Kinney v. . Kinney
63 S.E. 97
N.C.
1908
Check Treatment
WalkeR, J.

The. Court properly refused to submit the issues tendered hy the defendant. Whether the plaintiff had knowledge of the. adultery in Spencer between his wife and H. L. Reynolds in February or March, 1906, was not an *325 issuable fact in this case. The statute does not require that' such knowledge should be alleged in the complaint, but in the affidavit or verification of the pleading. When the proper affidavit is made the Court acquires jurisdiction of the cause. Hopkins v. Hopkins, 132 N. C., 22; Clark v. Clark, 133 N. C., 28. The pleadings in the action present the issue which should be submitted to a jury.

The other issue tendered by the defendant, if correct in form, was not raised by the pleadings. If the defendant intended to rely on wrongful abandonment by the plaintiff in order to defeat his application for a divorce, she should have alleged it in her answer, and for the same reason that it is necessary to plead condonation or re-crimination for the same purpose. The statute only provides, that in actions for divorce the material facts alleged in the complaint shall be deemed to be denied by the plaintiff, whether actually denied in a pleading or not. Revisal, sec. 1564. This does not mean that the defendant is not required to plead new matter which may, if found to be true, defeat the right to a divorce, and it has been so decided. In Steel v. Steel, 104 N. C., at p. 637, this Court held, “that party who asks the Court to grant a divorce from the bonds of matrimony, is not bound to set forth, or prove as a prerequisite to granting the prayer of the petition, the negative averment, that he has not himself been guilty of adultery, or is not in fault. In Edwards v. Edwards, 1 Phil. L., 534, Chief Justice Pearson suggests, that if such a 'test oath’ were imposed, it might prove good policy, as it would force a petitioner to purge his conscience and probably prevent a great many applications for divorce. The plaintiff is not held bound to anticipate and negative in advance all grounds of defence to the action he brings, and petitions for divorce do not constitute an exception to the general rule,” citing Edwards v. Edwards, 61 N. C., 534; Horne v. Horne, 72 N. C., 530; Toms v. Fite, 93 N. C., 274. In House v. House, 131 N. C., at p. 143, the present Chief *326 Justice, referring to the question of abandonment says: “But such conduct is not bere pleaded in the answer, nor found by the jury, nor any issue offered, nor any prayers for instruction on that aspect, nor is it clear that the evidence would have justified the-submission of such issue, if such matter had been pleaded.” See also 14 Cyc. p. 671; Smith v. Smith, 4 Paige’s Ch. 432; Jones v. Jones, 18 N. J., Eq., 33. In Tew v. Taw, 80 N. C., 316, it appears from the original transcript filed in this court that the issue, as to the abandonment of the husband, if not raised by the pleadings, was submitted without objection.

We do not think the allegation of the seventh section of the complaint, when properly construed and considered in connection with the denial of it in the answer, raised an issue as to abandonment. There is nothing said about abandonment, but the allegation simply is that the adultery was committed without the husband’s procurement and without his knowledge or consent. He might have procured the adultery to be committed or consented to it, even if he had continued to live with his wife. The language used in section seven of the complaint, taken in its ordinary sense, does not imply that he had abandoned his wife, so as to put the matter in issue.

The defendant’s objection to the submission of the fourth issue was not well taken. In any view of the case the issue was raised by the pleadings and was proper .for the consideration of the jury.

The testimony of the witness, John P. Wingate, as to the act of adultery in Hedrick’s field, was competent as tending to explain the previous relations of the parties. State v. Wheeler, 104 N. C., 893; State v. Stubbs, 108, N. C., 774; State v. Guest, 100 N. C., 410; State v. Raby, 121 N. C., 682; Toole v. Toole, 112 N. C., 152.

There was no error in refusing tó give the instructions requested by the defendant, or in overruling the motion to *327 nonsuit- • That follows from what we have already said as to the other exceptions, as it is not contended that there was no evidence to. support the finding upon the fourth issue. This disposes of all the defendant’s exceptions..

■ No error.