is not liable at common law to the legal adviser of his wife, in prosecuting or defending a divorce suit. Second. That the wife is not liable on her contracts for counsel fees, made during coverture, even though she joins the suit." If these two propositions are correct, and followed by a third: "That the wife's separate property cannot be charged by her, or by a court of equity, for the fees of her solicitor in prosecuting a just cause for divorce," and in fact were, heard, and did produce evidence, all they desired. Under such circumstances, even if it should appear that such hearing was by reason of the interpleader, rather than under the averments of the bill, how could that affect substantial rights? It is to be remembered this is one of the errors complained of. The interpleader, as it is called, only gave Mr. and Mrs. Lamy fuller notice of the exact character of the claim for solicitors' fees, and thus the bet-then, indeed, is a married woman in this ter enabled them to meet the claim by evidence. If the court, as an incident to the divorce proceeding then pending, had jurisdiction and power to refer to the master the matter of solicitors' fees that evidence might be taken to inform the court as to value, what possible difference could it make to Mr. and Mrs. Lamy whether the reference recited that it was upon the interpleader or bill or issues, so long as they were allowed to be heard? The thing to be considered and reported upon by the master was the claim for solicitors' fees. It was that claim upon which he was to take proof. The form of the order which gave the master this power was a mere incident,-a matter of form. To reverse the case on that ground alone would be to sacrifice substantial rights to immaterial form. In this reference, if there was any error at all, it was of form, and not of substance, and in no way deprived the plaintiff in error of any substantial right. "Error in matter of form only, although apparent on the face of a decree, seems not to have been considered as a sufficient ground for reversing the decree." Story, Eq. Pl. § 411; Barb. Ch. Pr. 92. In the case before this court the plaintiffs in error had their day in court, their opportunity to present and examine witnesses, to be heard on the allowance and amount of solicitors' fees, as fully as if the court had set aside the decree pro confesso entered as to the interpleader. The irregularity is one that is harmless. "A judgment will not be reversed for an error which does not affect the substantial rights of the party complaining." Morse v. Morse, 25 Ind. 156; Louden v. Dickerson, 19 Ind. 387; Bowen v. Pollard, 71 Ind. 177. In Holcraft v. King, 25 Ind. 352, the court say: "Where a correct result is reached in the court below, error in the mode of reaching it is harmless." The authorities to this effect are numerous. Other questions are pressed upon the attention of the court by the plaintiffs in error. They insist that the court had no right to permit the interpleader to be filed. This objection is substantially the same as that relating to reference. If the court had full power to make the reference without the interpleader, or if the interpleader was treated, or can be properly regarded, in its legal effect, as a motion in the cause, as it well may be, to refer the claim of the solicitors to a master to take proofs, its allowance by the court was harmless. There are three propositions made by the plaintiffs in error, which may be considered together: "First. That the husband territory at the mercy of her husband, as all ineans whereby she may protect herself from unjust accusation in court is cut off. We cannot hold with plaintiffs in error on the first proposition. It is held in many cases, where the wife has no means to prosecute her action, that the husband is liable for her necessary solicitors' fees, and that they may be recovered either in an action at law or allowed and enforced in the divorce proceeding. Preston v. Johnson, 21 N. W. Rep. 606; Porter v. Briggs, 38 Iowa, 166. Other cases to the same effect are more fully set out later in this opinion. The plaintiffs in error further say: "Before counsel fees can be made a charge upon the separate estate of the wife, it must appear that the service rendered was for the benefit of the estate." The plaintiffs here, imperfectly, at least, admit that in a case where the court finds that the solicitors' fees are for the benefit of the wife's separate property, they may be charged against it. This court elsewhere construes the decree complained of to be a charge against the separate estate of the wife, and against the husband only for so much as cannot be thus made; so, if the court found, as a matter of fact, the services to be beneficial to her estate, it had the legal right to decree the value thereof to be paid out of the same. Assuming, for the present, a point hereafter considered, that the court had jurisdiction, it certainly might lawfully consider the evidence to determine whether such services were or were not beneficial to the wife's separate estate. The court below had the right to draw such conclusion of fact from the evidence as was, in its judgment, proper, and such conclusion could not be reviewed in this proceeding. "A bill of review * ** * cannot be sustained upon the ground that the court has decided wrong upon a question of fact. Nor can it be brought for wrong inferences of the court on matters of evidence, nor upon the ground that the former decree was not supported by evidence." Barb. Ch. Pr. 91; Webb v. Pell, 3 Paige, 368. In the latter case it is said by the court: "It is well settled that a bill of review for error apparent on the decree must be for an error in point of law, arising out of facts admitted by the pleadings, or recited in the decree itself, as settled, declared, or allowed by the court." As pertinent to this rule, where, it may be asked, is it settled in the record that the property charged in the bill of complaint to be the separate property of Mrs. Lamy was not so? If it was her separate estate, and the service rendered for her by the solicitors was beneficial thereto, then, according to the admission of the plaintiffs in error, the fees might have been charged against such estate by the court, if it had jurisdiction. Such we believe to be the law. Whether that property was her separate estate, or was her husband's, is not a question of law, but of fact. Whether the solicitors' services were beneficial to the estate, or were not so, was also a question of fact. Both these questions the court had a right to pass upon, without being subject to review upon a bill for that purpose. If the court below, upon the original hearing, found that the property in the hands of John B. Lamy was the separate estate of his wife, Mrs. Lamy, and also found that the services rendered were beneficial to her estate, it would have the right, upon that state of the evidence, to charge the services in a proper proceeding against her estate. The following authorities are to that effect: Owen v. Cawley, 36 N. Y. 604; Yale v. Dederer, 18 N. Y. 276, 22 N. Y. 451; Viser v. Bertrand, 14 Ark. 267; Cook v. Walton, 38 Ind. 228; Putnam v. Tennyson, 50 Ind. 456. This court cannot presume that the court below did not determine those to be facts. It is nowhere in the record shown, declared, or admitted that the court found to the contrary. In the absence of anything to the contrary, this court will presume the court below found all the facts proven or established necessary to constitute a foundation for the decree. Did the court decree the solicitors' fees to be a charge upon the wife's separate | estate? The decree allows Catron & Thornton $4,000 as solicitors' fees. There is no question before this court as to the amount of the decree. It orders that the defendant John B. Lamy pay over that sum, and recites as follows: "Said respondent [John B. Lamy] is hereby allowed to charge to and against the said property of said complainant, which he may have received into his power, possession, or control, as well as against any acquest property he may have received of said marriage community, and that execution do issue for the same, to be levied of the goods, chattels, property, effects, and real estate of said complainant, and of the acquest property which may be found in the hands, possession, or control of the respondent." The sum is here charged directly against the wife's property in the hands of the husband. Its seizure and sale is provided for to make the debt. To reach this result, the court, no doubt, upon the pleadings and proofs, determined the fact to be that the wife employed and agreed to compensate her solicitors; that under such promise they performed services for her in the divorce proceeding, worth $4,000; that she had a separate estate of her own, in the hands of her husband; that he held the estate as her trustee, and that the services were beneficial to the estate. The court had the legal right to so find, if, in its judgment, that was the proper conclusion of fact to draw. If it did so find, then it had the right to predi cate the decree made on such conclusion of facts. The ruling of the court on the facts cannot be attacked by bill of review. This court cannot hold that it is error of law, if the court below found the facts contrary to the right of the case, or contrary to the evidence. In addition to the averments of the bill, there is much evidence indicating that she intended originally to charge her separate estate with solicitors' fees, and that she promised to do so. This court has nothing to do with the matter of fact, whether the services were or were not beneficial to the estate, or whether the amount allowed was less or greater than the proper amount which should have been allowed. These questions are not before the court. Plaintiffs in error contend that it is too late to apply for solicitors' fees after the parties have settled their differences, and returned to the connubial state. Authority is cited in support of that proposition. If the solicitor performs services in a divorce cause for a wife, so as to create a present right of allowance, which a court of equity is bound to respect, and decree during the litigation, while the parties are carrying on their controversy, it is difficult to perceive how the compromise of the husband and wife, to which the solicitor is not a party, can take away such established right. The case of Sprayberry v. Merk, 30 Ga. 81, declares the correct doctrine on that point, and also is to the effect that the wife may charge the common estate of both in her husband's hands for the fees of her solicitors. In that case Sprayberry had performed services as solicitor for the wife in prosecuting an action for divorce against her husband. The husband and wife compromised their suit, and began again to live together. It seems the husband held common property of both in his hands, and the court holds that such property may be charged with her solicitor's fees. The court there say: "As to this one matter of a suit for divorce the wife is sui juris, having a clear right to institute and conduct that kind of a suit independently of her husband's consent. But this right is practically denied to her if she can command no means of paying the agents who are necessary to the conduct of the suit; therefore it is that, quoad hoc, she may charge the common funds of herself and husband in his hands. But this power on her part is founded on the necessity of the case, so its extent does not exceed the demands of the necessity; and therefore she can charge the common funds, or her husband, which is the same thing in effect, only with the real value of such services as she may procure. * It is worthy of remark that her counsel fees are allowed as a part of her necessary maintenance, and are allowed before it is ascertained whether she has valid ground for a divorce or not. They are allowed as a necessary means of testing that question,-a question which every wife has a right to test whenever she pleases." The court continue: "As to the settlement which * * took place in this case between the husband and wife after she had got the services of her counsel, it is scarcely necessary to remark that the counsel, after having acquired a right to compensation for his services by rendering them, at the request of the wife, could not be settled out of that right by arrangement to which he was no party." That case is somewhat analogous to the one here, and the principle a wholesome one. The authority is directly in point as to the proposition that attorneys' fees may be allowed after the parties to the divorce suit have become reconciled, and resumed their marital relations. If the husband and wife could not so settle their case as to deprive the solicitor of his right to recover in an action at law his fees, then such settlement could not deprive him of his right to have the same ascertained and decreed in the divorce proceeding while it was pending, even though the husband and wife had resumed their relations: provided, such allowance could properly be made in such case as an incident thereto. In the case of Weaver v. Weaver, 33 Ga. 173, the facts are as follows: Virginia Weaver instituted a divorce suit against her husband. During the pendency of the action, upon her motion, and upon a showing, the court ordered that defendant pay into court a certain sum of money to compensate the solicitor of the wife for bringing and prosecuting the action. Subsequently, and before this money had been paid in, but after the solicitor had performed some service, Mrs. Weaver discontinued the suit. A motion was made in the case to rescind the order for the payment in of counsel fees. The court below declined to rescind the order, and the case was taken to the supreme court on that point, among others. The supreme court affirms the action on that point of the court below, and says: “Shall counsel be driven to his action at law to recover his fees, or shall the order already passed by the court for that purpose be enforced? We see no reason for compelling counsel to resort to an independent action, when his fees have been already adjudged by the proper court." It will be observed that the supreme court of Georgia in this case not only hold that the court wherein the divorce action is pending is the proper court, but also that such a case is one in which it is proper to adjudge counsel fees, and enforce their payment, and also that the compromise between the husband and wife does not operate to divest the attorney of his right to compensation. In Burgess v. Burgess, 1 Duv. 288, the supreme court holds: "Although the unfortunate difficulties which existed between the husband and wife, and which had resulted in a divorce suit, had been happily terminated by a reconciliation, after the suit had been prepared for trial, yet it was right to make a proper allowance against the husband * * * pay the attorneys who conducted the suit for the wife." This case is under a statute which somewhat weakens the same as au to it will be seen that the allowance does not depend wholly upon the statute, but upon the practice of the court, as it previously existed." The chancellor observes: "The counsel for the complainant is under a mistake in supposing that the allowance for ad interim alimony, and for the expenses of defending the suit, is confined to cases in which both parties admit the original marriage to have been legal." The question there seems to have been as to the legality of the marriage. Counsel appear there to have admitted, where the marriage was legal, and the divorce was sought for acts occurring subsequently, that counsel fees could be allowed in the divorce action, but contended that such a rule did not apply where the legality of the marriage was denied. In discussing the question thus raised, the learned chancellor establishes that it was the practice to allow solicitors' fees, when asked, in divorce cases generally, both where the marriage was admitted, and in cases where that fact was controverted; and this, independently of statutory enactinents. So the case becomes especially pertinent to the contention before this court. After a citation from Ayliffe and Poynter, and other authorities, the opinion continues: "The precise question now under consideration came before Sir GEORGE LEE, in the arches court of Canterbury as early as 1753, in the case of Bird v. Bird, 1 Lee, Ecc. 209, and was decided in favor of the wife. In that case the husband brought a suit against the wife to annul the marriage, on the ground that she had another husband living at the time of her marriage with the plaintiff. The fact being denied by the wife, she applied for an allowance to enable her to defend the suit. It was granted to her accordingly, although the plaintiff insisted she was not his lawful wife, and that he was not bound to bear the expenses of her defense." The cases thus cited, and they could be multiplied, certainly must dispose of the contention made by John B. Lamy on his construction of the legal effect of the decree as against him. By the terms of the decree, he can only be reached after the separate property of his wife is exhausted, and the authorities quoted establish beyond doubt the power of the court to charge him in that event, at least. There is one more case on this point so clear and strong in its reasoning, so directly in point and satisfactory, that we cannot omit to cite it. Preliminary to a consideration of that cause, it may be observed that in New Mexico jurisdiction to decree a divorce is conferred by statute. Sections 998, 2282, Comp. Laws. No provision is made by statute, either for alimony or for an allowance not an original jurisdiction; it is derivative and incidental. Indeed, it may be stated as a true general proposition that no court has an original authority to decree a separate maintenance while the marriage contract subsists; and, when such power is exercised, it is incidental to some other conceded power. Thus, a court of chancery, as an original power, cannot decree a separate maintenance for the wife; but, having jurisdiction over agreements, when there is a separation, and an agreement for a separate maintenance, it will specifically enforce that agreement. * In this way, I apprehend, originated the power in the ecclesiastical courts to provide alimony. Having jurisdiction over divorces, as incidental to that they acquire the power, where the divorce was decreed, to provide permanently for the wife, and the lesser power of providing temporarily for her whilst the litigation is pending. Both powers they have immemorially exercised. In Ball v. Montgomery, 2 Ves. Jr. 195, the lord chancellor said: 'I take it to be now es * * to the wife to prosecute a cause for divorce against her husband, or for allowance to enable her to defend against such an action when prosecuted by him. Unless there is power outside of the statute to charge the husband in such cases with solicitors' fees for the wife, and for necessary expenses connected with such suits, in cases where she has no separate property of her own, then the wife is powerless to protect herself, and is at her husband's mercy. This court should consider carefully before maintaining a rule of law having such effect. If the wife, having a separate estate of her own, may charge it, or the court may do so, with legitimate, necessary, and proper expenses for solicitors' fees to enable her to protect herself in such cases, and in cases where she has no property, if the court may allow against the husband, and compel him to pay, such necessary expenses, then the wife is clothed with a proper power for her own defense. The supreme court of Georgia, as long ago as 1851, was confronted with conditions exactly similar, and in McGee v. McGee, 10 Ga. 478, deliv-tablished law that no court, not even the ered an opinion which, to this court, appears both exhaustive and conclusive. It is unanswerable, and sustains the right of the wife to temporary alimony in a proper case, and allowance for her necessary expense, when she has no estate, out of the property of the husband. The statute of Georgia at that time provided that, in all cases where the court determined in favor of a divorce to the wife, it could make provision out of the property of the husband for alimony. But the statute of Georgia, like our own, was silent as to temporary alimony or expenses preceding such determination. The court in that cause stated the proposition to be considered in this way: "The first proposition denies altogether the right of a wife, pending a libel for divorce, to a temporary allowance out of the estate of the husband for her support and maintenance, and to defray the expenses of the litigation; the counsel insisting that, according to the laws in force in this state, no power is conferred upon the courts, either of law or chancery, to grant any alimony until after a divorce is decreed. *** The power which he [the judge below] exercised * * * is that of allowing the wife temporary alimony. It is conceded to the plaintiff in error that this power is not expressly conferred by statute, whilst it is also to be claimed against him that it is not prohibited." Such is also the state of the law to-day in New Mexico. The court proceeds: "We look out of the statute book for its source; that is, out of the express provisions of the statute. First, then, I say it is incidental to the power to grant divorces. The superior court being clothed with jurisdiction over divorces, from that jurisdiction springs the authority, pending the cause, to provide, by summary order, for the maintenance of the wife. It is thus that the ecclesiastical courts in England acquired the power to grant alimony. That power is ecclesiastical court, has any original jurisdiction to give a wife separate maintenance. It is always incidental to some other matter.' * * * I see no reason why the superior courts of this state have not acquired jurisdiction over temporary alimony incidentally, as the ecclesiastical courts acquired jurisdiction over alimony, both temporary and permanent. It is founded in the most manifest justice and sternest necessity. * * * It is not, therefore, unreasonable to say that the legislature, in clothing a tribunal with power to decree a divorce, intended thereby, as necessarily incident to it, to invest the same tribunal with power to make provision for the wife. This justice and necessity is equally as stern, and the inference therefore equally as clear, in regard to temporary as permanent alimony. * * * Alimony pendente lite is a common-law right. It was an established right in England when we adopted the common law. It is no less a common-law right because it grew up under the usages of the ecclesiastical courts. What becomes of that right in Georgia? The common law which guaranties it has not been repealed. It is suited to our condition, and in harmony with our institutions." This court has now quoted extensively from McGee v. McGee, because the conditions in Georgia at the time when that opinion was delivered were exactly the same on the question involved with that of New Mexico when the decree sought in this case to be reviewed was entered, and for the further reason that the historical statement of that opinion is correct, and the conclusions deduced therefrom indisputable and convincing. This court is unwilling to hold that in New Mexico the courts in divorce proceedings are powerless to place the wife, as to means for her defense and protection, on an equality with her husband. In McGee v. McGee it is further said, (page 487 of the opinion:) "In a recent case in Pennsylvania, under statutes conferring jurisdiction over divorces very much indeed like ours, but conferring no power to make an allowance to the wife for the expenses of her suit, a motion was made for an order upon the husband for the expenses. The court allowed it, upon the ground that it was an incidental authority to the power given to the court to decree divorces.' See Melizet v. Melizet, 1 Pars. Eq. Cas. 78. The expenses of the suit and the expenses of maintenance stand upon the same ground. The expenses allowed were not the court costs simply. See, also, the following cases: Yeo v. Yeo, 2 Dick. 498; Wilson v. Wilson, 2 Hagg. Const. Rep. 203; D'Aguilar v. D'Aguilar, 1 Hagg. Ecc. 773; Soilleux v. Soilleux, 1 Hagg. Const. Rep. 378; Poynt. Mar. & Div. 263; Monroy v. Monroy, 1 Edw. Ch. 382; Wright v. Wright, Id. 62; Denton v. Denton, 1 Johns. Ch. 365; Mix v. Mix, Id. 110; Wood v. Wood, 8 Wend. 364; Wood v. Wood, 2 Paige, 115; Lawrence v. Lawrence, 3 Paige, 267; Germond v. Germond, 4 Paige, 643." The reason and authority cited is to the mind of this court satisfactory and conclusive as to the jurisdiction and power of the court below to render the decree sought to be reviewed and set aside. It may be well, also, to refer to a more recent case, decided by the supreme court of Iowa, (Porter v. Briggs, 38 Iowa, 170.) In that case the husband brought an action of divorce against the wife, charging her with adultery. Porter & Moir, at her request, rendered legal services as her attorneys in defending her in the action against such charges. The busband contended that he was not liable, and that if he was his liability should have been found and decreed in the action for divorce. The court say: "The ecclesiastical courts in England and the courts of chancery of this country have almost uniformly in a divorce proceeding required the husband to pay the wife's counsel. * * *This right is usually enforced in the courts which take cognizance of the divorce proceeding. It is eminently proper that that court should have jurisdiction of all the incidents of the divorce, and be able to grant complete relief, thus avoiding further litigation. Oftentimes that court can grant more complete relief than a court of law; as by suspending the action of the husband until he advances or secures the sum ordered." The court then further considers the claim being urged before it that an action at law would not lie to recover for such services, and adds: "It is claimed that to sustain this jurisdiction will give rise to a multiplicity of suits, which it is the policy of the law to avoid. We concede this would be a good ground for asking a court of chancery, having once assumed jurisdiction of the case, to determine the entire matter, with all its incidents, and not turn the parties over to an action at law. But it is not, as we conceive, a reason for denying the jurisdiction of a law court, when that of a court of equity has not been invoked." In the case before us the jurisdiction of the equity court was invoked and exercised, and it is the exercise of such jurisdiction that is complained of. We hold that the district court on the trial of the original cause had jurisdiction and power, as an incident to the power to decree divorces, to grant to the wife, pendente lite, upon a proper showing, temporary maintenance and allowance for solicitors' fees, and to enforce payment of the same against the husband, or his property, in the absence of a sufficient separate estate belonging to the wife, or, under such circumstances, to charge such maintenance and allowance for solicitors' fees against any common property belonging to both husband and wife, whether such property was in the control of the husband or wife. We further hold that, where the wife has an ample estate of her own, she may charge such estate with necessary solicitors' fees to enable her either to prosecute or defend a divorce action to which she is a party; and where she has done so, in the employment of her solicitor, that the court has power in the divorce proceeding, as an incident thereto, to decree such necessary fees against her separate estate as an allowance to the solicitor, so far as such fees are actually necessary, and being limited to the fair value of the service rendered. It follows that the court below in the original action did not exceed its jurisdiction, and committed in that respect no error. much as the court had power and jurisdiction in the original case to enter the decree complained of, the irregularities of practice shown in the record are harmless, and do not constitute reversible error, and therefore the decree of the court below is approved, and the cause affirmed. Inas WHITEMAN, MCFIE, and LEE, JJ., concur. (5 N. M. 442) WOLCOTT et al. v. ASHENFELTER et al. (Supreme Court of New Mexico. Jan. 29, 1890.) LANDLORD'S LIEN-FRAUDULENT CONVEYANCES. 1. Under Comp. Laws N. M. § 1537, providing that "landlords shall have a lien on the property of their tenants, which remains in the house rented, for the rent due, and said property may not be removed from said house without the consent of the landlord, until the rent is paid or secured, where there are several rooms in one building, each occupied by a separate tenant, as between the landlord and the several tenants each apartment so occupied is a "house," within the meaning of the statute, and, when the landlord consents to a removal of a tenant's property from a separate room so occupied to another room in the building, his lien for the rent of the first room is lost. 2. A general creditor cannot sue to set aside a mortgage on the ground that it is in fraud of creditors. Elliott & Picket, for plaintiffs in error. Gideon D. Bantz, for defendants in error. LONG, C. J. This cause is in this court on writ of error to the district court of Grant county. There Singleton M. Ashenfelter and |