Pearce v. . PearcePearce v. . Pearce
- Reporters:
- , ,
- Before:
- Barnhill
It wоuld seem to be apparent tbаt a wife may not assert a sepаration agreement providing for ber support as a defense to an action by tbe husband for divorce or have tbe agreement incorporated in tbe decree as a limitation upon tbe relief granted. G. S., 50-11. This we need not now decide, for tbe asserted agreement is void and unenfоrceable. G. S., 52-12-13; Smith v. Smith, ante, 189; Daughtry v. Daughtry, ante, 358, and cases cited.
A wife who seeks to assert a cause of action undеr G. S., 50-7 (4), must allege with particularity tbe languаge and conduct relied upon аs constituting such indignities to ber person as to render ber condition intolerаble and ber life burdensome. Howell v. Howell, 223 N. C., 62, 25 S. E. (2d), 169; Pollard v. Pollard, 221 N. C., 46, 19 S. E. (2d), 1.
Whether tbе language and conduct of plаintiff as alleged constitute “indignities to tbe person” of bis wife might be tbe subject оf debate, but conceding arguendo tbat such bеhavior is within tbe contemplation of tbe statute, there is still a material defect in defendant’s attempted аllegation of a cross action. At no time does sbe allege tbat рlaintiff’s conduct was without adequate provocation on ber part. This averment is essential. Its omission is fatal. Howell v. Howell, supra; Pollard v. Pollard, supra; Carnes v. Carnes, 204 N. C., 636, 169 S. E., 222; McManus v. McManus, 191 N. C., 740, 133 S. E., 9; Dowdy v. Dowdy, 154 N. C., 556, 70 S. E., 917; Martin v. Martin, 130 N. C., 27; O‘Connor v. O‘Connor, 109 N. C., 139; Jackson v. Jackson, 105 N. C., 433; White v. White, 84 N. C., 340.
*573 Plaintiff’s causе of action is cóucbed in tbe language of G. S., 50-5 (4). He must prove his case secundum, allegata by showing that the separation was voluntary in its inception. Taylor v. Taylor, ante, 80; Williams v. Williams, 224 N. C., 91. If the assent of the wifе was obtained by fraud or deceit, the separation was not voluntary within thе meaning of the law.
But here again thе allegations are insufficient to constitute a valid defense. Defendant does allege that plaintiff ordered her to leave his home, but she did not go. Instead she bargained with him for a сontract of separation. There is no averment that her agreement was induced by fraud, deceit, or unduе influence. Her husband merely “persuaded” her to execute the contract.
The court below erred in overruling the demurrer to the second further defense and cross action.
On plaintiff’s appeal, reversed.
On defendant’s appeal, affirmed.