
    PITTS against PITTS.
    
      Court of Appeals;
    
    
      May, 1873.
    Affirming 13 Abb. Pr. N. S., 272.
    Divorce.—Conviction of Adultery.—Dower.
    Under the provisions of the Revised Statutes (2 Rev. 8tat., 146, § 58; 1 Id., 741, § 8) the wife is not barred of her dower by her adultery, except by a judgment of the court, in an action for a divorce, establishing her conviction of adultery.
    Cohabitation which amounts to a condonation of adultery, since it bars an action for divorce, does away with the penalty of a forfeiture of dower; and a finding of a referee, that the wife had been guilty of adultery, but that it had been condoned and therefore was not a ground of divorce, is not a conviction of adultery by the court within the meaning of the statute.
    Appeal from an order.
    Friend Pitts and others brought an action for the partition of lands in the city of New York, against Mary Ann Pitts and others. After the decree, Rachel Ann, the wife of John Pitts, another defendant, refused to release her dower, and thereupon the referee named in the decree was directed to ascertain the then present value of her inchoate right of dower, which he accordingly did, and the fund thus claimed by her was secured by a mortgage, subject to the order of the court.
    The dispute as to her claim of dower arose out of the following facts :
    Before the partition had been commenced, her husband, John Pitts, had brought an action in the same court, against her, for an absolute divorce upon the • ground of her adultery ; and the referee before whom that action was tried made his report, whereby he found that she had been guilty of an act of adultery, and that her husband had condoned the same, and had cohabited with her with full knowledge of the act, and the court directed the complaint for divorce to be dismissed with costs. Judgment was accordingly entered ' in the divorce suit in favor of the wife, dismissing the complaint.
    After the entry of this judgment she applied to the court to order the fund reserved in the partition suit to be collected and paid over to her, and an order to this effect was made, whereupon the defendant, John Pitts, moved to vacate the order on the ground that she had forfeited her dower by being convicted of adultery.
    
      The supreme court denied the motion upon grounds substantially the same as those assigned in the following opinion (Reported in 13 Abb. Pr. N. S., 272 ; S. C., 44 How. Pr., 64 ; affirmed, Id., 300).
    
      J. Langdon Ward, for John Pitts, the appellant.
    I. That the referee’s finding was a “conviction,”—cited : Worcester’s Dict.; Webster’s Dict.; Blackst. Comm., Book IV., p. 362; Jacob’s Law Dict.; 1 Hawk. P. C., ch. 10; McNeill’s Case, 1 Cai., 72; People v. Youngs, Id., 36; Kane v. People, 8 Wend., 211; People v. Winchell, 7 Cow., 525; Carpenter v. Nixon, 5 Hill, 260; People v. Cochran, 2 Johns. Cas., 73. The Revised Statutes themselves recognize the distinctinction. Conviction of a felony does not disqualify a witness. Sentence (i. e., judgment) upon such conviction, does (§ 23, title VII., ch. 1, Part IV., R. S.). The verdict of a jury or finding of fact by a referee, on which judgment is rendered, are necessarily parts of the judgment itself (Betts v. Starr, 5 Conn., 550; Edwards v. Stewart, 15 Barb., 67). A suit for a divorce is a proceeding in rem. (Bishop on Marriage and Divorce, 4 ed., § 754, et seq., and cases cited). A judgment in rem is conclusive both as to the direct matter decided and as to the grounds on which the sentence professes to proceed (Magoun v. New England Marine Ins. Co., 1 Story, 157; The Apollon, 9 Wheat., 362; Whitney v. Walsh, 1 Cush., 29; Gelston v. Hoyt, 3 Wheat., 313).
    II. That this a case for which the statute is intended to provide is evident from the course of legislation (Stat. Westm. Second, 13 Edw., 1, ch. 34; 2 Inst., 433; Laws of 1787, ch. 4, § 7) reenacting this statute; Revisers’ Report in 1830 (5 N. Y. Stat. at Large, Edm., 335; § 8, title 3, ch. 1, part 2, R. S.; § 48, art. 3, title 1, ch. 8, part 2, R. S.; Reynolds v. Reynolds, 24 Wend., 192).
    
      Richard L. H. Finch, for respondent
   By the Court.—Allen, J.

A wife can only be barred of dower by conviction of adultery in an action for a divorce, and by the judgment of the court in such action (2 Rev. Stat. 146, § 48 ; 1 Id. 741, § 8). The loss of dower is a part of the penalty for the offense, and follows the judgment. A forfeiture of dower cannot be established by proof of adultery, or by a verdict or judgment in any other action. The proof or admission upon the record of adultery, in an action to recover dower, will not defeat the action under the statutes of this State.

A cohabitation by the husband with the wife after the commission of adultery by her, with knowledge of the fact, condones the offense and is an absolute bar to any action for a divorce (2 Rev. Stat., 145, § 42). There is no longer a cause of action in the husband, and it necessarily follows that there can be no conviction. The parties bear the same relation to each other, and have the same civil rights, as if no offense had ever been committed. An action cannot be maintained merely to establish the fact that an offense has been committed, which has been blotted out and forgiven by the injured party,—to establish a fact which would have sustained an action, but which has been satisfied or released, and is barred,—in order that one of the penalties which would follow a conviction may attach to the offending wife. The law does not thus distinguish between and divide the legal consequences of the wrongful act of the wife, blotting out the more serious forfeitures of position and of the ordinary legal and civil rights of a married woman, but condemning her to the minor forfeiture of dower.

The reasons assigned for the . order by Judge Panchee, at special term, and Judge Iegeaham, at the general term of the supreme court, are entirely conclusive, and render a more elaborate discussion of the question unnecessary. The order must be affirmed.

All concurred. 
      
       The reasons assigned by the general term were to the same effect, and it is not necessary to repeat them.
     