Ford v. Ford
| Decision Date | 24 February 1887 |
| Citation | 10 N.E. 474,143 Mass. 577 |
| Parties | FORD v. FORD. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
W.S.B. Hopkins, for libelant.
The question at issue is whether the necessary period of time can run to establish a right to divorce for desertion, in the face of the adultery of the deserting party unless the evidence shows the phenomenal situation of an injured party anxious to condone what the guilty party prevents him from condoning by staying away. Why not join adultery with desertion, after the latter has existed long enough? It is English practice. Kettlewell v Kettlewell, 41 Law T. 737. There are many cases that cover the principle that we contend for, that, to obtain a divorce for desertion, it is not necessary to prove a continued willingness to receive back an adulterous deserter. Basing v. Basing, 3 Swab. & T. 516; Farmer v Farmer, L.R. 9 Prob. & Div. 255; Knapp v. Knapp, L.R. 6 Prob. & Div. 10; Mallinson v. Mallinson, L.R. 1 Prob. & Div. 93.
The libelee deserted her husband, without excuse, more than three years before the filing of this libel, and has never been willing to return to him. Within three years from the desertion the husband had reason to believe her guilty of adultery, and filed a libel for divorce on that ground, which was contested, we assume, within the three years, and which is still in court undecided. After the three years he filed the present libel on the ground of desertion. In reply to a question by the court, he stated that he had been willing to take his wife back, and to live with her, "until he heard of her adultery, and satisfied himself that it was true, after which he was not willing to live with her."
The act of 1838, c. 126, § 1, required that the desertion should be "without the consent of the party deserted," and, although these words have been omitted from the later statutes, the requirement is unchanged in cases like the present, being imported by the word "desertion," without more. A desertion consented to is not a desertion. St.1857, c. 228, § 2; Gen.St. c. 107, § 7; St.1870, c. 404, § 2; St.1873, c. 371, §§ 2, 3; Pub.St. c. 146, § 1; Lea v. Lea, 8 Allen, 418. On like principles, the absence of lawful consent is part of the definition of an assault, and a license cannot be pleaded specially at common law, but must be proved under the general issue. Christopherson v. Bare, 11 Q.B. 473.
But we apprehend that, in the one case as in the other, "without the consent" means without the manifested consent, and that the undisclosed emotions of the deserted party do not affect his rights. We think that this view is sustained by the general analogies of the law, as well as by considerations specially applicable to the particular case. If a plaintiff in assault and battery should admit that he hoped that the assault would be committed, and rejoiced when it was, because of the prospect of damages, he might still recover if, so far as his demeanor to the defendant was concerned, he stood upon his legal rights. The consent required to disprove the assault is a license. So, when a wife leaves her husband, he may be glad to be rid of her, but stand upon his rights, and give her a home as long as she will accept it. Of course, proof that he entertained the feelings supposed might make it hard to believe that he did not show them, and thus express his consent to the separation, for the consent can be expressed by conduct as well as by words. But we are not considering the effect of a state of feeling as evidence of overt acts, but its legal operation apart from any overt acts or conduct expressive of it.
The admission in the present case is not merely that, after becoming satisfied of his wife's adultery, the libelant was glad that she remained absent, but, fairly construed, it is that he would not have received her back. This further element by itself is not enough to change our opinion upon the case. When one party terminates the cohabitation by desertion, the other is not bound to take any steps to restore it. If he remains silent until he files his libel his silence does not take away his right to a decree. Conduct which in itself is proper cannot be made improper by inquiring what he would have done in an event which did not happen. The mode of testing that was for the wife to offer to return. A tender under a contract would not be excused by the contractee's subsequent admission that he would not have accepted it if made, provided he had done no overt act of waiver. In general, a person does not lose rights which he may lawfully renounce until he has renounced them by an overt act. With reference to the present case, we may...
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