#### Conrad May, Plaintiff and Appellee, v. Lousa May, Defendant, Appellant

1 Divorce: connivance in adultery. Adultery of a wife, committed with a spy employed by the husband to test the wife’s virtue, does not entitle him to a divorce.

2 Condonation. A husband’s acts of cruelty, for which the wife is largely to blame, are condoned by her failing to make complaint, apologizing for her own conduct, and continuing to live with him, where no future danger to her life or health are to be ^apprehended.

*The figures on the left of the syllabi refer to corresponding figures placed on the margin of the case at the place where the point of the syllabus is decided.

*2*Appeal from Dubuque District Gourt*— HoN. Feed *O’Donnell,*Judge.

Thursday, April 6, 1899.

Suit in equity for a divorce. Tbe defendant also brought a like suit against the plaintiff, and the two actions were consolidated; defendant’s petition being treated as a cross bill. The trial court denied the relief asked by each, and both parties appeal. As defendant first perfected her appeal, she will be called the *“appellant.”*

Affirmed.

Longueville, *McCarthy & K entine*for appellant.

*Lyon &*Lyon, *John B. TJtt*and *Matthews & Barnes*for appellee.

DeeMer, J.- — I.

Plaintiff and defendant were married at Jamestown, Wis., on or about November 23, 1877, and lived together as husband and wife until February 19, 1897. Five children were born to them. For many years there have been frequent quarrels between them, which finally culminated in what we will denominate the “McGregor incident,” which will be hereinafter referred to. Plaintiff has been almost insanely jealous of his wife; and, to say the least, her conduct has not at all times been discreet. We are satisfied, too, that plaintiff has at times shamefully abused the defendant; but many of their quarrels were provoked by the wife. It is charged in the petition that defendant has been guilty of adultery with at -least four different persons. Defendant denies that she was guilty of adultery with any of them, and alleges as grounds for divorce from plaintiff that he has been guilty of such cruel and inhuman treatment as to endanger her life. There is evidence in the record tending to show unlawful and illicit relations between defendant and three different men. As to' one, it produces no more than a suspicion of improper conduct, but as to the *3other two it is direct. Notwithstanding its. directness, we are satisfied that there is no truth whatever in the claim that she had intercourse with one of these two men. It appears, without dispute, however, that in the month of February, 1897, defendant left her home in Dubuque without notifying any of her family that she was going; went to the town of McGregor, part of the way in company with a man by the name of Blanchard, who assumed the name of Brown; and then went to an hotel, where Blanchard registered the two as E. H. Brown and wife, from Chicago, who were assigned to a single room. Blanchard introduced defendant as Mrs. Brown, and was in her room, in conversation with her, during the evening. Early the next morning, plaintiff anueared upon the scene, was shown to the room where defendant 'was staying, and there a controversy arose between them as to what had occurred between her and Brown during the night. There is a dispute as to the length of time Brown was in the room, and as to what occurred there, and the witnesses do not agree as to what was said when plaintiff appeared. There is also some little dispute as to what defendant’s purpose was in leaving home. We are satisfied, however, that she thought she was going to Elkader, and that she did not know she had to stay over night in McGregor.

1 On the one hand, it is contended that defendant committed adultery with Blanchard, alias Brown, in the hotel, on the night in question; while on the other it is stoutly contended that, while the defendant may have been indiscreet, yet she did not have any illicit relations with Blanchard, and that whatever was done was with the husband’s eon-nivance and consent. We do not find it necessary to determine which is right in this contention, although we may say that defendant’s conduct was. t.o say the least, very injudicious. But, if it be conceded that "the act of adultery was in fact committed, plaintiff is in no position to take advantage of it. The evidence very clearly establishes the fact that plaintiff induced Blanchard to go to his *4home, to act as a spy, to see if he could not discover the wife in the act of adultery. He lived there in that relation for some time before he induced the defendant to go to McGregor, and she went on the false pretensa that she was to> go to Elkader to visit friends. Not only was Blanchard invited into plaintiffs home for the purpose of procuring evidence against his wife, but we ara also> satisfied that he was employed by plaintiff for the purpose of having intercourse with the defendant, if he found it possible to- do SO'. If, then, Blanchard did have intercourse with defendant, it was with plaintiff’s consent, and through his connivance, and he cannot be heard to complain. *Cane v. Cane,*39 N. J. Eq. 148. “That to which a party consents is not esteemed, in law, an injury,” is an old maxim, which is especially applicable to such a case as this. Erom the fact that the husband appeared upon the scene at the time he did, it is quite evident that he knew of the whole plan, and, in effect, consented to it. A court of equity will not grant relief under such circumstances. *Pierce v. Pierce,*3 Pick. 299; *Hedden v. Hedden,*21 N. J. Eq. 61; *Myers v. Myers,*41 Barb. 114. Plaintiff has no right to complain of his wife’s conduct at McGregor. The other acts of adultery alleged by plaintiff are not sustained by sufficient evidence to justify a decree in his favor, and the trial court was right in dismissing his petition.

2 II. The evidence introduced by defendant shows that plaintiff has been guilty of various acts of cruelty, which would ordinarily entitle her to a divorce. But here it appears that she was in many, if not in most instances, to blame. Barring certain conduct of plaintiff, which occurred so long ago that the presumption of condonation obtains, it appears that defendant persisted in keeping-company with a certain man against the plaintiff’s protests. Whenever he discovered that she had been in this man’s company (and we may remark parenthetically that we find no evidence of anything more than the slightest improprieties *5between them), a controversy arose, which always resulted in hard words between them, and sometimes blows. Defendant was to blame for not observing her husband’s' admonitions about not talking to, or being in company with, this man; and generally she took her own part in the quarrels which resulted after she had disobeyed these instructions. In other words, she at times provoked the plaintiff into making his assaults, and at others made an assault upon plaintiff herself. But, aside from all this, she continued to live and cohabit with her husband down to within a few days of the McGregor incident. She made no complaint of his conduct, but apologized for her own, and seemed content to live with him to the very last. Her conduct clearly amounts to a condonation of her husband’s offenses, serious as some of them may have been. *Gardner v. Gardner,*2 Gray, 434; *Phillips v. Phillips, 21*Wis. 252; *Douglass v. Douglass,*81 Iowa, 258. It goes without saying that if we were satisfied that plaintiff’s acts of cruelty would be repeated, and that there is danger to defendant’s life or health, should she continue to live with the plaintiff, we would be slow to find that condonation should avail the plaintiff in defending against his wife’s petition. This does not appear, however. Indeed, there is little, if any, evidence that defendant’s life or health were ever endangered. She seemed to be content to' live with her husband during all the years he was practicing his cruelty, and we do not think had a thought of bringing a divorce suit until plaintiff began his action. Under such a state of affairs, we may well doubt defendant’s sincerity in bringing her suit. We are not to be understood as holding that defendant was guilty of adultery at the town of McGregor, or that plaintiff’s conduct towards his wife is to be approved. We simply find that neither party is in position to obtain a decree of divorce. The case is peculiar in many of its aspects, and is an extremely unfortunate one for both of the parties. They have children, who they are each anxious should procure a good education — two of them being in the *6High, school in the city of Dubuque — they have ample means to provide for the necessities, and most of the luxuries of life; and there is every reason why they should live together harmoniously as husband and wife. Plaintiff, as we have said, is extremely jealous, and defendant may not have been entirely discreet in her conduct; but due consideration by each of the feelings and conduct of the other ought to remedy all evils, bring these parties together, and effectuate a reconcilliation which will be lasting. The decree of the district court is, on both appeals, aeeirmed.