Sanderson v. Sanderson

• Decision Date: 22 October 1919
• Docket Number: 299.
• Citation: 100 S.E. 590,178 N.C. 339
• Parties: SANDERSON v. SANDERSON.
• Court: North Carolina Supreme Court

100 S.E. 590

178 N.C. 339

SANDERSON v. SANDERSON.

No. 299.

Supreme Court of North Carolina

October 22, 1919

Appeal from Superior Court, Robeson County; Calint, Judge.

Action by Robert Sanderson against Susan Sanderson. Judgment for plaintiff, and defendant appeals. Reversed.

This action was instituted by plaintiff to obtain a divorce from his wife, the defendant, on account of 10 years' separation. The defendant answered, and did not deny the separation, but set up that the same was caused by the cruel and inhuman treatment that she had received from the plaintiff, and that she was the injured party in such separation, and that the plaintiff ought not to be allowed to obtain a divorce from her and escape the marital obligation on account of his own wrong. These facts are established by the verdict, which finds that the defendant was the injured party in the separation. The verdict of the jury was as follows:

"1. Were the plaintiff and defendant duly married, as alleged in the complaint? Yes.

2. Did the plaintiff and defendant live separate and apart continuously for ten successive years immediately preceding the institution of this action and the filing of the complaint? Yes.

3. Has the plaintiff been a resident of the state of North Carolina for ten years next preceding the institution of this action? Yes.

4. Was the plaintiff the injured party? No; the defendant was the injured party."

The defendant moved for judgment on the verdict, which was refused, and the defendant excepted. Judgment for the plaintiff, and the defendant appealed.

McLean Varser, McLean & Stacy, of Lumberton, for appellant.

Johnson & Johnson, of Lumberton, for appellee.

ALLEN J.

The appeal of the defendant presents the question for decision of the right of the husband to a divorce on the ground of a separation for ten years, when the separation has been brought about by his abandonment of his wife or by forcing her to leave him by his own misconduct. The Consolidated Statutes, which went into effect August 1, 1919 (Pub. Laws 1919, c. 238, § 8), provides in chapter 30, § 5, that--

"Marriages may be dissolved and the parties thereto divorced from the bonds of matrimony, on application of the party injured, in the following cases:

1. If the husband commits adultery.

2. If the wife commits adultery.

3. If either party at the time of the marriage was and still is naturally impotent.

4. If the wife at the time of the marriage is pregnant, and the husband is ignorant of the fact of such pregnancy and is not the father of the child with which the wife was pregnant at the time of the marriage.

5. If there has been a separation of husband and wife, and they have lived separate and apart for ten successive years, and the plaintiff in the suit for divorce has resided in this state for that period."

It is thus seen that all causes for divorce are collected in one section of one statute, and that the same condition is imposed as to each, that the divorce shall be granted "on application of the injured party," which, as the grounds for divorce are statutory, has been frequently held to mean that the party to the marriage contract, who is in the wrong, cannot obtain a divorce. Whittington v Whittington, 19 N.C. 64; Moss v. Moss, 24 N.C 56; Foy v. Foy, 35 N.C. 90; Tew v. Tew, 80 N.C. 316, 30 Am. Rep. 84; Setzer v. Setzer, 128 N.C. 170, 38 S.E. 731, 83 Am. St. Rep. 666; House v. House, 131 N.C. 140, 42 S.E. 546.

All of these cases except Moss v. Moss were cited and approved in Page v. Page, 161 N.C. 175, 76 S.E. 619, the court saying in conclusion:

"No one will be allowed to take advantage of his or her own wrong. This maxim was applied to a case of divorce by Judge Pearson in Foy v. Foy, supra. In the words of the statute (Code, § 1285; Revisal, § 1562), the application for the divorce must be made 'by the party injured,' and these words were construed in Steele v. Steele, 104 N.C. 631 , to mean that neither of the spouses is entitled to divorce if his or her marital fault provoked or induced the alleged misconduct of the other."

"We have the highest authority for the precept 'that whosoever shall put away his wife, saving for the cause of fornication, causeth her to commit adultery,' which is not more obligatory as an injunction of revealed religion, than it is just and true as a proposition in the philosophy of the human mind and heart" (Whittington v. Whittington, supra) --a principle embodied in the statute, which denies a divorce except to the injured party, and applied in the decisions of this court.

The plaintiff insists, however, that the question has been...