35 N.C. 90 | N.C. | 1851
This is a petition for a divorce. The court granted a divorce, and from this decree the defendant appealed. The facts were these: The parties were married in January, 1844, and lived together until June of that year, when, as the petitioner alleges, the defendant committed the crime of forgery, and his guilt being discovered soon thereafter, he abandoned "and deserted your petitioner, and left her dependent upon the care and protection of her mother, with whom she has lived ever since." "That since your petitioner was thus deserted by the husband, he has lived in the county of Jones, keeping himself concealed as much as possible during the day and indulging himself in his vices at night, and does not venture to the county of Cravan, where *75 your petitioner resided at the time he separated himself from her, and still resides." The petitioner than avers that "Since the defendant separated himself from her, he has given himself up to dissolute habits and has been and is living in adultery with a negro woman, or slave, the property of ___________." Several other specific charges of adultery are made, but it is not necessary to state them. Upon these allegations the petitioner prays for a divorce from the bonds of matrimony.
The defendant admits that in June, 1844, he was charged with (94) having committed forgery, but he says the accusation being made known to his wife, "she either did not believe it or, if she did it did not prevent her from living with him for some time thereafter upon the best and most conjugal terms," professing and, as he believes, feeling a warm and devoted attachment for him, and he positively denies the allegation that he separated himself from or deserted and abandoned the petitioner in 1844 or at any other time; on the contrary, he says, although they have not lived together for some time, "yet he has used every means in his power to induce the petitioner to perform her duty as a wife, and share his bed and fortunes, but she has abandoned him and refuses to live with him and give him her society." The defendant avers that "he deeply regrets her course of conduct, and he verily believes that if the petitioner had been left to her own feelings, she would not have deserted and refused to live with him"; but he says, "she, having a competent means of livelihood by the marriage settlement and large expectations from her mother, has been induced by her and others unfriendly to him to disregard her marriage vows, and to refuse to live with him"; that the petitioner "has resided for several years with her mother, which for some time she was forced to do, and at one time was actually prevented, by force, from going to the defendant, where he resided." He further says, "while he deplores this state of things, and might well palliate any indiscretion as being brought about by it," yet he denies the allegations of his having committed adultery; and he has at all times desired, and still desires, that she should return and live with him, as her duty as a wife requires.
Seventeen issues were submitted to the jury. It is only (95) necessary, for the purpose of our decision, to state one of them. "To the third issue, the jury respond and say that the defendant did separate himself from the petitioner and live in adultery with a negro slave named Hannah." This finding is "general" as to the time of the separation. If it be taken to mean that the separation was in 1844, or at any time before August, 1845, it is directly opposed to the charge of the court, for his Honor instructed the jury: "Taking the evidence to be true, there is no evidence that the defendant separated himself from the petitioner beforethe summer of 1845. It will, therefore, be proper *76 for the jury to confine their attention to what took place after August, 1845, in order to decide whether the defendant had separated himself from the petitioner against her consent."
We are to take the issues and the finding to be in these words: "The defendant after August, 1845, did separate himself from the petitioner and live in adultery," etc. Consequently, there is a variance between the "probata" and the "allegata," for the petitioner alleges that the defendant separated himself from her in 1844. So the decree for a divorce is put simply on the proof and not on the ground that theallegations were proven. In this there is error. An allegation without proof passes for nothing; proof without an allegation passes for nothing. This is the rule in reference to all proceedings in court, for without a distinct allegation the defendant is left in the dark, and cannot be expected to come prepared with his proofs. But in a divorce case the statute requires not only that the allegations should be made, but should be sworn to. It may be proper to notice the fact that the petition was amended, and was not sworn to as amended. We do not put our decision on that, but we think clearly that all the allegations introduced by the amendment are for that reason out of the case. It is said that the allegation is proven, except in regard to the time, and that (96) time is immaterial — "it is not the essence of a contract or of an offense." This is, in general, true; but "time" is sometimes material; and when so, it is just as important to prove the allegation in reference to it as anything else; and the question is, "Was the material to fix the time of the separation?"
If a wife leave a husband and refuses to live with him, withoutsufficient cause, and he afterwards lives in adultery, this is no cause of divorce, for the consequence may be ascribed to her prior violation of the duty of a wife. "No one shall be allowed to take advantage of his own wrong."
If a husband is accused of a crime, or if he is guilty of it, this is no sufficient cause for his wife to refuse to live with him, and she is not thereby justified in a violation of her marriage vow. She agreed to take him "for better or for worse."
The petitioner alleges that the defendant abandoned her (that is the most expressive word) in 1844. This allegation is denied, and the defendant says he and the petitioner "lived upon the best and most conjugal terms" until after August, 1845, when she was "forced by her mother and other persons unfriendly to him to abandon him and to refuse to live with him." The pleadings, therefore, make this distinct issue: Was the fact that the parties ceased to live together as man and wife caused by the act of the petitioner, to which, it is alleged, she was persuaded or forced by others, or was it caused by the act of the *77 defendant, he being unwilling to live with her, and rejecting here as his wife? In reference to this issue, time is material, for the very question is, Which of the two was the first, in point of time, who came to the determination not to recognize the other, in violation of the duties imposed by the marriage vow?
Upon the next trial we hope the issues will be more precise in (97) terms, and in reference to the points put at issue by the pleadings.
PER CURIAM. Venire de novo.
Cited: Earp v. Earp,
