Opinion
(June Term, 1856.)
The three years residence, required by the Act of Assembly, ch. 29, sec. 7, Rev. Stat., of the petitioner in a suit for a divorce, previously to filing a petition, or bill, must be an actual residence, and when the wife sues, the legal maxim that "her domicil is that of her husband," will not avail in the stead of an actual residence.
THIS was an APPEAL from the Court of Equity of New-Hanover County, Judge CALDWELL presiding.
W. A. Wright and Strange for plaintiff.
London for defendant.
The bill was filed by the plaintiff, alleging adultery on the part of the husband, and an abandonment of his wife; and the prayer is for a divorce and dissolution of the bonds of matrimony, etc.
The main question in the case arises upon the following allegation in the plaintiff's bill: "And your petitioner further shows to your Honor, that her said husband has resided in the town of Wilmington for more than eight years, and although she has not been living with him three years, in all, in this State, yet she is advised that the domicil of her husband is her domicil, and, therefore, she has been resident of this State for more than the last three years preceding the present time." The defendant answered; replication taken; commissions and proofs.
The proper issues were made up and submitted to the jury; amongst the rest was the following: "Has the plaintiff resided (368) three years in this State, next before the filing of her said bill?"
On the trial of the issue, his Honor, amongst other instructions, told the jury that, according to admissions of the plaintiff, under oath, she had not resided in the State three years next before the filing of her bill, and no witness had been examined by her to prove an actual residence for three years, as required by the statute, though it was competent for her to have done so; that the position taken by her counsel that the domicil of the wife was the domicil of the husband, was, in many cases, a fiction that gave way to the fact; and, in this case, an actual residence of three years must be made to appear.
The counsel moved the Court to charge that the onus of proving the domicil of the plaintiff out of the State, under the circumstances of the case, devolved on the defendant; but the Court declined as to charge. The plaintiff excepted.
Verdict for the defendant. Judgment that the bill be dismissed. Appeal by the plaintiff.
The whole question turns upon the wording of the statute of this State upon "Divorces." Rev. Code, ch. 39, sec. 7. That section has this provision: "Nor shall any person be entitled to sue, unless he or she shall have resided within the State three years, immediately preceding the exhibition of the petition." This requirement is expressed in very plain terms, and it would appear needs no exposition. To reside at a place is to dwell there permanently, or for a time. In her petition, the plaintiff states explicitly, and in so many words, that she had not so resided in this State; "yet," she says, "she is advised that the domicil of her husband, is her domicil, and therefore, she has been a resident of this State for more than the three last years preceding the present time." The counsel who drew the petition (369) was well apprised of the difficulty in the way of his client, and therefore, instead of recklessly making her swear to a fact, has made her aver a conclusion which does not necessarily follow the fact. It is true, that for many purposes, the domicil of the husband is the domicil of the wife; but it is not so for every purpose. The maxim that the domicil of the wife follows that of the husband, cannot be applied to oust the Court of its jurisdiction; neither, from parity of reason, can it give jurisdiction. 14 Pick, Rep. 181. If the construction contended for were to prevail, the policy of our act might, and would be easily evaded. For instance, A and B are man and wife, residing in New York; the husband leaves his wife and comes to this State, where he lives for ten years in adultery with another woman; the wife, without ever being in North Carolina, files her bill here for a divorce, and claims to do so under the allegation that her husband has been domiciled here for ten years; could that be considered a compliance with the act? The principle reason of the enactment was to prevent our Courts from being made the easy instruments of obtaining divorces by persons not residing in the State — to prevent citizens of other States from using our Courts for purposes they could not attain in their own; in other words, to prevent frauds in these matters.
From the plaintiff's own showing, she was not entitled to file a bill in this State.
The Court, upon the trial of the issues, was requested to charge the jury upon the question of residence, that the onus of proving that the petitioner resided out of the State, lay on the defendant; this was rightly refused. Her residence in the State for the three years next preceding the filing of her petition, was a pre-requisite to her doing so. It is in the nature of a condition precedent. In the decree below there is no error.
Per curiam.
Bill dismissed.
Cited: Mordecai v. Boylan, 59 N.C. 364; Sc. 62 N.C. 221; Harris v. Harris, 115 N.C. 588; Moore v. Moore, 130 N.C. 335.
(370)