Quarles v. Quarles

19 Ala. 363 | Ala. | 1851

CHILTON, J.

1. It is no valid objection to this bill, that several distinct grounds for divorce avúnculo rnatrimonii&XQ embraced in it. The title to the relief prayed is the same whether one or the other of the several alleged grounds be proved. It is well settled that the plaintiff may aver facts-of a different nature, which will equally support his application. — Story’s Eq. Plead. § 254. But if we concede that the causes stated would support a prayer for multifarious relief, still in the case before us, no such relief is prayed, and consequently the objection for multifariousness must be overruled.—1 Danl. Ch. Pr. 384; Carpenter & Wife v. Hall, et al. 18 Ala. R. 439, citing Dick v. Dick, 1 Hogan’s R. 290.

The cases cited from New York were predicated upon a statute of that Stafe, different from our statutes regulating divorces, and are therefore not applicable.

2. The chancellor overlooked the statute, or mistook the law, in decreeing alimony, instead of decreeing a division of the estate between the parties as required by the act. — Clay’s Dig. 170, § 8. — See this act construed in Lovett v. Lovett, 11 Ala. 763. For this error, the decree must be reversed and sent back.

It is proper, however, to remark, lest the case should return upon us, that it would be well for the complainant to-apply to the chancellor for leave to take additional proof of the marriage, which is not shown except inferentially. Indeed, no effort appears to have been made to prove it.

3. It is also proper to add that we have carefully examined the proof contained in the record, and are of opinion, that it furnishes no evidence of a condonation of the cruelty which is alleged in the bill, and which we think is sufficiently proved.

We have been referred to no case, and we presume none can be found, which holds that a proposition made by the wife, who has been driven by the cruel and barbarous treatment of her husband from his house, again to return, but which ho indignantly spuims and rejects, shall be regarded as a condonation of his cruelty. This prudent, but rejected offer should not prejudice her rights, more especially when it does not appear that the husband has ever repented, or changed his determination to render her a perpetual outcast from 'his house and society. — 6 Mass. R. 69.

For the error in decreeing alimony, the cause must be reversed and remanded.