Fisher v. Fisher

Boyd, J., delivered the opinion of the Court. The original bill in this case was filed by the husband against the wife charging her with adultery and praying for a divore a vinculo matrimonii. The defendant answered, denying the charge, and the same day filed a cross-bill in which she charged her husband with adultery and prayed for a divorce, alimony, etc. Both bills having been dismissed, cross-appeals were taken to this Court. ■ The record is unnecessarily large, but is subject to criticism for the quality rather than the quantity of the evidence. This Court has seldom been called upon to review a case which presented more immorality than the one now before it.

But few of the one hundred and seventy pages in the printed record are free-from references to bawds, bawdry or bawdy houses, and most of those that are abound in allegations and charges of cruelty and conduct unbecoming to husband and wife. We do not propose, therefore, in this opinion to review at length the evidence offered on either side, but will, for the most part, content ourselves in stating our conclusions as to the facts and the law applicable thereto. These parties were married in 1890. They lived together until late in 1895, or early in 1896, when they separated and remained apart until the fall of 1898, when they became reconciled.

They occupied the same house from then until about the time this bill was filed, in March, 1900. Although much of the evidence was given by persons whose characters, as shown by their own admissions were such as to require us. to accept their statements with great caution, it was met by testimony no more worthy of belief and is sufficiently corrobo ³⁰⁰ rated to cause us to reach the conclusion that the defendant was guilty of adultery after the reconciliation in 1898. That precludes her from obtaining a divorce under the cross-bill, ■even if it be conceded that she has sustained the charge of adultery against her husband, which we will hereafter consider. Our statute is silent as to the defense of recrimination, but a ■Court of equity will not afford relief to one who has been guilty of the same offense, uncondoned, against the marriage contract.

It was a bar in the Ecclesiastical Courts. It was said in Beeby v. Beeby, 1 Haggard’s Ecclesiastical Reports, 790. “ It is not unfit if he, who is the guardian of the purity of his own house’, has converted it into a brothel, that he should not be allowed to complain of the pollution which he himself has introduced ; if he, who has first violated his marriage vow, should be barred of his remedy, the parties may live together and find sources of mutual forgiveness in the humiliation of mutual guilt. ” The maxim that “ He who comes into equity must come with clean hands” requires of one seeking a divorce, upon the ground of adultery, to -come with a chaste character and not be tainted with the same crime of which he or she complains. As was said in Mattox v. Mattox, 2 Ohio, 234, where both were guilty, “ to grant relief to either of them would be offering a bounty to guilt.” In 9 Ency. of Law (2 ed.), page 816, a number of cases are cited, but the principle is sustained in Hawkins v. Hawkins, 65 Md. 104 , where it was held that a wife would not be granted a divorce a mensa et thoro, upon the ground of alleged cruelty of treatment, and ■excessively vicious conduct on the part of the husband, if it appear that she was likewise guilty of cruel treatment towards him. The remaining question to be determined is whether the husband is entitled to a divorce, under the bill filed by him.

The evidence shows that he was, prior to the reconciliation in 1898, guilty of adultery, but it does not clearly establish the fact that he was after that time. It also shows that the wife knew prior to the reconciliation that he had been thus guilty ■and therefore she condoned the offense, as there was a re- ³⁰¹ newal of cohabitation. A number of definitions of condonation can be found in the authorities and in some' States the statutes define it. In 2 Greenleaf on Evidence, section 5 3, it is said “Condonation is forgiveness, with an implied condition, that the injury shall not be repeated, and that the party shall be treated with conjugal kindness ; and on breach of this condition, the right to a remedy for former injuries revives.” In 9 Ency. of Law, (2 ed.) 825, many authorities are collected as to the effect, on condonation, of a repetition of the offense or a new cause for divorce, and in the text it is said: "Condo-nation being forgiveness on condition of future good conduct, a repetition of the offense or the commission of another cause for divorce will revive the condoned offense, and the latter may be set up as a cause for divorce.

The misconduct which will revive a condoned cause for divorce need not be a repetition of the condoned offense. Miscondttct constituting a cause for separatioji 07ily is S7ifficie7it to 7'evive a co7idoned offense which is a cause for an absolute divorce.” For the latter statement the case of Johnson v. Johnson, 14 Wendell, 637 , is cited. That case has a peculiar history so far as this point is concerned. The Vice-Chancellor in 1 Edw.

Chy. 439, announced the law as above stated. From his decree there was an appeal to the Chancellor, who in 4 Paige, 460 , reversed the Vice-Chancellor. It was then taken to the Court for Correction of Errors and the decree of the Chancellor was reversed by a vote of eleven to nine, 14 Wend. 637 . In a note of the Reporter it is stated that Senator Kemble, who had voted with the majority, said that he did so for the reason that he was not satisfied that a condonation had been established by the evidence, and he had not examined the question whether, under the revised statutes of New York, a right of action for a divorce for the cause of adultery can be revived after condonation by any subsequent misconduct of the husband other than of the character of the original offense.

The opinion of the majority was delivered by Chief Justice Savage, and we think it was founded on sound principles. He cited amongst others, the cases of Durant v. Durant, 1 Haggard’s Ecc. Rep. 733; Worrley v. ³⁰² Worrley, Ib. 734, and