#### ROBERT SANDERSON v. SUSAN SANDERSON.

(Filed 22 October, 1919.)

Divorce — Action—Injured Party — Statutes.

The consolidated statutes, ch. 238, sec. 8, Public Laws of 1919, requires, for the dissolution of marriages, that the application for divorce must be on the application of the injured party, on the several grounds enumerated, one of them (sub-see. 5) in case of separation and living apart of the husband and wife for ten successive years, the plaintiff residing in *340this State for that period; and where the husband sues for a divorce and it is established that his cruel and inhuman treatment had caused the separation, he is not the injured party and may not take advantage of his own wrong by obtaining a decree of divorce.

Appeal by defendant from Calvert, J., at tbe September Term, 1919,. of RobesoN.

Tbis action was instituted by plaintiff to obtain a divorce from bis wife, tbe defendant, on account of ten years separation. Tbe defendant answered and did not deny tbe separation, but set up tbat tbe same was. caused by tbe cruel and inhuman treatment tbat she bad received from tbe plaintiff, and tbat she was tbe injured party in such separation, and. tbat the plaintiff ought not to be allowed to obtain a divorce from her and escape tbe marital obligation on account of bis own wrong. These' facts are established by tbe verdict, which finds tbat tbe defendant was-tbe injured party in tbe separation.

Tbe verdict of tbe j ury was as follows:

1. Were tbe plaintiff and defendant duly married, as alleged in the-complaint? A. “Yes.”

2. Did tbe plaintiff and defendant live separate and apart continuously for ten successive years immediately preceding tbe institution of' tbis action and tbe filing of tbe complaint? A. “Yes.”

3. Has tbe plaintiff been a resident of tbe State of North Carolina, for ten years next preceding tbe institution of tbis action? A. “Yes.”

4. Was the plaintiff tbe injured party? A. “No; tbe defendant was; tbe injured party.”

Tbe defendant moved for judgment on tbe verdict, which was refused, and tbe defendant excepted.

Judgment for tbe plaintiff and tbe defendant appealed.

J ohnson & J ohnson for plaintiff.

McLean, Varser, McLean & Stacy for defendant.

AlleN, J.

Tbe appeal of tbe defendant presents tbe question for-decision of the right of tbe husband to a divorce on tbe ground of a separation for ten years, when the separation has been brought about by bis abandonment of bis wife or by forcing her to leaA^e him by bis. own misconduct.

Tbe Consolidated Statutes, which went into effect. 1 August, 1919 (Pub. Laws 19T9, cb. 238, sec. 8), provides, in chapter 30, section 5, tbat “marriages may be dissolved and tbe parties thereto divorced from tbe bonds of matrimony, on application of the party injured, in the-following cases:”

1. If tbe husband commits adultery.

*3412. If the wife commits adultery.

3. If either party, at the time of the marriage, was and still is naturally impotent.

4. If the wife, at the time of the marriage, is pregnant, and the husband is ignorant of the fact of such pregnancy and is not the father of the child with which the wife was pregnant at the time of the marriage.

5. If there has been a separation of husband and wife, and they have lived separate and apart for ten successive years, and the plaintiff in the suit for divorce has resided in this State for that period.

It is thus seen that all causes for divorce are collected in one section of one statute, and that the same condition is imposed as to each, that the divorce shall be granted “on application of the injured party,” which, as the grounds for divorce are statutory, has been frequently held to mean that the party to the marriage contract, who is in the wrong, cannot obtain a divorce. Whittington v. Whittington, 19 N. C., 64; Moss v. Moss, 24 N. C., 56; Foy v. Foy, 35 N. C., 90; Tew v. Tew, 80 N. C., 316; Setzer v. Setzer, 128 N. C., 170; House v. House, 131 N. C., 140.

All of these cases, except Moss v. Moss, were cited and approved in Page v. Page, 161 N. C., 175, the Court saying, in conclusion: “No one will be allowed to take advantage of his or her own wrong. This maxim was applied to a case of divorce by Judge Pearson, in Foy v. Foy, supra. In the words of the statute, Code, sec. 1285; Eevisal, sec. 1562, the application for the divorce must be made ‘by the party injured,’ and these words were construed, in Steel v. Steel, 104 N. C., 631, to mean that neither of the spouses is entitled to divorce if his or her marital fault provoked or induced the alleged misconduct of the other.”

“We have the highest authority for the precept, That whosoever shall put away his wife, saving for the cause of fornication, causeth her to commit adultery’; which is not more obligatory as an injunction of revealed religion, than it is just and true as a proposition in the philosophy of the human mind and heart” ( Whittington v. Whittington, supra), a principle embodied in the statute, which denies a divorce except to the injured party, and applied in the decisions of this Court.

The plaintiff insists, however, that the question has been decided differently in Cooke v. Cooke, 164 N. C., 272, and, as this is the last utterance of the Court, it destroys the effect of prior decisions, but an examination of the opinions in the Cooke case demonstrates that it does not question the correctness of the principle that one who is in the wrong cannot procure a divorce under a statute which gives the right of action to the injured party alone, and that the decision rests upon the ground that the cause for divorce on account of separation for ten years, as it then stood, was provided for in a separate statute, which did not have *342in it tbe condition, “on application of the injured party,” and that, although in form an amendment to the Revisal, the language of the statute was so explicit the Court was “not at liberty to interpolate or superimpose conditions and limitations which the statute itself does not contain.” Iioke, J., in the opinion of the Court.

Brown, J., who cast the deciding vote, makes it clear that this was the reason moving him, as he says in a concurring opinion: “It is contended that the plaintiff must allege and prove that the plaintiff is the'injured party. There are no such words in the act, although they are and have been in the Revisal long prior to the act of 1907.

“I think those words plainly apply to those causes of action which grow out of the personal misconduct of the parties. They would be out of place in the act of 1907, and are entirely .inconsistent with its spirit and purpose.”

The Cooke case, then, conceding it was correctly decided, when considered in connection with the reasoning of the Court and the ground of the decision, does not militate against the principle announced in the earlier cases, and is no authority for the position that one who is in the wrong may now have a divorce on account of a separation of ten years since .the statute, making this a cause for divorce, has been taken from its original setting and has been made a part of a statute, which gives no right of action except to the injured party.

The question decided in Ellett v. Ellett, 157 N. C., 162, was that there was error in the, charge of the Court as to the degree of proof required on the seventh issue, and for this error a new trial was ordered on the whole case.

We are therefore of opinion the finding on the fourth issue prevents the plaintiff from obtaining the divorce sued for, and it would be a harsh and cruel rule to declare otherwise, as to do so would permit a husband to drive a loving, faithful wife from his home and refuse to permit her to return for ten years, and then reward his conduct by granting him a divorce because he and his wife had lived separate for ten years.

Reversed.