Wise v. Wise

Decision Date18 April 1901
Citation38 S.E. 794,60 S.C. 426
PartiesWISE v. WISE.
CourtSouth Carolina Supreme Court

Appeal from common pleas circuit court of Richland county; O. W Buchanan, Judge.

Suit by Harriet C. Wise, by her guardian ad litem, Levi Schroyer against Daniel Wise. From a decree in favor of defendant plaintiff appeals. Affirmed.

Pope J., dissenting.

J. T. Duncan and Leroy F. Youmans, for appellant.

R. W. Shand and Andrew Crawford, for respondent.

POPE J.

On the 14th day of February, A. D. 1898, this action was begun. The complaint, in effect, alleged that the plaintiff. Harriet C. Wise, became the wife of the defendant, Daniel Wise, on the 8th day of April, 1896, in the county of Richland, in this state, and that they resided in said county and state; that said wife, Harriet C. Wise, was always a dutiful wife to her said husband; that on the 16th day of November, 1896, the defendant, Wise, deserted the plaintiff, his wife, leaving her penniless, and soon after said Daniel Wise reached the state of Ohio he began an action in one of the courts of said state of Ohio for divorce, alleging that the plaintiff, his wife, had been criminally intimate with a negro boy, Thomas Thompson, and others; that as soon as he was confronted with her answer of indignant denial of such foul charges he recanted, and humbly apologized for such insults, and dismissed said suit; that upon his return to the state of South Carolina he evidently sued for peace with the plaintiff, his wife, and he was conditionally forgiven, and the conditions, among others, were that he would provide the plaintiff with a home and the personal property mentioned and set down on the exhibits with the complaint, all of which he did, except that no writings were executed between them; that the defendant began again to abuse and maltreat the plaintiff, his wife, failing to supply her necessities in food and raiment; that the plaintiff gave birth to a daughter on the 8th June, 1897, whereupon, so poorly did he provide for the wants and needs of his wife and child, that, under the direction of Dr. Robert Earle, the plaintiff and their daughter were carried to the house of her foster parents, where she remained for two months; that his cruelty, by word and deed, was so great that, when he proposed to take the plaintiff to the city of Columbia to live, she declined to leave the home he had provided for her, though he left her penniless; that the defendant has considerable means; that the plaintiff prays that the defendant may be required to pay over to her a sufficient sum of money, as alimony, which will support the plaintiff and her babe; and that the defendant, Wise, may be decreed to turn over by deed the house and lot of 15 acres, and the personal property, in accordance with his promise made at the time of their reconciliation, in the first of the year 1897.

The defendant, by his answer, admits his intermarriage with the plaintiff. He denies all allegations of neglect or cruelty, by word or act. He alleges that his wife refused to go to Ohio with him on 16th November, 1896. He alleges that the divorce suit was instituted while smarting under a sense of his wrongs at the hands of his wife, and while maddened by reports of her infidelity to him, the latter of which soon proved utterly groundless; that he became reconciled to his wife after his apologies to her; that he denies that he cursed and abused her, or that he neglected or refused to supply her with proper food or appropriate raiment, or that he threatened their child; that this defendant attributes all the wrongs he has and is suffering from his wife to her foster parents, who are influenced by spite and hatred to him, and also by a desire to possess or control the worldly goods of which he is the owner. Indeed, his answer may be denominated a denial of any injurious allegations in plaintiff's complaint. Under an order of one of the judges of the court of common pleas, all the issues of law and fact were referred to the master. The cause came on for trial before the Honorable O. W. Buchanan, as presiding judge, in the year 1899. By his decree he denied the plaintiff any relief, but directed her to turn over the 15 acres to her husband.

From this decree the plaintiff has appealed, as follows: "First. That his honor, the circuit judge erred in the following findings and holdings in his decree: (1) 'That the plaintiff has not sustained the allegation of her complaint by the preponderance of the testimony;' whereas he should have decided that she has sustained them. (2) 'That the defendant has not deserted his wife, but she him;' whereas he should have decided that defendant has twice deserted her. (3) 'That the defendant has offered, in good faith, I think, to receive her back, which will prevent a decree for alimony;' whereas he should have decided that defendant's offer was not a sincere and bona fide offer, to treat her with conjugal kindness and affection, on which she could, with safety to her life and health, rely, but that her living with him in the relation of wife would be the risk of peril to her, and that said offer does not prevent a decree for alimony. (4) 'Nor do I find in the case any legal testimony which would justify the court in directing the defendant to convey the land mentioned in the complaint to his wife;' whereas he should have decided that the testimony showed that the defendant held the legal title to said land in trust for her as the equitable owner, and justified the court in so directing. (5) 'That she is not entitled to any of the relief demanded by her;' where he should have decided that she is entitled to all of the relief demanded by her. (6) 'The testimony shows that she has taken and retained possession of the land described in the complaint, her right to which she submitted to the court for adjudication;' whereas he should have decided that she simply remained in the house that he had built for her, in which she was left when he last deserted her, and of which she was the equitable owner. Second. That his honor erred in not making the following findings and holdings, on two aspects of the case, as to both of which the decree is entirely silent: (1) That during both periods of their coverture, when they lived together, defendant treated plaintiff with such cruelty as justified the granting of alimony for herself and support for their child. (2) That defendant was guilty of such indecencies in his family as justified the plaintiff's claims. Third. That his honor erred in ordering and decreeing that 'defendant have leave to enter up judgment of dismissal of complaint, with a direction to plaintiff to surrender to him, without future waste, the possession of the land described in the complaint;' whereas he should have ordered and decreed that plaintiff have the relief sought in her complaint, and that defendant convey to her in fee the land described in the complaint."

As far as concerns the findings of fact and conclusions of law reached by the circuit judge relating to the 15 acres of land whereon is a dwelling house now occupied by the plaintiff, as well as the personal property, a list of which it attached to the complaint, I am not disposed to interfere with the circuit decree,--as to the 15 acres, because it is a dangerous precedent to set if I should adjudge otherwise as to such 15 acres of land, the title to which was taken by Daniel Wise after the agreement connected with the reconciliation between the plaintiff and defendant in January, 1897. The statute of frauds and perjuries was intended, no doubt, to prevent just such contracts being enforced in the courts of the country. All of such contracts are in parol.

In disposing of this appeal, I will first consider and state the law in this state governing cases for alimony; and, second, how the conduct of the wife, after ill usage by the husband, in condoning such previous ill usage, is to affect the consideration of the matter of renewed ill usage, ensuing upon her condonation of previous ill usage.

First. Ever since the case of Jelineau v. Jelineau, 2 Desaus. 45, it has been decided that the court of equity has jurisdiction to hear and determine questions relating to the remedy of alimony. As the court remarked in that case, in England questions as to the allowance of alimony were heard and determined by the ecclesiastical courts, while here there are no such courts. But, continuing the discussion, the court held in the case just cited: "On examining the law establishing this court [equity], we find it has all the powers granted it incident to a court of chancery, and its jurisdiction is not in any measure restricted, except in cases when the party can have complete and adequate remedy at law;" and the doctrine there announced has been steadily adhered to ever since. The court of equity having jurisdiction to hear and determine cases for alimony, let us see under what circumstances it will exercise such power. In Hair v. Hair, 10 Rich. Eq., at page 173, the first ground of divorce is stated to be for bodily injury inflicted or threatened and impending, amounting to the sævitia of the civil law, which may be defined to be "personal violence actually inflicted or menaced, and affecting life or health." In the same case, the second ground of divorce is stated to be "the desertion of the wife by the husband"; and the third ground of divorce, as is stated in the case cited, exists in cases "in which the husband, though he has inflicted or threatened no bodily injury upon the wife, yet practices such obscene and revolting indecencies in the family circle, and so outrages all the sentiments of delicacy and refinement characteristic of the sex, that a modest and pure-minded woman would find these grievances more dreadful and...

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