101 Ark. 522 | Ark. | 1912
(after stating the facts). I. As to whether or not appellant committed adultery as found by the chancery court was purely a question of fact. The rules of law which should govern in the consideration of this case are well stated in 14 Cyc. pp. 693-6, as follows:
“The charge of.adultery may be sufficiently proved by evidence of circumstances leading to an inference of guilt. It is impossible fully to indicate the circumstances which will lead to such a conclusion, because they may be infinitely diversified by the situation and character of the parties, and by many other incidental matters which may be apparently slight and delicate in themselves but which may have most important bearings in the particular case. While the circumstances need not be such that an inference of guilt is the only possible conclusion that can be drawn therefrom, yet the facts must be such as to lead a just and reasonable man to the conclusion of guilt. They are not sufficient if they merely justify a suspicion of guilt, in the absence of other incriminating circumstances. * * * So where the circumstances adduced in support of the charge are capable of two interpretations, one of which is consistent with innocence, the divorce should not be granted.
“ If an adulterous disposition on the part of defendant and the alleged paramour is shown, and it appears that there was an opportunity for them to commit the offense, these facts are sufficient to establish adultery. * * * To have this effect the opportunity must occur under incriminating circumstances. * * * Adultery may be established by the fact that the parties occupied the same room at night or the same bed, in the absence of an explanation of the incriminating circumstances.”
The finding of the chancellor upon the conflicting evidence in this record is most persuasive with us. We are of the opinion that his finding of fact was not against the clear preponderance of the testimony, and it is a well-settled rule of this court not to reverse unless the finding of the chancery court is clearly against the weight of the evidence: Hinkle v. Broadwater, 73 Ark. 489; Whitehead v. Henderson, 67 Ark. 200; Norman v. Pugh, 75 Ark. 52; Cunningham v. Toye, 97 Ark. 537; Cotton v. Citizens Bank, 97 Ark. 568.
The preponderance of the evidence justifies the conclusion that the appellant had the adulterous disposition, and that he often had the opportunity to commit adultery with the women whom he kept in his house during the absence of his wife, and that the testimony fails to give any satisfactory explanation of the circumstances tending to incriminate him. According to the testimony which the chancellor accepted, and which we are unable to say was not the truth, in regard to the conduct of appellant, he was seen occupying attitudes with reference to the women whom he had brought into his home that were not consistent with a man of virtue or one who had a proper regard for social purity.
Without going into detail, it is sufficient to say that we are of the opinion that the conclusion of the chancellor is correct, and that the decree granting the appellee an absolute divorce should be affirmed.
II. The supersedeas bond executed on January 9, 1911, did not have the effect to supersede the judgment of the court rendered on December 10, 1910, with reference to the disposition of the property of appellant, for the decree, in that respect, shows that it was not intended to be final, but that the court continued the hearing concerning the disposition of the property until a future term of the court. The law itself (section 2684, Kirby’s Digest) provides as to what part of the husband’s property shall go to the wife in case of an absolute divorce, and the recitals of the decree show that the chancellor was not advised as to the amount of property, real and personal, possessed by the appellant, and that he therefore appointed a master with directions to take evidence in order “to ascertain the amount of real estate and personal property of every kind and character now in the possession of and being owned by the defendant.” •
The decree, after showing the appointment of the master and certain directions to him, further recites as follows: “The defendant is instructed to assist and give the master such information as he may desire, and report his findings to this court on the 7th day of January, 1911, and, further: “Should said defendant’s property be not susceptible to a division between plaintiff and defendant, that he so report to said court to the end that, if necessary, an order of sale may be made; that said inventory be made at once by the master. ”
These recitals show that, there was no final decree of the court, as stated above, with reference to the disposition of the property at the time the decree for absolute divorce was rendered. The chancery court therefore was not without jurisdiction to render a final judgment disposing of the property'of appellant at a subsequent term of the court. While the interlocutory decree of December 10,1910, providing for the division or disposition of the property, was an adjudication of the rights of the parties as to the property of appellant that should go to the appellee, yet this adjudication did not, by the very terms of the decree, become final until something further had been done with reference, to it.
Any objections that appellant may have had to a final decree, making disposition of his property, following the decree for absolute divorce and the interlocutory decree, should have been raised by proper exceptions to the master’s report and the court’s final judgment and decree thereon, and by appeal from such final decree. Certiorari, even when properly issued, can not be used here to take the place of such appeal, and therefore the question as to whether or not the court erred in not making. proper division of the property on final adjudication is not now before us. Certiorari can not be used as a substitute for an appeal to correct mere errors or irregularities of procedure of inferior courts. Douglas v. Hamilton, 91 Ark. 64; Merchants & Planters Bank v. Fitzgerald, 61 Ark. 605.
III. The agreement between appellant and appellee, relied upon by appellant as a disposition of the property between them, is voidable. Even if it were valid to make such an agreement, the consideration was wholly inadequate, and the agreement should be set aside on that account. According to the testimony of both appellant and appellee, this was notan agreement entered into for an immediate separation with a view of divorce; but, according to the testimony of the appellee (and this is not denied by the appellant), only the temporary absence of the appellee from bed and board was contemplated until such time as the daughter of the appellee should marry, and it was understood at first that after the marriage appellee should return to live with appellant.
The appellant himself testified, that during this absence of his wife under the agreement he had had sexual intercourse with her, and that she was the only one with whom he had had sexual intercourse, showing that he still regarded the marital relations as intact.
The agreement, under all the circumstances, could not be considered anything more than an understanding by which appellant was to pay appellee a certain amount during her absence for support. Considered in any other light, the so-called agreement was nudum pactum. Where separation has already taken place, or where there is to be an immediate separation, the courts have recognized that husband and wife may contract with each other for the support and maintenance of the wife and making a disposition of the property to that end. But that is not this case; and, unless separation has already taken place or an immediate separation is contemplated, such contracts are null and void. See Bowers v. Hutchinson, 67 Ark. 15; Spurlock v. Spurlock, 80 Ark. 42; Shirey v. Shirey, 87 Ark. 175; Pryor v. Pryor, 88 Ark. 308.
The court did not err in ignoring the alleged agreement between appellant and appellee as to the disposition of his property.
The judgment is affirmed.
