
    McClanahan v. McClanahan.
    
      (Nashville.
    
    February 3, 1900.)
    1. Mabbiagb and Divobce. Sufficient cause for wife’s divorce.
    
    A wife is entitled to absolute divorce on account of cruel and inhuman treatment that renders it unsafe and improper for her to cohabit with her husband, or to be under his dominion and control, where it appears that, on one occasion, he had, without justification or excuse, assaulted her in a brutal manner; had falsely charged her, before suit, with infidelity to her marriage vows, and had, by cross bill, reiterated that false charge; had falsely accused her, a white woman of excellent character, of illicit relations with a hired negro, that resulted in her pregnancy; and had, during many years, engaged with her in violent quarrels, calling her, upon slight provocation, grossly indecent and offensive names; and had confessed to her his own adultery on several occasions after marriage; although she may have in some measure, inexcusably, but not wantonly, provoked his bad temper and conduct. (Post, pp. 218-225.)
    
    Code construed: (¡<¡4202,4219 (S.); <¡§ 3307, 3324 (M. &V.); §<¡2449, 2466 (T. & S.).
    2. Same. Defense of condonation.
    
    The general rule that defenses are not available unless they are presented by plea or answer, is not, it seems, universal in its application to the defense of condonation of adultery in divorce cases. Condonation, it seems, will be available, though not relied on in the pleadings, if it appears in the proof that the injured party, with full knowledge of the facts, has forgiven the offense, or has procured or connived at its commission. But our statute, which requires the complainant, seeking divorce on account of defendant’s adultery, to show by affirmative proof, in the absence of any plea or answer, that there has been no condonation dispenses with pleading the fact in any case. (Post, pp. 225, 226.)
    
    Code construed: § 4213 (S.); <! 3318 (M. & V.); <¡ 2460 (T. & S.).
    Cases cited and approved: Cameron v. Cameron, 2 Cold., 375; 18 N. J. Eq., 33; 31 N. J. Eq , 225; 4 Paige, 433; .9 Ind., 105; 24 Ore., 416; 39 Ala., 348; 39 Wis., 651.
    
      3. Same. Same.
    
    The Court will not, mero motu, without pleadings, raise the defense of condonation, even where it might, if pleaded, he legally available in order to defeat the wife’s suit for divorce against a recusant and ruffianly husband, who confessed adultery, and is shown to have assaulted his wife with brutal violence; to have falsely assailed her virtue by the grossest charges of lechery and immorality; to have slandered her vilely; and to have treated her with gross indignity and great cruelty. (Post, p. 227.)
    4. Same. Same.
    
    Condonation is not a valid defense to the wife’s suit for divorce on account of such cruel and inhuman treatment of the husband as renders it unsafe and improper for her to cohabit with him, or remain under his dominion and control. (Post, pp. 227-232.)
    
    Cases cited and approved: Thomas v. Thomas, 2 Cold., 124; 116 Ill., 509; 34 La. Ann., 301; 39 La. Ann., 491; 2 Paige, 110.
    FROM wiLLIAMSON.
    Appeal from Chancery Court of Williamson County. H. H. Cook, Oh.
    E. IT. East, Bell fc GordoN, and HearN, Mc-Oorkle & LaNe for M. O. McClanahan.
    Pitts & Meses, H. P. Eowlxes, and J. H. HeNdersoN for W. B. McClanahan.
   Beard, J.

The original bill in this cause was filed by Mrs. McClanahan praying a decree for divorce from her husband upon the ground of snob cruel and inhuman treatment as to make it unsafe and improper for ber to cohabit with him; The defendant answered the bill, denying its allegations of cruelty, except as to á specific act, which he admitted, but averred that it was provoked by complainant, and was afterwards forgiven by her.

Subsequently, the defendant filed a cross bill, in which he charged complainant with adultery in 1888, and again in 1897. This was answered by the cross defendant with an indignant denial of all its averments. Upon these pleadings an immense record, consisting of about 2,400 typewritten pages, has been made up. We are saved, under the statute, the. necessity of going through the evidence in the cause save as. it is embraced in the opinion of the Court of Chancery Appeals. That Court finds that these parties were married in 1882; that at the time of the marriage the complainant was the owner, in fee, of a small tract of 130 acres of land, and in remainder of a 700-acre tract, the life estate of which fell' in in 1894; that of personalty, the wife brought to the marriage about $1,500 or $2,500, and the husband about $2,500; that some time after the marriage the defendant gave up his vocation as' a traveling salesman, and devoted himself to the management of his wife’s real property, in which he had met with reasonable success, having from time to time improved it in a valuable way, and all tbe time having furnished his family with a comfortable home.

The opinion of the Court also discloses, notwithstanding these evidences of material prosperity, that discord, extending over many years of their married life, and up to their final separation, apparently intensifying with the increase of time, existed between the two. Quarrels, originating generally with regard to the property, or rather his management of it, frequently took place. In these she often applied epithets 'to him, stinging in their nature, and, as coming from a woman, sometimes coarse, and he would reply always with usurious interest, characterizing her with foul and indecent names, and charging her with infidelity to her marriage • vows. It is apparent that complainant was possessed with the idea that her husband was mismanaging or misapplying the estate which she chiefly brought to ' the family. She often complained of this to him. But it is also true that on these occasions his resistance to her complaints rapidly passed into recrimination which far exceeded the offense, and was as gross as it was unmanly.

It is reported by the Court of Chancery Appeals that the rihusband and wife both prove excellent characters for truth and veracity; that the wife’s character, in all respects, as a cultivated and refined lady, is sustained by a number of witnesses; that the weight of the proof is, however, that she is a lady of high, temper, and this her own evidence demonstrates.” It may, with entire confidence, be added, upon the finding of facts by that Court, that it is equally clear that the husband’s temper was high, and in indulging it he often passed beyond the limit of decency, and became, in his turn, a violent and obscene assailant of the virtue of the mother of his children.

This much in the. way of the general facts. Now as to specific facts found by that Court. After making certain general observations as “affording a standpoint from which to view the ease,” the Court then proceeds, to use the language of the opinion, “to state the following facts established by the evidence.” These findings are then classified, and are embraced in. paragraphs which number from one to fifteen. Many of these findings of facts have already been summarized by us. Others bearing in an important degree on this unfortunate controversy will now be given in the words of the Court, or in paraphrases that will not affect their meaning:

“12. In December, 1896, he inflicted physical violence upon her by jerking her by her hair out of a chair on the floor while she had her baby in her lap and in doing so he pulled out some of her hair. He admits that he jerked her out of the chair by her hair while she held her babe, and upon the floor, but he denies that he’ pulled out any of her hair. He did on this occasion, pull out some of her hair, but not so much as was claimed, but the quantity pulled out was immaterial, save as illustrating the ferocity of the assault. As soon as she escaped she went upstairs, and had herself locked in the room of Hiss Lulu Swaree. (He soon followed. He was admitted on promise to offer no more violence. She and iVIiss Swaree and a negro girl (nurse) say, in substance, that after he got in the room he called his wife a-(foul name not here repeated), and told her if he could have got a poker he would have killed her with it. He denies this, and says, on the contrary, that he begged her pardon, told her he had disgraced himself and the children, and that he did it under an impulse of anger caused by her charging him with stealing some money. She says she gave him no provocation for the assault. . . After this she cohabited with him and submitted to his conjugal embraces.”

Again, that Court says: “She charges that in September, 1891, she and two of her boys came to Nashville, and were after dark getting home, and that he, before her return, in the presence 'of Miss Swaree and her 'little girl, called her all sorts of vile names, and said that she went to a bawdy house in Nashville, and left her children asleep in the vehicle in the livery stable, and became so violent that Miss Swaree had to order bim out _ of ber room; that when sbe got borne one of ber little girls told ber about wbat ber father said . . . that be, in effect, admitted it, and charged ber with infidelity in Nashville. He bitterly denies this charge, and says that all he said, in substance, was, that it was improper to remain out so late; that it Would cause gossip or talk. While it is quite probable,” adds the Court, “that wbat was said by bim on this occasion is considerably colored or exaggerated, the weight of the proof does establish . . . that be suggested that sbe not wbat sbe ought to be as a wife.”

Again, says the Court: “Sbe introduces proof to show that be accused ber with being too intimate ' with a negro man hired on the place, and says herself' that be accused ber of it. Sbe also introduces- proof to show, and says herself, that •a child given birth to prematurely by ber in a miscarriage, was charged by bim to be the product of sexual intercourse with a negro. He denies these charges in ■ toto and in ■ detail. Sbe continued ■ to live and cohabit with bim after these charges.”

In other words, the Court finds that be made this' terribly offensive charge, but clearly implies that subsequent cohabitation by the wife with ber husband ' was a condonation of the offense. It is true that in answer to the petition for a further finding of facts, that Court says that it has some doubt about this charge, but does not recede from its original finding.

“13. The husband was guilty several times with •one or more women, of adultery after marriage. He admits it, but says he told his wife about it, begged her forgiveness, received it, and promised to abstain in the future, and that she condoned these offenses. kShe says that she caught him in improper relations with a woman on the place, and that he told her it was no use to try and get a divorce, because she -could not prove it; that he and the woman would deny it, and that there would be two against one.”

Whatever may have produced their differences, whether property or something else, it is surely not remarkable that when confessed adultery is added to contumelious epithets showered upon her; to his violent assault involving her babe as well as herself; to the charge as to her infidelity in Nashville, and to his yet more loathsome charge of lechery with a negro, that, with ungovernable rage she should, from time to time, have broken out into fierce denunciations. Any one of these grievances was sufficient to arouse anger in the meekest of women, but all were sufficient to convert this wife into g, demon. That any refinement should have remained to her after her long-association with such a husband causes ‘profound astonishment.

That Court, on these and other facts, which bave been summarized by us, brought forward into an elaborate opinion, concludes that complainant would be entitled to a divorce except for the fact that she cohabited with her husband up to a short time before the filing of her bill. This was held to be a condonation of his numerous offenses so as to exclude her from a divorce and from all save the most meager ' relief.

Before coming to the question of condonation, and its effect upon complainant’s claim under the original bill, we will briefly dispose of the case made by the cross bill filed by the husband charging the wife with adultery in 1888 and 1897. In doing so it is sufficient to say that ' the Court of Chancery Appeals finds that the charge of adultery is not sustained by the evidence, and the cross bill was, thereupon, dismissed.

Returning now to the original bill, we agree with the .Court of Chancery Appeals that the facts found warrant a divorce to the wife, leaving for determination the question whether, on this record, it should be granted. In other words, finding, as is done, that this husband was guilty of cruel and inhuman treatment such as to render it unsafe and improper for her to cohabit with him, shall the wife be repelled under any well-settled rule of condonation *

In the first place it may be remarked the defendant does not rely on the defense of condonation in his answer to the original bill,

Tbe general rule is that a complainant must recover, if at all, on the case made in his bill, and the defendant cannot avail himself of any defense not set up in his answer. This rule has been applied by many Courts in divorce cases. In Jones v. Jones, 18 N. J. Eq., 33, the Court held that the defense of recrimination must be set up by special plea or answer. In Warren v. Warren, 31 N. J. Eq., 225, the Court said: “To enable a defendant to avail himself of con-donation, he must set it up either by plea or answer.” To the same effect is Smith v. Smith, 4 Paige, 433; Lewis v. Lewis, 9 Ind., 105.

It is true the maxim, “A cause is never concluded against the judge,” applies peculiarly in divorce cases.' Bishop on Mar., Sep. & Div., vol. 2, sec. 663. So, in a . case where adultery is the ground of divorce, even in a jurisdiction where the rule is that stricti juris condonation must be relied on in plea or answer, yet, where it appears in proofs properly taken, that the injured party, with a full knowledge of all the facts, has actually forgiven the injury, or where it appears that the adultery was committed by the procurement or with the connivance of complainant, a Court will decline to dissolve the contract. Smith v. Smith, supra; Hill v. Hill, 24 Ore., 416; Ribet v. Ribet, 39 Ala., 348; Dutcher v. Dutcher, 39 Wis., 651.

In such a case our statute, sec. 4213 of the (Shannon’s) Code, as construed in Cameron v. Cameron, 2 Cold., 375, makes a rule sw generis, in that it requires complainant, by affirmative proof, in the absence of plea or answer, to show that there has been no condonation. But it is not so provided where the divorce is asked on the ground of cruelty. So it might be argued with some plausibility that with the single exception of the defense of recrimination by a husband (sec. 4219, Shannon’s Code), it was the legislative intent that these cases should be controlled by the general rule of practice.

But, however this may be (and it is here immaterial), is this a case in which a Court should mero motu raise this defense for a recusant and ruffianly husband ? The complainant is the mother of five ' children, all young, and one at the time of the separation an infant, and her whole estate had passed under the dominion of the defendant. The last of the great affronts, to wit, that in charging her with leaving her children in a livery stable, and visiting a house of prostitution in Nashville, with a paramour, was put upon her only a few weeks before she abandoned him, her home, and family, ' immediately after which she filed the present bill.

“A wife’s cohabitation,” says Mr. Bishop, in Mar. Div. & Sep., vol. 2, see. 306, “with her husband, after he# inflicted the last act of cruelty of which she complains, will not, necessarily, in all circumstances, bar her suit.” Condonation is not an absolute term wbicb can be applied alike to all circumstances. Its application will vary as the offense said to have been condoned may vary. If the offense be adultery, then knowledge of the fact by the complainant, followed by cohabitation, is ipso facto condonation. Hut if, for instance, it is habitual drunkenness on the part of the husband, which is the ground for the application, when does condonation from cohabitation take place? The term “habitual” implies growth through various and increasing stages, until drunkenness became a fixed or established habit. Until this degree is reached it is not a ground for divorce. Could it be, with any show of reason, maintained that when this degree is reached the wife would be repelled because she had remained loyally with her husband, suffering, and yet striving to save him, until the final crisis is reached ? Unquestionably not. So of cruelty. As was said in Collins v. Collins, 10 Scotch Sess. Cas., 4 Sar., 250, cruelty is cumulative, admitting of degrees 'and augumenting by addition, so that it may be condoned, and even forgiven, for a time, and up to a certain point, without any bar, in sense or reason, to bringing it all forward when the continuance of it has rendered it no longer condonable.”

. .Cruelty, extending through a series of years, must •consist of numerous acts, many- of which might and possibly would be of themselves of a character not to warrant a divorce, yet constantly recurring they would indicate a wicked mind, and taken altogether would show that the condition of the sufferer was unsafe and beyond the point of further forbearance.

In Scott v. Campbell, a Scotch case found in footnote 6 to See. 304, Yol. 2, of Bish. IVIar. Div. & Sep., it is said: “Separation from bed and board, upon the head of maltreatment, was for the most part founded on the multiplicity and renewing the acts of maltreatment, and therefore the continuing of cohabitation was never a good defense against this separation. Eor one or two acts might not be sufficient, and yet a • complication was, because it demonstrated a continuance of the malevo! ous mind, and therefore these acts of maltreatment were always conjoined, though there be an interim cohabitation in hopes of amendment. And if it were not so, there could be almost no separation on the head of maltreatment ; for the -acts consisting in a tract, it necessarily supposed an interim cohabitation, and was very different from the case of divorce on the head of adultery, because there one act is violatio ;fidei conjugalis, and therefore cohabitation after knowledge thereof was understood to be a tacit remission, which was very different from maltreatment.” In other words, endurance of illtreatment is no bar to a wife’s suit, and raises no presumption against' her. Sharpe v. Sharpe, 116 Ill., 509; Terrell v. Boarman, 34 La. An., 301; Mack v. Handy, 39 La. An., 491. As was said by Chancellor Walworth, in Wood v. Woody 2 Paige Oh., 110, “condonation by implication from the fact of cohabitation, ought not to be held a strict bar against the wife. She is in a measure under the control of her husband. And this distinction will be found running through all the English cases on the subject.” Citing D’Anguillar v. D’Anguillar, 1 Hagg., 106; Kirkwall v. Kirkwall, 2 Consist. Rep., 279; Best v. Best, 1 Adams, 411.

That mere endurance will not bar, has been recognized, at least by necessary implication, in this State. In Thomas v. Thomas, 2 Cold., 124, the wife was refused a divorce on the ground of adultery, because of cohabitation after knowledge of the fact, but she was granted a decree on the ground of cruelty, although she remained under his dominion and in conjugal association with him until four months before the litigation began. In Lyle v. Lyle, 86 Tenn., 372, the complainant and defendant intermarried in 1876, and lived together until a little while before the .wife filed her bill for divorce, yet the Court did not permit this to militate against her. It was found “that the defendant’s course of conduct toward the complainant was habitually such; from soon after the marriage until complainant left him, as to render her condition intolerable and force ber to withdraw,” and divorce was therefore granted.

We are satisfied that this limitation upon the doctrine of condonation, when applied to a case like the present, is in accord with the best authority, the practice of this Court, and is most consistent with sound reason and a wise public policy.

Under § 4202 of the (Shannon’s) Code, where “the husband is guilty of such cruel and inhuman treatment or conduct towards his wife as makes it unsafe and improper for her to cohabit with him, and be under his dominion and control,” or “where he has offered such indignities to her person as to render her condition intolerable, and thereby forced her to withdraw,” it is within the discretion of the Court to grant a divorce from bed and board, or from the bonds of matrimony. It is also provided by § 4219 (Shannon’s Code) that “if the cause assigned by the wife for a divorce be any of those specified in § 4202, the defendant may make his defense by insisting upon and proving the ill conduct of the complainant as a justifiable cause for the conduct on his part complained of.”

In the examination of this cause we have had in mind these two sections of the Code, and in doing so have given full measure to the husband’s insistence that the outbreaks on his part were largely the result of the angry impatience of the wife at bis management of the property which she brought to him, yet we find in this im excuse for the brutality and obscenity that habitually marked his conduct on these occasions. And we are satisfied that it is in the interest of well ordered society, of the wife and of the moral future of the children, that this marriage be dissolved 'by a divorce a vinculo.

The decree of the Court of Chancery Appeals is reversed, and a decree will be entered in this Court affirming in every respect the decree of . the Chancellor.

The cause will be remanded, so that the Chancellor from time to time may prescribe such rules, as in his discretion may seem wise, under which defendant may see his children. The costs of the Court below will remain as adjudged by the Chancellor, and of the appeal will be paid by the defendant and his sureties.  