Whippen v. Whippen
| Decision Date | 21 June 1888 |
| Citation | 17 N.E. 644,147 Mass. 294 |
| Parties | WHIPPEN v. WHIPPEN. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
John
F. Wakefield, for libelant.
The question to be determined is whether, from the facts found by the single justice before whom the libel was heard, the libelant comes into court with clean hands. Pub.St. c. 207 §§ 4, 5. The statute of polygamy should operate as a legal defense to adultery when the alleged criminal acts are the marrying and cohabiting with a woman whose husband has been absent more than seven years, and not known to the defendant to have been alive during that period. Com. v. Thompson 6 Allen, 591. See 2 Bish.Mar. & Div. § 78; Stew.Mar. & Div. § 313. If the libelant did not commit adultery, and if the second marriage was not a crime, then there is no recrimination, as there is no evidence of any less degree than might be necessary to sustain a suit for adultery. Pastoret v. Pastoret, 6 Mass. 276; 2 Greenl.Ev. § 52; Com. v. Thompson, supra. See Bish.St. Crimes, §§ 663 666. The fact of a second marriage is not proof of adultery without proof of actual cohabitation and sexual intercourse. Reemie v. Reemie, 4 Mass. 586. There was no criminal intent after said seven years, and the statute of polygamy is a defense to adultery. Com. v. Mash, 7 Metc. 472. If the statutes make the second marriage voidable in the full sense of the matrimonial law, in distinction from void, a cohabitation under it is not adultery. Valleau v. Valleau, 6 Paige, 207; 1 Bish.Mar. & Div. § 710; Id. §§ 711, 800. Charles D. Whippen was not obliged to take his wife back after February 6, 1878, and could have obtained a divorce then, as the desertion was complete without any fault or recrimination by the libelant. Clapp v. Clapp, 97 Mass. 531; Hall v. Hall, 4 Allen, 39. Even if libelant has been guilty of adultery, even though committed after suit brought, or after a decree nisi, or, as in this case, after seven years from the desertion alleged, the court will not, in general, grant the divorce. Yet, when there is some special fact, taking the particular case out of the reason of the general rule, and sufficiently calling for clemency, it will act, notwithstanding the recriminatory plea. Morgan v. Morgan, L.R. 1 Prob. & Div. 644; Conradi v. Conradi, Id. 514; 2 Bish.Mar. & Div. § 82; Noble v. Noble, L.R. 1 Prob. & Div. 691; Joseph v. Joseph, 34 Law, J.Mat.Cas. 96; Coleman v. Coleman, L.R. 1 Prob. & Div. 81. The period of continued absence for seven years, without being heard of, will constitute presumption of death. 2 Greenl.Ev. § 41; Loring v. Steineman, 1 Metc. 204; Com. v. Mash, 7 Metc. 472. If the libelant has not been guilty of a polygamous second marriage, without presumption of death, followed by cohabitation and sexual intercourse and adultery with criminal intent, and without mistake, since his marriage to Annie C. Whippen, then he should have the divorce nisi for desertion.
We understand the finding in the report of the libelant's marriage to include the fact of cohabitation. The argument for the libelant is that, as the libelee had at that time deserted him, and been absent from him for seven years, he not actually knowing her to be living within that time, he was not guilty of polygamy, and that cohabitation under such a marriage would not be adultery. Assuming, without deciding that the words "not knowing," in the statute defining polygamy, ( Pub.St. c. 207, §§ 4, 5,) have the same meaning as the words "not actually knowing," in the report, and that, upon the facts stated in the report, the libelant could not be convicted of polygamy, it does not follow that the cohabitation was not adulterous. Even if the libelant could not be punished, under the statute, for the marriage, it was void, and did not affect his former marriage. He had a wife,...
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