Summary
In Edwards v. Edwards, 61 N.C. 534, Pearson, C. J., suggests that if such a `test oath' were imposed, it might prove good policy, as it would force a petitioner to purge his conscience and probably prevent a great many applications for divorce. The plaintiff is not held bound to anticipate and negative in advance all grounds of defense to the action he brings, and petitions for divorce do not constitute an exception to the general rule," citing Edwards v. Edwards, 61 N.C. 534; Horne v. Horne, 72 N.C. 530; Toms v. Fite, 93 N.C. 274.
Summary of this case from Kinney v. KinneyOpinion
(January Term, 1868.)
A petition for divorce, because of adultery by the defendant, need not allege that the petitioner has not been guilty of adultery.
PETITION FOR DIVORCE, heard ex parte before Buxton, J., at Fall Term, 1867, of the Superior Court of YANCEY.
Merrimon for appellant.
No counsel contra.
The petition prayed for a divorce on account of adultery by the defendant. Upon reading it to the court, it appeared to contain no allegation that the petitioner himself had not been guilty of adultery. Thereupon the court declined to proceed unless the petition was amended upon that point. The petitioner excepted to this ruling, and declined to amend as required, but offered to submit his conduct and character to the jury on a proper issue. His Honor therefore dismissed the petition, and the petitioner appealed.
It is a maxim in courts of equity that "a party must come in with clean hands," and probably it would be good policy to require one who files a petition for a divorce to purge his conscience in the manner indicated by his Honor. It certainly would prevent a great many applications.
But the subject of divorce is regulated by statute, Rev. Code, ch., 39, "Divorce and Alimony," and there is nothing in the statute to authorize a construction which would empower the court to impose a "test oath" of this kind. On the contrary, section 5, which declares what matter shall be set out in the petition, is silent as to an averment of (535) this kind; and section 10, provides that if such matter shall be proved, "the same shall be a good defense and a perpetual bar against the suit," thus expressly making it a matter of defense, and nowhere intimating that the party shall take an oath of his own innocence as a condition precedent to the right of instituting the suit.
Order in the court below reversed. This will be certified.
PER CURIAM. Order reversed.
Cited: Steel v. Steel, 104 N.C. 637; O'Connor v. O'Connor, 109 N.C. 142; Kinney v. Kinney, 149 N.C. 325.