This case comes here on writ of error. The suit was brought by the husband for a divorce on the ground of desertion for more than six months. The libelant is a major in the United States Army and for more than two years before instituting the suit had lived continuously in Honolulu, not on a military reservation but in private residences and at a hotel.
The libelee claims that because the libelant is a member of the military forces of the United States he could not acquire such a residence in this jurisdiction as would entitle him to maintain the present action. For reasons that will presently appear we think it unnecessary to decide this question.
It appears from the evidence that the parties had lived separate and apart for several years. Referring to this separation and its causes the circuit judge in his decision said: "Wide latitude was allowed by the court in the taking of testimony. Evidence was admitted beginning with the date of marriage. Many letters were received in evidence on behalf of the libelee showing the condition and circumstances of the home life, the attitude of each to the other, and various and sundry incidents of the marriage relation. It appears from the evidence that the libelant was on more than one occasion desirous of securing a divorce and so stated in letters to the libelee. He also entered into an agreement duly witnessed that desiring to live a single life, he was willing to pay to the libelant a certain sum monthly. Many of these letters were written four or five years prior to 1922. The letters and incidents of the period preceding 1922, show that *Page 798 the marriage relation was somewhat strained. Whatever may have been the causes for living separate and apart, and it is evident from the record that neither was desirous of resuming marital relations, yet it cannot be held that this situation is controlling when considered in the light of the incidents beginning with April 1922." I think it is clear from this language that the circuit judge intended to find and did find from the evidence that prior to April 1922 the separation of the parties was by mutual consent. Included in the evidence upon which this finding was based is the following communication dated January 7, 1920, addressed to the libelee and signed by the libelant:
"Jan. 7, 1920.
"To Mrs. K.C. Heritage,
"Due to the fact that I desire to live alone and apart from you I am willing to send you a check of one hundred and fifty dollars each month and as my salary increases I will also increase yours.
"A.M. Heritage
"Witness: "B.B. Gill "B.D. McGhee"
The evidence discloses that this communication was prepared in Washington, D.C., in the presence of the libelee and was delivered to her in person by the libelant. It is claimed by the libelant that it was dictated in his office by the libelee under circumstances that would have made it embarrassing for him to fully discuss it or object to signing it. However this may be, the libelant subsequently wrote to the libelee, saying to her in substance that she must realize that he would never return to her — that he desired his freedom, and asking her permission for him to consider obtaining a divorce. In this letter he also said: "We both have been at fault. I admit my own errors and the difficulties you may have had through them." On July 15, 1921, he wrote the libelee another *Page 799 letter in which he complained that he had had no reply to his previous letter, and said that she surely would not have him believe from her silence that she did not agree with his proposal. On July 21, she wrote him: "You remind me so much of a little boy that is always crying for the moon. Be satisfied with things as they now are." But he was not satisfied, he wanted a divorce and so in August he wrote: "I have asked you to do a decent common-sense act and you have replied, `Be satisfied with things as they now are.' This cannot be and I will not be satisfied until I do get my freedom. * * * I should think that you, an educated and well-read woman, would just hate to feel you were married to a person who does not care enough for you to want to live with you. * * * I mean absolutely nothing to you and you mean less to me so please release me like a good girl that you are and also please do not thank me any more for my checks as you know very well I only send them through a sense of duty." Later he wrote: "I have written you several times asking for my freedom and you have evidently not seen fit to grant me my one great desire. I cannot understand this for I should think you would be glad to get free of me knowing I do not love you. Will you kindly let me know what inducement I can offer you for an absolute divorce as I do not want to spend the balance of my life married to one for whom I do not care?" It is evident from these letters that neither of the parties wished during the period in which they were written to live together as husband and wife. It is equally evident that the libelant at that time had no ground for divorce. His effort was to induce the libelee to consent for him to obtain the divorce. In this he failed.
The situation remained unchanged until April 10, 1922. On that date the libelant wrote the following letter to the libelee: *Page 800
"After deep and long study, I have arrived at the conclusion that we both have made a great mistake. Husband and wife should live as one and to continue to live apart as we are doing imposes hardships upon both of us.
"It might be true that absence makes the heart grow fonder, but no matter, Katherine, I want to establish a home again for ourselves. I want you to return to me and live with me as husband and wife should. Let us forget the past and live for the future alone. We have both made errors and have been hasty. I am willing to admit my mistakes and if you will do likewise, let us start life anew.
"Had suitable quarters been obtainable heretofore, I would have asked you to return before this. The quarters I have in mind will be ready for us by May 1st.
"Do you think it better to ship the furniture down by truck or railroad?
"Use your own judgment. Personally I believe that a truck will be best. Let me know when I may expect you."
On April 11, the day following the libelant's letter, the libelee replied in substance that she was willing to live with the libelant provided she was "treated as a good wife should be," and asking about the quarters in which they were to live. On April 14 the libelant wrote that he had been temporarily ordered away and would not return to the arsenal for a couple of weeks and for the libelee to arrange to have the furniture shipped so it would arrive by May 1, on which date the quarters would be ready for her. He did not inform the libelee to what place he had been ordered. He went to Panama, taking the transport at New York where the libelee was living. When he reached New York he made no effort to see her nor did he communicate with her in any way. In fact she heard nothing further from him until he returned from Panama, which was on May 20, 1922, — twenty days after the time he had written her he would return and the quarters would be ready for their occupancy. In the meantime, on April 18, the libelee wrote acknowledging *Page 801 receipt of the libelant's letter of April 14 and requesting further details as to the shipment of the furniture and also requesting a photograph of the building where the quarters which they were to occupy on May 1 were located. She also requested that she be informed when the libelant expected to return and when he expected her to come. Owing to the libelant's absence this letter was not received until May 20. On that date he wrote that he had just returned and found libelee's letter. He made some suggestions regarding the shipment of the furniture and then said: "After the furniture is shipped it would be best for you to stay at a hotel for a few days until it arrives and I will wire you that you can come down and arrange the placing of our furniture to suit you. I am sending you a check to cover the necessary expenses in shipping the furniture." On June 21 the libelee acknowledged the receipt of this letter and said: "It has taken me considerable time to recover from the shock produced by its receipt." She further said: "I cannot understand why I should be asked to remove the furniture from my home, ship it to Maryland, go to a hotel and then await word from you, particularly in view of the fact that some time ago, after you requested that I should come to Edgewood, you subsequently stated that you had been ordered away and requested me not to come." She also said: "I am very much embarrassed because I have not received from you the monthly payments agreed upon and fixed at your own suggestion and I do not think that I should be left in the embarrassing position which results from your failure to support me. I have suffered very much from your neglect and treatment of me for a long time past and have tried to keep to myself the sorrow caused thereby. How much longer I can suffer in silence I do not know. I trust that you will recognize my position and on receipt of this letter send me a check or post office *Page 802 money order for the payments due me, now aggregating the sum of $525.00." To this the libelant replied under date of July 8, 1922: "You have never said what your obligations to the landlord consisted of. I think I wrote you that I was only ordered away temporarily and would return in a couple of weeks and as soon as I returned I wrote you and told you to send the furniture by freight. I think it was clear enough that I would be away from Edgewood only a very short time. It is now entirely up to you, the home is waiting. If you prefer taking other action go ahead as I have done all I could."
The libelee then took the matter up with the military authorities, which resulted in some further correspondence which it is unnecessary to consider. On November 21, 1922, the libelee wrote the libelant the following letter:
"I received your letter today and you will see that I am in Baltimore. I came a week ago today. I have been unable to work on account of illness for the past number of months and indications are that the condition of my health will prevent me from working for a long time and that is the reason I have accepted Frank's offer to come and live with him.
"Since coming here I have been thinking things over and have decided that I would like to come and live with you at Edgewood. I have written the people where our furniture is stored to deliver it to you and hope that you will soon be able to obtain quarters for us and have the furniture moved there. After all there is no reason why we shouldn't be together as we have never had a serious quarrel."
To this letter the libelant made no reply and on December 5 the libelee again wrote enclosing a copy of her letter of November 21. Again the libelant did not reply but filed a suit for divorce in the State of Maryland alleging desertion. This suit was dismissed on the ground that the libelant had no sufficient residence in Maryland and the merits of the controversy were not considered. *Page 803
The circuit judge found (and his finding is admittedly correct) that the libelee's letter of November 21, followed by another letter on December 5, constituted an unconditional and unequivocal offer by her, made in good faith, to resume her marital relations with the libelant and that the libelant refused her offer. He also found, however, that the libelant's letter of April 10 was an unconditional offer, made in good faith, to resume marital relations with the libelee and that the libelee's acceptance of this offer, contained in her letter of April 11, was a conditional and not an absolute acceptance and was therefore tantamount to a refusal and that she thus became the deserting party. He also found that her desertion had thereafter continued without interruption for more than six months prior to November 21, when her offer to return was made, and that the libelant's cause of action having then accrued he was under no legal duty to accept it. It was upon this finding the libelant was granted a divorce.
Assuming that the libelant's offer, contained in his letter of April 10, was unconditional and made in good faith I think the finding that the libelee's acceptance contained conditions which converted it into a refusal, thus making her, from that date, the defaulting party, was erroneous. The only provisions to her acceptance were the sincerity of her husband, suitable quarters and the kind of treatment due to a good wife. These were reasonable precautions for her to take. Moreover, both of the parties seem to have proceeded in their negotiations upon the assumption that the conditions would be complied with. The date of their reunion (May 1) was agreed upon. Plans were made accordingly. When the time arrived, however, the reunion did not occur. It was through no fault of the libelee that it failed. She was ready and willing but he was not. Even on his return on May 20 he wrote her a letter imposing additional delay. No wonder she *Page 804 was shocked at his treatment of her. His conduct and his letters showed his indifference to her and left him in no position to claim that she was the deserting party. Then he wrote the letter of July 8 telling her "the home is waiting" and that "it is * * * up to you." If there was desertion on the part of the libelee at all, which I very much doubt, it did not begin before the receipt of this letter. Assuming that it did begin on that date the period between such date and November 21, or December 5, 1922 (these latter dates being the ones on which the libelee offered to resume marital relations with the libelant), was short of six months and therefore the libelant's cause of action against the libelee for divorce had not accrued. This being true, whatever desertion the libelee was guilty of was cured and the libelant, in order to himself escape the imputation of desertion, was obliged to accept her offer. This he did not do.
The question has arisen as to what disposition should therefore be made of the case. It is contended by the libelant that in the event of a reversal the case should be remanded to the lower court for a new trial. It is contended, on the other hand, by the libelee that in the event of a reversal this court should enter an order dismissing the libel or remand the case to the lower court with instructions to dismiss it. It is not contended by the libelant that he should be given a new trial on the issue of whether the libelee deserted him on April 10, 1922, or thereafter. He does claim, however, that it is not apparent that it would be impossible for him on a new trial to produce evidence which would show that the libelee deserted him prior to April 10 and that therefore under the rulings of this court in former cases he should be given an opportunity to produce such evidence if it exists.
Whatever might be the fate of this claim under different circumstances, I think in the instant case it cannot *Page 805 be sustained. The letter of April 10, 1922, by the libelant to the libelee, and her reply, which was followed by a remittance by the libelant of money with which to ship her furniture to the place he had designated as their future residence and which he said would be ready for their occupancy on May 1, was a complete condonation by him of whatever prior desertion the libelee might have been guilty. This condonation precludes the libelant from predicating any action for divorce on such desertion.
In Bush v. Bush, 205 S.W. (Ark.) 895, the husband sued for a divorce on the ground of adultery. The adultery of the wife was proved. It appeared, however, that with knowledge of his wife's conduct terms of reconciliation were agreed upon in the presence of the wife's mother and it was also agreed that the parties would resume their marital relations and the husband so informed his father-in-law. Thereupon the husband and wife walked a distance of a few miles to the home they were to occupy but within ten or fifteen minutes after reaching there he informed her that he had decided that they could not get along together and took her back to her parents. In holding that the wife's fault was condoned the court said (p. 897): "The conduct of the appellant, according to his own admission, contains all the elements necessary to constitute legal condonation of the alleged offense. It was voluntary and complete. It is true that he changed his mind and undertook to rescind his acts of forgiveness and reconciliation before the resumed relations with his wife had proceeded to the extent of actual cohabitation or sexual intercourse, but it is not essential that the relation should have proceeded to that extent in order to become complete and binding. There are two modes or forms of condonation, one express and the other implied; and, while there are some authorities that go to the extent of holding that an implied condonation is not completed with any act *Page 806 short of actual cohabitation, we find none of the authorities that hold that an express condonation need go to that extent."
In Thompson v. Thompson, 247 Pac. (Nev.) 545, the wife had sued the husband for a divorce in the city of Washington, D.C. A decree was entered in her favor for separate maintenance. Thereafter the parties executed an agreement in writing wherein it was recited in substance that they would resume their marital relations. It was also recited that as an evidence of good faith on the part of the husband he had conveyed to the wife a certain house and lot in Washington. It was also agreed that the suit which the wife had brought and upon which she had obtained a decree of separate maintenance should be dismissed. Later (in 1921), in litigation between the parties instituted in Nevada, relating to a divorce, the question arose as to whether this agreement amounted to condonation. Speaking on this subject the court said (p. 546): "We are clearly of the opinion that the entering into the agreement settling the Washington case was a condonation of all prior grievances. But it is contended by counsel that there can be no condonation where there is no cohabitation and that there was no cohabitation between the parties after the agreement was signed. While it is true, as contended, that there was no cohabitation, we are not in accord with the contention made. `Condonation,' as that word is used in divorce suits, is merely a forgiveness by the aggrieved spouse of past offenses on the condition that they will not be repeated. Such forgiveness must be with the intention that the offender shall be restored to former marital relations. 19 C.J. 83. This forgiveness is generally established by the conduct of the party, but an express forgiveness may be shown, and, when shown, is as binding as one shown by proof of cohabitation. In Beeby v.Beeby, 1 Hagg. Ecc. 789, the *Page 807 court, speaking through Lord Stowell, said, `Now, condonation is forgiveness legally releasing the injury; it may be express or implied, as by the husband cohabiting with a delinquent wife, for it is to be presumed he would not take her to his bed again unless he had forgiven her.' Another English case wherein express condonation was held sufficient is that of Blandford v.Blandford, 8 Prob. Div. 19. In that case the wife had written letters expressing her forgiveness. The court said: `But the letters show that she forgave him on condition that he "sinned no more," and that is the legal definition of condonation.'" The court in its opinion cited Bush v. Bush, supra, as a supporting authority.
The decree appealed from is reversed and the libel dismissed. A proper decree will be signed upon presentation.