Everton v. Everton

• Decision Date: 31 December 1857
• Citation: 50 N.C. 202,5 Jones 202
• Court: North Carolina Supreme Court
• Parties: MATILDA A. EVERTON v. MAJOR EVERTON.

5 Jones (NC) 202

50 N.C. 202

MATILDA A. EVERTON

v.MAJOR EVERTON.

Supreme Court of North Carolina.

December Term, 1857.

In order to entitle a petitioner to a divorce under the 39th chap. of the Rev. Code, the charges contained in the petition ought to be in legal language, and to be articulate and certain as to acts, persons, times and places.

Cruelty towards the children of a wife by a former husband, especially if not charged as an intentional insult or indignity to her, is not a ground for a partial divoree.

Ill breeding, coarse and insulting language, jealousy and charges of adultery, not accompanied with acts or threats of violence, or by an abandonment of the marriage bed, were Held not sufficient ground for such a divorce.

Violent and cruel conduct in the husband in chastising slaves, near the sick room of his wife, whereby her indisposition was greatly aggravated, not charged as having been intended to annoy, harass or insult her, was Held not sufficient to entitle her to relief.

PETITION FOR DIVORCE AND ALIMONY.

APPEAL from an interlocutory ORDER of the Superior Court of Perquimons county, Judge CALDWELL presiding.

The petition, after the formal part, is as follows: “That sometime in the fall of 1852, a marriage was contracted, and duly solemnised, between your petitioner and the defendant Major Everton, now of the county of Currituck.

Your petitioner further showeth that, from the time of her marriage with the defendant, she lived with him in the town of Elizabeth City, performing, in all things, faithfully, her duty as his wife, until sometime in the month of December, 1853; that the defendant then removed to the county of Perquimons, and took your petitioner with him; that your petitioner remained with him in the last county mentioned, and at all times and in all things discharged her duty, until sometime in the month of June, 1854, when she was compelled to flee from, and abandon the home of, the defendant, on account of his great neglect of, and his cruel conduct towards, your petitioner and her children by a former marriage.

Your petitioner shows your Honor that soon after her intermarriage with the defendant, your petitioner discovered that the defendant did not entertain for her those feelings of love and affection which he had induced her to believe, from his promises and conduct upon their marriage, that he did entertain, and that after their marriage, and before they removed from Elizabeth City, the defendant became morose and irritable; that often in her presence, and in the presence and hearing of other persons, he abused her verbally, using many low and vulgar epithets; that his language to her was frequently of the lowest and most vulgar character; that either defendant became, or affected to be, jealous of your petitioner, and accused her of illicit intercourse with divers persons, sometimes in her presence, and often to other persons,--all of which your petitioner avers was unfounded and without any cause on her part; for that she never at any time, either in the presence of the defendant, or while he was absent, acted toward, or spoke of, any person in any manner calculated to excite suspicion of improper conduct on her part, or otherwise than compatible with the strictest virtue. Your petitioner shows that the defendant, although he had often promised to treat with the greatest care and kindness her four children, (who were children by her former marriage,) soon became unmindful of his promises and often treated them with the most marked unkindness, and even cruelty; that he whipped one of her said children very severely without any reasonable excuse or provocation, and threatened to kill, or stamp to death, another one of the petitioner's children; that, although her said children, four in number, had sufficient property in the hands of their guardian to support them comfortably, who had contracted with the defendant for their board, and were not dependent upon the defendant for a support, yet your petitioner shows that the defendant became so unreasonably incensed against one of her said children, that she was compelled to send him, her said child, to live with a relative at a distance from the defendant; that he often threatened to send away, from his house, the other children, and one of whom was a child of very tender years, entirely too young to be in the keeping of any other person than a mother or some kind female relative.

Your petitioner further shows that the defendant often used, in the presence and hearing of her daughter, then about fifteen years old, very low and vulgar language; that the defendant often told your petitioner to leave his house, stating that she should stay there no longer, at the same time charging your petitioner with illicit intercourse and intimacy with other men, and alleging that she was idle and extravagant; all of which charges and accusations your petitioner avers have been made against her without any foundation in truth, or any just cause, for that she was at all times attentive to the property under her control.

Your petitioner shows that, upon one occasion, while living with the defendant in the county of Perquimons, and while your petitioner was ill and confined to her bed, the defendant became so lost to all sense of self-respect and his duty to petitioner, as to shoot with a gun, in her hearing, a very valuable negro woman, belonging to the said children of your petitioner, and threatened to kill her, and, on the same day, attempted to enter, by force, the room wherein petitioner was ill, to kill said slave, as he then said; that the defendant, not being content with so cruelly treating the said negro slave, he, while your petitioner was still ill and confined to her bed, tied, or caused to be tied, two of his own slaves, one of them grown, and the other one nearly so, and brought them, or had them brought, into the porch, or under the window of his dwelling, immediately adjoining the room in which your petitioner was lying dangerously ill, and whipped them, or caused them to be whipped, in his presence; that the disease with which she was then suffering, was much aggravated by the cries of the said negroes, and the confusion and noise made by defendant; that from the severity of the disease much increased, as your petitioner avers, it was, as advised by her physician, by the gross neglect of the defendant and his unfeeling conduct in shooting the slave as aforesaid, and whipping the slaves aforesaid, your petitioner's mind was very much impaired, and that she lost from the causes, before stated, her mind, almost entirely; that so much was she affected, that she only recovered her reason after several month's attentive treatment by a skillful physician, and the attention of kind friends after she had been ordered to leave, and had left, the home of the defendant; that when she had thus been ordered and driven from the home of the defendant, and taken a house in Elizabeth City, for herself and her children, neither being the child of the defendant, he forced himself into the house, and then and there used to your petitioner such low and vulgar language as to attract the attention of the passers by, and attract and draw a crowd of persons; that the said abuse of the defendant and his vulgar language was heard at a great distance; that by the cruel conduct of the defendant, his barbarous and cruel treatment of the petitioner, as charged, his verbal abuse, low and vulgar language, often repeated to your petitioner, and his obscene conduct, as charged, the condition of your petitioner, is rendered intolerable, and life burdensome; that she has been a resident of this State for more than three years preceding the filing of this petition, and that the facts, the ground of her complaint, have existed to her knowledge for more than six months prior to the filing of her petition.”

The prayer is for a decree of divorce from bed and board, and for alimony.

There was an amendment to the petition, setting forth the amount of the defendant's property.

The defendant filed an answer, denying most of the allegations as stated, and explaining others; but as the act of the assembly of 1856, Rev. Code, chap. 39, sec. 15, confines this Court to the consideration of the sufficiency of the petition, it is not deemed necessary to notice it further.

At Fall Term, 1857, upon the coming in of the answer, his Honor made the following interlocutory order, viz: “Upon the hearing of the bill and answer in this case, it is ordered by the Court that the defendant pay into the clerk's office, of the Superior Court of law for the county of Perquimons, one hundred and fifty dollars, for the benefit of the plaintiff, on or before the 15th day of January next, and in default thereof, the said clerk issue execution in the name of the said plaintiff, against the defendant, for that sum.” From which order, the defendant appealed.

Moore, Smith, Pool and Jordan, for the plaintiff .

Heath, for the defendant .

BATTLE, J.

This cause comes before us upon the appeal of the defendant from an interlocutory order made in the Court below, allowing alimony to the plaintiff pendente lite. Prior to the year 1852, such an order was not allowable, as this Court had decided some time before in the case of Wilson v. Wilson, 2 Dev. and Bat. Rep. 377; but the legislature, in that year, passed an act that authorised the courts, upon a petition for divorce and alimony, to decree the petitioner a sum sufficient for her support during the pendency of the suit. In the act there was no express grant of the right of appeal from such decree, and the court held in Earp v. Earp, 1 Jones' Equity Rep. 118, that none was intended, and, therefore, none could be allowed. This decision, no doubt, caused the legislature of 1854, in passing the Rev. Code, to make the following provision in the 15th section of the 39th chapter: “In petitions for divorce and alimony, or for alimony, where the...