Setzer v. Setzer.

CooK, J. Tbe object of tbis suit is to dissolve tbe bond of matrimony existing between tbe plaintiff and defendant. Upon tbe finding by tbe jury of tbe issues, bis Honor granted a decree of divorce a mensa et thoro, to' wbicb tbe plaintiff excepted. Tbe question thus presented for our decision is, wbetber bis Honor erred in not granting a decree of divorce a vinculo matrimonii, as prayed for. Tbe relief sought is based upon tbe ground of abandonment, under sec. 1285 of Tbe Code, as amended by chapter 277, Acts of 1895, and chapter 211, Acts of 1899. Tbe issues as found establish tbe marriage, residence, etc., and that “tbe plaintiff left bis borne where tbe defendant resided, more than twelve months before tbe commencement of tbis action, and before tbe 1st of January, 1899.” Tbe 8th issue, “Was plaintiff compelled to leave defendant and live separate from her on account of tbe cruel treatment and misconduct of defendant to plaintiff,” was also found in tbe affirmative. Upon tbis verdict, it is clear to tbe Court that tbe plaintiff was entitled to a decree of dissolution of tbe bonds, pursuant to said Act of 1895, and that tbe Court below erred in rendering tbe decree, set out in tbe record, for divorce from bed and board. Tbe grounds upon wbicb tbe statute authorizes tbe dissolution is tbe abandonment by tbe wife and living separate and apart from her husband. Tbe method or man *172 ner by which the abandonment was obtained is not material. Whether she left him, or forced him to unwillingly leave her, is to the same effect and accomplishes the same purpose. Should the husband have driven his wife from his house, or obtained her removal by stratagem, or have withheld from her a support while there, he would have been deemed to have abandoned her. Bishop on Marriage, Divorce and Separation, Vol. 1, sec. 1711; High v. Bailey, 107 N. C., 70. But “abandonment” is not a complete cause for divorce; nor is “living separate and apart.” Both must exist at the same time to constitute a cause of action. In this case it was the wife who, by her cruelty and misconduct, compelled the husband to leave and live separate and apart from her, which entitled him to the relief sought. However, in bar of his action, she contends that he is not entitled to a decree, because he is in pari delicto in that he has committed acts of adultery “after the separation;” and it is so found by the jury in answer to the 16th issue. It is not charged that any infidelity existed upon his part until after he was driven away, notwithstanding the facts as found by the jury that she had refused him bed and cohabitation since the year 1890. This defence as thus established is unsound. In the case of Foy v. Foy, 35 N. C., 90, it is held (Pearson, J., delivering the opinion), “If a wife leave a husband and refuse to live with him without sufficient cause, and he after-wards lives in adultery, there is no cause for divorce; for the consequence may be ascribed to her prior violation of the duty of a wife. No one should be allowed to take advantage of his own wrong.” To the like effect are Whittington v. Whittington, 19 N. C., 64, and numerous other cases in our reports. So that she could not be considered the injured, but the injuring party, and, being the cause of the wrong, would not be allowed a decree in her favor. To sustain this defence, in *173 bar, she must show a separate and distinct offence against the marriage relation, as established by law, which would be a cause for divorce. It must be such as would entitle her to a decree of divorce in an action against the plaintiff. Nelson on Divorce and Separation, secs. 433, 434; 2 Bishop, supra, sec. 381. This she has not done. Under our statutes, adultery alone, committed by the husband, is not a cause. He must separate from his wife “and live in adultery.” Code, sec. 1285, subsec. 1, neither of which is shown by the defendant. The exceptions of the plaintiff are sustained and the judgment rendered in the Court below must be stricken out, and a decree for divorce from the bonds of matrimony be entered in conformity with the statute and the verdict of the jury. Error.