Steel v. . Steel

*634 Avery, J. — after stating the facts: The statute (The 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 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 the marriage.” Sub-section 2 was first enacted by the Legislature of 1871-72 (ch. 193, §35), and sub-section 4 in the act of 1879 (ch. 132), while the other provisions of the sections are, substantially, the same as the old law (Rev. Code, ch. 39, §2; Rev. Stats., ch. 39, § 2). Divorces are granted only when the 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. The Code, §§ 268 and 2888; Perkins v. Perkins, 88 N. C., 41. But, when a defendant demurs to a petition for divorce, the Court here must consider the demurrer as a concession, not only that the facts alleged are true, but that they can and will be proved, so as to secure the verdict of the jury. Pregnancy did not result from the illicit intercourse between the defendant -and her uncle Creed prior to her marriage, and the application does not, therefore, bring the case under sub-section 4. Before the enactment of sub-section 2, this Court, as a rule, refused to recognize the right of a husband to divorce on the ground that his wife had practiced a fraud upon him previous to marriage by deceiv *635 ing him as to her character or condition. Scroggins v. Scroggins, 3 Dev., 535; Long v. Long, 77 N. C., 304. The extreme case of Borden v. Borden, 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. If this application rested solely upon the ground of fraud practiced prior to the marriage, the unusual circumstances would naturally incline a 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. Moss, 2 Ired., 55; Whittington v. Whittington, 2 D. & B., 64. In such eases, the husband was deemed guilty of the first infraction of the matrimonial contract and responsible for bringing about the separation, so that it could not be adjudged that the wife separated herself'from him. In both the cases of Whittington v. Whittington and Moss v. Moss the Court gave great’weight to the. fact that the .charges of unchastity preferred against the wife as the reason for driving her from the husband’s home were false, and the husbands were responsible for the separation. It cannot be successfully contended'' that, after the amendment of the divorce law in 1872, by inserting sub-section two, a husband seeking divorce for.adultery of his wife, after she had separated from him, must;, in order to establish the fact that he is the injured party, prove, antecedent to show *636 ing the act of adultery, precisely what he must have shown in evidence, as a prerequisite to obtaining a decree, if the action had been brought under the old law (sub-section one) and had been founded on the allegation that his wife had' left him and lived in adultery with another. If such had been the legislative intent, the law would have, in its terms, provided relief only wheré the wife separated herself from her husband and commits adultery. In determining how far the new provision of the act of 1872 (sub-section two) is limited in its operation by the condition contained in the previous section, that the husband must be the injured party, this Court in Tew v. Tew, 80 N. C., 316, gave a construction to the statute that is evidently tinged by the restrictive ideas of the older law. The Court say,' “Nohusband can have the bonds of matrimony dissolved by reason of the adulter\r of the wife committed through his allowance, his exposure of her to lewd company, or brought about by the husband’s default.in any of the essential duties of the married life, or supervenient on his separation without just cause.” Upon the case stated in the complaint, the only question presented is, whether the plaintiff appears to be the injured party. We hold that no culpability attaches to the husband, who after the open avowal by the wife, in the presence of her father, that she was guilty of habitual incestuous intercourse with her uncle for three years before her marriage, leaves her under the roof of her father and lives thereafter apart from her. The wife had not only been guilty of unchastity, but of incest, habitually practiced, for which she could be indicted and punished. Her arraignement in the Courts for such criminal conduct must bring shame and disgrace upon her, and dishonor and mortification upon her husband. When such an abandoned woman wins the affections of a man, by inducing him to believe that she has led and is leading a virtuous life, the wrong done Mm would be better described as an outrage than an injury. The law *637 does not hold a husband in fault for placing in her father’s house a wife, who, before marriage, practiced upon him such a deception that his life would be .intolerable were he forced to concede her conjugal rights after the discovery of the fraud. In Tew v. Tew the jury found, in response to issues submitted to them, that the wife was not guilty of adultery, as charged in the complaint, before she was driven from her husband’s home, but was guilty afterwards. The separation on the part of the husband was justified in the complaint on the ground that she had previously, committed adultery, and when the jury found that charge to be false, the Court held that the husband was not the injured party, and after depriving his wife of support, protection and conjugal association without cause, could not claim the right, given only to one not in fault, to have the marriage contract annulled, because, when deserted, without cause, she fell under temptation. A wife who is abandoned by her husband, is not now left by the law in so helpless a conditon as before the acts of 1869, 1874 and 1879 (The Code, section 970 and 971) were passed, for if he be within the jurisdiction of our Courts, and able to do so, she can compel him to' provide her adequate support, both for herself and children. In the case at bar the defendant, so long as she stood in the legal relation of wife, could invoke the aid of the Courts, and ask suitable provision for her maintenance out of the plaintiff’s estate or earnings. One of the reasons for excusing the wife’s moral delinquencies, when separated from her husband, no longer exists, when to be deserted by a husband does not necessarily mean to be deprived of pecuniary assistance from him. A party who asks the Court to grant a. divorce from the bonds of matrimony, is not bound to set forth, or prove as a prerequisite to granting the prayer of the petition, the negative averment, that he has not himself been guilty of adultery, or is not in fault. In Edwards v. Edwards, Phil. L., *638 534, Chief Justice Peaeson suggests that if such a “ test oath ” were imposed, it might prove good policy, as it would force a petitioner to purge his conscience and probably prevent a great many' applications for divorce. The plaintiff is not held bound to anticipate and negative in advance all grounds of defence to the action he brings, and petitions for divorce do not constitute an exception to the general rule. Edwards v. Edwards, supra; Horne v. Horne, 72 N. C., 530; Toms v. Fite, 93 N. C., 274. The demurrer was properly overruled. Affirmed.