Moss v. Moss

• Decision Date: 31 December 1841
• Citation: 2 Ired. 55,24 N.C. 55
• Court: North Carolina Supreme Court
• Parties: WILLIAM B. MOSS v. NICEY MOSS.

2 Ired. 55

24 N.C. 55

WILLIAM B. MOSS

v.NICEY MOSS.

Supreme Court of North Carolina.

December Term, 1841.

A husband cannot obtain a divorce from his wife, on the ground of adultery committed by her after a separation, if such separation has been occasioned by the fault or at the instigation of the husband.

A party applying for a divorce is bound by his admission, in the pleadings or on record, of facts, which legally bar his application, even though a Jury, on issues submitted to them, find a verdict in contradiction of such facts.

The cases of Scroggins v Scroggins, 3 Dev. 535, and Whittington v Whittington, 2 Dev. & Bat. 64, cited and approved.

This cause was tried at Fall Term, 1841, of Macon Superior Court of Law, before his Honor Judge MANLY. It was a petition, filed on the 25th of March, 1838, by the plaintiff against his wife, for a divorce from the bonds of matrimony, for the cause of the wife's adultery. It states that the circumstances of the parties were humble and that their marriage took place in December, 1835; they “lived happily together for some time, and until the wife had a child under circumstances, which forced upon the petitioner's mind the conclusion, beyond a doubt, that the child was not his, but spurious; that upon that unexpected change of his fortunes the petitioner determined to divulge the fact at once, and he then made known to his wife that he well knew, as she did, that her said child was not his issue, and that from thenceforth he would not receive her as his wife: upon which information the defendant, as soon as she had recovered from her indisposition, (at lying in,) left the petitioner's house, and hath not since returned.” The petition further states that, in the beginning of the year 1837, the petitioner left this State and was absent about one year; and then charges specifically, that the defendant went to live with one W. G., and has continued to live with him in adultery ever since, and has there had another child, which is the issue of W. G., and not of the petitioner, who was absent and in a distant State at the period of conception.

The answer states, that about two years before the marriage the defendant had a child, of which the petitioner was the father, and so acknowledged himself to be; and that the adulterous intercourse between the parties afterwards continued up to the marriage, at which time she was again pregnant, and in about six months thereafter the second child was born. The answer then states that the defendant is unable to give a specific reply to the circumstances, which, as the petitioner alleges, induced him to believe that the child was not his, for the reason, that in the petition none of those circumstances are set forth. And it further states, that about one month after the birth of that child the petitioner drove the defendant from his house in the manner stated in the petition; and it avers, that from her marriage up to that time she had no criminal conversation with any man, but lived chastely. Upon the trial it was admitted by the parties, that before their marriage the defendant was the kept mistress of the petitioner, and that they had one child; and also that when they intermarried she was pregnant of a second child, and that, upon the birth of it, a dispute arose between them upon the paternity of that child, whereupon the wife left her husband's house. Upon issues to a Jury they found, that the defendant separated herself from her husband and lived in adultery with W. G.; that the petitioner did not allow of his wife's prostitution, nor expose her to lewd company, whereby she was ensnared to the said crime, nor admit her into conjugal society after he knew of the criminal fact.

The cause then coming on to be heard upon the pleadings, admissious of the parties and finding of the Jury, the petitioner moved thereupon for a divorce from the bonds of matrimony. But the presiding Judge declared his opinion that it was not fit to grant that motion, and, no other being made, the petition was dismissed with costs. From this decree the petitioner appealed to the Supreme Court.

No counsel appeared for the petitioner.

Francis for the defendant .

RUFFIN, C. J.

This case presents no new legal question; but the decision seems to be sustained by the previous adjudications of this Court.

The libel is not founded on anti-nuptial want of chastity, nor on the alleged imposition on the husband from his supposing himself to be the father of the child, of which his wife was preguant at her marriage, when in fact it was the offspring of some other man. If it had been thus founded, the case of Scroggins v Scroggins, 3 Dev. 535, would have been an answer to it. The gist of the complaint is the subsequent adultery of the wife; and that is established. Her previous impurity is brought forward to account for and justify, on the part of the husband, the state of separation, during which this undoubted criminality of the wife arose. In that point of view it was properly stated, as a material part of the plaintiff's case. For as the Statute provides that if “either party has separated him or herself from the other, and is living in adultery, the injured party may obtain a divorce,” it follows, if the criminal fact has arisen wholly during a separation of the parties, that the occasion of the separation ought to be stated, so as to show that the party applying did not cause the separation, but was injured by it as well as by the adultery. Hence in Whittington v Whittington, 2 Dev. & Bat. 64, we held that adultery by the wife, after abandonment by the...