Opinion
(Filed 14 October, 1902.)
DIVORCE — Adultery — The Code, Sec. 1285 — Recrimination.
Adultery by the husband on but two occasions is not ground for divorce by wife, and hence does not constitute the defense of recrimination, preventing his obtaining a divorce from the wife on proof of adultery.
ACTION by W. M. House against Minnie House, heard by Judge Francis D. Winston and a jury, at July (Special) Term, 1902, of WAKE. From a judgment for the defendant the plaintiff appealed.
Busbee Busbee for the plaintiff. (141)
J. W. Hinsdale, Jr., and W. B. Jones for the defendant.
This is an action by the husband against the wife for divorce. The jury found on the issues duly submitted that the parties were married; that the plaintiff had been a continuous resident of the State for two years next preceding the filing the complaint; that the defendant had committed the adulteries alleged in the complaint, and that the plaintiff had not with knowledge thereof condoned such adulteries. And to a further issue: "5. Has William House committed adultery, as alleged in the amendment to the answer?" the jury responded, "Yes; only two acts and no more." Thereupon his Honor refused to sign judgment in favor of plaintiff, and dismissed the action. Plaintiff excepted and appealed.
The complaint averred that the defendant had separated from the plaintiff in July, 1901, four years after marriage, and had not lived with him since, and had committed adulteries with divers parties, naming two, and averring that the others were unknown to the plaintiff. The answer denied each allegation of the complaint except those of marriage and residence for the statutory period. The amended answer alleged adultery by plaintiff with sundry parties, naming two of them, and sexual intercourse by her with plaintiff since July, 1901.
By our statute, the Code, sec. 1285 (2), it is ground for divorce "If the wife shall commit adultery." But such conduct is not ground for divorce against the husband, who comes under section 1285 (1), "If either party shall separate from the other and live in adultery." The Legislature has made the distinction for reasons satisfactory to them, and the courts must administer the law as it is written.
So the single question presented is whether the husband, who has established his legal grounds for divorce by the (142) verdict of a jury, can be defeated thereof by matter in recrimination, which would not have entitled the wife to have brought an action for divorce against him. "The general principle which governs in a case where one party recriminates is that the recrimination must allege a cause which the law declares sufficient for divorce." Tiffany Dom. Rel., sec. 108, pages 203, 204; Morrison v. Morrison, 142 Mass. 361; 56 Am. Rep., 688, and cases there cited. The contrary doctrine is held in Astley v. Astley, 3 Eng. Ecc. Rep., 303, but the English ecclesiastical law of divorce has not been followed in this country. In Horne v. Horne, 72 N.C. 530, habitual adultery, night after night, by the husband, was shown by the evidence and established by the verdict, and the same was true in Haines v. Haines, 62 Tex. 216. Here the two acts of adultery found by the verdict were committed by the husband after his wife abandoned him, and are not ground of defense or recrimination for her. Setzer v. Setzer, 128 N.C. at page 172; 83 Am. St., 66; Foy v. Foy, 35 N.C. 90; Whittington v. Whittington, 19 N.C. 64.
In Tew v. Tew, 80 N.C. 316; 30 Am. Rep., 84, it is held: "No husband can have the bonds of matrimony dissolved by reason of the adultery of the wife committed through his allowance, his exposure of her to lewd company or brought about by the husband's default in any of the essential duties of the married life or supervenient on his separation without just cause," which holding plainly rests upon such conduct being fraud on the part of the husband, who will not be allowed to take advantage of his own wrong and procure a release by reason of conduct of his wife instigated by himself. For, as is said in Steel v. Steel, 104 N.C. at page 636, citing Tew v. Tew, supra, the divorce can, in the words of the Code, sec. 1285, be granted only "on application of the party injured," which the husband would not be if he were the cause of the misconduct of the wife.
But such conduct is not here pleaded in the answer, nor found by the jury, nor any issue offered, nor any prayers (143) for instruction on that aspect, nor is it clear that the evidence would have justified the submission of such issue if such matter had been pleaded.
The issues found make out a good cause for divorce against the wife and not against the husband, as our statute is framed, and it was error to refuse to render the judgment upon the verdict tendered by the plaintiff. The cause must be remanded to the end that judgment be signed for the plaintiff in accordance with the verdict.
Reversed.
Cited: Mott v. R. R., post, 238; S. v. Jones, 132 N.C. 1051; Kinney v. Kinney, 149 N.C. 325.