Reynolds v. Reynolds, 106.

• Citation: 187 S.E. 768,210 N.C. 554
• Decision Date: 14 October 1936
• Docket Number: No. 106.,106.
• Court: United States State Supreme Court of North Carolina
• Parties: REYNOLDS. v. REYNOLDS.

210 N.C. 554

187 S.E. 768

REYNOLDS.

v.REYNOLDS.

No. 106.

Supreme Court of North Carolina.

Oct. 14, 1936.

Appeal from Superior Court, Buncombe County; P. A. McElroy, Judge.

Action by Robert A. Reynolds against Emma Reynolds. From an adverse judgment, defendant appeals.

New trial.

James E. Rector, of Asheville, for appellant.

SCHENCK, Justice.

This action was instituted by the plaintiff under the provisions of chapter 72, Public Laws of North Carolina 1931, as amended by chapter 163, Public Laws of North Carolina 1933, being N.C.Code of 1935 (Michie) § 1659 (a), and was before us on a former appeal. Reynolds v. Reynolds, 208 N.C. 428, 181 S.E. 338.

The plaintiff alleged: "That on the 13th day of May, 1927, the plaintiff and defendant separated from each other; that said separation was not caused by any fault of this plaintiff. That plaintiff and defendant have lived separate and apart from that day to this." The complaint was verified on March 1, 1934. The defendant denied this allegation.

The second issue submitted to the jury was as follows: "Have the plaintiff and defendant lived separate and apart for more than two years next preceding the commencement of this action?" The action was commenced March 1, 1934.

The plaintiff introduced in evidence a deed of separation between plaintiff and defendant dated the 13th day of May, 1927, and plaintiff testified that he had lived separate and apart from the defendant since that date.

The defendant testified that she had given birth to a child, of which the plaintiff was the father, which child would be 5 years old in May, 1936.

The following excerpt from the charge of the court is made the basis of an exceptive assignment of error: "The action was commenced, according to the summons, in 1934, and they have lived separate and apart from each other considerably more than two years, and the Court therefore charges you if you believe the evidence, and find the facts to be as testified by the witnesses, you will answer the second issue Yes."

The assignment of error must be sustained.

The plaintiff relied upon the deed of separation to bring the alleged separation between him and the defendant within the provisions of the N.C.Code of 1935 (Michie) § 1659 (a), which reads as follows: "Marriages may be dissolved and the parties thereto divorced from the bonds of matrimony, on application of either party, if and when there has been a separation of husband and wife, either under deed of separation or otherwise, and they have lived separate and apart for two years, and the plaintiff in the suit for divorce has resided in the state for a period of one year."

If the parties resumed the conjugal relations after they entered into the deed of separation, as testified by the defendant, the deed was thereby rescinded. 'Archbell v. Archbell, 158 N.C. 408, 409, 74 S.E. 327, Ann.Cas.l913D, 261, Smith v. King, 107 N. C. 273, 12 S.E. 57.

The defendant's testimony to the effect that she had given birth to a child by the plaintiff in May, 1931, considered in the light of ...