Graves v. Graves
| Decision Date | 06 July 1906 |
| Citation | 41 So. 384,88 Miss. 677 |
| Court | Mississippi Supreme Court |
| Parties | HENRY T. GRAVES v. SUSAN H. GRAVES |
April 1906
FROM the chancery court of Harrison county, HON. THADDEUS A. WOOD Chancellor.
Henry T. Graves, the appellant, was complainant in the court below his wife, Susan H. Graves, the appellee, was defendant there. The object of the suit was to obtain a divorce because of the "willful, continued and obstinate desertion, for the space of two years," of complainant by defendant. From a decree in defendant's favor the complainant appealed to the supreme court. The facts are recited in the opinion of the court.
Decree reversed.
Ford & White, for appellant.
There has been some division among the courts as to whether mere refusal of sexual intercourse without physical excuse, persisted in for a sufficient length of time, will constitute desertion. Mr. Bishop, in his work on "Marriage, Divorce and Separation," reviews the conflicting decisions on this subject, and lays down the rule in the following language:
"Nothing injurious to health can be required of either party in marriage; but if from no consideration of health and from no other good reason, either the husband or wife permanently, totally and irrevocably puts an end to what is lawful in marriage and unlawful in every other relation--to what distinguishes marriage from every other relation--this by the better opinion constitutes matrimonial desertion, though the deserting party still consents to live in the same home with the other, in the capacity of brother, sister, parent, child or friend, either for pay or as a gratuity." 1 Bishop on Marriage, Divorce and Separation, sec. 1676.
It would be idle to cite authorities to support this doctrine for the reason that this case does not rest upon the breach of one matrimonial relation alone. In this case every conjugal duty, every obligation and every relation assumed by her marriage vows, had been abandoned by the wife with a fixed determination that they should never be renewed. The act of desertion with intent to finally sever the matrimonial relations, persisted in for the statutory period, entitled the deserted party to a divorce, and no particular distance is prescribed or required by the statute. Mr. Bishop lays down the rule as follows:
"It is immaterial whether the distance to which the parties remove apart is great or small, except perhaps as in some circumstances aiding the evidence of their intent; for the criterion in all cases is the intent to abandon." 1 Bishop on Marriage, Divorce and Separation, sec. 1672.
[Counsel did not appear for appellee in the supreme court.]
The decree final on this bill for divorce from the bonds of matrimony is in the following words:
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