Turner v. Turner , 44 Ala. 437 ( 1870 )

PETERS, J.

The bill in this case was filed by the wife against the husband, in the chancery court of Talladega county, in the eastern chancery division of this State. The suit was commenced on the 2d day of December, 1867. The causes alleged for the divorce are adultery, and cruelty by. the husband to the wife. The original bill was for divorce from bed and board, but afterwards, it was amended by praying a divorce from the bonds of matrimony. There is also a prayer for alimony pendente lite, and for permanent alimony, and for general relief.

■ The husband, Matthew Turner, and his son, Edwin C. Turner, are made parties defendant to the proceeding. Both defendants answer, and deny the charges against them severally made in the bill, so far as each defendant has knowledge of the facts which constitute such charges.

The husband denies the allegations of cruelty, and'all acts of adultery, except that charged with the colored woman Sally, in 1856, or 1857, and sets up condonation and the statute of limitations as to all the charges, and demurs to the bill for want of equity and multifariousness. His answer to the charge of adultery with Sally, so far as the adultery is concerned, is in these words: “Despondent states that complainant charged him with a want of conjugal fidelity at the time stated in this section of the bill, and that she did, after making the charge, voluntarily say to respondent that she would forgive him.”

The charge to which this is intended as the answer is as follows : “ Oratrix can not, as she is advised, properly and truly present to your honor the grounds of her complaint without reciting.some-of the painful facts in the history of her married life, which she would gladly withhold if she could do so in justice to herself. Within three or four years after her marriage, oratrix had been absent from home, on a Sunday evening, in company with another lady connected with the family, on a visit to a near neighbor. On her return, which was probably sooner than her husband expected, she found him engaged in adulterous association with a negro woman named Sally, his slave, and in a room in the house in which oratrix and her husband resided. Oratrix before that time had no suspicion that her husband was thus wronging her; and the discovery of the fact was entirely accidental on her part. She was deeply grieved and deeply offended at this conduct, and so expressed herself, to her husband, and she made up her mind that she could not, with self-respect, remain his wife, and so informed him. Thereupon, the defendant, Matthew Turner, confessed the wrong he had done oratrix, and himself asserted that he had been overcome in a moment of weakness, and that it was his first departure from a virtuous life, and affirmed that it would be his last. He asked oratrix to forgive him. After consideration of the matter, oratrix thought it was her duty to forgive him, and did so. Oratrix had never since that time known him to be guilty of a similar departure from duty; but on this day has been for the first time informed of such a fact. Oratrix forgave him in her heart, and did not afterwards,-so far as she is aware, permit this matter to interfere with her conduct towards her husband. The woman, Sally, who was a house servant, was still retained in service about the house, notwithstanding oratrix requested her husband to have her removed ; and she supposes, that the servant, finding herself supported by the authority of her master, became insolent to oratrix, whereupon she chastised her. Oratrix’s husband complained at her on this account, and forbade her to do so, Oratrix told her husband, that as long as he retained her about the house and under her management, she would punish her for any insolence that she might offer her, and the temper of her husband being roused, he threatened to whip oratrix, and made the woman, Sally, go out and get switches for that purpose. He forbore to strike her, however, and contented himself with threatening to whip oratrix.”

The decision was for the complainant in the court be- . low, granting a decree for divorce from the bonds of matrimony, and allowing the wife alimony pendente lite, and also permanent alimony. The defendants below appeal to this court, from this decree.

Before this cause is considered on its merits, it is necessary to dispose of the appellee’s motion to strike out those assignments of error which relate to the decree for divorce, because it appears that the appeal was taken after the lapse of three months from the date of the decree.

The transcript shows that the final decree of divorce was rendered on the fourteenth day of August, 1869, and ordered to be enrolled by the chancellor, as of that date.

The appeal was taken on the twenty-seventh day of November, 1869.

This shows"that the appeal was not taken within three months after enrollment of the decree.

The section of the constitution of the State on this subject, which must govern the court, is in these words: “ Divorce from the bonds of matrimony shall not be granted, but in the oases now provided for, and by suit in chancery; but decisions in chancery for divorce shall be final, unless appealed from in the manner prescribed by law within •three months from the date of the enrollment thereof.”— Const. Ala. 1867, art. 4, § 30,

The language of this section of the constitution is too clear for doubt. It is a peremptory order to this court, which it has no choice but to obey and enforce. This is a decree for a divorce from the bonds of matrimony, and upon this issue it is final in the cause after the three months mentioned in the constitution have expired. “ The enrollment” of the “decision,” here referred to, is the entry of the decree upon the minutes of the court, which is properly done as of the day the decree bears date, and which is required to be read in the court on the next morning and signed by the judge at the end of the term. — -Bev. Code, §§ 641, 725, cl. 3, 3470 j Bule Ch. Pr. No. 64. After the time mentioned in the constitution has expired, the decree for divorce becomes absolute. Its further litigation is ended, and its. further consideration on appeal is denied to this court. It must, therefore, stand as it was enrolled. This is the only rational meaning the language of the constitution will admit, that gives any effect to the word “ final,” which it does not have without the aid of this section. It negatives the right of appeal, after the expiration of the term mentioned. — 1 Kent, 316; Ex parte Smith, 34 Ala. 455; Adams’ Eq. 375, 388. The constitutional provision repeals the section of the Cede upon appeals, in such cases, Rev. Code, § 3508. The motion to strike out the assignments of error referred to is therefore allowed, at appellant’s costs. But even if this were otherwise, there is abundant evidence in the record, which is wholly free from suspicion, to sustain the chancellor’s decree for a divorce from the bonds of matrimony. When it is considered that the defendant was old enough to have been his wife’s father, that he had been thrice married and was a fraternising member of a Christian Church, his conduct was shamefully cruel, deceitful and inhuman towards his wife, from his first detection in adultery in 1856 or 1857, till he left her in September, 1867, under pretense of going to Kentucky; but in truth, for the purpose of going to Indiana and procuring a divorce. This is, in part, shown by his letter written from that State, on the 10th day of December, 1867, to her, in which, after rejecting her photograph which she had sent him, he says, “ you done me a bad wrong, a big sin at the same time renewing an old slander, that he had hurled against her in 1862, when he told her that she and Matilda, a negro woman, “ both were as thick with Jim Harris as the hairs on a dog’s back.” This charge was utterly groundless, as is shown in Mr. Harris’ deposition. This was before the complainant’s bill was filed. But after the bill was filed, and before the year’s probation had terminated in Indiana, which was supposed to authorize the defendant, Matthew Turner, to procure a divorce there, he quite changed his mind. Some twenty or thirty days after the complainant’s bill was filed, the defendant, Matthew Turner, wrote to his father-in-law, George Macon, his wife’s father, in North Carolina, in which he says :

“ Dear Sir: This will inform you that I am in great trouble — more than any one; and I call upon you to help me, and intercede for me. I pray you to do it, or it will not be done, for my good and for my wife’s also. I want you to get her reconciled with me if it be possible. I do love my toife and want to live with her as long as I live ; I ask you for the Lord’s sake, and for the good of both me and my dear wife. I will not consent to a separation, and if I done wrong to her, I will humbly confess to her and my God, and will solemnly yqw tq her and God I will do it no more. Dear Ann has sued me for a divorce. She can dismiss it any day she thinks proper ; but for me to consent, I will not. I desire to pray you to intercede and get it settled, so as we may live happy”. This was written from “-Joe Davis county” in Indiana, while the defendant was domiciled in that State, waiting for the term of twelve months to expire, after, whieh he would be entitled to a divorce in his new location. And it was written concerning the complainant, whom the proof shows to have been beaten by this defendant in her face with his fist, until one third part of her face” was“ black and blue :” the same person at whom he had thrown a mug, at the breakfast table, with such force, that it had been shattered into atoms •against the wall, by the force of the blow; the same woman whom he had choked at night in their private bed-room, until she was so nearly suffocated, as to need the support of his arm, until she was so far recovered as to be able to ■sit up in bed, and which had made “ the blood gush from her nose and mouth,” (Mrs. Turner’s deposition,) and the same dear wife whom he had compelled to stand in the floor, before him and his paramour, the colored woman, Sally, and cower under the switches which the latter had brought for the chastisement of her, then, mistress ! These are but a portion of the proofs upon which the chancellor’s decree is founded. There can be no possible doubt of its accuracy. — Moyler v. Moyler, 11 Ala. 620; David v. David, 27 Ala. 222; Smedley v. Smedley, 30 Ala. 714; Mosser v. Mosser, 39 Ala. 313; Hardin v. Hardin, 17 Ala. 250; Goodrich v. Goodrich, June term, 1870.

The defendant, Matthew Turner, also relies on condonation by the wife. Condonation is always conditional. A renewal of the causes of complaint revives the right of the condoning party to insist upon the former offenses. It has been well said by a distinguished chancellor of this State, that “as to the question of what will amount to con-donation of the wrongs and injuries sustained by the wife, when it has to be inferred from the acts of the wife, it would be exceedingly difficult to lay down any fixed general rule, whieh should govern all cases. The wife, who is timid and fearful, shrinks with horror and dismay from the odium which attaches to a separation from her husband, and becomes the patient martyr of his tyranny and brutality, rather than seek peace in a separation, unless a time should arrive in the history of her sufferings, when, justified by the opinion of the world, and sustained by the counsel of friends, she might seek freedom in abandoning him. Such patient endurance would not amount to “ con-donation.” The proof here shows that the defendant, Matthew Turner, repeated his acts of cruelty and infidelity upon more than one occasion, long after any acts of con-donation by the wife. — Glover’s dep., and McCall’s dep.; Hughes v. Hughes, 19 Ala. 307; Harrison v. Harrison, 20 Ala. 629; Reese v. Reese, 20 Ala. 785; 2 Bish. on Mar. and Div. § 53 to 73, 4 ed. 1864; 2 Bish. on Mar. and Div. § 384, et seq., § 471, et seq. The Indiana divorce in favor of the husband, Matthew Turner, against his wife, the complainant, may protect him upon a charge of bigamy, should he marry again in this State.— Thompson v. The State, 28 Ala. 1. But without stopping to inquire whether it was obtained by him by fraud, and therefore is vicious on that account or not, it certainly cannot effect the rights of the complainant, except her right in the husband as husband. If it is valid, it unmarries him and sets him free from his marital vows to her. He is no longer the complainant’s husband. But it does not settle her right to alimony ; it does not settle her right to dower in his lands, and her statutory right to distribution of his property in this State, in the event she should survive him, nor any other interest of a pecuniary character she may have against him,— Webster v. Reid, 11 How. 460; Nations v. Johnson, 24 How. 206; Boswell’s Lessee v. Otis, 9 How. 350; Mills v. Duryee, 7 Cr. 481; Darcey v. Ketchum, 11 How. 171, 172; McElmoyle v. Cohen, 13 Pet. 330; 2 Amer. Lead. Cases, 551; 3 Phill. Ev. on C. and H. notes, p. 353, note 636. It is the duty of the State to protect its own citizens, within its own borders. This is the natural compensation for allegiance. This high duty extends to all the pecuniary rights of the citizens, as well as to the rights of security of person.— Foster’s Cr. Cas. p. 188; Story, J., in U. S. v. Rice, 4 Whea. 246, 254. No obligation of comity is paramount to this duty. Without a constant and effective exertion of it> citizenship would become a farce. — Reid v. U. S., 3 Quart. Law Journ. p. 122; S. C. 4 Div. C. C. 21; U. S. v. Moore, 3 Cranch, 160, note. The wife is as much the citizen of the State as the husband, and is entitled to the protection of its laws to the same extent, so long as she remains within its jurisdiction. It would be a scandal to justice to imperil her, and sacrifice her most important and cherished rights upon a mere technicality; a technicality that often contradicts the truth. When her protection requires it, it would be cruelly unjust for the State, of her actual residence and domicil, to repudiate its own right of jurisdiction to give her aid. I therefore think that the better opinion is, that she has the right to file her bill here, and to all the relief that the court could give her, notwithstanding her husband might not be domiciled in this State at the commencement and during the whole pendency of her litigation with him. — 2 Bish. Mar. and Div. § 156, 4th ed.; Cheever v. Wilson et al., Sup. Court U. S., Dec. term, 1869; Ditson v. Ditson, 4 Rhode, Island 284; 2 Bish. M. and Div. § 124, et seq.

Then, if the State courts have competent jurisdiction in such a case, as undoubtedly they have, they may go on and exercise that jurisdiction in the manner and to the extent prescribed by their own laws.

Under the laws of this State, by the contract and consummation of a marriage, the wife, if she has no separate estate, becomes entitled to dower in the husband’s lands, and a certain distributive interest in his personal estate, if she survives him, and to temporary and permanent alimony out of his estate upon a separation by divorce in her favor. These are rights that she can not legally be deprived of, without her consent or her fault. — Eev. Code, §§ 1624,1888, cl. 5,1897, 2360, 2361, 2362, 2363. If this were not so, then these important statutory provisions in favor of the wife would be repealed or rendered null by a foreign divorce of which shé had no notice and no knowledge, during its whole progress through the forms of a foreign court. To sue in her own domicil is necessary for the protection of the wife. It, therefore, overrides the technical rule, that the husband’s domicil is also the domicil of the wife. 2 Bish. M. and Div. § 768. Here, the testimony shows that the wife has no separate estate. The witnesses for the defendants say, when she was married, she “ brought nothing with her.” It also appears, that during her connection with the defendant Matthew Turner, as his wife, she was a chaste, industrious, economical, faithful, useful and obedient wife ; and that the husband’s property is very considerable ; worth possibly not less than one hundred thousand dollars. It is also shown that his three children, by a former marriage, are already sufficiently provided for.

Under such a state of facts, the sum of thirty thousand dollars was not an unreasonable sum for permanent alimony, to be allowed to the wife, nor the sum of eight hundred dollars too large for temporary alimony. — Ex parte Smith, 34 Ala. 455; Jeter v. Jeter, 36 Ala. 391; Rev. Code, § 2362.

The other defendant, Edwin C. Turner, who is a son of complainant’s husband, does not, in an equitable sense, stand in the court with clean hands. Whether he was cognizant of his father’s scheme to dispose of his estate, in order to defeat the rights of complainant and procure a divorce in Indiana, and then turn her helpless upon the world, without the means of subsistance, is not so fully proven. But when any matter was to be transacted, which pushed things in that direction, he appears to have been always present, aiding and abetting. If he was not the public, recognized agent of his father, in the accomplishment of his purposes, the proofs leave it sufficiently certain that he was his confidential assistant. If he has come to evil by it, it is his own fault, and he must abide the consequences. Quia in quo quis delinquit in eo de jure est puniendis. — Coke, Litt. 233, b. A contract, deed or conveyance, or any other transaction made in furtherance of . an illegal purpose, is itself illegal. Fraud vitiates every transaction that rests upon it. There can be no reasonable doubt, after reading Matthew Turner’s letter to Mr. Macon, his father-in-law, bearing date the 26th day of December, 1867, after complainant’s bill had been filed, that he still acknowledged that his “ home” was still in Alabama, and that it was his fixed intention to defeat his wife’s suit for divorce, if he could. He then declares that he was “ going to defend the suit to the last extremity and to the bottom dollar, sink who it may, elevate who it will.”' — (Mr. Macon’s deposition.) The son seems ever to have been ready to help the accomplishment of this purpose. And we must regard the voluntary conveyance to him, made after the filing of the bill, as intended to be in furtherance of this end. After the complainant’s suit was commenced, to aid her husband in the voluntary distribution of his property, so as to render one of the grand purposes of the suit abortive, was an unjustifiable attempt to defeat her rights. It is said that right in civil society is that which any man or woman is entitled to have, or to do, or to require from others, within the limits of prescribed law. — 2 Kent, 1. To defeat this right, or to attempt to defeat it, whether by fraud or force, is forbidden by law. — 1 Par. on Cont. 456, 5th ed. 1866; 2 ib. 769; 1 Eontb. Eq. 122, and notes, 6th ed; 1 Story Eq. § 258, et seq.; 2 Bouv. L. Diet., Trespass, p. 608, 12th ed. In a just controversy with the husband, the wife is entitled to have reasonable counsel fees allowed to her. Jeter v. Jeter, 36 Ala. 291. There are no grounds to sustain the defendant’s demurrer to the bill.

No judgment is intended to be given, in this opinion, upon the validity or invalidity of the Indiana decree for divorce, further than it is connected with this case, and the complainant’s rights in this suit.

Thera was, then, no error in the judgment and proceedings, in the court below, of which the appellants have any right to complain. Therefore, the decree and judgment of the chancellor is in all things affirmed, and the appellants, the said Matthew Turner, and the said Edwin C. Turner, will pay the costs of this appeal in this court and in the court below.