(dissenting). — Not content with the simple conclusion that because plaintiff’s wife obtained a divorce from him before he commenced this action for alienation of affections, his right of action at any time existing has' been forfeited by reason of the provisions of section 3181 of the Code, quoted, the majority proceed to consider other questions, and to make pronouncements thereon which to my mind are erroneous and to make distinctions whic[i I am convinced are unsound. For example, to avoid the effect of our former decision of Wood v. Mathews, 47 Iowa, 409, the majority make a distinction between actions for alienation of affections and for criminal conversation, which is well enough in its place, but which I regard as *493entirely unsound for the purpose of 'avoiding the effect of the decision in the Wood case.. That I can not be mistaken in this will appear from a reading'of the sixth paragraph of the majority opinion. If section 3181 of the Code is applicable to an action of criminal conversation, it is also applicable to an action for alienation of affection. Any attempt to distinguish the “two actions to get away from the decision in the Wood case is. to my mind futile.
The majority ■ expressly say that _we are not called “upon at the present time to say whether the Wood case should be overruled.” This expression was doubtless made because the majority were of opinion that section 3181 might apply to actions for alienation of affections, although inapplicable to actions for criminal conversation. I can not agree to this, and expressly dissent from that conclusion. I shall show that for some purposes actions for criminal conversation and- for alienation of affections should be distinguished, but they are- not distinguishable in the application of section 3181 of the Code. Although denying that such is the effect of the decision, I am very sure that the majority overrule Wood v. Mathews, supra. If that case recognizes the distinction- pointed out by the majority, I have failed to find it in the opinion.
II. Tor some purpose the majority take up decisions from other states which, so far as shown, have no statutes similar to our section 3181, for the purpose of showing that without such a statute as the one now under consideration a husband, whose wife has obtained a divorce from him, can not maintain an action:of criminal conversation or for alienation of affections occurring before the cause for divorce arose. This must be on the theory of estoppel, former adjudication, or by reason of public policy. Reference to the decision in’ the Indiana, Delaware, and Michigan cases is conclusive on this point. The Michigan case, which is cited in support of the opinion, *494is based upon one or the other of these grounds, and the majority concede that, although that state has no statute like our section 3181, nevertheless the opinion is cited as a precedent for holding that plaintiff can not recover. I shall have more to say of this case before concluding this statement of my views. The majority say, in unequivocal language that there is no case wherein a guilty party in a divorce decree ever maintained an action for damages for simple alienation of affections as distinguished from criminal conversation. I might well retort that.there is no opinion, aside from the one filed by the majority in tids case, which holds that a divorce obtained by a wife against her husband destroys a right of action already existing in his favor against a stranger for alienation of his wife’s affections or for criminal conversation. The cases, in so far as they have spoken upon the subject, are all the other way, and I may well suggest here for the purpose of this inquiry that the distinction between actions of criminal conversation and for alienation of affections is not sound. If the citation of the Michigan case is not for the purpose of sustaining the decision apart from section 3181 of the Code, then I do not know why it is referred to.
III. Apart from the general conclusion reached by the majority I must dissent from the thought that aside from section 3181 the decision of the court in the divorce case may be relied upon by defendant as a complete defense to plaintiff’s action. The reasoning to support this proposition is to my mind unsound. This position, if sound, must be based upon the theory of estoppel by judgment. It is essential to the doctrine of estoppel by judgment that it be mutual. That is to say, one can not take the position that the decree is conclusive if it operates to his benefit, but' inconclusive and of no effect if it operates to his disadvantage. Now, if the; majority are correct, then to be logical, we must hold that if plaintiff’s action had been for criminal conversation,, and, if after his *495right of action became complete, he brought a divorce suit against his wife, charging adultery with -the person who he claimed had been guilty of criminal conversation, and obtained a decree upon that ground,, this decree would be conclusive upon the defendant in the criminal conversation ease, and he could not disprove either the fact of marriage at the time he committed his act of adultery with the alleged wife, nor could he prove that he did not have intercourse with her. Such a holding would, I think, be rather startling to the legal mind. The following cases squarely hold that a decree of divorce is not conclusive as to strangers: Corry v. Lackey, 105 Mich. 363 (63 N. W. 418); Gill v. Read, 5 R. I. 343 (73 Am. Dec. 73); Jacobson v. Miller, 41 Mich. 90 (1 N. W. 1013).
In the former case it is said: “It appears that defendant’s wife procured a divorce .from him on the ground of extreme cruelty, and it is contended that he can not now be heard to say that he was not guilty of this cruelty. We do not think this 'contention can be allowed. As between the parties to that litigation the finding of fact is final and conclusion, but between plaintiff and defendant it. is not.” None of the cases cited by the majority announce a contrary doctrine.
Karren v. Karren, 25 Utah, 87 (69 Pac. 465, 60 L. R. A. 294, 95 Am. St. Rep. 815), was an action between the original parties to a divorce proceeding, and the effect of the original decree upon strangers was in no manner involved or decided. The case is no't in • point upon any proposition here involved.
Gordon v. Dickison, 131 Ill. 141 (23 N. E. 439), simply holds that a. wife divorced on the ground of desertion is not barred of dower under a statute providing that a divorce shall not bar the innocent party’s right of dower, although the wife, after the divorce commits • adultery. I quote- from that decision as follows:
*496Section 14 (Eev. St. c. 41) provides: ‘If any husband or wife is divorced for the fault or misconduct of the other, except where the marriage is void from the beginning, he or she shall not thereby lose dower, nor the benefit of such jointure; but if such divorce shall be for his or her own fault or misconduct, such dower or jointure, and any estate granted by the laws of this state in the real or personal estate of the other, shall be forfeited.’ Section 15 provides: ‘If a husband or wife voluntarily leave the other and commit adultery, he or she shall be forever barred of dower, and of the benefit of any such jointure, unless they are afterwards reconciled, and dwell together.’ It will be observed that section 14, without using any qualifications or exceptions whatever, save only where the marriage was void from the beginning, preserved the right of dower where the divorce is granted for the fault or misconduct of the other. Here, was a decree of divorce wherein the court had determined that the husband had deserted and abandoned his wife without any reasonable cause, and that such abandonment had continued for a period of two years; and the divorce was granted for the fault and misconduct of the husband. The complaint by the decree, clearly falls within the terms of section 14, which protects her dower rights; and, unless the offered evidence would bring the case within section 15, supra, the court ruled properly in excluding it. Section 15 does not provide that where the wife is driven from the home of the husband, and, after she is thus driven away, commits adultery, that she shall be barred of dower; nor does the statute provide, where the wife is deserted and abandoned, if after such desertion and abandonment she commits adultery,, she shall be barred of dower. Such is not the language of proper construction. But, on the other hand, the statute is, if the husband or wife voluntarily abandon the other, and commit adultery, then dower may be barred. There was no offer here to show that the wife voluntarily abandoned the husband and committed adultery. Indeed, it may well be doubted whether such proof could be made while the decree of divorce remained in full force, as the decree was a conclusive determination of the question between the parties. Section 15 of the statute is a wholesome provision of our law, when properly construed. Its *497object, no donbt, was to impose a penalty — the forfeiture of dower — when the husband voluntarily abandoned the wife, or the wife voluntarily abandoned the husband, and went off with an adulterer.
This case, if it amounts to anything, rather negatives the views of the majority regarding public policy. .Here a divorced wife, who was entitled to "dower under a given statute, was allowed to recover the same although after the divorce she committed adultery, and this in the face of a statute saying that if the wife commit adultery or voluntarily leave the husband she shall be forever barred of dower. The action was not against a stranger, but against one who was the successor of the husband or in privity with him. Orth v. Orth, 69 Mich. 158 (37 N. W. 67), was an action between the parties to' am original divorce proceeding to set aside the decree for fraud, and was not against strangers. It has no possible bearing upon any question in this case.
Moor v. Moor (Tex. Civ. App.) 63 S. W. 347, was also an action between the original parties to the divorce proceeding, and the rights of third parties were in no manner involved. The only third persons to that proceeding were attorneys to whom the divorced husband had assigned some of his rights, and they filed a disclaimer of an interest in the property involved. I can not see how it is in any manner applicable to the case now before us.
Ellis v. Ellis, 55 Minn. 401 (56 N. W. 1056, 23 L. R. A. 287, 43 Am. St. Rep. 514), was an action between the administrator of the estate of a deceased divorced husband, and the divorced wife — the administrator standing, of course, in the shoes of the deceased; and all held in that case is that where in am action for divorce in the court of another state both parties voluntarily appéar and submit to the jurisdiction, they were bound by the judgment, and could not avoid it in a collateral proceeding. It was further held that the fact that the wife brought the *498divorce suit through ill treatment and threats by the husband could not be shown to defeat the judgment. The question as to a stranger’s right to rely upon a decree of divorce was not considered or decided.
So much for the cases cited to sustain the conclusion that one who is sued for alienation of affections may set up a decree of divorce as a defense and that the plaintiff in the alienation suit is conclusively bound by the divorce decree. Not one of the cases cited on the proposition so holds. In none of them was the action against strangers -and nothing is said in any about the right of a third party who is not in privity with either of the parties to the divorce decree to rely thereon. In fact the cases are all the other way. See Freeman on Judgments, sections 159, 313, and cases cited, among which are Burlen v. Shannon, 3 Gray (Mass.) 387; Needham v. Brenner, 14 Week. Rep. 694; Gill v. Reed, 5 R. I. 343, 73 Am. Dec. 73.
In the latter case, which was an action by a stranger for necessaries furnished a wife during her separation from her husband, it was held that a decree dismissing a husband’s bill for divorce, based on the ground of the alleged adultery of the wife, is not evidence against the husband that the wife did not commit adultery prior -to the petition for divorce, or during its pendency. The court said that in so far as the divorce suit was concerned the decree was res adjudicaba, but that in so far as the plaintiff in the action then being considered was concerned, the decree in the divorce suit was not binding, and that the plaintiff in the suit for necessaries could not avail himself of it for the purpose of holding the husband liable for necessaries.
Huntington v. Jewett, 25 Iowa, 249, announces practically the same rule, basing it upon want of mutuality. I refer to this point because of the intimations in the majority opinion that plaintiff could in. no manner question-the divorce decree which his wife obtained against him. *499That he may do so when a stranger is pleading and relying upon the divorce decree I have no doubt. So much as to the effect of the decree in the divorce case independent of the statute under consideration.
In view of the use made by the majority of the ease of Gleason v. Knapp, 56 Mich. 291 (22 N. W. 865, 56 Am. Rep. 388), it may be well to quote from a more recent case by the same court, reported in 131 Mich., at page 228 (101 N. W., at page 541). In the latter case it is said:
Did the court err in allowing evidence tending to show the truth of the allegations contained in the second count of the declaration? Counsel says plaintiff failed to set up this charge in his amended answer in the divorce case, and is now debarred from charging the defendant with said offense. It is true, the defendant in that case did not say in so many words that his wife and Mr. Knickerbocker had committed adultery, but he, in effect, so charged them. This court so regarded the allegations of his answer, and passed upon that question in disposing of the case. Counsel also says that because the court passed upon that phase of the case and found the charge of adultery was not made out in the divorce case, the decree in that case is conclusive upon that question; citing as to both of these claims Gleason v. Knapp, 56 Mich. 291 (22 N. W. 865, 56 Am. Rep. 388). There is language in the opinion in that case which tends to justify the claim of counsel, but when the case is considered carefully it will' be found to be distinguishable from this one. In the case of. Gleason’s wife against him no answer was put in. In the case of Gleason against his wife nothing was done by him except to file his bill of complaint. In the case brought by him against Knapp the court found the facts sworn to by him were entirely contradictory to his sworn bill against his wife. The question involved in the case of Knickerbocker v. Knickerbocker was whether the wife was entitled to a divorce upon the ground of cruelty. We held that she, was. The question involved here is whether the affections of Mrs. Knickerbocker were alienated by the unlawful acts of the defend*500ant. We think the case comes within Corry v. Lackey, 105 Mich. 363 (63 N. W. 418).
This in itself practically disposes of that case. But it should be noticed that Gleason’s case was not disposed of on the ground of public policy, but upon some theory of estoppel. We quote the following from that case:
Plaintiff’s testimony in the case now before us is quite positive that what he saw that night did not lead him ■ to complain of his wife’s adultery, or prevent his desire to have their domestic relations continued, and did not prevent subsequent cohabitation. The wife’s divorce proceedings, which began in January, 1881, being followed by a decree which established that she had a sufficient cause of grievance, must be regarded as a bar to any cause of action for that grievance, if it existed. If plaintiff had such a cause of action as he now asserts, it would not only have been admissible in evidence in that divorce suit, but it would have been an absolute and perfect defense to it. The suggestion of the circuit judge that the jury might, as they saw fit, infer that that very divorce suit was the outcome of defendant’s misconduct, can not be allowed any force, since defendant’s failure to defend on that ground, when that defense was opened to him, and, according to his claim now, was known to him, left it as completely cut off as any other; and the decree is legally conclusive against him that no such facts exist.
Now it will be noted that the husband’s conduct, upon which the divorce was granted, occurred before any of the grievances of which he complained in the alienation case. Moreover, the case was one of criminal conversation and it was entirely proper, if it -was not the husband’s duty, to set up his wife’s adultery in that action as a complete defense if not as ground for divorce from his wife. The attempt made by the majority to distinguish between alienation and criminal conversation cases, while not to my mind persuasive, may well be used in this connection as a completé overthrow, if any be needed, of the doctrine first *501announced by the Michigan court. ' Criminal conversation, or adultery, is both a cause for divorce and a complete defense to an action for divorce. Alienation of affections is neither. Plaintiff in the instant case, could not, if he would, have pleaded loss of his wife’s affections through defendant’s conduct. That being' true the Michigan case, even if it had not been substantially overruled by the court which announced it, would not be an authority because of the very distinction made by the majority between alienation and criminal conversation cases, as pointed out in the majority opinion. I must confess that I do not understand the logic of the distinction made, if there be one, between alienation and criminal conversation cases as applied to the question now before us. There never was a time when plaintiff could have pleaded alienation of his wife’s affections in defense to her action for divorce. As bearing upon the doctrine of estoppel the distinction is pertinent and with this in mind the Gleason case loses all its force, if it ever had any, save for the purpose of that litigation. It entirely disposes of any theory of estoppel. The Gleason case does not in any manner support the position of the majority. Every case which I can find, after a somewhat diligent search, announces a contrary doctrine. . There is nothing contrary to public policy in allowing plaintiff to proceed with his action against the defendant, notwithstanding defendant’s attempt to take advantage of a situation which he, by his own wrong, contributed to, if he did not bring about; and clearly tiñere is no estoppel in the case.
IV. While the majority now rely very little, if at all, upon the doctrine of public policy, yet I think it clear from the discussion that even without a statute such as section 3181 they would hold plaintiff’s right of action barred by reason of the divorce obtained by his wife. To this I can not agree. The rule, if established, must be applied to every cause, no matter how flagrant the conduct of *502the defendant. The faults and foibles of human nature must be taken into account by the courts if they are to measure up to the full measure of their responsibility. Suppose a defendant does invade a man’s home and, with the consent of the wife, alienates her affections from her husband, would not such conduct be likely to bring about strained relations between husband and wife? And is it not altogether likely that the husband’s treatment of his wife will lack that degree of love and affection to which she might otherwise be entitled? Would it not, in all human probability, lead both to seek a separation and a dissolution of the marriage ties ? Would it not lead, if you please, to what has been denominated cruel and inhuman treatment — ;to profanity and neglect — aye, even to something more forcible? And if such be the case, does it lie in the mouth of a defendant, who by his own prior wrong brought about the wrecking of the home, to plead and prove in defense that the wife, after the cause of action was complete, obtained a divorce from her husband? It must be remembered in this connection that alienation of affections is not a ground for divorce; so that the husband of a wife, who has, through the machinations of another, lost all affection for her husband, must tamely submit, for he can not obtain a divorce. ' Even if he could, as I understand the majority opinion, his doing so would destroy his right of action against the assassin of his home. Moreover, when sued by his wife for conduct which she might reasonably apprehend would be the' result of her unfaithfulness, he can not plead alienation of her affections as a defense, and could not, in a divorce suit, have her conduct in this respect, unless it amounts to what the law calls criminal conversation investigated. It must be remembered that it is the original wrongdoer who is interposing the defense, of subsequent divorce obtained by the wife. If such a defense can be interposed the result may easily be "• apprehended. The 'pliant wife *503will be induced to do any and everything to secure a divorce from her husband, not only that she may marry the original wrongdoer, but also to shield her confederate from an action against him for the damages caused by his despicable, illegal, and 'unlawful conduct. If this be public policy, then I have an entirely erroneous notion of what the term means. The decisions are all to the contrary. One of these was announced by this court more than thirty-three years ago, and it has stood unchallenged either by the Legislature or by .the court to this day. The case is Wood v. Mathews, 47 Iowa, 409. After so long a time we may well believe that the Legislature, which declares the public policy of the state, has concluded, that for this jurisdiction at least, there is nothing in' such a situation as is here presented which offends against public policy. Of the many cases from other jurisdictions holding that under such circumstances the action is neither abated nor barred are the following: Prettyman v. Williamson, 1 Pennewill (Del.) 224 (39 Atl. 731); Wales v. Miner, 89 Ind. 121; Michael v. Dunkle, 84 Ind. 544 (43 Am. Rep. 100) ; Postlewaite v. Postlewaite, 1 Ind. App. 473 (28 N. E. 99) ; Haynes v. Nowlin, 129 Ind. 581 (29 N. E. 389, 14 L. R. A. 787, 28 Am. St. Rep. 213); Clow v. Chapman, 125 Mo. 101 (28 S. W. 328, 26 L. R. A. 412, 46 Am. St. Rep. 468); Beach v. Brown, 20 Wash. 266 (55 Pac. 46, 43 L. R. A. 114, 72 Am. St. Rep. 98) ; Purdy v. Robinson, 133 App. Div. 155 (117 N. Y. Supp. 295) ; Keen v. Keen, 49 Or. 362 (90 Pac. 147, 10 L. R. A. (N. S.) 504). The following quotations from some of these cases is apropos.
In Wales1 case the court said: “The fact that a divorce may have been granted to the plaintiff a few days before the bringing of the suit would not destroy appellee’s right of action.. That might be the means of perfecting it. . . . The action is brought for the 'injury *504and destruction of the plaintiff’s marital relations and is not based upon their then existence.”
In Michael's case, which was exactly like this, the opinion on this point reads as follows: “We think otherwise. ... It would not be in the interests of good order and the public morals to permit the seducer of a wife to set up a disagreement, or even a separation, between her and her husband, as a complete defense to an action by the latter for the wrong.”
In' Prettyman s case the court said: “The divorce granted by the Legislature to Mrs. Prettyman May- 26, 1897, may be and should be considered by you in mitigation of damages, if. you should think the plaintiff entitled to recover damages, because the plaintiff would not be entitled to any compensation for the loss of the affection, society, and services of his wife after .she ceased to be his wife. Although it is true, as Mr. Bishop has said in his valuable work on Marriage and Divorce (volume 1, section 1465), ‘That a legislative divorce, equally with a judicial one, snaps the vinculum of the marriage, and that whatever hangs upon it falls,’ yet the learned author in laying down that proposition illustrates its meaning by referring to the next section, which is as follows: ‘If the man dies, the woman will not be his widow, entitled to dower, and a portion of his personal property. He will not, on her death, be authorized to hold her lands as tenant by curtesy; but, on the contrary, his interest and that of his grantees and representatives, in them and in her choses of action, ceases. This is not a devesting of vested rights.’ The learned writer did not mean, and it can not be the law, that the divorce would be a bar to an action like the present, brought for an injury to the marital relation prior to the divorce, and which action is not based upon the existence of such relation at the time of the commencement of the suit.”
In Wood v. Mathews, this court, speaking through *505Day, Ch. J., said: “The evidence shows that after the injuries complained of, and before this action was brought, the plaintiff’s wife procured a divorce from him. The court instructed that this constitutes no defense to an action for damages against the defendant for any injuries which he may have sustained prior to the time of procuring the divorce. Appellant complains of the giving of this instruction. In it there is no error. Actions of this kind, after a decree of divorce, were maintained in Dickerman v. Graves, 6 Cush. (Mass.) 308 (53 Am. Dec. 41), and in Ratcliff v. Wales, 1 Hill (N. Y.) 63.” As further sustaining these views, see Smith v. Smith, 98 Tenn. 101 (38 S. W. 439, 60 Am. St. Rep. 838) ; Modisett v. McPike, 74 Mo. 636; Knickerbocker v. Worthing, 138 Mich. 224 (101 N. W. 540). In other cases it is held that the death of the wife constitutes no defense. Yundt v. Hartrunft, 41 Ill. 9. And- voluntary separation is no defense. Browning v. Jones, 52 Ill. App. 597; Cross v. Grant, 62 N. H. 675 (13 Am. St. Rep. 607); Jenkin v. Chism (Ky.) 76 S. W. 405; Schorn v. Berry, 63 Hun, 110 (17 N. Y. Supp. 572).
IV. Coming now to the statute on which the majority rely, it reads: “When a divorce is decreed, the guilty party forfeits all rights acquired by the marriage.” Before discussing the question as to the construction of this statute it is proper to say that Wood v. Mathews, 47 Iowa, 409, was decided long after this statute went into effect. That case either construes the statute, or the court did not think it applicable to the case, and in either event the majority are under the necessity of getting away from that precedent. That we should not now, after a lapse of thirty-three years, change the rule is to my mind imperative. The Legislature, we must assume, has been entirely faj miliar with that decision ever since it was rendered, and it has not seen fit to change the rule by statutory enactment. We should not do so in my opinion. The case has been *506cited by other courts with approval and has never been criticised anywhere. If there were no other reason, I should plant the decision of this case upon the ground of stare decisis. But it is perfectly apparent to my mind, that the statute does not and was not intended to cover such a case as this. The rights referred to in this statute are, it seems to me, rights of the parties to the divorce and their privies, and not rights of action against strangers. It will be noticed that the statute uses the term “guilty party,” and by necessary construction the rights referred to are rights against the other party or his privies, and not against entire strangers. Moreover, it is rights acquired by the marriage, and not rights of action against third persons which grow out 'of the violation by a stranger of his duties toward the husband of a then married woman— rights which became vested before the action for divorce was commenced. The right which plaintiff had was not acquired by the marriage. Defendant’s breach of duty toward. the plaintiff in alienating his wife’s affections was plaintiff’s cause of action, and it was not acquired by the marriage. It grew out of the status, but was not acquired by it. A relation was assumed, but, like other relations, the right of action was not acquired thereby. The relation simply fixed the measure of duty, but one acquired nothing thereby unless there was a breach of that duty, and the right of action became vested as soon as the .duty was violated. Plaintiff’s right of action was vested long before any action for divorce was brought, and the quotations from the Delaware and Indiana cases hitherto cited are quite in point here. The rights referred to in the statute are not vested rights, but rights between the parties themselves, acquired by the marriage, and not vested rights against strangers. I do not see how this could be plainer. Doubtless there is the reason why neither counsel nor court thought it necessary to notice the matter.. in the Wood case. . There is a manifest distinction between rights and *507rights of action. A right is a power, prerogative, or privilege. A right of action is a right to commence and maintain an action, existing at the time of the commencement of plaintiff’s suit. It is not necessary that the marriage relation exist at the 'time suit is brought or when the case goes to trial; and plaintiff had a right of action' which was vested in him when the divorce suit was commenced. In several cases' which were decided while this statute was in force it was suggested that a wife guilty of adultery or other thing entitling her husband to a divorce, might still, under exceptional cases, have alimony. Dupont v. Dupont, 10 Iowa, 112; Fivecoat v. Fivecoat, 32 Iowa, 198; Barnes v. Barnes, 59 Iowa, 456; Coulthard v. Coulthard, 91 Iowa, 742. In view of what is said in McGraney v. McGraney, 5 Iowa, 232, the intimations in these opinions seem to be doubtful to say the least; but the latter cases undoubtedly afford the proper clue to determine the reason for the enactment of the statute. Without such a statute many courts hold that a guilty wife may be entitled to alimony and that divorce is not a bar to dower, especially to the innocent par-, ty. This statute was enacted to furnish a rule for this ■state. See the McGraney case, supra, and Winch v. Bolton, 94 Iowa, 573. Without such a statute there is no uniform rule in the several states regarding dower, and as to alimony the cases are in great confusion. The statute in question first appeared in the so-called Code of 1843 (see chapter 65, section 6, Blue Book of 1843), and is also found in the Code of 1851 as section 1486. It was enacted at a time when there was great confusion in the cases regarding allowances of alimony to a guilty party in a divorce suit, and when even the question of dower to a divorcee was in grave doubt. These rights, and many others, were acquired by the marriage and existed between the parties or their successors in interest and were undoubtedly the only ones contemplated by the Legislature. *508As illustrative of the confusion which existed at that time, see the able opinion of Dillon, J., in Smith v. Woodworth, 4 Dill. 584, Fed. Cas. No. 13,130. Also Levins v. Sleator, 2 G. Greene, 604; Lakin v. Lakin, 2 Allen (Mass.) 45; Bryan v. Batcheller, 6 R. I. 543 (78 Am. Dec. 454) ; O’Ferrall v. Simplot, 4 Iowa, 381.
That the Legislature had in mind rights acquired by the marriage between the parties thereto and their privies or successors there is, to my mind, no doubt. This statute was dropped from the Revision of 1860; but it reappeared again in the Code of 1873 (section 2230). When readopted it should be given the same force and effect, and the same construction as when it originally appeared in 1843 and 1851. The mischiefs aimed at and the reasons for its adoption will be presumed to be the same as when it first appeared. It will be observed by the careful searcher of our authorities that there was no change whatever in the decisions of the court during the interim in which the statute was not in force. I am impressed with the thought that the majority are making this statute serve a purpose which was never intended by the Legislature, and it surely was not intended thereby to cut off a right of action by a husband against a wrongdoer which arose in virtue of the marriage relation, but which was not acquired by the marriage. The attempt by the majority to distinguish the Wood case by making it apply to criminal conversation cases, hut not to actions for alienation of affections, is not persuasive. I have already referred to this in another connection, and need only say at this point that if the right to sue for pollution of the marriage bed is not acquired by the marriage, certainly a right of action for alienation of affections is not acquired thereby. It is enough for my purpose to point out the exact situation, and .thus leave the matter in the hope that the Legislature will immediately change this statute so that it will not in the future be made to do such *509unholy service. Here plaintiff’s right of action was complete long before his wife was given a. divorce. He could not have pleaded alienation of his wife’s affection as a defense to that action, and he was not required to show when he brought his action for alienation that the marriage relation then existed or that at the time of the bringing thereof he was living in harmonious relations with his wife. All that he need show was that at the time defendant committed the wrong he was then wedded to his wife. More he was not required to do. Defendant then came in with what the majority must hold is either a plea of confession and avoidance or a plea in bar in which he admits his wrong, that he had no justification therefor, but that since the commission of that wrong plaintiff’s wife obtained a divorce from him and plaintiff thereby forfeited his right of action against the wrongdoer. In other words, a guilty party is permitted to take advantage of and plead a divorce which he himself was undoubtedly instrumental in securing in defense of his own confessed iniquity. In order • to complete the infamy he then marries the divorced wife. According to the majority public policy demands that the wronged husband pocket his grief and submit to the iniquity without a murmur. I can not in justice to my own feelings agree to this version of public policy without protest. This dissent is lodged against the proposition that the divorce is an absolute and complete defense to plaintiff’s cause of action. That it should be considered in mitigation of damages I have no doubt, but even here the circumstances under which it was obtained should be considered. It is evidence of plaintiff’s misconduct, but it will be noticed that it was misconduct after plaintiff’s cause of action arose. As bearing upon the simple question of public policy, I do not understand why a decree of divorce should be given any more force than plaintiff’s misconduct established *510in any .other way. For illustration, a divorce decree on the ground of adultery or for any other cause, under the most favorable aspect to the defendant, should not be regarded as anything more than conclusive proof of the truth of the grounds alleged for the divorce. Now, so far as public policy is concerned, it is entirely immaterial whether plaintiff’s misconduct after his right of ac-r tion arose is established by a decree- affording conclusive proof, or by uncontradicted testimony to the same matter. Would the majority say that a husband who has a right of action for alienation of his wife’s affections is barred of his right to sue or enforce his claim because after his cause of action arose he treated his wife cruelly and inhumanly or even committed adultery? If public policy is to control then, the majority, to be consistent, must so affirm. That this is not the rule is established by an unbroken line of cases. See Bishop’s Marriage & Divorce, sections 1371, 1372, 1373; Norton v. Warren, 9 Conn. 172; Shattuck v. Hammond, 46 Vt. 466 (14 Am. Rep. 631); Hadley v. Heywood, 121 Mass. 236. Also, Izard v. Izard, 14 P. D. 45.
The decree of divorce was, until set aside, binding upon the parties and upon the state, but I hesitate to say that it may be taken advantage of by one who prior thereto invaded the home and did the very things which may have brought it about. Surely plaintiff at one time had a cause of action and he has it yet, unless the divorce obtained after his cause of action became perfect operated as a forfeiture of that cause of action. Say what we may, the truth is that the divorce according to the majority opinion operated as a forfeiture; and that forfeiture is pleaded and relied upon by the wrongdoer himself in setting up a decree to which he was not a party, and in which he is interested only for the purpose of purging his own wrong.
*511Bor the .reasons stated, I must register- this emphatic dissent from the conclusions of the majority.
Ladd, J., dissents.