139 Va. 508 | Va. | 1924
after making the foregoing statement, delivered the following opinion of the court:
The defendants, who deny the dower right of the plaintiff sought to be enforced by the bill in this cause, rely upon the statute (section 5123 of the Code), as applicable to the evidence in the cause, to support the decree under review. That statute is as follows:
“Dower barred by. adultery of wife. — If a wife, of he own free will, leave her husband and live in adultery, she shall be barred of her dower, unless her husband be afterwards reconciled to her, and suffer her to live with him.”
Our view of the proper construction of this statute is that, before a widow can be barred of her dower in her
This statute, while somewhat different in its precise phraseology, is held, by all of the authorities on the subject, to be the same in meaning as the English statute, Westm. 11, 13 Edw. 1, chapter 34; and such authorities are uniform in the holding that the construction thereof just stated is the proper and correct construction. Reel v. Elder, 62 Penn. St. 316, 1 Am. Rep. 414; Shaffer v. Richardson’s Adm’r, 27 Ind. 122; Cogswell v. Tibbetts, 3 N. H. 41; Bell v. Nealy, 1 Bailey (S. C.) 312, 19 Am. Dec. 686. And it is also uniformly held that voluntary separation or departure of the wife from the husband and voluntary remaining away from him thereafter, “as well as adultery, is necessary to make the bar (of the statute) complete.” Reel v. Elder, supra.
That such is the proper construction of the statute is not only not controverted in argument before us, but is concurred in by counsel on both sides of the case.
It follows from this that the mere facts that the wife leaves the home and that her husband remains there do not make the statute applicable. If the leaving of the home by the wife is caused by such conduct on the part of the husband that the husband is guilty of constructive desertion of the wife — certainly where such constructive desertion consists of actual, physical, cruelty on the part of the husband, in such a degree as to cause the wife to leave and justify her in leaving the home to protect herself therefrom — it is not a voluntary leaving — it is not a leaving of the husband “of her own free will” within the meaning of the statute.
It is true, however, that, although the leaving of
In Bell v. Nealy, supra, the original leaving of the husband by the wife was caused by his cruelty; but the refusal of the wife afterwards to return to him, when he requested her so to do, was not from any fear on her part that he would continue to be cruel to her if she did so, but for the sole reason, as she stated, when he frequently solicited her to return and live with him, “* * that she never liked him.” The presiding trial judge, in such case, held that “it was clear, on authority, that although her departure had been compulsory, if she voluntarily remain with her adulterer, when the husband is ■willing to take her back, she is barred by the statute;” and on this ground applied the statute in bar of the wife’s right of dower. The appellate court affirmed the case, saying: “The court concurs with the presiding judge, for the reasons he has given on all the questions he has discussed.”
Such being the law, we have no occasion to consider
1. Did the wife, of her own free will, desert the husband, and afterwards, when requested by him so to do, refuse to return to him, without just cause for such refusal?
We are of opinion that the preponderance of the evidence in the cause does not sustain an affirmative answer to this question. On the contrary, we are of the •opinion that the preponderance of the evidence clearly ■answers such question in the negative.
The testimony of the plaintiff on these issues of .-fact is circumstantial, positive, consistent, clear and convincing in its character. And she is expressly corroborated by five other witnesses, with respect to the .most material circumstances which tend to show that she was forced, as she testified she was, to finally and •permanently leave the home of her husband by his cruelty to her on his frequently recurring drunken sprees, •culminating in the extreme cruelty of conduct on the occasion of her final departure from the home, to which ;she testified; and that she afterwards refused to return to the home because of the fear that she would be subjected to the repetition of cruelty of treatment by the husband if she did return; and that such fear was a reasonable fear under the circumstances. The testimony
There is really nothing in the testimony of and for the-two defendants, who endeavor to maintain the affirmative of the question under consideration, when the manifestly disingenuous character of that testimony is considered, to controvert the fact that when on his drunken sprees the husband was guilty of the numerous acts of cruelty, which the wife testified finally forced her to permanently leave the home of her husband, or to controvert the truth of her testimony to the effect that she-had reasonable ground to fear that she would be cruelly treated by her husband if she returned to him, as he requested, and that she, for that reason alone, refused toafterwards return to-him. None of the testimony of and for such defendants even attempts to controvert the-testimony of and for the plaintiff on the subject of what-, was the conduct of the husband towards the wife prior to her final leaving of his home, or what might reasonably have been expected would have been his conduct towards her had she afterwards complied with his request for her return to his home, and had she attempted to again live with him there in the marriage relationship, when the husband was'on his drunken sprees. The-, testimony of and for the two defendants mentioned carefully avoids dealing in any detail with the times of such drunken sprees; except that, for example, Robert-
“Q. Please state, on the various occasions during the last ten years that Peel Harman and his wife lived together, when she would leave home 'at periods and remain away from home, and when later Peel would go*540 for her and she would return home, she ever stated any reasonable cause for leaving or not, or about what explanation would she give for her conduct?
“A. Well, now; I don’t know whether I could say that-I know that.”
Such an answer, from this witness, acquainted as he-must have been with the facts, is, by its very silence, convincing in its confirmation of the truth of the testimony of the wife. Further: The testimony of the-plaintiff and of her chief witnesses was so circumstantial that it would have been easy to have produced witnesses-to contradict their statements of fact, if untrue. And, yet, after the testimony of and for the plaintiff was taken, no deposition of a single witness was taken in behalf of the defendants even attempting to contradict-the aforesaid testimony of and for the plaintiff.
Moreover, in one of the two letters of the husband,, written on May 21, 1919, shortly after the final departure of the wife from Ms home on the occasion of the shooting of the son Hallett, etc., we find unmistakable-confirmation by the husband himself of the wife’s testimony to the effect that that departure was due to the-cruelty of the husband’s conduct towards her which culminated on that occasion. In that letter he says this:: “* * I had been in good hopes of us getting along all right until Hallett come and raised his row. Well; he is-sorry about it, just as sorry as I am about our trouble. * * I do not feel that I mistreated you, but, nevertheless, if you feel that way, I ask your forgiveness for-any and all wrongs that I have done you. * * ” Why-mention mistreatment, if it had no existence, except in the wife’s statement, or wrongs to the wife if no wrong-was done her? It is evident from this that the husband was informed as sóon as he sobered up what his wife then claimed, ante motern litem, was his conduct on the oc—
And the other of the two letters just mentioned also tends strongly to corroborate the testimony of the plaintiff, in that it shows that a degree of estrangement existed between the husband and wife following her final departure from the home, which is to be accounted for only by the inference that the wife’s testimony concerning the cause of that departure is true.
That many of the acts of cruelty of the husband occurred a long time before the final departure of the-wife, and that the wife returned and cohabited with the husband after all of them, except those which were inflicted upon her at the time of her final departure from the home, does not render the evidence of such repeated conduct any the less cogent in establishing the fact that such last departure of the wife from the home was not of her own free.will.
In Owens v. Owens, 96 Va. 191, at p. 195, 31 S. E. 72, 74, this is said: “Cruelty * * is cumulative* admitting of degrees and augmenting by addition; so that it may be condoned and even forgiven for a time* and up to a certain point, without any bar in sense or reason to bring it forward when the continuance of it has rendered it no longer condenable. While, therefore, acts of violence committed at an earlier period, and which have not prevented the wife from living with her husband, or going back to him after they have been separated, cannot be made the sole foundation of an action of separation, they form the subject of investiga
“Cruelty consists of successive acts of ill treatment,if not of personal injury; so that something of condonement of earlier ill treatment must in such eases necessarily take place. Section 305.” See also Elder v. Elder, ante, p. 19, 123 S. E. 369.
The decree under review will be reversed, and the cause will be remanded for further proceedings, not in conflict with the views expressed in this opinion.
Reversed and remanded.