dissenting, said:
I concur with the opinion just delivered, so far as it reverses the decree of the circuit court of the 30th of September, 1880; but as I do not concur with the reasoning of the opinion nor entirely in the conclusion arrived at, I have prepared the following as my own view of the case:
The parties were finally separated from each other by the abandonment by the wife of her husband’s home in 1855, and her answer in this case, so largely quoted in the opinion of the majority, was filed in the year 1880, after the lapse of twenty-five years since she had left her husband.
If a suit for divorce is to be heard and decided upon the ad*189missions or statements of the parties, then the answer of the defendant presents a statement of, and discloses a case of the utmost atrocity and cruelty, which would stamp the husband as infamous indeed. But after a silence of so many years, this terrible arraignment should be cautiously received. The husband in his bill and in his deposition entirely denies the allegations of the same; declares that he never touched his wife unkindly, never struck her in his life, and never, during the period of their living together, was, in any wise, false to his marriage vows; that his wife brought with her when they were married a servant maid, whom he suspects as the author of her unjust suspicions toward him.
But I understand the law of this state to he, as provided in sec. 9, ch. 105, “Such suit shall be instituted and conducted as other suits in equity,, except that the bill shall not be taken for confessed; and whether the defendant answer or not, the cause shall be heard independently of the admissions of either party in the pleadings or otherwise.’’ This is the statute of this state. An ancient canon of the law provides, that “inasmuch as matrimonial causes have been reckoned and reputed among the weightiest, and, therefore, require the greatest caution when they come to be handled and debated in judgment, especially in causes wherein matrimony, having been in the church duly solemnized, is required upon any suggestion or pretext whatsoever to be dissolved or annulled, we do strictly charge and enjoin, that, in all proceedings in divorce and nullities of matrimony, good circumspection and advice be used, and that the truth may (as far as possible) he sifted out of the depositions of witnesses, and other lawful proofs and evictions, and that credit be not given to the sole confession of the parties themselves, however taken upon oath, either within or without the court.” This canon is in spirit and effect, probably in letter, common law in this country, our courts having uniformly proceeded upon its principles.
Some of the states, moreover, have substantially incorporated *190it in their statute law, while in others the common law has, as to confessions, been considerably modified by statute, the chief modification being that, in some of the states, it is provided that confessions be not at all received. As to the law upon this subject in Virginia it is plain and unequivocal, and, so far as I know, no attempt has ever been made by the courts in this state to evade or to disregard it.
If this principle is adhered to, and this statute respected, there is no evidence in this record to sustain the allegations of the answer. There is no proof taken to sustain it; none attempted in the community in which these parties lived and cohabited as husband and wife. Witnesses in that community have been called for other purposes, but they give us no proof upon the allegations of the answer.
Let us consider briefly the proof upon which these allegations rest. The answer itself prepared twenty-five years after the alleged cruelty; the statement of the father of the-wife that the husband confessed, or rather voluntarily admitted to him that he had misused his wife; the statement of the mother of the wife that the husband admitted to her that he misused his wife; the statement of the sister to the same effect. All these declarations coupled with the assertion that the husband had traveled some hundred and fifty miles to induce his wife to return to his home.
These witnesses all say that the wife was near her confinement and showed marks of blows and pinches upon her person. These witnesses testify as to these statements twenty-six years after they are alleged to have been made. With the best intentions the most disinterested witnesses are not very much to be relied on when they undertake to detail conversations which have occurred twenty-six years before. The husband, it may be remarked, utterly denies these statements as without any foundation in fact. If he had been thus brutal and cruel to his wife, and had driven her from his home with the lash and kicked her in the abdomen shortly before her confinement, why should he *191go so far and so abase himself to her family, and make such dangerous admissions in the father’s house, in order to induce her to return to a bed and hoard where she had been so unwelcome ?
And if he did do all these things, why did the wife and her father and her mother and her sister wait for over a quarter of a century to make these things known, and take no steps to punish such a brute ? And why did no body in the neighborhood, and no inmate of his house, hear anything about it all? These are questions not easily answered.
A man who thus acts would try in vain to conceal his conduct from his neighbors. Men who thus act are quickly discovered and at once marked and despised by all who know them, and such acts become quickly matters of public notoriety.
The husband says the cause of the disagreement was his objection to bis wife’s going to her home at that time as she desired, and that his objection was because of the distance, the expense being more than he could safely undergo. Can explanation be given for this long delay in making complaint, and seeking redress? When we turn to the record we find that at that time the husband was without property ; that soon after the failure of his efforts at reconciliation he returned to his wife all her property which she had brought to the marriage, including the female slave in question, and that they saw no more of each other, although for ten years the wife continued to live in Virginia, and did not go to the state of Tennessee until after the close of the late war. That in 1874 the husband brought suit for divorce which was regularly proceeded in, and the divorce decreed on account of the abandonment of the wife, the decree being absolute and either party by its terms being left free to contract marriage. Still nothing is heard from this former wife until in the year 1875. The said husband received two hundred acres of land and an interest in a mill worth $1,000. The cause was removed from the docket on the 4th of May, 1874. This property was received in 1875, and *192although the former wife was living so far away we find that quickly on the 2d day of February, 1875, an order was entered in the cause; this time nothing was done but to continue it. In the next year the former wife filed her petition to reinstate the cause. This was twenty-one years after the separation, but just one year after the former husband received this property. Nothing more was done however under this petition, until, in 1879, the husband, by bequest from an uncle who died, received a legacy of $5,000. In her petition the former wife had contented herself with a statement that she had sufficient cause for leaving her husband when she did. But she filed the above mentioned answer early in the year 1880, in which the very injurious charges are made against her husband, so that she not only waited all these years to make these charges of brutality, but she did actually appear and present her case to the court and ask for some of the first property her husband had received, and did not then, in thus presenting herself before the court, make any charge of brutality against her husband.
Under what stimulus she acted to make these dark and damaging charges which have so affected the courts we are left to conjecture. Now if these things were true, ought they not to have been made against the husband within a reasonable time? Does not the statute cited above require that these suits must be proceeded in as other suits in equity, except as to confessions and admissions. And in any suit brought by a suitor in 1880 for a cause of action which accrued in 1855, would not the suitor be expected to explain, to account for the delay, or have it imputed against him for laches in thus sleeping on his rights for so many years ? We are told in the learned opinion just read, that her answer should be treated as a cross-bill; but was there any necessity for her to wait until he brought suit? In all these years many persons have died, and the lapse of time brings lapse of memory, while it is difficult, if not impossible, to remember conversations accurately after the lapse of twenty-six years, it is equally difficult to disprove and rebut statements *193thus made after so great a period of time. I will now remark that the answer did not ask to have the decree set aside as to the divorce, that is allowed to stand, and still stands; so that the parties stand divorced, and that status is fixed as of the date of the decree, and at the suit of the husband and because of the abandonment of the wife. But under such decree she asks for alimony; under the rules of law is she entitled to it? If she'is entitled to it, I concur with the opinion just read, that it must be in the property of the husband at the time of the divorce.
Upon a divorce of this nature, the wife can have no claim to the future earnings or acquisitions of the husband any more than upon his protection, society or other conjugal rights or duty; he is alike discharged from them all. And if nothing upon the divorce can he given to her, or less than may be suitable to her rank and condition in life, by reason of the husband’s poverty, it is her misfortune to which she must submit.
See Chenault v. Chenault, 5 Sneed, 248, and Howe v. Howe, 4 Nev. 469, Mr. Minor says upon this subject, that no claim at all can arise on the part of either consort to the after acquired property of the other.
I am of opinion from the evidence and the pleadings in this record, that if the wife had been aware of this principle, she would never have filed either her petition or the answer to which we have referred.
Upon the point raised in the cause that the wife is not entitled to alimony when the divorce is at the suit of the husband for her abandonment, I find many cases decided both in England and in the states of this Union which hold that when the wife is the offender she cannot have alimony on a divorce decreed in favor of the husband. So long as he has committed no breach of marital duty he is under no obligation to provide her a separate maintenance, for she cannot claim it on the ground of her own misconduct. But under our law the question is left with the courts and must depend largely upon the circumstances of each case; and, as has been well said, when we look at this point, not *194as one of legal principle but as touching considerations of human frailty, and the forbearance toward it to which the merciful mind is prompted, we are led to the conclusion that in some cases the weight of justice presses too heavily upon a frail woman whom it thus deprives of the means of an honest livelihood. The English parliament had a practice, in granting divorces from the bond of matrimony to the husband, of always requiring him to make some provision for his discarded wife; and Chancellor Walworth, in decreeing in favor of the husband a separation from bed and board on account of the wife’s cruelty, said he would give her alimony if it were in his power, and recommended the husband to accord it voluntarily. See 2 Bishop on Mar. and Div. § 377.
The case of Latham v. Latham, 30 Gratt. 307, has been cited as a case upon this point, but it cannot be so regarded. The alimony was refused, but the divorce was also refused.
In this case, if the wife had come within a reasonable time and made her complaint and proved it, I would have regarded it as right to make a fair division of the property between them. But the parties agreed among themselves nearly thirty years ago, that each take the property which came through them; the husband voluntarily delivering to the wife all the property she brought to the marriage, a division which was advantageous to the wife at that time. He sought to take back the wife and the child, but he was refused, the wife preferring to take her property, and he having none, to keep the child.
The child has grown to full age and married, and received from her father property coming from her grandfather of $1,900. If the father contributed nothing to her support, on the other hand the mother has had the society and comfort of the daughter’s help. And the husband has married another wife, and has another family growing up around him. And as in no case the former wife can get his after acquired property, and has so long rested under the separation and division of property had between them twenty-nine years ago, I am of opinion, with all *195deference to others who differ, not to disturb the decree which was first entered.
The decree appealed from, upon its face, is obviously unjust and inequitable. The estate of the husband is reported as worth $5,072., The commissioner reported $350 per year as a proper allowance to the former wife; the court decreed $300 per year, in monthly instalments. Now, by a simple calculation, the whole income from this fund at sis per cent, appears to be $304 32. Now, in a fair division of the estate between the former husband and former wife, how could the court consider it just to give the whole estate to the former wife; or, in other words, to give of the $304.32, $300’to the former wife, and leave only $4.32 for the husband and his present family? upon the ground perhaps that the husband must labor for the support of these; hut we must remember that it is only by the labor of the husband, and his constant and unremitting labor, that he can make this property, which is chiefly a tract of land, yield this $304.32 of income. Without his labor and care it would yield hut little. And it is not easy to realize such a per cent, upon the value of property, under the present system of management, under the best circumstances, and, as a net result, it may perhaps be properly stated as an impossibility. This decree should he reversed and annulled.
Decree reversed in part, with costs to the appellee.