87 Va. 148 | Va. | 1890
delivered the opinion of the court.
The bill charged adultery committed by the defendant^ Monemia F. Hampton, with J. Frank Hampton, the brother of the complainant, and the court made the decree appealed from, that the charge of adultery against the defendant, made
With the bill a letter, purporting to have admitted the fact of the adultery as charged in the bill, was filed as part of the bill, and the testimony of the complainant’s mother and others was taken to prove the admission of the defendant of her adultery with the brother of the complainant. The testimony and explanations of the defendant wife were excluded, ■and as the court expressed no opinion and alleged no reason specifically, the presumption is that the decision of the court was, in a great measure, influenced by the letter and alleged admissions. These should have been excluded under the law, section 2260, page 561, Code 1873. “Such suit shall be instituted and conducted as other suits in equity, except that the bill shall not be taken for confessed; and whether defendant answer or not, the cause shall be heard independently of the admissions of either party, in the pleadings or otherwise.” 1 Minor’s Inst., 256, says: “It is an established maxim that a divorce is never to be decreed for adultery (or, indeed, for any other cause) upon the confession of the parties merely without auxiliary proofs, experience having shown that such a practice is productive of collusion and other flagitious frauds.”
The defendant wife answered the bill, and, responding to its charges, utterly denied them, and most emphatically the charge of adultery. After narrating what did occur, and how her husband had deliberately and systematically practiced upon her hopes and her fears by persuasions, threats and promises to inveigle and drive her into the alleged confession, the answer says, “He was the stronger and she the weaker
This answer, though not in itself evidence, or having the effect of an answer called for under oath, yet makes up the issue, and calls for full and strict proof of the charge made in the bill; and, by the nature of the cause, even if there were no denial in the answer, or no answer in the cause, or though it expressly and unqualifiedly admitted the charges of the bill, yet the complainant is under the obligation to establish, by full, clear and adequate evidence, the charges made in his bill, and not merely to create inference, suspicion or doubt, which we think is all that he has done, even by his own witnesses, and leaving out of yiew the testimony of the numerous, weighty and unimpeachable witnesses who prove the truth of the positive statements made in the defendant’s answer as to the conduct and motive of the complainant in procuring the alleged admissions from the defendant by threats of desertion
“It is a principle, extending through all the departments of our law, that an act brought about by fraud or by duress, whoever the party may be, is void.” The principle is that, when the will is taken captive and so does not act freely, the thing apparently done by it, yet not really so, shall not bind the doer. Now, in the relation of marriage, the husband is recognized by the law as, in a certain sense, holding the wife in subjection. See Bishop on the Law of Married Women, section 478. “One form in which the marital influence is brought to bear improperly upon the wife occurs where the husband threatens to separate from her.” Idem, section 479. “Looking at the reason of things,if, as is well settled, a threat of injury to goods or other property, a threat of battery or of illegal imprisonment, are held sufficient to constitute duress, and to avoid a contract on the ground that they take away freedom of action and are calculated to overcome the mind of a person of ordinary firmness when believed in, it would seem too clear for argument that equal effect ought to be given to a threat by a husband to abandon his wife and turn her out upon the world to shift for herself, in the anomalous condition of a wife without a husband. If the degree of injury apprehended, and its almost remediless nature, are to be taken into account (and not to do so would be irrational), then certainly, in these respects, the abandonment of a wife by her husband is far in excess of a battery to the person or a trespass upon the goods, and stands upon stronger ground.” Tapley v. Tapley,
The bill charges no specific act of adultery—neither time, place, nor circumstance; and there is nothing in the testimony of the complainant’s own witnesses as to any act of adultery. Even' his three negro witnesses (one of whom, a servant- boy, was proved, by respectable citizens of the neighborhood, to be utterly unworthy of belief on oath; and another, a negro woman who had been discharged from service by the defendant; and the third, a negro woman who, with her husband, had been, long years before, in the service of the defendant, and who is not corroborated by her husband,) testify only to certain acts of doubtful propriety; which, they say, occurred many years prior to their testifying in this suit; and which, with the alleged mention to one person, by one of them, after the lapse of a year, they never mentioned or remarked upon, in all that time; nor until drummed up by the complainant for the purposes of this suit. The complainant says that he and the defendant were married in April, 1879; “that during all said time to 1886 (March) he was true and faithful to his said wife, * * was kind, affectionate, and devoted to her, and was in her society as much as his business engagements would permit; and, until about the time of their separation, * * * March 18th, 1886, had confidence in her virtue, devotion, and fidelity to him.” That his apprehensions in regard to his said wife’s virtue and fidelity to him were first awakened in (March) the early part of 1886, by certain circumstances indicating-that she was enceinte, which was followed soon after by a miscarriage. The record shows that the sickness to which, alone, he could refer, occurred about the middle of December, 1885; and, though both the physicians who attended her in that sickness were put upon the witness stand by the complainant, neither of them spoke of or referred to a miscarriage.
J. Frank Hampton was examined as a witness in this case, and his testimony, both in chief and on cross-examination at very great length and minuteness, is distinct, positive, consistent throughout, dignified and impressive. He denies wholly the charge of criminal, or even improper intercourse or familiarity with the defendant, ever or at any time, as made in the bill; and he utterly denies the familiarities, as testified to by the negro witnesses to have been observed by them five or more years previous to the 17tli of March, 1886—the date of
This witness is fully corroborated by all the persons who were present at the meeting at the corn-crib (the details of which he has given), by Mahlon Stocks and Mrs. J. Frank Hampton. They both said that the complainant said to his wife, “Monemia, here is Frank and his wife and your father, say what you have already said, or you know your doom;’’and they all concur in saying that she, being greviously distressed, made some mumbling reply, not distinct at all; and they all say that Lydia Nichols was not at or on the scene at that time, and that when she did come to them, she said in reply to Mr. J. Frank Hampton’s statement and inquiry, if she had ever seen anything wrong between J. Frank Hamp
This witness, Lydia Nichols, is a spinster, 50 years of age, and the aunt of the complainant, and lived in the house with complainant and his wife all the time. She was a witness for complainant, and, having testified that she had observed undue and improper conduct between J. Frank Hampton and J. Nick Hampton’s wife (of which she never apprised her nephew, J. Nick Hampton,) was asked, “ What did you observe? When did you see any familiarities between Frank and Nick’s wife, and state all that you know to induce such belief?” To which she answered, “ I would see them sitting together, she sitting in his lap, talking together. She would go-after him to the barn when he was out, and they were upstairs together.” And then in answer to the question, “On what terms were you and Mrs. Hampton during the period from her marriage in 1879, to the separation in 1886 ? ” She said, “We were on good terms, sometimes we had a word or two, but we got friendly again. I had nothing against her. I was not an enemy to her. I always waited on them and done what I could when she and the child were sick, and he, Elwood, was sick a heap. I always thought a great deal of the child and her too, and that good opinion continued up to the separation.” ’
The witnesses of the complainant (except the three negroes), testified of the defendant as an amiable, industrious, thrifty wife; kind and affectionate to her husband, and mindful of his interests; and it is remarkable, that in all the many years of her residence in that household, including J. Frank Hampton, where her husband placed her, no breath of suspicion went out against her that could reach the ears or the apprehensions of her husband, or of the numerous relatives and visitors of the family. James W. Nichols, the brother of Lydia Nichols, and the uncle of complainant, who says that he was often and familiarly at the house and in the room which Nick Hamp
It is fortunate, too, for this defendant—a wife and loving mother—whose mouth is closed against the grevious charges made by the husband and his negro witnesses, and who is debarred by a rule in law from giving (as she has done in her sworn answer), a full and satisfactory explanation of the expressions, and the letter wrung from her in the calamity of her situation, and dictated by the cunning promises and brutal threats and coercion of her accuser, that the record shows the motive and the manner of the appellee, J. Nick Hampton. He sold all his personal property, and by a deed dated 15th of March, 1886, and recorded the next day, he conveyed to his brother all his interest in a tract of land for which he received all the purchase-money in cash, $1,630; his wife, the defendant, uniting in the deed, upon the promise or suggestion that he had in view the purchase of a home in Mecklenburg county, and intended to take his family there to reside. Having achieved this posture, upon his return from Leesburg with the purchase-money on the 17th of March, 1886, he then breathed the first sussuspicion (or “ apprehension,” as he expresses it), of his wife’s in-infidelity, or of any conduct displeasing to him. And then, on the 18th of March, the day after the prepared and artful scene at the corn-crib, he takes her to her father’s house, and there abandons her, he having the young child, Elwood, and all the money. This much the record shows outside of the wronged
Isaac L. Stocks says, “Between the 10th and 15th of August, ■there was an Association of New-School Baptists at North Fork. I saw Mr. Hampton, and asked him about treating my sister so mean. He said he knew'he had done it; he knew he had scandalized her, he was sorry for it, he was willing to take her back. I told him, never in this world. I said' I would disown her as a sister if she'went back to him.”
The appellee admitted'to Mrs. Stocks and to James L. Stocks, and to other witnesses in the record, that he had used unfair means—had undermined her—to get her to confess and criminate Frank Hampton. And yet the record shows that he did not himself believe his own story. He remained on friendly
If the record did not attest the decree of the circuit court of Loudoun granting the divorce and declaring the adultery charged to have been fully established, it would be incredible, that such circumstances, only proved by such witnesses, had satisfied the guarded discretion of a reasonable and just mind to such a conclusion. Even if such testimony were not wholly discredited by the record, it would be destructive to the dearest of family ties, and the dignity and safety of society to permit it to have any weight after such a length of time. Our judgment is, that the decree complained of is wholly erroneous, and must be reversed and annulled; and the cause be remanded to the circuit court of Loudoun, with directions to dismiss the complainant’s bill with costs to defendant, and a reasonable attorney’s fee to her counsel.
Decree reversed.