Nagel v. Nagel

• Decision Date: 31 July 1848
• Citation: 12 Mo. 53
• Parties: NAGEL v. NAGEL.
• Court: Missouri Supreme Court

12 Mo. 53

NAGEL

v.NAGEL.

Supreme Court of Missouri.

July Term, 1848.

APPEAL FROM CLINTON CIRCUIT COURT.

STRINGFELLOW, for Appellant. The acts charged by respondent and found by the court as committed by complainant show that complainant is not an innocent and injured party. By the cruel and inhuman treatment of the wife the husband became guilty of that which entitled the wife to a divorce, and having thus lost all right to hold her bound by her marriage vows, could not be injured by her adultery. He having violated the contract has no right to complain of its breach. 9 Mo. R. 539; 14 Wend. 644; 3 Eng. Ec. R. 303, 338; 7 ibid, 380.

LEONARD, for Appellee.

1st. The fact of the husband's cruelty to the wife is not preserved in the record so as to raise the question whether it can be recriminated against the husband's claim for a divorce founded on her adultery.

2nd. If the question can be made on the record, the husband's cruelty is no bar to his title to a divorce founded on the wife's adultery. 1. The English ecclesiastical law of divorce is no part of the law of this State. Our law of divorce is created and limited by the express enactments of the Legislature, and therefore the doctrine of compensation of offenses is not in force here as a part of the law of the land. Bettis v. Bettis, Hopk. N. Y. Ch, R. 557; Ryan v. Ryan, 5 Mo. R. 539. 2. The 1st section of the statute, Rev. Stat. of 1845, p. 426, declares and defines the causes of divorce, while the 7th section specifies the causes which bar a divorce. The Legislature have expressly provided that adultery may be recriminated as a bar and it is now proposed that the courts shall provide that cruelty and all other matrimonial offenses that constitute a ground for divorce may be also recriminated. The express permission of the Legislature to recriminate one offense is an exclusion of the right to recriminate any other. The words “innocent and injured party” in the first section of the act, were employed upon account of the peculiar phraseology of the section, to designate which of the two parties were entitled to the divorce, and not to introduce into our law the English doctrine of compensation of offenses which was partially introduced and limited in the 7th section of the act. Rev. Stat. of Illinois, p. 97, § 4; Rev. Stat. of Arkansas, p. 334, § 8.

3rd. If the English law on this subject be in force here, and come either as part of the common law, or with the statute, as a rule to govern us in its construction, our position is still maintained, and even strengthened. By that law the husband's cruelty cannot be recriminated by the wife against her own adultery. Both offenses must be the same, the one complained of and the one with which it is to be compensated. In the language of the English ecclesiastical courts, both parties must be in eodem delicto. They are then fit associates for each other and the courts will not interfere. Chambers v. Chambers, 1 Hay. Cond. R. 439, reported in 4 Eng. Cond. Ec. R. 451; Eldred v. Eldred, 2 Curteis, 376, reported in 7 Eng. Cond. Ec. R. 147; Forster v. Forster, 1 Hay. Cond. R. 144, reported in 4 Eng. Cond. Ec. R. 360; Johnson v. Johnson, 4 Paige, 460; 14 Wend. 644.

4th. The facts stated in the answer admitting them all to have been proved as alleged, do not amount either to “such cruel and barbarous treatment as to endanger the life,” or “such indignities to the person as rendered her condition intolerable,” within the meaning of our statutes.

MCBRIDE, J.

Martin M. Nagel brought his petition for a divorce in the Clinton Circuit Court, against his wife, Parthena Nagel, in which he charges her with adultery and cruel treatment. The defendant filed her answer denying the charges made against her in the petition, and makes her answer a cross-bill against the plaintiff, charging him with cruelty and inhuman conduct toward her, and prays for a divorce from her husband. The cause was heard by the court on the bill, answer and proofs, and the court decreed against the wife. She then moved for a new trial, which having been refused, she excepted, and has brought the case to this court by appeal. The bill of exceptions states that “it is admitted that the evidence sustained the plaintiff's allegations of adultery and also the defendant's allegation of cruel and inhuman treatment, and of such indignities toward the person of the defendant as rendered her condition intolerable.” The facts found by the court for each of the parties, are, under our statute, causes for divorce; but each party having been found guilty of a breach of their marriage contract, the question arises whether a decree should be rendered for either or both of them.

This question must be decided upon our statute, which embraces and regulates the whole subject, as was stated by this court in the case of Ryan v. Ryan, 9 Mo. R. 539. The finding of the Circuit Court, in that case, was similar to the finding in this case; for there the court found the defendant had been addicted to habitual drunkenness for the space of two years and more, and that the complainant had been guilty of adultery; and thereupon dismissed the bill of the complainant. This court sustained the judgment of the Circuit Court.

The first section of our statute regulating the subject of Divorces, Rev. Code, 1845, p. 426, enumerates the several causes for which a divorce may be obtained; amongst others that of adultery is named, as also, cruel and inhuman conduct, and declares that, for the commission of any of the acts specified, the injured and innocent party may obtain a divorce from the bonds of matrimony.

It is insisted that the terms injured and innocent party as used in the first section, were employed on account of the peculiar phraseology of that section, to designate which of the parties were entitled to a divorce. But the same terms occur in the third section, which provides for the filing of the answer to the bill, and authorizes the defendant to set forth and charge in the answer, that the...