From the statement made by my brethren of the facts of this case, it appears: (1) That John and Marie La Coste, husband and wife, separated in 1912, and have continuously lived apart since that date; (2) that the separation was caused by the willful, wicked, and wanton *Page 185 act of John La Coste in deserting his wife for her niece, and in living in open adultery with the niece for a number of years, during which time an illegitimate child was born to this adulterous union; (3) that after more than three years from the separation, John La Coste requested his wife to remove from Louisiana and to come to him in Texas and there renew the family status with him. This conclusion follows from the statement made because John La Coste relates his offer to a period of three years immediately antedating the filing of his suit in 1921; also, it appears from the allegations of Marie La Coste that the adulterous connection between her husband and her niece continued until "recent years." On these findings of my brethren, without expressing any opinion as to their other conclusions, I enter my dissent from the following proposition announced by them:
"It being undisputed that appellee, more than three years prior to the filing of his suit for divorce, had offered to resume marital relations with his wife, and had repeatedly requested her to come to his home and business that he had established and live with him, and she all the time refusing to do so, or to have anything to do with him, under the law she became and was the abandoning party, and therefore, her husband had grounds for divorce."
My brethren are right in saying:
"Furthermore, it seems to have been generally held that if the offending spouse offers in good faith to return and resume marital relations and the other refuses, then, in that event, the one refusing becomes in law the offending party, which, if persisted in, amounts to abandonment, because but for such refusal the difference would be healed."
And the authorities cited by them fully sustain this proposition. But the proposition announced has no application to the facts found by them, for the following reasons:
(1) In this case the offer of reconciliation was not made until more than three years after John La Coste abandoned his wife under circumstances making him the guilty party, and relieving her of all blame. 19 Corpus Juris, 67, announces the following rule on these facts:
"An offer of reconciliation by a guilty spouse must be made before the expiration of the statutory period in order to deprive the innocent spouse of the right to a divorce."
In support of this proposition, it was said by the Supreme Court of Oregon, in Luper v. Luper, 61 Or. 418, 96 P. 1099, that when the desertion has continued through the statutory period, the deserted one may rely upon his acquired right and refuse to renew cohabitation. See, also, the following additional authorities cited by Corpus Juris, which fully support the rule: Benkert v. Benkert, 32 Cal. 467; McMullin v. McMullin, 7 Cal.Unrep. 93, 71 P. 108; Kenniston v. Kenniston,6 Cal. App. 657, 92 P. 1037; Stoneburner v. Stoneburner, 11 Idaho, 603,83 P. 938; Compton v. Compton, 204 Ill. App. 629; Kirby v. Kirby,157 Ill. App. 564; Tipton v. Tipton, 169 Iowa 182, 151 N.W. 90, Ann.Cas. 1916C, 360; Gordon v. Gordon, 88 N.J. Eq. 436, 103 A. 31, 33; Elliott v. Elliott, 48 N.J. Eq. 231, 21 A. 381; Luper v. Luper, 61 Or. 418,96 P. 1099; Neagley v. Neagley, 59 Pa. Super. 565; Tutwiler v. Tutwiler, 118 Va. 724, 88 S.E. 86; Egbers v. Egbers, 79 Wash. 72, 139 P. 767; Basing v. Basing, 10 Jur. N. S. 806; Cargill v. Cargill, 4 Jur. N. S. 764; Cudlipp v. Cudlipp, 27 L. J. P. M. 64.
(2) By deserting his wife and living in open adultery with her niece during the years following the desertion, John La Coste had given his wife a cause of action which he could not take from her by an offer to renew the marital relation. The rule seems to be well established that a divorce to which a party is already entitled cannot be barred by the refusal of an offer to return. Kenniston v. Kenniston, 6 Cal. App. 657,92 P. 1037; Egbers v. Egbers, 79 Wash. 72, 139 P. 767. Of course, no one would dispute the general rule that if both parties are equally guilty, that is, if each has a ground for divorce against the other, a divorce will not be granted. 19 C.J. 93, where the authorities cited are too numerous to give here. So, if it be conceded that Marie La Coste's refusal to join her husband constituted desertion, she could defend against its consequences by pleading the adulterous acts of her husband, which in fact she did.
(3) Again, applying the proposition directly to the facts of this case, and on the assumption that Marie La Coste's refusal to live with her husband constituted abandonment, his adulterous conduct was a bar to his action for divorce on the ground of desertion. 19 C.J. 96; Redington v. Redington, 2 Colo. App. 8, 29 P. 811; Eikenbury v. Eikenbury,33 Ind. App. 69, 70 N.E. 837; Whippen v. Whippen, 147 Mass. 294,17 N.E. 644; Reid v. Reid, 21 N.J. Eq. 331; Earle v. Earle, 43 Or. 293,72 P. 976; Mathewson v. Mathewson, 18 Rawle I. 456, 28 A. 801,49 Am. St. Rep. 782.
Quoting Alexander v. Alexander, 140 Ind. 555, 38 N.E. 855, the Appellate Court of Indiana said in Eikenbury v. Burns, 33 Ind. App. 69,70 N.E. 837:
"`Where each of the married parties has committed a matrimonial offense, which is a cause for divorce, so that, when one asks for this remedy, the other is equally entitled to the same, whether the offenses are the same or not, the court can grant the prayer of neither.'"
The authorities cited fully sustain this proposition, whether the adultery was committed after the beginning of the period of desertion or prior thereto. It is said in the *Page 186 note to Mathewson v. Mathewson, 49 Am. St. Rep. 782:
"Divorce is a remedy provided for an innocent party. Burke v. Burke,44 Kan. 307; 21 Am. St. Rep. 283. And if the complaining party has violated the marriage contract to the extent that the violation would constitute a good cause for a divorce, a divorce will be denied."
The proposition announced by my brethren and supported generally by the authorities cited by them has relation to those cases where the party guilty of desertion has not given the other party an independent ground for divorce, but repenting of his desertion, and desiring to renew the marital relation, offers a reconciliation. In the face of such an offer, the other party must accept or become the offending party, when the offer is made in good faith.
But I have found no authority compelling an injured wife to abandon an independent ground for divorce and to condone an act as heinous as the one committed by John La Coste in this case, on the penalty of being declared the guilty party and thereby giving the offending husband a ground for divorce against her.