Appellant and appellee are .husband and, wife,, andt)1*? .aetion was, instituted by appellee ,{tbe .wiie^.to.tpbta,!» a .cUyorce and to obtain her dist^ibjitiyp- simara of. appellant’s., property. The. action ¡originated. merely, as .one for division - of property, ,bnt *382subsequently appellee filed an amended complaint praying for a divorce on the ground of cruel treatment and indignities.' Appellee secured, at the commencement of the action, a temporary order from the chancery court restraining appellant from disposing of his property. It is also alleged in the complaint thait appellant had fraudulently induced her to join, in a conveyance of a tract of land to appellant’s mother, Mrs. Angie Cole, and that this was done for the sole-purpose of placing the title beyond appellee’s reach in securing her rights in appellant’s’estate. There is a prayer for a cancellation of that deed.
Appellant filed his answer denying all the allegations of the complaint with respect to. misconduct on his part, and the cause was heard by the court on oral testimony.
The parties intermarried on August 24, 1919, and lived together until the month of July, 1923, when appel-lee left appellant’s home and went to the home of her parents, and about a month later instituted this action. They have three children — two . girls and a boy — their ages running from three years down to about two months at the time of the commencement of the action.
Appellee alleged in her complaint and introduced testimony tending to prove all sorts of misconduct towards her on part of appellant. She claims that he neglected her during illness, particularly at the time of the birth of her children, subjecting her to hard work in housekeeping, failure to provide clothing, abuse, epithets; that he struck her one time with a stick; that he was jealous of her association with her friends, and denied her any privileges of going into society. All of these charges were denied by appellant, and he introduced testimony tending to show that the charges were unfounded.
• The récord is voluminous, and there is a large number of witnesses on each side of the controversy. No useful purpose would be served in reviewing the testimony in detail. From careful consideration of it we fail *383to-see. that the finding of the trial court is against rthe preponderance of the evidence. ;....
.The contention of appellant is that appellee left of her .own accord and without , any .cause being given, and that her sole purpose was to enter upon, some career of her own, and that, when she left him, s.he gave, him a written statement absolving him from any charge of misconduct. There is some conflict. as to the circumstances under, which the statement was made, but, at. all events, it is. not conclusive and is. only to .be considered along with other testimony in the case in determining whether or not appellant was in fact guilty of.the misconduct charged.
Appellant is shown to be a man conducting a successful business and receiving a fairly good income, and the trial court in its final decree set aside a certain .amount of personal property to .appellee as her portion, and also ordered appellant to pay an attorney’s fee of $150 and also to pay to appellee the sum of thirty-five dollars per month for the support of the children. The court' also canceled the deed to appellant’s mother, Mrs. Angie Cole, and appointed commissioners to set apart appel-lee’s portion of one-third..
We. find that the testimony justified the. award of personal,property to appellee, as well as the other;allowances, but it was improper to. cancel the deed to Mrs. Cole* for the reason;.that she was not a party to the action.
During the pendency of the appeal, this court made an.¡order directing appellant to. pay appellee the snm of $50, to be used in payment of attorney’s- fees in this court, and we reserved until final disposition of the case on the merits, the question whether or not this should be deducted from the amount allowed by the trial court. We conclude that the additional sum mentioned should not be deducted, and that the original allowance made by the trial court should stand, , .
The decree is therefore affirmed in all things except as to the cancellation of the deed to Mrs. Cole, and that *384part of the decree is- -reversed,'1 and the' canse -remanded with directions that, unless' appellee is advised to make Mrs. Cole a party to- the action and does áo, the complaint he dismissed* as to-the cancellation of the conveyance. It is so ordered.,