| Ala. | Jun 15, 1870
This suit is a bill in chancery by Mary W. Goodrich, complainant, against Rosamond O. Goodrich, defendant. It was filed in the chancery court of Dallas county, on the 1st day of March, 18b 7, for a divorce, dissolving the bonds of matrimony between the parties in favor of the wife, on the ground of cruelty, and prayed an injunction restraining tbe defendant from interfering with tbe control and custody of the children of the marriage, and to prevent the defendant from removing tbe furniture
As is required in injunction suits, the statements of the bill are sworn to by the complainant, and the defendant is required to answer, without verifying his answer by his oath. — Rev. Code, § 3328.
The defendant, at first, suffered the bill to be taken as confessed, but afterwards, he appeared and had the decree pro confesso set aside, and filed an answer. In this answer, besides a general denial of the acts charged against him, as constituting cruelty, he sets up as a plea of condonation, that the acts complained of were “of ancient date.”
The bill shows that the marriage took place on the 22d day of August, 1860, and that the parties had lived together for a little more .than six years and six months. Besides the general bad conduct of the defendant by unmerited abuse and insult to the wife, which seems to have prevailed during almost the whole term of their married life, the bill alleges that the defendant had, upon several occasions, stricken complainant on the face, and in the mouth, and had once kicked her in the side, with his booted foot, with such violence as to produce a serious bruise, which remained visible for two months after the kick was inflicted, and 'fthich so affected the health of the wife that she was forced to take frequent potions of laudanum, in order to obviate the effects of a premature birth. .
On the hearing, the chancellor granted a decree divorcing the wife, and made the injunction perpetual, which had been previously allowed, in reference to the custody of the children, and certain property mentioned in the bill, as being in possession of the wife at the time when the bill was filed ; the defendant was also taxed with all the costs. From this decree the defendant appeals to this court.
Marriage is admitted to be founded on agreement between the parties, and in some form it is a social necessity ; even the beasts and the birds, under its infiuence? “pair
As we ascend higher in the scale of animal organization, and contemplate our own race, we find that marriage has, more or less, connected itself with the sacred rites of the people of all nations. Some have even thought that its influence does not terminate with life, and that it is indispensable for happiness in the life to come.
This important contract is acknowledged in all Christian countries, to impose upon the parties to it something beyond the mere obedience of the wife towards the husband, and mere protection and maintenance on the part of the husband towards the wife. It is undoubtedly a contract at common law.— Campbell's Heirs v. Gullatt and Wife, 43 Ala. 57" court="Ala." date_filed="1869-01-15" href="https://app.midpage.ai/document/campbells-admr--heirs-v-gullatt-6507627?utm_source=webapp" opinion_id="6507627">43 Ala. 57. It has been said, by the highest authority, that Christianity is a part of the common law. — Ormishund v. Barker, Will’s Rep. 538; 8 John. 291; 5 Binn. 555. Yet, although this may not be the law of this State to the same extent that it has been declared in England, it certainly .enters, in no small degree, into the ascertainment of social duties, when the statute law is silent on the subject. It must also be granted, that whatever is irreligious, in most instances, is wrong, and in many it is illegal. — 2 How. U. S. Rep. 127, et seq.
The law requires that the wife shall obey all the just and reasonable marital commands of the husband, and it requires that the husband shall protect and maintain the wife, according to his station in life; that is, according to his means. It also refuses to sanction any “conduct,” on the part of the husband, beyond what may be necessary to accomplish these important ends. But Christianity goes much further. It requires that the husband shall love the wife; that he “shall delight in her as in himself.” Itaque et vos singuli, suam quisque uxorem, ita diligeto, ut se ipsum; uxor antum videto, ut revereatur virum. — Pauli's Epist. ad Eph. chap. 5, v. 33, Beza’s Translation, New Testament, 2d
A marriage may therefore be legal, though there is no love, in the apostle’s sense, on either side. Nevertheless, it may be doubtful whether it may be said to be a Christian marriage, in the absence of this important element. Hence, all Christian marriages may reasonably be presumed to have had this important ingredient, as one of the inducements which led to its consummation. To hold otherwise, would be to insinuate that the Christian, in this great relation, would belie his faith and creed.
Archbishop Rutherford, one of the most able and eminent of the commentators on Grotius, has placed marriage among the natural rights of men. He defines it in these words: “Marriage is a contract between a man and woman, in which, by their mutual consent, each acquires a right in the person of the other, for the purpose of their mutual happiness and for the production and education of children. Little, I suppose, need be said in support of this definition, as nothing is affirmed in it, but what all writers upon natural law seem to agree in.” — Ruthf. Insts. of Nat.
Mr. Parsons, referring to the same subject, in a late work of the highest authority, uses like language. He declares that “the relation of marriage is founded on the will of God, and the nature of man; and it is the foundation of all moral improvement, and all true happiness. No legal topic surpasses this in importance ; and some of the questions -which it suggests are of great difficulty.” — 2 Pars, on Gontr. p. 74.
The law of this State declares that the purpose of this great contract has failed when the husband treats the wife with cruelty, and it allows a divorce in her favor, “when the husband has committed actual violence on her person, attended with danger to life or health ; or when, from Ms conduct, there is reasonable apprehension of such violence. Bev. Code, § 235J.
Here the proofs show, most clearly, that the husband did not love his wife; that he did not delight in her as in himself. She complained of a gross insult offered her, by him, on the bridal trip to New York, in the first month after the marriage. To strangers he was of genteel and pleasing address ; with his wife and children he was “indifferent, cold, harsh, fault-finding and unpleasant,” and he repelled their demonstrations of affection. He habitually addressed her, at home among her own family, as “a damned fool,” “a damned liar,” and “a damned lazy woman.” He obscenely told her that she always went bachivards when she attempted to do any thing about the household ; he ridiculed and scoffed at her dress and appearance, and said she was “sloomy,” and looked like an “Irish biddy ;” he told her he would see her “damned and in hell,” or “dead and damned,” before he would grant her a trifling and customary favor, almost always allowed to ladies in her station in life ; he threatened to abandon sleeping in the same bed-chamber with her, because he was tired of her “damned nasty babies;” and, in the presence of other females, he indecently told her “to kiss unmentionable parts of his body.” And, in the end, he proposed to leave her, and
But going beyond this ill-treatment, by insulting language, there must be some evidence of bodily ill-treatment or an actual and serious apprehension of it, — Bryant v. Bryant, 34 Ala. 516" court="Ala." date_filed="1859-06-15" href="https://app.midpage.ai/document/bryan-v-bryan-6506538?utm_source=webapp" opinion_id="6506538">34 Ala. 516, 519; Smedley v. Smedley, 30 Ala. 714" court="Ala." date_filed="1857-06-15" href="https://app.midpage.ai/document/smedley-v-smedley-6506067?utm_source=webapp" opinion_id="6506067">30 Ala. 714. It appears from the testimony of Mrs. Norris, the mother of the complainant, who is shown to be a lady of superior intelligence and the highest credit, that she lived with her daughter for several years after her marriage with the defendant, and during this time the complainant frequently appeared with serious injuries upon her person. Once her cheek was wounded, once her lips were bruised and bleeding, and once there was a contusion on her side, which was swollen and discolored with coagulated blood, and remained sore for above two months, just before the birth of one of complainant’s children; and when she chided the defend
As a general principle, upon the separation of the husband and wife, the father is entitled to the custody and control of the minor children, because he is bound for their maintenance and support. — Ex parte Boaz, 31 Ala. R. 425. But upon a divorce, the court may' decree the custody of the children to either party. — Eev. Code, §§ 2367, 2397. The provision of the Code upon this subject is in these words: “Upon granting a divorce, the court may give the custody and education of the children to either father or mother, as may seem right and proper; having regard to the moral character and prudence of the parents, the age and sex of the children; and pending the suit, may make such orders in respect to the custody of the children as their safety and well-being may require.” — Eevised Code, § 2367.
It appears that the parties to this ill-starred marriage had three children — one boy and two girls. The oldest, the boy, was six years old in June, 1867, and the youngest was fourteen months old when the bill was filed, on the first of March, 1867, and the other was four years old in July, 1867. The two younger children were too infantile to bear separation from the mother. Their very tender years still needed the ceaseless and delicate attentions of a mother’s love. No one else could fill her place, without more or less of jeopardy to the safety and well-being of these little ones. As they had but .one brother to whom they would have to look, in future life, for manly guidance and protec
It appears that there were twenty-nine witnesses, whose evidence was put in upon the hearing for the complainant. Some twenty or more of these speak of the character of the complainant, her education and conduct. Many of these knew her intimately, from early childhood to the filing of the bill in this case; and they testify, without exception, that she was well and politely educated in the best schools of the country, that she was lady-like in her conduct and amiable in her disposition, and that her attention to her children was tender, diligent and affectionate, and that she nursed them with untiring care and assiduity when sick, even at the peril of her own health.
On the other hand, the character and conduct of the father, at home, is shown to be cold and indifferent to his children; he spoke of them as “ damned dirty babies,” who so much annoyed him as to threaten to drive him from his customary bed in his wife’s sleeping apartment. He refused or failed to aid his wife in nursing them, when they were complaining; and when the older little girl was very unwell, and supposed to be in danger of death, the only consolation he had to offer to her mother, who expressed her fears of the child’s extreme danger, was, that “ if the child died, let her diehe would have her “ decently buried.” He is also shown to be a father, at home among his family, much given to obscene, rude and profane language, and inclined to drunkenness, after the filing of the bill in this case. — Bryan v. Bryan, supra.
Under such a state of facts, the chancellor acted very properly in decreeing the control and education of the children to the mother, and restraining the father, by injunction, from interfering with her in the discharge of her duties towards them in this particular.
One other question, arising upon the merits of this cause, remains to be disposed of. It is the title to the house and lot conveyed to the wife during the late rebellion, and the furniture which was in the house at the filing of the bill in this case.
Notwithstanding this, the defendant contends that he paid the whole purchase-money for the lands thus conveyed to the wife, out of his own funds; and explains that the deed was made to complainant, in order to avoid the loss of the lands by confiscation by the government, by reason of the husband’s treason, during the late rebellion. There is not any sufficient proof of this purpose, or that, the complainant received the conveyance under any agreement or understanding to hold the land thus conveyed in trust for the husband. A husband may make a valid gift to his wife, during coverture, out of his own property, and it vests a good title in her, both at law and in equity. — Goree v. Walthall, Adm’r, January term, 1870. Besides, the defendant does not come into this court with clean hands. Upon his own explanation, his conduct was not untinctured with a purpose of fraud against the government. He admits that he had committed treason against his country, and then he plots to defeat the government of the right that might and did arise, under this treason, to his lands. It would be an approval of such conduct to give the defendant the aid he seeks. But the proofs do not show any thing more than a simple gift to the wife. The proofs wholly fail to show a conveyance upon trust or condition for the husband’s use. It must, therefore, stand as it appears ; as a conveyance of the absolute estate to the wife. It also appears that the husband had received a much
The motion to suppress the depositions of Mrs. Norris, Mrs. Parkman, James E. Caldwell, and others, was made upon the grounds that the witnesses had been furnished with copies of the interrogatories and cross-interrogatories before they were called upon to be examined by the commissioner, and they had examined them, and had, some of them, prepared their answers and written down their depositions before they were called before the commissioner to testify. The proofs show that copies of the interrogatories and cross-interrogatories were furnished the witnesses before they were examined by the commissioner, and that Caldwell had prepared a written “ memorandum” to which he frequently referred while answering, but the commissioner could not state whether it was a full answer or answers or not. This motion is made upon the respondent’s construction of one of Lord Clarendon’s orders, directing the manner that the examiner shall proceed to take deposition, in the English courts of chancery. — 2 Dard. Ch. Pr. p. 1061; Gres. Eq. Ev. p. 53; Shaw v. Lindsey, 15 Vt. 381" court="Vt." date_filed="1843-02-15" href="https://app.midpage.ai/document/irish-v-mattison-6572723?utm_source=webapp" opinion_id="6572723">15 Vt. 381, marg.; 3 Greenl. Ev. § 324.
This objection, so far as I know, is novel in our courts. Undoubtedly, by the practice in this State, the complainant may show a witness a copy of the interrogatories upon which he intends to call upon him to be examined. He would be entitled to a copy of the interrogatories filed by the opposite party, and having such copy, there is no reason why it may not be shown to his witness. — Rev. Code, p. 830, rule 49. If this may be allowed without injury in reference to the interrogatories in chief, then it seems that for a like reason the same practice might be applied to the cross-interrogatories. Ubi eadem ratio, ibi idem lex. — 7 Coke, 18; Broom’s Max. p. 64. The orders above referred to, as fixing the practice of the English courts of chancery in like cases, have never been adopted as positive rules by our courts or by statute, but they may be looked to “ as furnishing proper analogies to regulate the practice.” — Re
The chancellor did not err in overruling these objections.
There is also another series of motions to suppress these depositions, or a portion of them, on other grounds, which were overruled by the chancellor, and which are insisted on as error. The objection is, that certain of the cross-interrogatories were not answered, or evasively answered. This objection seems to be rather technical than substantive. One or two instances of the grounds of these objections may serve as a fair sample of all the rest; Mrs. Norris was asked, “ whether she did not, or had not talked over with the other witnesses what they would swear in in this case.” She answered, that she “ had talked with them about the matter.” She was again asked whether she had not, in a certain locality and during certain years, spoken “in high praise and commendation of the defendant;” she answered, “I spoke well of respondent whenever my friends would speak of his conduct. I think I may have so spoken of him in the years mentioned.”
It is contended that this answer was evasive, because the witness does not disclose whether she spoke “in high praise and commendation” of defendant or not, at the place and time referred to. This would almost appear like trifling, in so serious and painful a litigation, did not the very great ability and admitted eminence of the learned counsel, who have so liberally indulged in this sort of practice, in this case, altogether forbid such a conclusion. A deposition will not be suppressed on account of a failure to an
Here the facts sought to be elicited by the questions supposed to be evasively answered, or answered insufficiently, or not at all, are wholly immaterial, upon the merits of the case. No responsive answer that could have been given to them would alter the determination of the case. They, almost without exception, intended to impeach the testimony of Mrs. Norris and other witnesses, who confess a leaning to the complainant in this suit. But the character of Mrs, Norris and the other witnesses, who con- ■ cur with her in her statements, in reference to the defendant’s cruel and shameful conduct towards his wife, almost during the whole term of his married life, leaves no doubt in my mind of her truthfulness, and of his guilt.
• The other objections to specific questions and to certain other portions of the evidence, need not be examined in this opinion. If they were all sustained it would not alter the judgment of the court. There is abundant testimony besides the matters thus objected to, to sustain the decree of the chancellor below.
It may be proper to add, that the proofs show that the defendant was a person of polite address, when abroad from his own family; moral in his deportment, and of good business habits, and that he furnished his wife with enough to eat of suitable quality of provisions, except on one occasion, when he refused or failed to provide her the means for a dinner, which her mother supplied for her; and he also afforded her a sufficiency of suitable, handsome and costly wearing apparel. But this seems to have been done as much for his own gratification as to render the complainant comfortable and happy. Yet to a refined and educated woman, accustqmed to be caressed and admired, as ladies in her station in society usually are, what are baubles such as these in comparison to the love and sympathy of her husband ? They are as nothing! The chain
Let the decree of the chancellor in the court below be in all things affirmed, and the appellant, Eosamond C. Goodrich, will pay all the costs in this court and in the court belotv.