Steele v. Steele

• Decision Date: 14 January 1890
• Citation: 10 S.E. 707,104 N.C. 631
• Parties: STEELE v. STEELE.
• Court: North Carolina Supreme Court

10 S.E. 707

104 N.C. 631

STEELE v. STEELE.

Supreme Court of North Carolina

January 14, 1890

This was an action for divorce a vinculo matrimonii, tried at the August term, 1889, of the superior court of Surry county before GILMER, Judge.

The facts alleged in the complaint are as follows: Plaintiff and defendant were married on March 13, 1887. Defendant was about 19 years of age, and plaintiff believed her to be a virtuous woman. Shortly afterwards the plaintiff had reason to suspect that defendant had not lived a virtuous life, but, not having proof thereof, he continued to live with her, until about four months had elapsed, when she admitted to him that, she had been seduced by her uncle, who had habitually had sexual intercourse with her for three years; and the plaintiff never lived with her afterwards, but carried her to her father's house, and surrendered her to him, she admitting to her father the adultery as alleged. That prior to the marriage she had illicit intercourse with her uncle, and concealed the same from the plaintiff at the time of the marriage. That prior to the marriage she committed adultery with another uncle. That during the separation, as aforesaid the plaintiff is informed and believes that defendant has committed adultery with one Wall. Wherefore plaintiff demands judgment "that the bonds of matrimony between plaintiff and defendant be dissolved." The complaint was verified in the form prescribed by statute. The defendant demurs, on the ground that the facts stated in complaint do not constitute a cause of action, because (1) it is not charged that pregnancy resulted from the alleged incestuous intercourse; (2) it is not alleged that the separation and abandonment of defendant by plaintiff was not the fault of the plaintiff; (3) and, in reference to the alleged adulterous intercourse with said Wall, the defendant admitting the same, says that it occurred after the plaintiff, her husband, abandoned her, and she demurs that there is no averment in the complaint that the abandonment was not by the fault of plaintiff. The demurrer was overruled, with leave to defendant to answer, and the defendant appealed.

A person seeking a divorce a vinculo matrimonii, on the ground of adultery, need not allege that it has not been due to his fault, or that he has not himself been guilty thereof.

Lewellyn & Carter, (W. F. Carter, of counsel,) for appellant.

Watson & Buxton, for appellee.

AVERY J., (after stating the facts as above.)

Our statute (Code, § 1285) permits a dissolution of the bonds of matrimony only on application of the injured party, and in one of the four following cases: "(1) If either party shall separate from the other, and live in adultery, (2) if the wife shall commit 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 be pregnant, and the husband be ignorant of the fact of such pregnancy, and be not the father of the child with which the wife was pregnant at the time of marriage." Subsection 2 was first enacted by the legislature of 1871-72, (chapter 193, § 35,) and subsection 4 is the act of 1879, (chapter 132,) while the other provisions of the section are substantially the old law, (Rev. Code, c. 39, §2; Rev. St. c. 39, §2.) Divorces are granted only when facts constituting a sufficient cause, under a proper construction of the law, are pleaded, proved, and found by the jury. McQueen v. McQueen, 82 N.C. 471. The admissions of the parties are not competent evidence, as in other actions, of the truth of the material allegations of the pleadings, Code, §§ 268, 1288; Perkins v. Perkins, 88 N.C. 41. But, when a defendant demurs to a petition for divorce, this court must consider the demurrer as a confession, not only that the facts alleged are true, but that they can be proved so as to secure the verdict of a jury. Pregnancy did not result from the illicit intercourse between her uncle and herself, prior to her marriage, and the application does not bring the case, therefore, under subsection 4. Before the enactment of subsection 2 this court, as a rule, refused to recognize the right of a husband to be divorced on the ground that his wife had practiced a fraud upon him previous to marriage by deceiving him as to her character or condition. Scroggins v. Scroggins, 3 Dev. 535; Long v. Long, 77 N.C. 304. The extreme case of Barden v. Barden, 3 Dev. 548, constitutes an exception to the general rule. There the divorce a vinculo matrimonii was granted on proof that the defendant induced the plaintiff to marry her by falsely representing that he was the father of a child, of which she had already been delivered, when in fact it was a bright mulatto, and was exhibited to him under such circumstances as deceived him in relation to its color. lf this application rested solely upon the ground, of fraud practiced prior to the marriage, the unusual circumstances would naturally incline the court to add another exception to the general rule.

Under the law in force before the year 1872, the adultery of the wife, committed after separation from her husband, was held to be insufficient cause for granting a decree of divorce to him, if he had unjustly expelled her from his home, exposed her to lewd company, made her home life intolerable by cruel treatment, or deserted her without cause, and left her unprovided for. Wood v. Wood, 5 Ired. 674; Moss v....