(after stating the facts.) 1. The fourth paragraph of section 4197, Sandels & Hill’s Digest, authorizes judgments to be vacated, after the term of their rendition, “for fraud practiced by the successful party in the obtaining of the judgment or order.” Section 4199 prescribed the procedure for such attack, and it was substantially followed in this case; and section 4200, as construed in Chambliss v. Reppy, 54 Ark. 539, requires, as a condition precedent to the maintenance of such suit to vacate the decree, that it be adjudged that there was a valid defense to the action in which the judgment attacked was rendered. Therefore this case requires the determination of these two questions: (a) was there fraud practiced in the obtaining of the divorce decree? (b) has Mrs. Womack, the defendant therein, established a defense to the divorce suit?
a. Where a husband leads the wife to believe that he wall not prosecute a pending divorce suit, and she, relying on such assurances, makes no defense thereto, it is a fraud “in the obtaining of the judgment” for him to thereafter prosecute the suit. to judgment, without giving her further opportunity to defend it. Nelson on Divorce, § 1052; Scanlan v. Scanlan, 41 Ill. App. 449; Nicholson v. Nicholson, 15 N. E. Rep. 223; Thelin v. Thelin, 8 Ill. App. 421.
Mrs. Womack testifies that she had such assurances from her husband; that a reconciliation was effected between them by Cooper, the attorney for Womack, who boarded in their hotel; and that the property was conveyed to him as part of such compromise or reconciliation, and that she knew of nothing to the contrary until after the adjournment of court on the day the decree was rendered, when she was notified of its rendition. She is corroborated on this point strongly by Mrs. Gann. Mrs. Gann testified that while the suit was pending she had a conversation with these parties, in which Womack stated that “he had never said aught against her character, and if anybody said he did he was a liar, and if she would convey the property back to him everything would be ‘all right and satisfactory,’ and the suit would he dropped.” Mrs. Womack testifies that it was on the faith of such assurances that she made the deed, and that she believed that such action on her part satisfied him, and that the suit was dismissed, as the former had been. .Womack testifies to the contrary, and asserts that there was no such understanding at all, and that twenty-five days before the court convened, in the presence of a witness, he notified her to employ counsel and prepare for a trial, and that the court would require him to pay her attorney and witness fees. He is corroborated by. the other party present, but the witness’ testimony is weakened on cross-examination to the extent of a partial corroboration of Mrs. Womack’s. Cooper positively denies effecting such compromise and reconciliation as Mrs. Womack claimed he did. He was asked, however, the direct question if Mrs. Womack knew that it was Womack’s intention to press the divorce suit, and answers it indirectly by an argument tending to show that she did know it.
On this state of the evidence it is difficult to say where the preponderance lies, but there is another question decisive of this point. The resumption of marital intercourse after a known cause for divorce is a condonation thereof. Turnbull v. Turnbull, 23 Ark. 615; Reed v. Reed, 62 Ark. 611; 2 Bishop, Mar. & Divorce, § 34.
Mrs. Womack testifies that the marital relations were resumed between her and her husband when the reconciliation was effected, and continued to within a few weeks of-the granting of the divorce. Mr. Womack denies this, and says that the marital relations had ceased fifteen years before this suit. They lived in the same house, a hotel; each was doing his and her respective share of the work in conducting it; and there is substantial corroboration of Mrs. Womack’s testimony as to their occupancy of the same room during this period between the execution of the deed and the divorce. The rule is, “when a husband and wife dwell in a mutual home, there is a strong presumption that they are living together as husband and wife, and it should require very clear and convincing evidence to overcome such presumption and show an abandonment under such circumstances.” Trimble v. Trimble, 65 Ark. 87. The evidence on behalf of appellee is far from being “very clear and convincing;” in fact, the preponderance is against him. Therefore, under settled rules of viewing such matters, the court must find that all the offenses he charged against his wife in his complaint and evidence were condoned before the decree was rendered. Considering the conflict on the question of the agreement to dismiss the suit in the light of this subsequent marital cohabitation, and also considering the undisputed fact of the continual residence together and joint work in conducting' the hotel for ten months after the suit is filed, the conclusion is irresistible that the wife was misled as to the pendency of the suit and his intention to prosecute it, and therefore appellee committed a fraud in the obtaining thereof.
b. Has the appellant, Mrs. Womack, made out a defense to the action? The charge of adultery made on the basis of the alleged incriminating conversation between Coffman and Mrs. Womack lacks any substantial corroboration, and both of the parties testify positively that there was no such conversation, and no such criminality. Coffman’s hurried departure is explained by him on the ground that Womack was drunk and hunting for him (which is admitted by Womack), and he returned a few days later to satisfy Womack there was no truth in it, and was per-' suaded by a friend, who was also a friend to the Womacks, to leave; the friend insisting that, if he left, the couple would settle their difference, which the evidence shows they did, to the extent at least of living together. On the other hand, the evidence fairly proves Mrs. Womack guilty of abusive and outrageous treatment of her husband. Such treatment, unexplained, and without equal fault on his part, would justify the divorce. But she makes out against him such conduct as, unexplained and without equal fault on her part, would justify her in having a divorce granted on her petition. It is only fair to Mr. Womack to say that the outrageous and indecent charges made against him are not sustained by the evidence. The charge of adultery against him, while more strongly corroborated than his charges against her on that score, is not established to the satisfaction of the court. But his drunkenness at times, his abuse of her, his bringing of various unsupported charges of adultery against her, and his fraud on her property right as herein set forth, are established. The rule is settled in such cases as follows: “No relief will be afforded to either party if the testimony discloses that they are equally at fault.” Cate v. Cate, 53 Ark. 484. This makes a defense to the action of the husband.
2. The suit is also to set aside the deed made on the 14th of December, 1898. Conceding that Womack purchased the land, and paid for it, and had the title taken in name of his wife, it was absolutely her property. “If a husband purchases property, and has it conveyed to his wife, or expends money in improving her property, the advances will be presumed to be gifts. The law will not imply a promise on her part to repay him.” Ward v. Ward, 36 Ark. 586. But the facts do not justify this conclusion, for the evidence shows her work contributed at least equally to the acquisition of this property, and he has in bankruptcy proceeding treated it as hers, not his, and he can not now be heard to say it was his. Rodgers, Domestic Rel. § 259. There can be no question that she owned this property freed of any legal, equitable, or moral obligation to convey it to him. No consideration whatever is shown for it; Womack claiming that she deeded to him “from a sense of right, which seemed for a little time to guide her.” She could have made a gift to him of this property, but the rule governing such gifts is as follows: “As the husband is supposed in law, as well as equity, -to exercise a very potent influence over his wife, courts always scrutinize conveyances and transfers from the wife to the husband.” Rodgers on Domestic Relations, § 260. Scrutinizing this conveyance in the light afforded by the situation of the parties at the time, the subsequent conduct of appellee, the positive testimony of Mrs. Womack and Mrs. Gann that this conveyance was in consideration of withdrawing the divorce suit, it must be avoided.
The whole case has been .developed in the very voluminous testimony in this case, and there can be no useful purpose served in ordering another trial where each party seems to have fully exhausted all charges against the other. The decree i£ reversed, and the cause remanded with directions to enter a decree vacating the divorce decree, and in the action then left pending to enter a decree on the evidence taken in this suit denying a divorce to either party, and to decree a cancellation-of the deed from Mrs. Womack to her husband, and adjudge the costs against appellee in both courts.
OPINION ON MOTION TO MODIFY DSCRES.
Him,, C. J.In the statement of the case the court declared that, as there was no evidence of a change in the status of _the property or parties after the divorce suit and prior to the bringing of this suit to vacate it, the court would not consider that such delay (something over a year) estopped appellant from prosecuting the action to vacate the judgment of divorce as fraudulently obtained. Since the decision here appellee files a motion to modify the decree, and sets forth that he was married in Oklahoma on July 15, 1903; that a child was born of such marriage, which has since died; and that he contracted the marriage with the lady who married him in good faith, having no idea that there was or would be any attack on the decree of divorce, and praying a modification to the extent that the cause be remanded and evidence adduced of these facts, to the end that this marriage be protected. The record shows this suit was commenced December 17, 1900; decree was rendered June 23, 1901; appeal was then prayed and granted, and transcript filed in this court October 8, 1901, where it has been pending since. These suits to vacate decrees on ground of fraud are maintained even when the party committing the fraud has remarried before the institution of the suit. Bishop, Marriage & Divorce § § 1550, 1552. Delay, however, will operate to the prejudice of the party applying, and, if unreasonably continued, bar the right. The delay in this case in bringing the suit did not work any prejudice to third person. Had the party remarried while there was considerable delay, that would be a circumstance strongly tending against sustaining the action. No such considerations are in this case. The marriage occurred in the face of an appeal pending here- in a case directly seeking to annul the divorce.
The modification is refused.
Wood, J., dissents from the original judgment and the overruling of this motion, on the ground that the evidence was sufficient to sustain the decree.