Friend Pitts et al. v. Mary Ann Pitts et al.

Friend Pitts et al. v. Mary Ann Pitts et al. (Argued April 1, 1873; decided May 6, 1873.) A wife can only he barred of dower by a conviction of adultery, in an action for divorce, and by the judgment in such action. (1 R. S., 741, §8; 2R. S., 146, §48.) An admission or proof of adultery or a verdict or judgment in any other action, will not work a forfeiture. A cohabitation by the husband with the wife after the commission of adultery by her, with knowledge of the fact, condones the offence and is an absolute bar to an action for divorce ; and an action cannot be maintained merely to establish the fact that the offence, which has thus been blotted out, has been committed in order to attach the penalty of forfeiture of dower to the offending wife. Appeal by John Pitts, one of the defendants, from an order of the General Term of the Supreme Court in the first judicial department, affirming an order of Special Term denying a motion, on behalf of said John Pitts, to vacate an order hereinafter set forth. This was an action for the partition of certain real estate in which said John Pitts had an interest. A decree was entered directing a sale. Rachel Ann Pitts, one of the defendants and the wife of said John Pitts, refused to execute a release of her inchoate right of dower in the premises, and the referee named in the decree was directed to ascertain the then present value of the said contingent inchoate right of dower, which was accordingly done, and found to amount to the sum of $802.07. By consent of the parties this sum was secured by the bond and mortgage of the purchaser to the referee named in the decree on a part of the premises sold, for the investment and benefit of the said Rachel Ann Pitts. Prior to the commencement of this action,' the -said John Pitts had commenced an action against t his said wife for an absolute divorce upon the ground of adultery. The issues were referred to a referee who rendered his report, whereby he found that the defendant had been guilty of an act of adultery, and that the plaintiff had condoned the same and had voluntarily cohabited with his said wife, with full knowledge of the act of adultery committed by her, and directed that the complaint in said action for a divorce be dismissed with costs. The said Rachel Ann Pitts filed a petition in this action setting forth the above facts, and praying that said $802.07 be paid over to her, upon which an order of reference was granted to take proof of the facts set forth in said petition. The report of the referee was confirmed, and the referee named in the said decree was directed to call in and collect the said bond and mortgage, and pay the same over to the petitioner or her attorney. Whereupon the said John Pitts made this motion to vacate and set aside the order of confirmation, and that the said bond and mortgage be assigned and transferred to him. J. LangdonWard for John Pitts, appellant. The conviction of the wife of adultery in the action for divorce barred her dower. (§ 48, art. 3, title 1, chap. 8, part 2, R. S.) Bichard EH. Finch for Rachel Ann Pitts, respondent. Power cannot be forfeited except by the decree or judgment of .the court adjudging a forfeiture. (2 Scribner on Dower, 502, § 9; Tyler on Infancy and Cov., 578, 579, § 414; Reynold v. Reynold, 24 Wend., 192; Coper v. Whitney, 3 Hill, 99; Wait v. Wait, 4 N. Y., 95; Forrest v. Forrest, 3 Abb. Pr., 165.) Condonation wipes out adultery and restores defendant to her original status. (2 R. S. [Edm. ed.], 151, § 42 [2] ; Willard’s Eq. Jur., 657.) [MAJORITY — Allen, J.] Allen, J. A wife can only be barred of dower by a conviction of adultery in an action fo*. a divorce, and by the judgment of the court in such action. (2 R. S., 146, § 48 ; 1 id., p. 741, § 8.) The loss of dower is a part of the penalty for the offence 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 offence and is an absolute bar to an action for a divorce. (2 R. S., 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 offence had ever been committed. An action cannot be maintained merely to establish the fact that an offence has been committed which has been blotted out and forgiven by the injured party, to establish facts which would have sustained an action, but which has been satisfied or released, and is barrea 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 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 Fahcheb at Special Term, and Judge Ingraham 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 concur. Order affirmed.