Armstrong v. Armstrong

32 Miss. 279 | Miss. | 1856

HANDY, J.,

delivered the opinion of the court.

This was a bill in equity, filed by the defendant in error against her husband for a divorce and for alimony, and also for the recovery of certain sums of money, the separate property of the wife, which it is alleged the husband appropriated to his own use. The ground of the 'relief sought is, adulterous intercourse by the husband with another woman, which had been, for several years, and was, when the bill was filed, carried on, and cruel treatment and abuse; which continued until December, 1851, wrhen she was driven by her husband from his house and home, in consequence of disagreements between them, produced by the adulterous connexion. The answers deny the allegations of the bill, except the separation and the use of one of the sums of money, $25, which is alleged to be his property in law, and offers to receive her, if she will return; and alleges a previous proposition that she should return, and an offer to pay her board to that time.

A great number of depositions were taken, and on the hearing the vice-chancellor decreed a divorce a vinculo, alimony to the amount of one-third of the husband’s estate, and the payment of the sums of money alleged to have been used by the husband, as the wife’s separate property. The husband thereupon brings the case here.

The first objection taken to the decree is, that there is no proof of adultery except the admissions of the husband, and that his admissions alone are not sufficient to warrant the decree dissolving the marriage. But if supported by other proof, or corroborated by circumstances clearly proved, his admissions are competent, and are sufficient to justify the decree. Betts v. Betts, 1 Johns. Ch. Rep. 198. In this case the admissions are amply corroborated by circumstances proved by the witnesses. It is shown that the woman with whom he had the adulterous connexion lived upon premises owned by him, and was mainly supported by him; that he frequently visited her, and was alone with her in private in her room, at the place where she resided, at some distance in the country from his residence; that he had her removed to the place where she resided, and that his slave worked for her; that he sent to school, at his expense, her eldest child, a girl of some eight years of age, to whom he frequently showed great attachment, and acknowledged her to be his child; and these acts took place after disagreements had occurred between him and his wife, in consequence of his conduct towards the other woman, and when his criminal intercourse with her was a matter of common rumor and even notoriety. These facts are certainly sufficient to show that his admissions were true, and not made for a collusive purpose; and it is for the purpose of preventing collusion and obtaining improper divorces thereby, that the admissions of the criminated party are held to be insufficient, of themselves, to warrant a divorce a vinculo. Holland v. Holland, 2 Mass. 154.

Again, it is insisted that the decree is erroneous, because it must be taken from the allegations of the bill and the proofs, that there was a condonation of the offence.

It is true, the bill states that the wife discovered the adulterous conduct of her husband some years before the filing of the bill; but the further allegation is, that he was, at the time of filing the bill, and had been for several years, carrying on the improper intercourse, and that she had used all the means which affection could suggest to cause him to abandon it, but without success. So far then as the bill shows, although there might have been a con-donation of the original violation of duty, yet there was a repetition and continuation of the offence, which was a fresh grievance, entitling her to redress, and revives the former condoned offence. The rule is, that condonation is but a forgiveness on condition of subsequent fidelity, which, if not kept, the rights of the injured party are restored, as if there had been no condonation. Bishop on Marr. and Div. § 372.

But the evidence sufficiently shows a continuation of the improper conduct.

The final separation took place in December, 1851, and it is proved that in January, 1851, his wife said to him that, if he would dissolve his connexion with the woman named and stay at home, she would take the little girl home (meaning the child he had by that woman,) and do for it as if it were her own. Within a year or two, and even less time, before the separation, he continued to send her provisions, furnished her with a place of residence, had work done for her, and had her removed to her place of residence; that he admitted that he was the father of her eldest child, then about eight years old, and was generally reputed to be the father of her two younger children; that she was a woman whose character for chastity was notoriously bad, and that he. was in the habit of visiting her frequently in the country, and having intercourse with her of a very suspicious character. All these circumstances go strongly to show that if he ever had criminal intercourse with this woman, at any former period of time — as he admitted that he had — it must have been continued until within a short period before the separation from his wife. If not sufficient of themselves to show positively fresh acts of adultery, they are sufficient, coupled with the previous act of adultery, — which is admitted — to justify the conclusion that his criminal intercourse was continued.

But the doctrine of condonation is not applied with strictness to the rights of the wife as it is to the husband; and is held rarely to bar her redress. Bishop on Marr. and Div. §§ 368, 410. “A woman,” says Lord Stowell, “has not the same control over her husband, has not the same guard over his honor, has not the same means to enforce the matrimonial vow — his guilt is not of the same consequence to her; therefore the rule of condonation is held more laxly against the wife.’’ D’Aguilar v. D’Aguilar, 3 Eng. Eccl. Rep. 337. In another case he says: “It is not improper she should, for a tíme, show a patient forbearance; she may find a difficulty either in quitting his house or withdrawing from his bed. The husband, on the other hand, cannot be compelled to the bed of his wife; a woman may submit to necessity. It is too hard to term submission mere hypocrisy. It may be a weakness pardonable in many circumstances.” Beeby v. Beeby, 3 E. C. L. R. 341.

It is evident, upon principle, that condonation, from the mere fact of cohabitation, ought not to be implied against the wife to bar her of her remedy, because she is, to a great extent, under the control of her'husband.

In this case the evidence shows that, although she cohabited with him after the discovery of his criminal conduct, yet, that it continued to be the cause of disagreement between them, and that she never became reconciled to his original infidelity, and was only content, provided he would cease his improper intercourse. But if the original offence was fully condoned, the evidence is amply sufficient to show that it was subsequently renewed and continued.

The next objection taken to the decree is, that the sum allowed for alimony is unreasonable and excessive, considering the amount and value of the husband’s estate.

The decree assumes the value of the husband’s estate to be five thousand dollars, and gives the wife one-third of that amount. Considering all the evidence, it appears to warrant the valuation of the husband’s estate upon which the decree is based; and then the question is, whether the portion allowed by the decree to the Jsrife was exorbitant.

There appears to be no fixed rule upon this subject, but it defends upon the discretion of the court, to be exercised' with reference to an equitable view of all the circumstances of the particular ease, the only general rule being, that the wife is entitled to a support corresponding to her rank and condition in life, and the estate af her husband. These principles are recognized by our statute, which provides, that the court may make such allowance “ as from the circumstances of the parties and the nature of the case may be fit, equitable, and just.” Hutch. 496, § 7.

In applying this equitable rule, it is very generally agreed that it is proper to consider not only the respective pecuniary condition of the parties, tbeir capacities for supporting themselves, and many other circumstances touching an equitable appropriation of the property of the husband, but also the demeanor and conduct of the wife during the marriage, as tending either to excuse or to aggravate the offence of the husband. Bishop, § 612. And if, by the criminality of the husband, the wife is driven to dissolve the conjugal tie, and subjected to all the mental sufferings and social disparagement arising from such a position, it is but just that she should receive a liberal allowance from hiin who has done her such irreparable wrong.

The evidence shows that her' conduct as a wife was unexceptionable, and that she is without any means of support. There are no children of the marriage, and the husband has no lawful children to support. He is shown to be an active business man, and capable of providing for himself, Under such circumstances, we consider the allowance of one-third of the value of the husband’s estate “ fit, equitable, and just.” And it is less than has been frequently sanctioned as permanent alimony in England and in this country. Bishop, § 620, and cases there cited.

The only remaining objection is to the decree for the payment of the two sums of money, the separate property of the wife, alleged to have been appropriated by the husband to his use.

As to the small sum of $26, it is admitted that that, being the earnings of the wife during coverture, was the property of the husband absolutely, and therefore that the decree in that particular is erroneous.

As to the other sum of $116, decreed to her for her separate money, it is proved that the husband broke open the wife’s trunks after she was driven by him from his house, there being in one of the trunks this amount of money, her separate property, acquired by gift from her relatives; that she afterwards charged him, on several occasions, with taking the money, and he did not deny it. One witness proves that he admitted that he took it. This evidence showed sufficiently that he appropriated the money to his own use.

It is however insisted, that she was not entitled to recover it in this bill, because it was not an incident to the bill for divorce and alimony. It was certainly a right which she was entitled to enforce in some form. She could not assert it by action at law, because she was incapable of suing him at law. Her remedy, then, for the recovery of her separate property was in equity, and no reason is perceived why she should not unite her several causes of complaint against her husband in one bill, instead of bringing two suits. Nor was she compelled to wait until she was divorced to bring a suit at law to recover the money. Her right to recover for her separate property against her husband, in her bill for divorce and alimony, is distinctly recognized in Lawson v. Shotwell, 27 Miss. 630; and it is justified by the equitable rule of preventing multiplicity of suits. In addition to this, no objection was taken to the bill on this ground by demurrer.

With respect to the sum of $25 the decree is reversed, and in all other respects it is affirmed, and a modified decree accordingly ordered in this court.