Toulson v. Toulson
| Decision Date | 21 November 1901 |
| Citation | 50 A. 401,93 Md. 754 |
| Parties | TOULSON v. TOULSON. |
| Court | Maryland Court of Appeals |
Appeal from circuit court, Talbot county, in equity; William R Martin, Judge.
Divorce bill by Lewis E. Toulson against Sarah E. Toulson. From a decree dismissing the bill, complainant appeals. Affirmed.
Argued before McSHERRY, C.J., and FOWLER, BRISCOE, BOYD, PAGE PEARCE, SCHMUCKER, and JONES, JJ.
J.C. & C. Mullikin, for appellant.
Wm. E Stewart, for appellee.
On the 23d of October, 1900, the appellant filed his bill against his wife, the appellee, charging her with adultery with one Joseph Williams, "and with divers other men whose names" were unknown to him. The appellee answered denying the charges, and averring that the appellant had been himself unfaithful to his marriage vows. She also alleged in her answer that subsequently to the filing of the bill "the complainant cohabited with the said defendant." Testimony was taken, and the proceedings were submitted to the court, who thereupon dismissed the bill, and from the decree the appellant appealed.
We would subserve no good purpose if we should discuss the testimony that appears in the record. After a careful consideration of it, we have had no difficulty in reaching the conclusion that the charges against the appellee of adultery with Joseph Williams and with Edward H. Fields have been fully sustained. An important question for us to consider is, has the appellant condoned the offense of the appellee? The facts of the case upon this point may be thus briefly stated: The appellant discovered the appellee in the act of adultery with Joseph Williams on the 28th of August 1900. Previously thereto, as the appellant himself states, her husband had suspected her of unlawful intimacies with other men; and the proof shows that his suspicions were well founded. Notwithstanding his discovery, he continued to live in the same house with her until after the bringing of this suit,--a period of over three months. During that period they resided in his house, and she, it seems, continued to perform her household duties, as she had done before. She states (and it is not denied) that she cooked, washed, and worked for him as had been her habit. She further states that during the same period "she slept with him," and "lived and cohabited" with him as usual. He denies that he cohabited with her, but admits that she "had come and got in bed with him." It seems clear, therefore, that after his discovery of her guilt there was no separation of the parties, no change in the conduct of the wife in the affairs of the household, and that she had at least once occupied the same bed with him; but whether oftener than once, or not, does not appear. The mere fact that she was permitted by him to reside in the same house, performing her usual occupations therein, without any apparent change in their relations to each other, is not per se sufficient to establish condonation. The husband may "indulge at least in some feelings of pity for her degraded situation, and, until a fit retirement is provided, allow her the protection of his roof, but not the solace of his bed." 2 Bish.Mar. & Div. § 281, citing from Poynt.Mar. & Div. 236. But it furnishes some evidence tending to prove sexual intercourse that married persons reside in the same house, and such evidence would be corroborated and strengthened if it also appear that the wife was permitted to resume her usual duties. But all inferences from such a state of facts may be repelled by the particular circumstances of the case. Beeby v. Beeby, 3 Eng.Ecc.R. 342; Westmeath v. Westmeath, 4 Eng.Ecc.R. 292. In Burns v. Burns, 60 Ind. 259, it was said that sexual intercourse "will be inferred, nothing appearing to the contrary, from the fact of living...
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