Ann Byrne, Plaintiff in Error, vs. William C. Byrne, Defendant in Error, 3 Tex. 336

Mr. Justice Lipsoomb delivered the opinion of the court. Much of the discussion of counsel in this case has been on points that it is believed ought not to be noticed by the court. The record shows that, after the coming in of the answer, the parties placed themselves under a peremptory rule to go to trial on a particular day, which, by reference to the record, will appear to have been entered on the 29th of May, 1847, and the day of trial was set for the Wednesday following, which, it is believed, would be on the 3d of June, and the parties mutually bound themselves not to aslc for a continuance.

The application for a continuance, on the part of the defendant below, was made on the 2d of June, and the effort to amend, and for the appointment of a guardian ad litem, and the exception to the bill on the ground of being multifarious, was made on the same day. The reasons assigned for asking a continuance, in violation of the peremptory rule so made, were not such as entitled the application to the least consideration.

They were repugnant to the recorded rule, and it w'as trifling with the court to allege that the rule had been entered into, in the absence of the counsel best informed as to the nature of the defense. The court did not err in enforcing the rule. The same may be said of the refusal of the court to hear and consider the amended answer, because it was incompatible with the peremptory rule to try the cause. And we believe that the decree of the court below must be reviewed," and its correctness tested, by the petition and answer.

The question of the previous marriage of the complainant is not raised by the bill and answer, and all evidence in relation to it was, therefore, very properly excluded by the judge on the trial. "We shall discuss, first, the correctness of the decree in granting and decreeing the dissolution of the bonds of matrimony. It will be seen by reference to the decisions of this court, at the present term, in the case of Sheffield vs. Sheffield, and in Wright vs.

Wright, that we have required stronger proof to sustain a divorce from the bonds of matrimony, than perhaps had been thought necessary heretofore by the profession. Our conclusion, however, has been the result of much patient and laborious investigation, and we have the most entire confidence that it is founded on sound principles. We have held that the grounds on which a decree of that character is sought should be clearly and explicitly alleged in the petition, and that the proof must fully sustain such allegations.

It is not sufficient that a jury has found that outrages have been committed, of such a nature as to render their living together insupportable. What is meant in our statute by “ insupportable,” and “ outrageous,” is a question of law. The existence and truth of the facts that amount to such outrages are for the jury to find. The jury, in this case, have found that the defendant had' been guilty of outrages towards the plaintiff, of such a nature as to render the plaintiff and defendant’s living together insupportable.

The charges contained in the petition are explicit, and are as flagitious as can well be conceived, in the violation of the most sacred obligation of a wife, and the evidence most conclusively establishes their truth. We think, therefore, that the facts proven fully entitled the plaintiff to a divorce, and that the court below did not err in decreeing a divorce from the bonds of matrimony, and that so much of the decree must, therefore, be affirmed. We will next examine the second part of the decree.

The plaintiff asked that a deed, made by him to his wife and his two children by her, should be set aside and annulled, on the groxind that it was executed by him under such circumstances that it could not be his deed, as he had not, at the time of its execution, the use of reason, and that it was fraudulently procured by his wife. The jury find “ that the deed is not the act of William O. Byrne, a/nd is null and void, and Ann Byrne takes no title under it.” The judge decreed “ that the deed from William C.

Byrne to Ann Byrne be annulled, and held and deemed null and void, so far as Ann Byrne has acquired any right or interest under it; and that the property so conveyed, in the deed aforesaid, be reinvested in the said William 0. Byrne, in the same manner as if no such deed had been made to Ann Byrne.” To this part of the decree there has been an objection urged, that the rights of the minor children named in the deed hare been disposed of when they were not made parties to the suit. We do not so understand the decree. The minors’ interest is not assumed to be acted on by the decree, but only such interest as Mrs.

Byrne had acquired. As to her, the deed was cancelled and annulled, and whatever property had been vested in her is divested, and reinvested in William 0. Byrue. • It was not competent to render a decree against the minors, because they were not before the court, and their rights were coram non judice.

Any decree against them, under such circumstances, would be void; but so far as it affects the interest of Ann Byrne, the appellant, it is valid, and is affirmed. 'When the divorce was decreed, it was a dissolution of the marital rights in relation to the community property, and the wife, although degraded, was entitled to her share of such property, and to her own separate property, if any she had.

And it does seem, that, as to that matter, the suit ought to have been retained, and an account taken, and a separation of the property ; and that so much of the decree as remitted the wife to her action for her community rights must be reversed, and the cause, as to that matter, reversed and remanded, for the purpose of accomplishing this object.