State v. . Jones
132 N.C. 1043
N.C.
1903
Check Treatment

CLARK, C. J., dissenting. The wife of the defendant, who was the owner of the premises on which they resided up to November, 1892, left on that day and has remained off ever since, having good grounds for believing that the defendant had been for some time living in adultery with a woman in the neighborhood. She had, before she left her home, urged upon the defendant to leave her premises, that she might live there alone, and he refused to do so. The defendant had been living on the land all the while, although shortly after having left herself she ordered the defendant to leave and not to enter again. Upon his frequent ingress and egress and refusal to leave, a warrant was issued for entering upon the land after being forbidden. He was found guilty in the court of a justice of the peace and fined. (1044) From that judgment he appealed to the Superior Court. The above facts were found by a special verdict in the Superior Court, and upon them the court adjudged that the defendant was not guilty.

We can see no error in the judgment. Notwithstanding the fact that the wife may have good grounds to suspect the defendant husband of immoral conduct, they are still in the eye of the law husband and wife, and there has been no separation by a decree for a divorce a mensa et thoro. This case presents the novel feature of a wife seeking a judicial separation from her husband by the criminal action of trespass.

In Manning v. Manning, 79 N.C. 293, 28 Am. Rep., 324, the husband and wife occupied the same house and farm, the property of the wife, and the action by the wife against the husband was an action of ejectment. He had taken possession of the property, was using it as his own, and had been appropriating the rents and profits to his own use without applying any part of the same to the wife's comfort and support. This Court held that the wife was entitled to an order for the possession of the property, but that the husband could not be ejected from the premises, for that was "a proposition fraught, as I conceive, with the most dangerous consequences to society, to wit, that a wife may under the forms and with the sanction of law, at her own will and without cause, eject her husband from her dwelling and society because the house is her separate property. I can never agree that either husband or wife can, without committing those offenses which the law designates as causes of divorce or separation, invoke the aid of the courts to render a judgment the unavoidable consequences of which would be a separation of man and wife. *Page 737 Nothing less than an express or positive statute to that effect can control or destroy the highest of all the obligations imposed in the marriage relation — that man and wife shall live (1045) together. Any decision of the courts, the direct or incidental result of which is to destroy the sanctity of marriage in that particular, can but weaken and undermine the surest foundations upon which the structure of society and through it of political institutions rest and command our confidence." The Court further said: "By the matrimonial contract the husband and wife are to live together, and the law, divine as well human, has, whether wisely or unwisely, made him the ruler of the household, and the understood and well defined legal duties, relations, and obligations of the marriage compact cannot be abridged or changed at the will of either, or otherwise, or for other causes than are prescribed in the statute in relation to divorce and alimony." In that case the parties were occupying together the premises; but does the fact in the present case, that the wife has abandoned her husband and their home and made her residence elsewhere, after the principle involved in the case from which we have just quoted? Are not the purpose and effect of the present action, if successful, the separation of the husband and the wife and the destruction of the home relations? Can it be that a wife may, whenever she sees fit, leave her home and take up her residence in another place, refuse the society of her husband and indict him as a trespasser if he puts his foot upon the wife's abandoned property, the place he has made his home? Have we reached that stage of social progress when the sacred relation of husband and wife and the hallowed influences of the home are converted into mere traditions without power to influence, and dreams instead of realities? It would seem so to us if we were to hold that the indictment in this case was lawful and proper.

If the husband should commit any of those acts which the law points out as causes of divorce, the wife may effect a separation from him under the chapter of The Code on "Divorce and Alimony," (1046) and only in that way. Taylor v. Taylor, 112 N.C. 134, does not have application to the facts of this case. There the plaintiff, who was the wife of the defendant, brought an action against him to recover possession of her land and for an injunction to restrain him from interfering with her exclusive control and management of her property. The Court said: "The plaintiff is entitled to the possession of the land, exclusive of the husband, until a reconciliation has been effected." But the parties had been divorced a mensa et thoro.

No error. *Page 738