House v. House

• Decision Date: 14 October 1902
• Court: North Carolina Supreme Court
• Parties: HOUSE. v. HOUSE.

42 S.E. 546

131 N.C. 140

HOUSE.

v.HOUSE.

Supreme Court of North Carolina.

Oct. 14, 1902.

DIVORCE—ADULTERY—RECRIMINATION.

1. Under Code, § 1285 (2), providing that adultery by the wife shall be ground for divorce, and section 1285 (1), declaring that if either party shall separate from the other, and live in adultery, it shall be ground for divorce, adultery by the husband on but two occasions is not ground for divorce, and hence does not constitute the defense of recrimination, preventing his obtaining a divorce from the wife on proof of adultery.

¶ 1. See Divorce, vol. 17, Cent Dig. 55 188, 189, 191-193

Appeal from superior court, Wake county; Winston, Judge.

Action by W. M. House against Minnie House. From a refusal to sign judgment for plaintiff on a verdict in his favor, plaintiff appeals. Reversed.

Busbee & Busbee, for appellant.

J. W. Hinsdale, Jr., and W. B. Jones, for appellee.

CLARK, J. This is an action by the husband against the wife for divorce. The jury found, on the issues duly submitted, that the parties were married; that the plaintiff had been a continuous resident of the state for two years next preceding the filing the complaint; that the defendant had committed the adulteries alleged in the complaint, and that the plaintiff had not, with knowledge thereof, condoned such adulteries. And to a further issue: "(5) Has William House committed adultery, as alleged in the amendment to the answer?" the jury responded, "Yes; only two acts, and no more." Thereupon his honor refused to sign judgment in favor of plaintiff, and dismissed the action. Plaintiff excepted and appealed.

The complaint'averred that the defendant had separated from the plaintiff in July, 1901. four years after marriage, and had not lived with him since, and had committed adulteries with divers parties, naming two, and averring that the others were unknown to the plaintiff. The answer denied each allegation of the complaint, except those of marriage and residence for the statutory period. The amended answer alleged adultery by plaintiff with sundry parties, naming two of them, and sexual intercourse by her with plaintiff since July, 1901. By our statute— Code, § 1285 (2)—it is ground for divorce "if the wife shall commit adultery." But such conduct is not ground for divorce against the husband, who comes under section 1285 (1), — "if either party shall separate from the other and live in adultery." The legislature has made the distinction for reasons satisfactory to them, and the courts must administer the law as it is written. So the single question presented is whether the husband, who has established his legal grounds for divorce by the verdict of a jury, can be defeated thereof by matter in recrimination which would not have entitled the wife to have brought an action for divorce against him. "The general principle which governs in a case where one party recriminates is that the recrimination must allege a cause which the law declares sufficient for divorce." Tiff. Dom. Rel. pp. 203, 204, § 108; Morrison v. Morrison, 142 Mass. 361, 8 N. E. 59, 56 Am. Rep. 688, and cases there cited. The contrary doctrine is held in Astley v. Astley, 3 Eng. Ecc. R. 303, but the English...