I concur with Mr. Justice Angstman in his contention that the divorce granted to the plaintiff by the trial judge should be sustained. Here the only cause of action for divorce pleaded is statutory cruelty by a course of conduct and treatment persisted *Page 620 in for more than one year. The complaint alleged that defendant "has for some two years, and is now enamoured of and in love with a certain woman," causing shame and humiliation and mortification to the plaintiff. Such conduct is a cause of mental suffering and anguish that under some circumstances may so destroy the peace of mind and happiness of the plaintiff and render the continuance of the marriage relation intolerable. 27 C.J.S., Divorce, sec. 28, p. 551; 1 Nelson, Divorce and Annulment, 2d Ed., sec. 6.20, p. 6.20, p. 269. The majority opinion points out that the complaint fails to allege that the wilful neglect and failure to provide continued for a year. The wilful neglect alleged began on September 3, 1944 and the complaint was filed eleven and a half months later on August 18, 1945. The same is true of the desertion. It is alleged the defendant abandoned the plaintiff on September 3, 1944, an abandonment that continued until the filing of the complaint. But in addition it is alleged that defendant failed to associate with the plaintiff for over two years and failed to permit the plaintiff to share his bed.
These various acts taken together comprise cruelty persisted in for more than two years. The majority breaks these acts into separate parts and points out that the desertion didn't exist for the full statutory period of one year, that the plaintiff was not wilfully neglected for the full statutory period, that the defendant's association with Mrs. Morefield did not last a full year. But as Justice Holmes said in Edwards v. Chile Copper Co.,270 U.S. 452, 46 S.Ct. 345, 346, 70 L.Ed. 678, the court "cannot let the fagot be destroyed by taking up each item of conduct separately and breaking the stick. The activities and situation must be judged as a whole."
The complaint states a cause of action for divorce. At the trial the plaintiff introduced substantial evidence in support of the allegations. The evidence is enough to sustain the trial judge in finding that defendant had pursued a course of conduct for more than two years that "destroyed the peace of mind and happiness" of the plaintiff and rendered the continuance of marriage relation unreasonable and intolerable. *Page 621
The trial judge did not err in granting the plaintiff a divorce. He acted under the statute and in accordance with the evidence.
Most of the evidence in the record, a large portion of the findings of the trial court, and much of the discussion in the other opinions of this court is based upon criticism of the trial court's disposition of the property of the parties. Under the decisions of this court in Stefonick v. Stefonick, 118 Mont. 486,167 P.2d 848, 164 A.L.R. 1211; Rufenach v. Rufenach,120 Mont. 351, 185 P.2d 293; Emery v. Emery, 122 Mont. 201,200 P.2d 251; and others, there is no way for a wife to share in the accumulations of a lifetime of marriage if she lets the husband manage the business and keep the property in his name. And if an over-fond wife permits her husband to deal with her separate property and as a result of such transactions he gets title in his own name, it is presumed to be a gift. That seems to me to be inequitable and unjust, but it is established law.
However, there is nothing that prevents these property rights of the husband and wife from being adjudicated in the divorce case. In many instances it is the proper place to ascertain those rights. In the case at bar the majority cite the requirement of section 9130, R.C.M. 1935, and Pomeroy on Code Remedies (5th Ed.), sec. 336, p. 516.
Section 9130, R.C.M., designates the causes that can be joined. But if two causes of action are improperly joined and no objection is made, the defect is waived. Section 9136, R.C.M. 1935; Binzel v. Viehmann, 111 Mont. 6, 106 P.2d 187; Frost et al., v. J.B. Long Co., 66 Mont. 385, 213 P. 1107.
The same is true of the majority objection that the several causes of action were intermingled and not severally stated and numbered. "The purpose of the rule is to enable a defendant to raise his defenses to one or more of the causes more clearly. * * * If two or more causes of action are commingled, and the defendant does not raise the question by motion, where that is the remedy afforded, he must be prepared to meet both at the trial, as the defect is not fatal to the causes of action blended, and is *Page 622 waived if not raised by timely and proper objection." 1 Bancroft, Code Pleading, sec. 116, pp. 223, 224.
If the parties feel that their rights are best preserved by settling all their matters in one action and waive their rights to object to misjoinder and the trial court does settle them, this court has no basis for disapproval.
Some of the trial court's decree disposing of the property rights of the parties cannot be sustained, but the divorce decree should be sustained and the cause returned for correction of that part of the judgment that is invalid. *Page 623