters thereafter occurring or on consideration thereafter advanced unless occurring or advanced immediately thereafter so as to be in fact a part of the transaction. The fundamental reason for the rule is that the resulting trust is one implied by law ...

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