¶1 (dissenting) :
¶2 In my opinion my associates have failed to apply certain fundamental principles of law in the foregoing opinion. It is well settled that in ascertaining the facts where the evidence is in dispute we accept that portion of'the evidence which is most favorable to the prevailing party. This is due to the fact that the trial judge is in a more favorable position to determine the facts from conflicting evidence than are we.
¶3 When and if we accept the evidence in the record most favorable to plaintiff, as I think we are obliged to do, then much of *615 the feeling of prejudice against plaintiff and sympathy for defendant engendered by a reading of the majority opinion is dispelled.
¶4 Plaintiff’s first husband died in 1915 leaving an estate then valued at about $50,000 but which was worth about $75,000 at the time she married defendant. There were also two children of her first marriage who are still living and who are entitled to two-thirds of the estate. The estate was never distributed. The two children, both being sons, in June 1927 signed a trust agreement permitting plaintiff to use and control the estate as a unit. The agreement provided that the income from the property should be divided equally between plaintiff and each of the two children and if plaintiff’s share of the income was not sufficient to provide for her own support and maintenance that then she could use the portion of the income belonging to the children.
¶5 Plaintiff likewise inherited about $8,400 from her mother’s estate in 1936 or 1937 and $1,000 from her step-father’s estate in 1940. Her mother gave her about $10,000 .before her death. Hence plaintiff had under her control during the existence of the marriage between plaintiff and defendant more than $94,-000. Defendant at the time of the marriage had $300.00.
¶6 Plaintiff is now able to account for only about $45,000 still in her possession. Her two sons have had nothing as yet from the estate of their father. During the marriage between plaintiff and defendant, plaintiff not only bought and paid for cows with which to stock the Minnesota farm and the homestead later settled upon in Montana, but milked the cows, pitched manure, fed pigs and performed other manual farm labor. She paid one-half of the expenses for running the home for the 23 years of the marriage between plaintiff and defendant. She bought and paid for all of her own clothing through the years. The trap line which the majority opinion says defendant operated at Hob-son and realized $2,800 from pelts sold was flatly denied by plaintiff who says that defendant caught only one mink. Plaintiff advanced money to defendant whenever he needed it. Some *616 of the larger advances so shown by the record are the following: $3,500 for the purchase of cows and otherwise equipping the Minnesota farm; $450 for building a house on the Montana homestead; $400 for the purchase of cows placed on the homestead; $750 for a truck; $750 for a tractor; $750 for a trucking outfit; $1,400 for a loan to Ole Oschiness of Fairfield. Defendant received the benefit of all these advances and when the property was sold or the loan repaid defendant kept the proceeds. By this process defendant has increased the $300 which he had at the time of the marriage to about $40,000.00 which he now has. Plaintiff at all times was a dutiful wife and performed the obligations of her marriage to defendant.
¶7 The record shows that in 1943 defendant became acquainted with Georgia Morefield who then resided with her husband in Fairfield and worked in the telephone office. Plaintiff alleged and submitted proof that defendant became “enamored of and in love” with Mrs. Morefield. He paid so much attention to her that it provoked comment among the neighbors, many of whom spoke to plaintiff about it. This caused her humiliation and embarrassment. Defendant had her ride around with him in his car. He frequented bars in Fairfield with her and was seen with her in Great Falls. Plaintiff also, when a neighbor told her that defendant had gone to Choteau with her, followed him to Choteau and there saw him with her in a bar. This was in the early summer of 1944. The complaint was filed on August 18, 1945.
¶8 The conduct between defendant and Mrs. Morefield existed about nine months while they lived in Fairfield. Plaintiff and defendant sold out at Fairfield and left there in September 1944. Defendant’s association with Mrs. Morefield caused plaintiff mental distress and destroyed her peace of mind and constituted cruelty within the meaning of section 5738, R. C. M. 1935.
¶9 There is evidence too that when defendant went to Los Angeles, California, Mrs. Morefield made her residence at Del Ray, California. My associates stress the fact that plaintiff went to Los Angeles and failed to look up the defendant. She testified *617 that whenever he wrote to her, which was about once in two months, he gave a new address each time; that she inquired at each address given but was not able to find him. Some of the letters which she had written to him were not received but returned. She said, "I asked the policeman and I told him he was supposed to be some kind of police officer around there.” She asked at the post office but was advised that they could not give the information.
¶10 Plaintiff testified that she read a letter written by Mrs. More-field to Mr. Morefield in which she said: “I am in love with Mr. Shaw and I am going down to California to see if I can forget him.” After she so testified an objection was made and sustained but no motion was made to strike the testimony from the record.
¶11 That defendant lost interest and regard for plaintiff is shown by the fact that in September 1944 he deserted her and insisted that they live separate and apart. He has since that time neglected to provide for plaintiff. He shoved her so hard in their garage at Fairfield in September 1944 as to cause her to fall to the floor and sustain serious bodily injuries and made no offer to help her to her feet and made no apology. He testified that this shoving was accidental but the solution of the fact issue was for the trial judge who has found in plaintiff’s favor on this as well as on other issues. In my opinion there was ample evidence to sustain the charge of cruelty.
¶12 Likewise my associates have misconstrued plaintiff’s complaint. She is not seeking a divorce on the grounds of desertion or wilful neglect. The district judge did not grant a divorce on those grounds.
¶13 The complaint is based solely upon statutory cruelty as defined by section 5738, R. C. M. 1935, and particularly the latter part dealing with the infliction of grievous mental suffering by a course of conduct and treatment of plaintiff persisted in for more than one year, which was calculated and which is alleged to have destroyed the peace of mind and happiness of plaintiff and to have defeated the legitimate objects of marriage.
¶14*618 After scrupulously following the language of the statute, the complaint then alleges: ‘ ‘ That such acts and conduct on the part of the defendant consist in part of the following:” Here then follows the allegations with respect to defendant’s association with other women, his desertion of plaintiff on September 3, 1944, his wilful neglect of her, and the other acts pointed out in the majority opinion. The desertion, wilful neglect and the other acts alleged were not pleaded as separate grounds of divorce but as acts constituting the objectionable course of conduct amounting to statutory cruelty. That they were appropriate for that purpose there can be no doubt. See note in 157 A. L. R. 631; and see 27 C. J. S., Divorce, sec. 29, p. 559, where failure to support a wife is said may constitute cruelty. In other words, the desertion and failure to support is but a continuation of the course of conduct amounting to cruelty.
¶15 The excellent statement of law from Pomeroy’s Code Remedies contained in the majority opinion has no application to this case where the complaint contains but one ground of divorce and but one cause of action.
¶16 May the court’s order with respect to the property rights be sustained ?
¶17 I agree that this court has held that advances made by a wife to her husband are presumed to be a gift. The case of Bast v. Bast, 68 Mont. 69, 217 Pac. 345, is illustrative. In Bingham v. National Bank, 105 Mont. 159, 181, 72 Pac. (2d) 90, 113 A. L. R. 315, I pointed out in my dissenting opinion that where a husband advances money to his wife it is presumed to be a gift but that the weight of authority refused to apply that rule to advances made by the wife to the husband. But even though we treat advances by the wife to the husband as gifts, still the rule under the Bast case is that: “Contributions of money or property by a wife to her husband may be considered by the trial court in the light of circumstances affecting the amount of alimony to be awarded. The rule is laid down in 1 R. C. L. .931, as follows: ‘Equity and good conscience require that the husband shall not profit by his own wrong in forcing his wife to divorce him, and *619 that restitution shall be made to her of the property which she brought to him or that a suitable sum in lieu thereof shall be allowed out of his estate ’. ’ ’
¶18 A receivership is expressly authorized by statute in this state. Section 5772, E. C. M. 1935, reads: “The court or judge may require the husband to give reasonable security for providing maintenance or making any payments required under the provisions of this chapter, and may enforce the same by the appointment of a receiver, or by any other remedy applicable to the case.”
¶19 I think the district court did not abuse its discretion in appointing a receiver, nor do I think the court erred in requiring the husband to make the payments which the decree requires. In effect the court is simply awarding to plaintiff that which in equity and good conscience already belongs to her.
¶20 I concede that under Emery v. Emery, 122 Mont. 201, 200 Pac. (2d) 251, if the husband manages to get property in his own name even though purchased with the wife’s money, there is not much the court can do about it. I did not agree with the majority opinion in the Emery ease. I think it is unsound in law and establishes a rule lacking in fairness and justice. I hesitate to concur in that part of the majority opinion in this case which follows the Emery case, even on the ground of stare decisis and without making an effort to have it now overruled. I think we should overrule it expressly at this time.
¶21 If this decree cannot stand then it follows that it is becoming as difficult in Montana to obtain a valid decree of divorce and an adjustment of property rights between husband and wife as it is to obtain a valid tax title.
¶22 I think the decree should be affirmed.
¶23 I concur with Mr. Justice Angstman in his contention that the divorce granted to the plaintiff by the trial judge should be sustained. Here the only cause of action for divorce pleaded is statutory cruelty by a course of conduct and treatment persisted *620 in for more than one year. The complaint alleged that defendant “has for some two years, and is now enamoured of and in love with a certain woman, ’ ’ causing shame and humiliation and mortification to the plaintiff. Such conduct is a cause of mental suffering and anguish that under some circumstances may so destroy the peace of mind and happiness of the plaintiff and render the continuance of the marriage relation intolerable. 27 C. J. S., Divorce, sec. 28, p. 551; 1 Nelson, Divorce and Annulment, 2d Ed., see. 6.20, p. 269. The majority opinion points out that the complaint fails to allege that the wilful neglect and failure to provide continued for a year. The wilful neglect alleged began on September 3, 1944 and the complaint was filed eleven and a half months later on August 18, 1945. The same is true of the desertion. It is alleged the defendant abandoned the plaintiff on September 3, 1944, an abandonment that continued until the filing of the complaint. But in addition it is alleged that defendant failed to associate with the plaintiff fór over two years and failed to permit the plaintiff to share his bed.
¶24 These various acts taken together comprise cruelty persisted in for more than two years. The majority breaks these acts into separate parts and points out that the desertion didn’t exist for the full statutory period of one year, that the plaintiff was not wilfully neglected for the full statutory period, that the defendant’s association with Mrs. Morefield did not last a full year. But as Justice Holmes said in Edwards v. Chile Copper Co., 270 U. S. 452, 46 S. Ct. 345, 346, 70 L. Ed. 678, the court “cannot let the fagot be destroyed by taking up each item of conduct separately and breaking the stick. The activities and situation must be judged as a whole. ’ ’
¶25 The complaint states a cause of action for divorce. At the trial the plaintiff introduced substantial evidence in support of the allegations. The evidence is enough to sustain the trial judge in finding that defendant had pursued a course of conduct for more than two years that ‘ ‘ destroyed the peace of mind and happiness” of the plaintiff and rendered the continuance of marriage relation unreasonable and intolerable.
¶26*621 The trial judge did not err in granting tbe plaintiff a divorce. He acted under the statute and in accordance with tbe evidence.
¶27 Most of tbe evidence in tbe record, a large portion of the findings of tbe trial court, and much of tbe discussion in tbe other opinions of this court is based upon criticism of tbe trial court’s disposition of the property of tbe parties. Under tbe decisions of this court in Stefonick v. Stefonick, 118 Mont. 486, 167 Pac. (2d) 848, 164 A. L. R. 1211; Rufenach v. Rufenach, 120 Mont. 351, 185 Pac. (2d) 293; Emery v. Emery, 122 Mont. 201, 200 Pac. (2d) 251; and others, there is no way for a wife to share in tbe accumulations of a lifetime of marriage if she lets the bus-band manage tbe business and keep tbe property in bis name. And if an over-fond wife permits her husband to deal with her separate property and as a result of such transactions be gets title in bis own name, it is presumed to be a gift. That seems to me to be inequitable and unjust, but it is established law.
¶28 However, there is nothing that prevents these property rights of tbe husband and wife from being adjudicated in tbe divorce case. In many instances it is tbe proper place to ascertain those rights. In tbe case at bar tbe majority cite tbe requirement of section 9130, R. C. M. 1935, and Pomeroy on Code Remedies (5th Ed.), sec. 336, p. 516.
¶29 Section 9130, R. C. M., designates the causes that can be joined. But if two causes of action are improperly joined and no objection is made, tbe defect is waived. Section 9136, R. C. M. 1935; Binzel v. Viehmann, 111 Mont. 6, 106 Pac. (2d) 187; Frost et al., v. J. B. Long & Co., 66 Mont. 385, 213 Pac. 1107.
¶30 The same is true of tbe majority objection that tbe several causes of action were intermingled and not severally stated and numbered. “Tbe purpose of tbe rule is to enable a defendant to raise bis defenses to one or more of tbe causes more clearly. … * If two or more causes of action are commingled, and tbe defendant does not raise tbe question by motion, where that is the remedy afforded, be must be prepared to meet both at tbe trial, as the defect is not fatal to the causes of action blended, and is *622 waived if not raised by timely and proper objection.” 1 Bancroft, Code Pleading, sec. 116, pp. 223, 224.
¶31 If tbe parties feel that their rights are best preserved by settling all their matters in one action and waive their rights to object to misjoinder and the trial court does settle them, this court has no basis for disapproval.
¶32 Some of the trial court’s decree disposing of the property rights of the parties cannot be sustained, but the divorce decree should be sustained and the cause returned for correction of that part of the judgment that is invalid.