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claims for the payment of money, whether liquidated or otherwise, which survive against the personal representatives of the deceased, as provided in section 484. [L. 1862; D. Cd. § 478; H. C. § 482.]

§ 495. Enforcement of Decree Against Heir or Devisee.

A decree against an heir or devisee, on account of the debt of his ancestor or testator, may be enforced by execution against the real property shown to have descended to the heir or devisee, and not otherwise. Such decree shall have preference over as a lien on such real property to any judgment or decree obtained against such heir or devisee on account of a debt or demand due in his own right. [L. 1862; D. C. § 479; H. C. 483.]

§ 496. Personal Liability of Heirs or Devisees.

When it appears in the suit, that before the commencement thereof the heir or devisee has aliened the real property descended to him, or any part thereof, he shall be personally liable for the value of the property so aliened, and a decree may be given against him therefor, to be enforced by execution, as if the decree were for his own debt. No real property aliened in good faith and for a valuable consideration by an heir or devisee before suit commenced against him is liable to an execution for the debt of his ancestor or testator, or in any manner affected by a decree therefor against such heir or devisee. [L. 1862; D. Cd. § 480; H. C. § 484.]

§ 497. Decree Against Several Heirs or Devisees.

In suit against several heirs jointly, or several devisees jointly, the amount which the plaintiff recovers must be apportioned among all the heirs of the ancestor or devisees of the testator, in proportion to the value of the real property descended or devised, and such proportion only can be recovered of each heir or devisee. [L. 1862; D. Cd. § 481; H. C. § 485.]

§ 498. Devisees not Liable Where there are Assets.

A devisee shall not be liable to the creditor of his testator unless it appear that the personal assets of the testator and the real property descended to his heirs were insufficient to discharge the debt, or unless it appear that after due proceedings the creditor has been unable to recover the debt or any part thereof from the personal representatives of the testator, or from his next of kin, legatees, or heirs. [L. 1862; D. Cd. § 482; H. C. § 486.]

§ 499. Liable for Deficiency Only.

In either of the cases specified in section 498 the amount of the deficiency of the personal assets, and of the real property descended, to satisfy the debt of the plaintiff or the amount which such plaintiff may have failed to recover from the personal representatives of the testator, his next of kin, legatees, and heirs, may be recovered of the devisees of such testator, to the extent of the value of the real property devised to them respectively. [L. 1862; D. Cd. § 483; H. C. § 487.]

VOL. I.-18.

§ 500. When Sections 498 and 499 not Applicable.

Sections 498 and 499 shall not affect the liability of devisees for a debt of their testator where such debt was by his will expressly charged exclusively upon the real property devised, or by the terms of the will made payable by the devisee, or out of the real property devised, before resorting to the personal property or to any other real property descended or devised. [L. 1862; D. Cd. § 484; H. C. § 488.]

CHAPTER VIII.

OF SUITS TO DECLARE VOID OR DISSOLVE THE MARRIAGE CONTRACT.

§ 501. Suits to Dissolve or Nullify Marriage Contract.

A husband or wife may maintain a suit against the other for dissolution of the marriage contract, or to have the same declared void, as provided in this chapter. [L. 1862; D. Cd. § 485; H. C. § 489.]

In a suit for divorce the defendant may, in an answer in the way of a crossbill or counterclaim, demand and obtain the affirmative relief of a divorce, when shown to be entitled thereto: Dodd v. Dodd, 14 Or. 338, 13 Pac. 509.

§ 502. What Marriages Absolutely Void.

The power to grant a divorce and such other relief as is usually incidental thereto is purely statutory: Weber v. Weber, 16 Or. 163, 17 Pac. 866.

All marriages which are prohibited by law, on account of consanguinity between the parties, or on account of either of them having a former husband or wife then living, or on account of either of them being of one fourth or more of negro blood, shall, if solemnized within this state, be absolutely void. [L. 1862 ; D. Cd. § 486 ; H. C. § 490.]

VOID MARRIAGES, GENERALLY, see the chapter on marriages, post, in the miscellaneous laws.

§ 503. What Marriages Voidable Only.

When either of the parties to a marriage shall be incapable of making such contract or assenting thereto, for want of legal age or sufficient understanding, or when the consent of either party shall be obtained by force or fraud, such marriage shall be void from the time it is so declared by the decree of a court having jurisdiction thereof. [L. 1862; D. Cd. § 487; H. C. § 491.]

See chapter on marriages, post, in the miscellaneous laws.

$504. At Whose Suit Marriages Declared Void.

A marriage may be declared void from the beginning, at the suit of either party, for any of the causes specified in section 502, and whether so declared or not shall be deemed and held to be void in any action, suit, or proceeding whatever in which the same may come in question; but a marriage once de

clared to be valid by the decree of a court having jurisdiction thereof, in a suit for that purpose, can not afterwards be questioned for the same cause directly or otherwise. [L. 1862; D. Cd. § 488; H. C. § 492.]

$ 505. At Whose Suit and when Marriages Declared Voidable.

A marriage shall not be declared void for any of the causes specified in section 503, except at the suit or claim of the party laboring under the disability, or upon whom the force or fraud was imposed or practiced; nor at the suit or claim of such party if it appears that the parties freely cohabited together as husband and wife after the party had arrived at legal age, acquired sufficient understanding, been restored to reason, freed from the force, or discovered the fraud, as the case may be. [L. 1862; D. Cd. §. 489; H. C. § 493.]

$ 506. Suit to Declare Marriage Valid.

When either husband or wife shall claim or pretend that the marriage is void or voidable, as provided in sections 502 and 503, the same may be declared valid and lawful at the suit of the other; and in such suit the court shall have power, if the pleadings and proofs authorize it, to declare such marriage void from the beginning or from the time of the decree, or that it is valid and lawful, and binding on the parties thereto. [L. 1862; D. Cd. § 490; H. C. § 494.]

$ 507. For what Causes Marriage May be Dissolved.

The dissolution of the marriage contract may be declared at the suit or the claim of the injured party in either of the following causes :

1. Impotency existing at the time of the marriage and continuing to the commencement of the suit;

2. Adultery;

3. Conviction of felony;

4. Habitual gross drunkenness contracted since marriage and continuing for one year prior to the commencement of the suit;

5. Willful desertion for the period of one year;

6. Cruel and inhuman treatment or personal indignities rendering life. burdensome. [L. 1862; D. Cd. § 491; L. 1887, p. 52; H. C. § 495.]

GROUNDS FOR DIVORCE, GENERALLY.-The causes specified in the statute are the only causes upon which a marriage can be annulled, and that will be decreed only upon satisfactory evidence that such cause or causes exist: Wheeler v. Wheeler, 18 Or. 261. 24 Pac. 900.

A divorce will not be granted when it is apparent that the petitioner's principal object in seeking one is to secure certain property rights: Adams v. Adams, 12 Or. 176, 6 Pac. 677; or merely because the parties disagree or do not live happily together: Hill v. Hill, 24 Or. 418, 33 Pac. 809.

If a woman before marriage conceals from her intended husband the fact that she had some time before been the mother of an illegitimate child, such concealment is not such fraud as will annul the marriage: Smith v. Smith. 8 Or. 100.

MUTUAL FAULT.-Where the party asking for a divorce is liable to a charge which

is a cause for divorce, it will prevent him from obtaining a decree, although the other spouse may have misconducted himself or herself: Wheeler v. Wheeler, 18 Or. 261, 24 Pac. 900; Mendelson v. Mendelson, 37 Or. 163, 61 Pac. 645.

DEGREE OF PROOF.-In a suit brought upon grounds that involve a criminal charge against the defendant, it is not necessary to prove the allegations constituting such charge beyond a reasonable doubt; it is sufficient if they be established by a preponderance of evidence: Smith v. Smith, 5 Or. 187.

ADULTERY.-False accusations of adultery entitle the injured party to a decree: Eggerth v. Eggerth, 15 Or. 626, 16 Pac. 650; McMahan v. McMahan, 9 Or. 525; Smith v. Smith. 8 Or. 100; Cline v. Cline, 10 Or. 478.

PROOF OF ADULTERY.-In a suit for divorce on the ground of adultery, confession of adultery is not of itself sufficient to

[graphic]

justify a decree of dissolution. See § 869, threat nor overt act of violence; there must post.

Evidence that defendant frequently charged plaintiff with adultery without stating the times, places, persons, and circumstances, is too indistinct and uncertain to warrant a decree: Hill v. Hill, 24 Or. 416, 33 Pac. 809.

If adultery between parties closely related in blood is charged, proof ought to be clear and convincing, and not rest in mere inferences from equivocal circumstances: Rickard v. Rickard, 9 Or. 168.

Proof that the persons accused of adultery, a niece and uncle, maintained the usual and common amenities between like relations in their condition and situation, and had opportunities and might have committed the crime, is not sufficient to establish it. The proof must be clear and convincing: Herberger v. Herberger, 16 Or. 327, 14 Pac. 70.

DRUNKENNESS.-Occasional acts of intoxication are not sufficient to make one an habitual drunkard. There must be the involuntary tendency to become intoxicated as often as the temptation is presented which comes from fixed habit acquired from frequent and excessive indulgence: McBee v. McBee. 22 Or. 329, 29 Pac. 887, 29 Am. St. Rep. 613; Ryan v. Ryan, 30 Or. 227. 47 Pac. 101.

DESERTION.-Willful desertion is a voluntary separation of one of the married parties from the other, or the voluntary refusal to renew the suspended marital relation, without justification either in the consent or wrongful conduct of the other: Sisemore v. Sisemore, 17 Or. 542, 21 Pac. 820.

The word "willful," as used in this subdivision, means an intentional forsaking, wrongfully and without cause, whereby the marital union is destroyed: Ogilvie v. Ogilvie. 37 Or. 171, 61 Pac. 627.

Where, in the absence of the husband on a trip, the wife, shortly before his return, left his home and went to her relatives in a distant city, without disclosing her intention to any of the members of her husband's family, or leaving any message for him, and her husband did not hear anything from her until about three months after her departure, when he met her and she told him that she left because she feared bloodshed on account of a man whose attentions to her he had objected to, it is held that the conduct of the wife amounted to a willful desertion and that the husband was entitled to a divorce on that ground after the expiration of a year from her departure: Ogilvie v. Ogilvie, supra.

DUTY AS TO RECONCILIATION.-In cases of desertion the party may always return and offer reconciliation, and if the injured spouse rejects such offer without other cause for continuing the separation. such spouse not only thereby consents to the existing condition, but assumes the position of an offender from that time. The injured party, however, need not make the first advance, but may safely rest on the situation already brought about: Ogilvie v. Ogilvie, 37 Or. 171. 61 Pac. 627.

SEPARATION AGREEMENT. - A contract by which a husband agrees to pay certain moneys to his wife for her support for a stated period, not made for the purpose of securing a separation, but in contemplation of a divorce on account of the misconduct or disability of the husband, and without fault or inducement by the wife, is not void on ground of public policy: Henderson v. Henderson, 37 Or. 141, 60 Pac. 597, 48 L. R. A. 766. 82 Am. St. Rep. 741; Ogilvie v. Ogilvie. 37 Or. 184. 61 Pac. 627. CRUEL AND INHUMAN TREATMENT. -Legal cruelty authorizing a divorce is a term not easily defined. It is not every

be an intention to worry the other; cruelty is a question of intent,-a mental purpose to wound the feelings of the other party: Beckley v. Beckley, 23 Or. 226, 31 Pac. 495; Boone v. Boone, 12 Or. 437, 8 Pac. 450.

The mere fact that the husband had been imprudent and unreasonable, or jealous, did not necessarily constitute a cause for divorce on such ground: Boone v. Boone, supra.

Nor will a divorce be granted on such ground where it appears that both parties were active in contributing to the injury complained of: Beckley v. Beckley, supra; Mendelson v. Mendelson, 37 Or. 163, 61 Pac. 645.

The cruel treatment which lays the foundation for a divorce must be unmerited and unprovoked, or wholly disproportionate to the provocation: Taylor v. Taylor, 11 Or. 303, 8 Pac. 354.

The husband, who, in disregard of his wife's remonstrances, continued to keep at the family domicile other persons for whose support he is not legally or morally bound to make provision, who habitually treat her with disrespect, and apply coarse and degrading epithets to her, and so conduct themselves towards her as to justify a reasonable apprehension on her part of danger to her person from their violence while endeavoring to perform her duties and exercising only ordinary, proper, and legitimate authority in the matters of her household, adopts such misconduct as his own, and must be held responsible for it to the same extent as if it were his own: Hall v. Hall, 9 Or. 452.

Divorce should be granted where it appeared that on one occasion defendant forcibly ejected plaintiff from his bed, and afterwards used violence upon her person, and on one or two other occasions used violence to her, that he made false accusations, and unsuccessfully attempted to prove them upon the trial: Herberger v. Herberger, 16 Or. 327, 14 Pac. 70.

Divorce should be granted on this ground upon evidence that defendant was frequently intoxicated, and was quarrelsome and violent; at one time he kicked out a door panel; at another, while violently cursing his wife, he shot off a pistol several times; and that he was in the habit, without provocation, of using violent and offensive language in her presence: Ryan v. Ryan, 30 Or. 276. 37 Pac. 101.

Proof that a woman, shown by the evidence to have been virtuous and to have been a good, dutiful wife, was charged by her husband in the presence of others with having committed adultery, is sufficient to entitle her to a divorce as a matter of law, without special proof of the degree or kind of burdensomeness to her life thereby caused: Crow v. Crow, 29 Or. 392, 45 Pac. 761.

For other cases as to false accusations being cause for divorce on this ground, see Smith v. Smith, 8 Or. 100; McMahan v. McMahan, 9 Or. 525; Eggerth v. Eggerth, 15 Or. 626, 16 Pac. 650; Herberger v. Herberger, 16 Or. 327, 14 Pac. 70; Hill v. Hill, 24 Or. 416, 33 Pac. 809.

It is not a ground for divorce that plaintiff was unable to get along with defendant's son by a former marriage, who was impudent, saucy, and sometimes abusive to her, and that defendant refused to send away his son when plaintiff stated that one of them must go, and that on her returning and attempting to enter the house she was prevented by the son from doing so, the conduct of the son not having been encouraged or approved by defendant: Nickerson v. Nickerson, 34 Or. 5, 54 Pac. 277.

A husband demanded of his wife that she compel her brother, who lived with

them. to pay board. The wife objected to asking the brother to do so out of gratitude to him for furnishing part of the money for the purchase of the home in which she and her husband lived. The brother was in the habit of coming home very late at night, to the disturbance of the household, and of rising late in the morning, thus disarranging the wife's breakfast plans; he would also sing vile songs in the presence of the family. Held, that the fact that the

$ 508. Residence of Parties.

husband requested the brother to leave the house was not such cruel and inhuman treatment of his wife as to warrant a divorce: Mendelson v Mendelson, 37 Or. 163, 61 Pac. 645.

The condition which renders the life of the injured party burdensome must be shown to exist in fact, and not purely inferred from facts that go to establish personal indignities: Cline v. Cline, 10 Or. 474.

When a marriage has been solemnized in this state, a suit may be maintained to declare it void if the plaintiff is an inhabitant of the state at the commencement of the suit. If the marriage has not been solemnized in this state, such suit can only be maintained when both the parties are inhabitants thereof at the commencement of the suit, and the plaintiff for one year prior thereto. [L. 1862; D. Cd. § 492; H. C. § 496.]

Under this section, when the marriage has not been solemnized in this state, no right of suit exists in favor of a party until he has been an inhabitant of the state for one year: Jacobsen v. Jacobsen, 11 Or. 454, 5 Pac. 567.

$ 509. Residence of Plaintiff, what Sufficient to Give Jurisdiction.

In a suit for the dissolution of the marriage contract, the plaintiff therein must be an inhabitant of the state at the commencement of the suit, and for one year prior thereto; which residence shall be sufficient to give the court jurisdiction, without regard to the place where the marriage was solemnized, or the cause of suit arose. [Session L. 1862, p. 124, § 493; L. 1864; D. Cd. § 493 ; L. 1865, p. 39 ; H. C. § 497.]

$ 510. What May be Pleaded in Bar by Defendant.

In a suit for the dissolution of the marriage contract on account of adultery, the defendant may admit the adultery, and show in bar of the suit, either,

1. That the act was committed by the procurement or with the connivance of the plaintiff; or,

2. That the act has been expressly forgiven, or impliedly so, by the voluntary cohabitation of the parties after knowledge thereof; or,

3. That the plaintiff has been guilty of adultery also without the procurement or connivance of the defendant, and not forgiven as provided in subdivision 2 of this section; or,

4. That the suit has not been commenced within one year after the discovery of the act by the plaintiff. When the suit is for any of the causes specified in subdivisions 3, 4, 5, or 6 of section 507, the defendant may admit the charge, and shown in bar of the suit that the act was committed by the procurement of the plaintiff, or that it has been expressly forgiven, and in case the suit is founded on subdivision 3 of said section 507, the defendant may also show in bar thereof that the suit was not prosecuted within one year after the same occurred to the plaintiff. [L. 1862; D. Cd. § 494; L. 1887, p. 53; H. C. § 498.]

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