Loud v. Loud

129 Mass. 14 | Mass. | 1880

Gray, C. J.

This case differs from that of Sewall v. Sewall, 122 Mass. 156, in three respects: 1st. It has nob been found that the husband went to the State of Maine to obtain a divorce, in violation of the Gen. Sts. c. 107, § 54. 2d. The wife had notice of his libel in Maine, and appeared by counsel in answer thereto. 3d. She executed to him a release, reciting the decree of divorce obtained by him from her in Maine, and, in consideration of a sum of money paid by him to her, releasing all right of dower or homestead or other interest in his lands, and discharging him from all claims for alimony, support or maintenance, and all other claims whatsoever.

Whether, no violation of our statutes being shown, and the wife having appeared in the suit in Maine, it would, if she had done nothing more, have been open to her to impeach the validity of the decree of divorce obtained there, by proving that her husband’s domicil continued to be in this Commonwealth, is a question upon which there has been some difference of judicial opinion, and which we are not now required to decide. See Gen. Sts. c. 107, §§ 54, 55 ; Chase v. Chase, 6 Gray, 157; Jackson v. Jackson, 1 Johns. 424; Sanford v. Sanford, 5 Day, 353; Kinnier v. Kinnier, 45 N. Y. 535; People v. Dawell, 25 Mich. 247; Donegal v. Donegal, 3 Phillim. 597; Chichester v. Donegal, 1 Addams, 5; Zycklinski v. Zycklinski, 2 Sw. & Tr. 420; Callwell v. Callwell, 3 Sw. & Tr. 259; Garstin v. Garstin, 4 Sw. & Tr. 73; Shaw v. Gould, L. R. 3 H. L. 55; 2 Bishop Mar. & Div. (5th ed.) §§ 144, 163 a.

The conclusive answer to this libel is, that the wife not only appeared in the suit brought by the husband, but that she afterwards executed a release, reciting the divorce therein obtained by him, and for a pecuniary consideration discharging all her claims upon him or his estate. Having done this, she cannot treat his subsequent marriage and cohabitation with another woman as a violation of his marital obligations to herself. The defence is allowed, not upon the ground of a strict estoppel, but because her own conduct amounts to a connivance at, or acquiescence in, his subsequent marriage. Kirrigan v. Kirrigan, 2 McCarter, 146. Palmer v. Palmer, 1 Sw. & Tr. 551. Boulting v. Boulting, 3 Sw. & Tr. 329, 335. Gipps v. Gipps, 3 Sw. & Tr. 116, and 11 H. L. Cas. 1. Pierce v. Pierce, 3 Pick. 299. Lyster v. Lyster, 111 Mass. 327, 330. See also Smith v. Smith, 13 Gray, 209, in which the point decided was that a decree of divorce, obtained in another state, ex parte, and in violation of the Gen. Sts. e. 107, § 54, was no bar to a libel previously filed in this Commonwealth by the same libellant for the same cause.

Libel dismissed.