62 Tex. 216 | Tex. | 1884
The adultery of the wife, upon which this suit for divorce was founded, seems to have been fully proved. It was also as satisfactorily shown that the husband, some two years after separating from his wife on account of her adultery, was himself guilty of that offense, and lived in cohabitation with another woman. It was for this reason that his application for divorce was denied by the court below.
By the law of England, independent of statute, neither the husband nor the wife can have a divorce for adultery committed by the other, if the complainant has also been guilty of adultery. “ And it makes no difference which was the earlier offense,” or even if, as in the present case, “ the plaintiff’s followed a separation which took place on discovery of the defendant’s.” 2 Bish. on Mar. & Div., sec. 80; Proctor v. Proctor, 2 Hag. Con., 292; Brisco v. Brisco, 2 Add. Ec. R., 259.
This is also held to be law by all the American courts passing upon the question. Smith v. Smith, 4 Paige Ch., 432; Flavell v. Flavell, 5 C. E. Green, 211; Mattox v. Mattox, 2 Ohio, 233. See, also, 2 Greenl. Ev., § 52.
Whatever exceptions may have been engrafted by the decision of some courts upon the defense of recrimination in suits for divorce, where adultery is not the recriminatory act pleaded in defense, we believe it is the universal rule, that, when both parties are guilty of adultery, neither can obtain a divorce from the other, no matter which was prior in point of time in committing the offense.
Article 2865 of our Revised Statutes mentions several causes which will prevent a divorce on the ground of adultery, all of which were already considered good defenses by the law both of England and America. It enumerates condonation, connivance, exposure of
As was said in Mattox v. Mattox, supra, the plaintiff must come into court with clean hands. We must not offer a bounty to guilt, or “ remove one of the strongest motives to that correctness and chastity of conduct which is necessary to render the marriage state either pleasant or convenient.”
The court below did not err in refusing the divorce, and the judgment is affirmed.
Affirmed.