#### C. M. BYERS v. SARA SHERMAN BYERS.

(Filed 28 April, 1943.)

1. Actions § 4: Equity § Id—

No civil rights can inure to one out of his own violation of the criminal law.

2. Same—

The courts are open for the determination of rights and the redress of grievances, but not for the rewarding of wrongs — one *in flagrante delicto*is not permitted to recover.

*863. Appeal and Error § 49b: Trial § 39b—

Expressions in an opinion are to be interpreted in connection with tbe factual situation under review.

4. Pleadings § 3a—

A plaintiff! is not beld bound to anticipate and negative in advance all grounds of defense to the action he brings, and petitions for divorce do not constitute an exception to the general rule.

5. Divorce § 2a—

Notwithstanding the broad language of the separation statute, a husband may not ground an action for divorce on his own criminal conduct towards his wife. A full review of recent divorce and separation statutes and decisions thereon.

6. Same—

An action for divorce may not be maintained on the ground that the husband and wife have lived separate and apart for two years, when it is shown and pleaded in bar that such separation was the result of plaintiff’s wrongful abandonment of his wife and their children, and his offering of such indignities to defendant’s person as to render her condition intolerable and life burdensome.

7. Pleadings § 15—

A plea in bar is not to be overthrown by demurrer, if good in any respect or to any extent.

8. Divorce §§ 11, 13 — ”

An order for support, either *pendente lite*or under O. S., 1667, without more, will not perforce defeat an action for divorce under ch. 100, Public Laws 1937. Such an order is not final and may be modified or set aside on a showing of changed conditions. C. S., 1666.

9. Pleadings § 21—

A discretionary ruling on a motion to amend pleadings is not reviewable on appeal. C. S., 547.

Appeal by plaintiff from *Johnson, Special Judge,*at January Special Term, 1943, of MecicleNbueg.

Civil action for absolute divorce on tbe ground of two years separation.

Tbe complaint, filed 7 March, 1942, alleges :

1. That plaintiff and defendant were married in March, 1936, and lived together as husband and wife until February, 1940, when they separated.

2. That plaintiff and defendant have lived separate and apart continuously for the past two years, and the plaintiff has resided in this State for a period of one year.

Wherefore, plaintiff prays that the bonds of matrimony be dissolved as provided by ch. 100, Public Laws 1937.

Defendant filed answer 10 April, 1942, admitted the marriage and alleged that plaintiff and defendant lived together as husband and wife *87from March, 1936, until the plaintiff wrongfully abandoned her in September, 1940. She also admitted the plaintiff’s residence in the State for a period of one year, but denied that they had lived separate and apart within the meaning of the divorce laws.

In a further defense and cross action the defendant asked for alimony ■ without divorce or subsistence and counsel fees under C. S., 1667, as amended.

The plaintiff filed motion to strike the further answer and cross action under authority of *Silver v. Silver,*220 N. 0., 191, 16 S. E. (2d), 834, and *Shore v. Shore,*220 N. 0., 802, 18 S. E. (2d), 353, which was allowed. Whereupon, the defendant instituted an independent action for subsistence and counsel fees, alleging wrongful abandonment, etc., on the part of defendant, and upon denial of liability and issues joined, the jury found that the defendant therein, plaintiff herein, had failed to provide his wife and their two children with necessary subsistence and that he had offered “such indignities to the person of the plaintiff (the wife) as to render her condition intolerable and life burdensome, without any fault of the plaintiff, as alleged in the complaint.”

In the meantime a trial of the present action resulted in verdict and judgment for defendant, from which the plaintiff appealed, and a new trial was awarded for error in the charge. 222 N. C., 298.

Over objection of plaintiff, the defendant then applied to the court for leave to amend her answer and to set up in bar of the plaintiff’s action the record in the case by the defendant for alimony without divorce.

The motion being allowed, the plaintiff interposed a demurrer to the plea in bar, which was overruled. From the two rulings, the plaintiff appeals, assigning errors.

*Thaddeus A. Adams for plaintiff, appellant.*

*Carswell & Ervin and Robinson & Jones for defendant, appellee.*

Stacy, C. *J.*

The broad question for decision is whether an action for divorce may be maintained on the ground that “the husband and wife have lived separate and apart for two years” (ch. 100, Public Laws 1937), when it is shown and pleaded in bar that such separation was the result of the plaintiff’s wrongful abandonment of the defendant and their two children, and his offering such indignities to the person of the defendant as to render her condition intolerable and life burdensome. Specifically, the question posed is whether the amended answer states a good plea in bar, admitting for the purpose the truth of the facts alleged. 17 Am. Jur., 267; 27 C. J. S., 625.

The history of the “separation” statute was given in part on the former appeal, reported in 222 N. C., 298, to which reference may be had *88to avoid repetition. See, also, *Brown v. Brown,*213 N. C., 347, 196 S. E., 333. .

Briefly, it may be recalled tbat tbe first separation statute in tbis State was a ten-year statute, enacted in 1907, cb. 89, Laws 1907.

In *Cooke v. Cooke,*164 N. C., 272, 80 S. E., 178, it was beld by a sharply divided Court, tbat tbe plaintiff-in an action for divorce under tbe conditions named in tbe statute, as amended by cb. 165, Public Laws 1913, was entitled to a decree in bis or ber favor without reference to whether tbe. plaintiff or tbe defendant was in fault in bringing about tbe separation, and tbat tbe time covered by a decree *a mensa ei thoro*rendered in an action brought by tbe wife should not be excluded in computing tbe period of separation.

Thereafter, tbe *Goohe case, supra,*was rendered apocryphal by tbe recodification of tbe laws in 1919 — Consolidated Statutes — when tbe provisions of the separation statute were brought forward as subsection 4 of tbe general divorce section, C. S., 1659, which provides tbat “marriages may be dissolved and the parties thereto divorced from tbe bonds of matrimony, *on application of the party injured,*in tbe following cases,” naming them. (Italics added.) Tbis was so declared in the cases of *Sanderson v. Sanderson,*178 N. C., 339, 100 S. E., 590, and *Lee v. Lee,*182 N. C., 61, 108 S. E., 352.

Tbe law remained in tbis condition, in respect of tbe “party injured,” until tbe enactment of cb. 72, Public Laws 1931, in wbieb it was provided : “Marriages may be dissolved and tbe parties thereto divorced from the bonds of matrimony, on application of either party, if and when there has been a separation of husband and wife, either under deed of separation or otherwise, and they have lived separate and apart for five years,” etc. (reduced to two years by cb. 163, Public Laws 1933). And further: “Tbat tbis act shall be in addition to other acts and not construed as repealing other laws on tbe subject of divorces.”

In two cases arising under tbe 1931 Act, as amended in 1933, it was beld tbat tbe applicant for divorce need not be “tbe injured party.” *Long v. Long,*206 N. C., 706, 175 S. E., 85; *Campbell v. Campbell,*207 N. C., 859, 176 S. E., 250. In neither of these cases, however, was there a plea in bar based on tbe wrong of tbe applicant. Tbe principle really applied was tbat stated by *Avery, J.,*in *Steel v. Steel,*104 N. C., 631, 10 S. E., 707: “Tbe plaintiff is not beld bound to anticipate and nega-. tive in advance all ground of defense to tbe action be brings, and petitions for divorce do not constitute an exception to tbe general rule.”

Then came the case of *Parker v. Parker,*210 N. C., 264, 186 S. E., 346, decided 15 June, 1936, in which it was beld tbat “while tbe applicant need not be tbe injured party, tbe statute does not authorize a divorce where tbe husband has separated himself from bis wife, or tbe *89wife has separated herself from her husband, without cause and without agreement, express or implied.”

Following this decision, the General Assembly of 1937 again amended the law so as to read: “Marriages may be dissolved and the parties thereto divorced from the bonds of matrimony on application of either party, if and when the husband and wife have lived separate and apart for two years, and the plaintiff in the suit for divorce has resided in the State for a period of one year.” And further: “That this act shall be in addition to other acts and not construed as repealing other laws on the subject of divorce.” Ch. 100, Public Laws 1937. The section will appear in the General Statutes of 1943 as G. S. 50-6.

The plaintiff brings his action under the 1937 law. We have held in at least three eases that, notwithstanding the broad language of the separation statute, a husband may not ground an action for divorce on his own criminal conduct toward his wife. *Reynolds v. Reynolds,*208 N. C., 428, 181 S. E., 338; *Brown v. Brown,*213 N. C., 347, 196 S. E., 333; *Hyder v. Hyder,*215 N. C., 239, 1 S. E. (2d), 540. No civil rights can inure to one out of his own violation of the criminal law. *Lloyd v. R. R.,*151 N. C., 536, 66 S. E., 604. It may be noted that in the *Hyder case, supra,*the defendant alleged a willful or criminal abandonment on the part of the plaintiff, whereas the issue which the jury answered in the affirmative was: “Did the plaintiff wrongfully abandon the defendant, as alleged in the answer?” The judgment denying the plaintiff a divorce on this issue was upheld on appeal.

*We*have also held that when the misconduct of the complaining party in an action for divorce *a mensa et thoro*is calculated to and does reasonably induce the conduct of the defendant, relied upon in the action, he or she, as the ease may be, will not be permitted to take advantage of his or her own wrong, and the decree of divorcement will be denied. *Page v. Page,*161 N. C., 170, 76 S. E., 619. It is to be observed, however, that this was said in a case arising under the section which gives a right of action only to the “party injured.” C. S., 1660. And it has been said that the “party injured” means the party “wronged by the action of the other,” *Lee v. Lee, supra,*or “that the party to the marriage contract, *who is in the wrong,*cannot obtain a divorce.” *Sanderson v. Sanderson, supra.*It may also be pointed out that expressions appearing in an opinion are to be interpreted in connection with the factual situation. under review. *Light Co. v. Moss,*220 N. C., 200, 17 S. E. (2d), 10. For example, the expression used on the former appeal in this case “that the bare fact of living separate and apart for the period of two years, standing alone, will not constitute a cause of action for divorce,” should be viewed in the light of its setting, and construed accordingly. It was not intended as a delimitation of the statute. Likewise, the statement in *Hyder v. Hyder,*
      *90
      *supra,,*that “a husband is not compelled to live with his wife if he provides her adequate support,” should be understood as having been used in connection with what constitutes a willful abandonment under C. S., 4441. So, also, the quotation in *Oliver v. Oliver,*219 N. C., 299, 13 S. E. (2d), 549, that “separation as applied to the legal status of husband and wife' means ... a cessation of cohabitation of husband and wife, by mutual agreement,” should he noted as having been employed in reference to the theory advanced by the plaintiff in the case that the parties had mutually agreed to separate. “Every opinion, to be correctly understood, ought to be considered with a view to the case in which it was *delivered”*— Mar*shall, C. J.,*in *U. S. v. Burr,*4 Cranch., 469.

The cases holding that in an action for divorce *a vinculo matrimonii,*a plea in bar will not be sustained where the misconduct of the plaintiff falls short of such as would also constitute cause for absolute divorce are not in point. 17 Am. Jur., 269; 27 C. J. S., 625; Anno. 39 L. R. A. (N. S.), 1135. The defendant’s plea is not technically one of recrimination, though it may be *in genere,*of kindred nature, or of like kind. *Pharr v. Pharr, post,*115. Here, the very act of living separate and apart for two years, upon which the plaintiff bases his cause of action, was of his own wrongdoing. In other words, the plaintiff seeks to profit by his own tort. One *in flagrante delicto*is not permitted to recover in the courts. The courts are open for the determination of rights and the redress of grievances, but not for the rewarding of wrongs. To “do-justly” and to “render to each one his due,” *suum cuique tribuere,*are the first commands of the law.

It is an accepted principle in the law of domestic relations that an applicant will not be granted a divorce because of a condition — which within itself may be a statutory cause for divorce — when it affirmatively appears that such condition was brought about by the applicant’s own wrong. *Pierce v. Pierce,*120 Wash., 411, 208 Pac., 49. The law generally forbids redress to one for an injury done him by another, if he himself first be in the wrong about the same matter whereof he complains. The maxim is, *"in pari delicto potior est conditio defendentis.”*10 R. C. L., 353. No one is permitted to profit by his own fraud, or to take advantage of his own wrong, or to found a claim on his own iniquity, or to acquire any rights by his own crime. 1 R. C. L., 317. “No court will lend its aid to a party who founds his claim for redress upon an illegal *act”-*— •Bwayne, *J.,*in The “Florida,” 101 U. S., 43.

It is true, the statute under review provides that either party may sue-for a divorce or for a dissolution of the bonds of matrimony, “if and when the husband and wife have lived separate and apart for two years,” etc. However, it is not to be supposed the General Assembly intended to authorize one spouse willfully or wrongfully to abandon the other for *91a period of two years and tben reward tbe faithless spouse a divorce for tbe wrong committed, in tbe face of a plea in bar based on sucb wrong. *Woodruff v. Woodruff,*215 N. C., 685, 3 S. E. (2d), 5; *Sanderson v. Sanderson, supra; Whittington v. Whittington,*19 N. C., 64. Nor is it to be ascribed as tbe legislative intent that one spouse may drive tbe other from their home for a period of two years, without any cause or excuse, and tben obtain a divorce solely upon tbe ground of sucb separation created by tbe complainant’s own dereliction. *McGarry v. McGarry,*181 Wash., 689, 44 Pac. (2d), 816. Out of unilateral wrongs arise rights in favor of tbe wronged, but not in favor of tbe wrongdoer. One who plants a domestic tbornbusb or thistle need not expect to gather grapes or figs from it.

So much for tbe factual averments of tbe plea in bar as contained in tbe complaint filed in tbe maintenance suit and here set up in defense, which are deemed to be true for purposes of tbe demurrer.

When we come to tbe defendant’s position in respect of estoppel by record or *res judicata,*however, quite a different question is presented. *Medlin v. Medlin,*175 N. C., 529, 95 S. E., 857; *Brown v. Brown,*205 N. C., 64, 169 S. E., 818; *Price v. Edwards,*178 N. C., 493, 101 S. E., 33; 30 Am. Jur., 925. While tbe plaintiff there, defendant here, alleged an unlawful abandonment on the part of tbe plaintiff herein, this issue was not determined in tbe maintenance suit. Tbe jury found.in that action that tbe defendant there, plaintiff here, bad failed to provide bis wife and their two children with necessary subsistence according to bis means and condition in life, and that be bad offered such indignities to tbe person of tbe wife as to render her condition intolerable and life burdensome, without any fault on her part, as alleged in tbe complaint. But no issue was submitted to tbe jury in respect of tbe character of tbe separation. Its determination was not essential to tbe purposes of that suit. Indeed, in *Skittletharpe v. Skittletharpe,*130 N. C., 72, 40 S. E., 851, it was said that in an action under C. S., 1667, tbe “defendant’s reasons and excuses for separating from bis wife . . . were irrelevant and might have been stricken out upon motion.” See *Byerly v. Byetrly,*194 N. C., 532, 140 S. E., 158.

What effect this circumstance of placing tbe character of tbe separation in issue in that suit, without immediate disposition, may have upon tbe future course of tbe litigation cannot now be determined. See *Ellis v. Ellis,*190 N. C., 418, 130 S. E., 7; 30 Am. Jur., 927; *Case Mfg. Co. v. Moore,*144 N. C., 527, 57 S. E., 213, 10 L. E. A. (N. S.), 734, 119 M. St. Rep., 983. At present we are concerned only with tbe plaintiff’s demurrer. Tbe record in tbe maintenance suit would be conclusive as evidence, so far as it goes. *Southerland v. R. R.,*148 N. C., 442, 62 S. E., 517; *Medlin v. Medlin, supra.*If good in any respect or to any *92extent, tbe plea is not to be overthrown by demurrer. *Pharr v.*Pharr, *supra; Blackmore v. Winders,*144 N. C., 212, 56 S. E., 874. An order for support, either *pendente lile*or under C. S., 1667, without more, would not perforce defeat an action for divorce under ch. 100, Public Laws 1937. *Lockhart v. Lockhart, post,*123; *Briggs v. Briggs,*215 N. C., 78, 1 S. E. (2d), 118; *Holloway v, Holloway,*214 N. C., 662, 200 S. E., 436; *Dyer v. Dyer,*212 N. C., 620, 194 S. E., 278; *Howell v. Howell,*206 N. C., 672, 174 S. E., 921; *S. c., ante,*62; *Ellett v. Ellett,*157 N. C., 161, 72 S. E., 861. Such, an order is not final, and may be modified or set aside on a showing of changed conditions. C. S., 1666; *White v. White,*179 N. C., 592, 103 S. E., 216; C. S., 1667; *Hooper v. Hooper,*164 N. C., 1, 80 S. E., 64.

The demurrer was properly overruled, and the discretionary ruling on defendant’s motion to amend her pleading is not reviewable on appeal. C. S., 547. The result is an affirmance of the judgment.

Affirmed.