186 P. 423 | Or. | 1920
This is a divorce ease. The parties were married January 7, 1891. They have three sons well above the age of majority and a fourth son said to be fourteen years old. Two daughters, one twelve and the other eight years of age, complete the family. The plaintiff accuses the defendant of cruel and inhuman treatment rendering her life burdensome. The specifications range from the application to her of opprobrious epithets impugning her chastity, through uncouth table manners, to his burning the late periodicals. A conspicuous feature of the complaint is a long list of the defendant’s real property coupled with the plaintiff’s demand for one third of it and for liberal alimony. The answer flatly denies all allegations of the complaint which impute misconduct to the defendant. Some minor questions are raised about the quantity of his interest in some tracts of the realty mentioned, but they are not important. The defendant makes counter-charges of cruelty such as the plaintiff’s calling him a scurrilous name indicating that his ancestry, was of canine origin, and that she expressed her contempt of him because of his occupations of fisherman, logger and lumberman and berated him with sundry vituperative epithets not necessary here to relate.
In substance, the answer charges also that the parties did not agree on the subject of the family birth rate; that, although both of them are healthy and vigorous, she practiced the doctrines of Malthus, while he desired to be fruitful, to multiply and replenish the
The plaintiff appealed only from that part of the decree declaring the defendant to be the owner in severalty of the parcels of land therein described. Although it is stated in the defendant’s brief that he appealed from the whole decree, there is no evidence in the record before us to support that assertion.
Imputing satisfaction with the decree to the defendant, however, does not prevent him from defending it against the attack of the plaintiff, but he cannot go beyond merely supporting it: Landram v. Jordan, 203 U. S. 56 (15 L. Ed. 88, 27 Sup. Ct. Rep. 17); Southern Pine Lumber Co. v. Ward, 208 U. S. 126 (52 L. Ed. 420, 28 Sup. Ct. Rep. 239, see, also, Rose’s U. S. Notes); O’Neill v. Wolcott Mining Co., 174 Fed. 527 (98 C. C. A. 309, 27 L. R. A. (N. S.) 200). In Inman v. Henderson, 29 Or. 116 (45 Pac. 300), the trial court had established certain materialmen’s liens as against a property owner. Another feature of the litigation was the question of the validity of those very liens as against a mortgagee who had put them in issue by the traverse in his answer. The lienors, who aloxie appealed, contended that inasmuch as their demands had been sustained as against the property owner, through whom the mortgagee claimed, and the owner had not appealed, their liens could not be opposed in this court by the mortgagee who had not appealed. It was decided, however, that “the mortgagee, having de
A detailed analysis of the testimony would encumber the official reports with a batch of disgusting stuff that would not establish any new principle of law and would only serve to gratify morbid curiosity. It is sufficient to say that the testimony for the plaintiff shows the frequency of mutual quarrels between herself and her husband. Her application to him of opprobrious epithets is abundantly established. Throughout her testimony and that of her sons who were witnesses for her, runs a vein of carping combativeness that is an earmark of a quarrelsome disposition. Aside from the direct testimony, it is easy to discern between the lines that the plaintiff was no mean antagonist in their domestic brawls. • ,
The following language of Mr. Justice Moore in Beckley v. Beckley, 23 Or. 226 (31 Pac. 470), is peculiarly applicable to the case in hand:
“To entitle one to a decree of divorce for cruel and inhuman treatment, the injured party must come into a court of equity free from the suspicion that he has contributed to the injury of which he complains. Divorces should not be granted by weighing the evidence and decreeing in favor of the one least guilty, where both have taken an active part in the mutual discord. Equity relieves the injured party but not the vanquished. In the struggles for supremacy, or to vent*624 spleen, spite or hatred, the willing actors may fight ont the battles of wedded life, but they cannot invoke the aid of equity after their own efforts have failed. ’ ’
See, also, Taylor v. Taylor, 11 Or. 303 (8 Pac. 354); Adams v. Adams, 12 Or. 176 (6 Pac. 677); Wheeler v. Wheeler, 18 Or. 261 (24 Pac. 900); Mendelson v. Mendelson, 37 Or. 163 (61 Pac. 645); Crim v. Crim, 66 Or. 258 (134 Pac. 13); Matlock v. Matlock, 72 Or. 330 (143 Pac. 1010).
A study of the testimony convinces us that neither party comes into the chancery side of the court fortified by that rectitude of conduct towards the other which alone will justify the interposition of equity. If the hearing de novo in this court included the whole case, it ought to result in the denial of relief to both parties.
Finally, trying the case “anew upon the transcript and evidence accompanying it,” as required by Section 556, L. O. L., so far as we may on an appeal from part of the decree, we are compelled to the conclusion that the parties are in pari delicto. Consequently, we must leave them where we found them, giving to neither any additional advantage over the other.
The decree of the Circuit Court is affirmed.
Affirmed.