Pitney, V. C.
The record, as it now stands, presents questions of some novelty. Cases of impotence, especially in this court, are so rare that the rules governing the action of the courts in such cases are not thoroughly settled.
In England the notion seems to have been entertained formerly that complete impotence rendered the marriage void ab initio, precisely the same as would the existence in life at the time of the marriage of an undivorced spouse of one or the other of the parties; or the fact that the parties were related within the prohibited degrees of consanguinity. This is evidenced by the mode in which suits were framed. The English judicial reports show that suits for a declaration of nullity on account.of impotence were, framed in this wise: A, falsely called B v. B. This wras the form used in suits for nullity for the other two causes mentioned. But the later cases establish clearly the doctrine that contracts of marriage between parties, one of whom is impotent, are voidable merely. The latest case is Turner v. Thompson, L. R. 13 P. & D. (1887) 37.
In this state, by the revision of March 27th, 1874, section 4, it was for the first time declared that
“Divorces from the bond of matrimony may be decreed in case the parties, or either of them, were, at the time of such marriage, physically and incurably impotent, and all marriages in such case shall be invalid from the beginning and absolutely void.”
[34]*34Thus placing such a marriage upon the same basis as disability on account of a former husband or wife living, or on account of a marriage within the degrees of kinship prohibited by law, except that the issue of marriages within the degrees prohibited by law were not rendered illegitimate.
This classification was clearly illogical in that it made no distinction between a decree for nullity and a decree of divorce. That such a distinction exists was pointed out in the case of Rooney v. Rooney, 54 N. J. Eq. (9 Dick.) 231 (at 241).
The legislature, in the revision of the Divorce act of 1903 (P. L. of 1902 p. 502), has changed the classification and has provided for decrees of nullity in the cases of another spouse living at the time of the second marriage and of marriage between parties within the prohibited degrees of consanguinity, and has provided for decrees of divorce from the bond of matrimony in the cases of adultery, desertion and incurable im-. potence, using the following language:
“In case the parties, or either of them, was at the time of the marriage physically and incurably impotent, or was incapable of consenting thereto, and the marriage has not been subsequently ratified.”
This classification is more logical. The two causes for nullity ab initio present the case of an absolute incapacity of one of the parties to contract a marriage, and the validity of such a marriage may be impeached at all times, in all places, by all parties and for all purposes. The only value of a judicial decree of nullity in such cases is that it works an estoppel and settles the question of fact for all time and so dispenses in subsequent cases with proof in pads of the disability.
In a case of impotency the parties have the power to contract and the marriage is binding for all purposes unless it is dissolved by a decree of a court at the instance of the party having the right to make the complaint.
Thus it seems to me clear that the widow of an impotent husband would be entitled to dower in his estate in the absence of a 'decree of dissolution.
[35]*35The ground upon which the decree of dissolution is based is not an original incapacity to contract but the entire and complete failure of the consideration of the marriage contract. Hence, the better doctrine is that the contract of marriage is voidable merely and not void ab initio.
The section relating to impotence in the act of 1902 varies from that of 1874 in another important particular. That of 1874, as we have seen, declares the contract “invalid from the beginning and absolutely void.” That of 1902 gives tire right of divorce with the proviso “and the marriage has not been subsequently ratified.”
Thus it appears, that it not only has not declared the marriage void ab initio, but has, as I read the statute, assumed that it may be ratified.
This construction is undoubtedly the true one unless it can be held that tire words “has not been subsequently ratified” relates only to the member of the sentence immediately preceding it, viz., “or was incapable of consenting thereto.”
Be that as it may, the clear trend of authority, as I have stated, is that the marriage is not void ab initio but merely voidable at the instance of the disappointed party. If that is so, then the correct doctrine is that such party may ratify it.
It is suggested with much force that such ratification may result from a long continued acceptance and enjoyment of the benefits of a merely platonic marriage, so that the disappointed party will not be permitted after such long enjoyment to repudiate the contract.
This subject is elaborately discussed and carefully considered, with a complete citation of authorities, in several English cases.
The first is that of H — . f. c. C— v. C., heard below, in 1860, before Sir Cresswell-Cresswell, Sir Edward Yaughan-Williams and Sir George Bramwell, reported in 1 Swab. & T. 605; 29 L. J. Mat. Cas. 81; 6 Jur. (N. S.) 348; and on appeal, sub nomine, Castleden v. Castleden, 9 H. L. Cas. 186.
There, as here, the petitioning wife had lived for several years with her husband; then, ascertaining his impotence, one of her parents charged him with it, and he refused to live further with his wife. She then for a few years supported herself and [36]*36then compelled her husband, indirectly, to furnish her with a complete or partial support, which she accepted. She failed in her suit, partly on the ground that she had not resorted to the extreme process of the English court to compel her husband to submit to physical examination, and hence had not furnished the best evidence of his impotence, but mainly, as I think the several judgments plainly show, because she had ratified the marriage contract by long acquiescence and accepting support from her husband.
The next case is that of M — . f. c. B — . v. B — . (1864) before the judge ordinaiy, Sir Cresswell-Cresswell, reported in 33 L. J. Mat. Cas. 203.
The parties were married in August, 1853, when the petitioning wife was twenty-nine years old; the husband was incurably impotent and the suit was brought ten years later.
The petitioner admitted that she had brought the suit, in part at least, for the purpose of vindicating herself from the rumors or reports which were circulated that the separation, which occurred in that year, was due to her violent temper, and that she was insane and not fit to cohabit as a wife. Her petition was refused, on the ground that it was, to use the expression of the English jurists, “not sincere but due to other motives.”
A third case, and one more nearly in point, is that of Reynolds, alias Wilkins, v. Reynolds, 45 L. J. P. 89, also reported in L. R. 1 P. & D. (1876) 405,
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Pitney, V. C.
The record, as it now stands, presents questions of some novelty. Cases of impotence, especially in this court, are so rare that the rules governing the action of the courts in such cases are not thoroughly settled.
In England the notion seems to have been entertained formerly that complete impotence rendered the marriage void ab initio, precisely the same as would the existence in life at the time of the marriage of an undivorced spouse of one or the other of the parties; or the fact that the parties were related within the prohibited degrees of consanguinity. This is evidenced by the mode in which suits were framed. The English judicial reports show that suits for a declaration of nullity on account.of impotence were, framed in this wise: A, falsely called B v. B. This wras the form used in suits for nullity for the other two causes mentioned. But the later cases establish clearly the doctrine that contracts of marriage between parties, one of whom is impotent, are voidable merely. The latest case is Turner v. Thompson, L. R. 13 P. & D. (1887) 37.
In this state, by the revision of March 27th, 1874, section 4, it was for the first time declared that
“Divorces from the bond of matrimony may be decreed in case the parties, or either of them, were, at the time of such marriage, physically and incurably impotent, and all marriages in such case shall be invalid from the beginning and absolutely void.”
[34]*34Thus placing such a marriage upon the same basis as disability on account of a former husband or wife living, or on account of a marriage within the degrees of kinship prohibited by law, except that the issue of marriages within the degrees prohibited by law were not rendered illegitimate.
This classification was clearly illogical in that it made no distinction between a decree for nullity and a decree of divorce. That such a distinction exists was pointed out in the case of Rooney v. Rooney, 54 N. J. Eq. (9 Dick.) 231 (at 241).
The legislature, in the revision of the Divorce act of 1903 (P. L. of 1902 p. 502), has changed the classification and has provided for decrees of nullity in the cases of another spouse living at the time of the second marriage and of marriage between parties within the prohibited degrees of consanguinity, and has provided for decrees of divorce from the bond of matrimony in the cases of adultery, desertion and incurable im-. potence, using the following language:
“In case the parties, or either of them, was at the time of the marriage physically and incurably impotent, or was incapable of consenting thereto, and the marriage has not been subsequently ratified.”
This classification is more logical. The two causes for nullity ab initio present the case of an absolute incapacity of one of the parties to contract a marriage, and the validity of such a marriage may be impeached at all times, in all places, by all parties and for all purposes. The only value of a judicial decree of nullity in such cases is that it works an estoppel and settles the question of fact for all time and so dispenses in subsequent cases with proof in pads of the disability.
In a case of impotency the parties have the power to contract and the marriage is binding for all purposes unless it is dissolved by a decree of a court at the instance of the party having the right to make the complaint.
Thus it seems to me clear that the widow of an impotent husband would be entitled to dower in his estate in the absence of a 'decree of dissolution.
[35]*35The ground upon which the decree of dissolution is based is not an original incapacity to contract but the entire and complete failure of the consideration of the marriage contract. Hence, the better doctrine is that the contract of marriage is voidable merely and not void ab initio.
The section relating to impotence in the act of 1902 varies from that of 1874 in another important particular. That of 1874, as we have seen, declares the contract “invalid from the beginning and absolutely void.” That of 1902 gives tire right of divorce with the proviso “and the marriage has not been subsequently ratified.”
Thus it appears, that it not only has not declared the marriage void ab initio, but has, as I read the statute, assumed that it may be ratified.
This construction is undoubtedly the true one unless it can be held that tire words “has not been subsequently ratified” relates only to the member of the sentence immediately preceding it, viz., “or was incapable of consenting thereto.”
Be that as it may, the clear trend of authority, as I have stated, is that the marriage is not void ab initio but merely voidable at the instance of the disappointed party. If that is so, then the correct doctrine is that such party may ratify it.
It is suggested with much force that such ratification may result from a long continued acceptance and enjoyment of the benefits of a merely platonic marriage, so that the disappointed party will not be permitted after such long enjoyment to repudiate the contract.
This subject is elaborately discussed and carefully considered, with a complete citation of authorities, in several English cases.
The first is that of H — . f. c. C— v. C., heard below, in 1860, before Sir Cresswell-Cresswell, Sir Edward Yaughan-Williams and Sir George Bramwell, reported in 1 Swab. & T. 605; 29 L. J. Mat. Cas. 81; 6 Jur. (N. S.) 348; and on appeal, sub nomine, Castleden v. Castleden, 9 H. L. Cas. 186.
There, as here, the petitioning wife had lived for several years with her husband; then, ascertaining his impotence, one of her parents charged him with it, and he refused to live further with his wife. She then for a few years supported herself and [36]*36then compelled her husband, indirectly, to furnish her with a complete or partial support, which she accepted. She failed in her suit, partly on the ground that she had not resorted to the extreme process of the English court to compel her husband to submit to physical examination, and hence had not furnished the best evidence of his impotence, but mainly, as I think the several judgments plainly show, because she had ratified the marriage contract by long acquiescence and accepting support from her husband.
The next case is that of M — . f. c. B — . v. B — . (1864) before the judge ordinaiy, Sir Cresswell-Cresswell, reported in 33 L. J. Mat. Cas. 203.
The parties were married in August, 1853, when the petitioning wife was twenty-nine years old; the husband was incurably impotent and the suit was brought ten years later.
The petitioner admitted that she had brought the suit, in part at least, for the purpose of vindicating herself from the rumors or reports which were circulated that the separation, which occurred in that year, was due to her violent temper, and that she was insane and not fit to cohabit as a wife. Her petition was refused, on the ground that it was, to use the expression of the English jurists, “not sincere but due to other motives.”
A third case, and one more nearly in point, is that of Reynolds, alias Wilkins, v. Reynolds, 45 L. J. P. 89, also reported in L. R. 1 P. & D. (1876) 405, decided by Sir Eobert Phillmore in a considered and written judgment.
There the parties were married in 1849 and the wife brought her suit in 1875. The proofs showed that the husband was impotent by reason of malformation; that they lived together for a year an'd nine months and then separated, to use the language of the wife, “because he ill-treated me and because we did not live comfortable.” They lived separate for nine years, and she then returned to her husband and lived with him for five and a half years, and then separated by reason, as she said, of his ill-treatment and his impotence. They then lived separate .until 1875. It was held, after an elaborate citation of authorities, that the petitioner was not entitled to succeed, be[37]*37cause she had not shown two requisite elements, sincerity and promptness.
Another English case worth mentioning is that of M—., alias D — . v. D — ., reported in L. R. 10 P. & D. (1885) 75, 175. There a suit was brought by the wife against her husband for nullity for impotence and a cross-suit by the husband against the wife for divorce for adultery. The suit for impotence was first tried and the decree was granted. The adultery was not pleaded as a defence in the nullity suit, nor does it appear that the impotence was pleaded as a defence in the suit for adultery, but the proofs in the suit for nullity showed strong probability of adultery.
The petitioner contends that the present case shows ratification by the defendant, also lack of sincerity on her part.
It seems to me that the point is well taken. The defendant, after living twenty years with the petitioner in the hope of his recovering his virility, instead of suing for nullity separated herself from, him and accepted a competent support from him for ten years, and, so far as appears, would have continued so to accept it if he had not, upon discovery of her adultery with another man, brought suit for a divorce.
This conduct on her part was a distinct affirmance of the marriage relation. Necessarily so, since there can, I think, bo found no foundation in reason or authority for the position that a woman, who seeks a dissolution of the marriage tie on the ground of her husband’s impotence, is entitled to permanent alimony. Such alimony is only given where the husband has been guilty of a matrimonial offence, and impotence is not such an offence in any sense of the word in that connection.
I n the present case it is to be observed 'that neither the impotence nor the desertion is set up in the answer as a defence to the petitioner’s bill. Their presence and office is confined to that part of the answer which is declared to be a cross-bill and which prays for a divorce.
The answer was drawn by able and experienced counsel, and I cannot conceive that its frame was the result of oversight or accident. Indeed, the specific prayer in the cross-bill for a [38]*38divorce is based on the charge of desertion and not on the charge of impotence.
But supposing counsel for defendant asks the court to amend the answer in that respect, or to consider the charge of impotence to be the basis of the prayer for other relief, viz., dissolution of the marriage, and suppose the adultery is no answer to her charge of impotence, and that charge should be admitted and the defence of acquiescence and ratification be overruled, the result would be that each party would be entitled to a divorce, and they are not within the ban of the statute which declares that if both of the parties are guilty of adultery neither shall have a decree.
Then, I repeat, each party is entitled to a simple decree, and the situation is not changed from what it would be if no assertion of impotence had been made.
But I do not think that the parties stand in this respect on an even footing. On tire view of the law most favorable to the defendant the marriage was in force and binding on both parties until the present proceedings were commenced by the petitioner and thence until, at the earliest, defendant filed her cross-bill, asking that the marriage be annulled. This result follows from the fact that it could only be annulled for impotence at her option and on her application. It follows that petitioner was at the filing of his bill rectus in curia, and, having proven his charge of adultery, is entitled to relief.
I am unable to perceive how the defendant can supersede that right by coming in after petitioner’s right has accrued and, so to speak, become vested, and asking that the marriage be annulled.
The maxim “He who is first in time is strongest in right” applies.
There is another fact in the case which seems to me to weigh against the defendant in this part of the case.
She alleged and proved that shortly after the separation her husband sued her for divorce on the ground of her adultery; that she defended on the merits and was successful. She does not allege that she set up his impotence as a defence, and the pleadings in that case, put in evidence in this, show that she [39]*39did not. And yet, according to the present theory of her counsel, it would have been a perfect defence, or, at least, would have entitled her to a decree of divorce against him in the same suit. She apparently preferred to continue, as she did for ten years at least, to enjoy the benefits of the marriage relation.
I think, therefore, that the charge of impotence must be disregarded and that petitioner is entitled to an order striking it from the record.
Turning now to the charge of cruelty and constructive desertion based thereon.
This issue was not tried, but, at the suggestion of the court, counsel of defendant was asked if the defendant on the admitted facts could succeed.
We observe that it is not set up as a defence to the petitioner’s charge of adultery but is inserted in the cross-bill as a basis of affirmative relief against the petitioner, so that it is probably not necessary to consider the simple question whether extreme cruelty of a character sufficient to sustain' a decree for divorce a mensa et fhoro, standing by itself, is a defence to an action for divorce founded on the adultery of the wife, which question, so far as I know, has never been determined in'New Jersey.
The simple question, then, is whether petitioner has been guilty of such desertion of his wife as would enable her to maintain an action against him for divorce a vinculo matrimonii (which I shall assume for present purposes, though, like the other case, I believe, it has never been so held in New Jersey), would, if properly pleaded, be a defence to an action by the husband against the 'wife for divorce on the ground of subsequent adultery.
The statutory remedy for the wife against the husband for extreme cruelty on his part is a divorce a mensa et fhoro and permanent alimón)1'.
It seems, however, to be the well settled doctrine in New Jersey that if the cruelty is of a character sufficient to warrant a divorce a mensa et fhoro, the wife may separate herself from the husband, and such separation will be held to amount to a desertion on his part, known as constructive desertion, and if [40]*40continued for the statutory period will entitle the wife to a divorce a vinculo.
This doctrine, though frequently stated in our reports by distinguished judges, was first acted on in this state in a reported case in Weigand v. Weigand, 41 N. J. Eq. (14 Stew.) 202. That, however, was a suit, founded on the twentieth section of the Divorce act, for support merety, which involved desertion but not continued for the statutory period to authorize a divorce, and while it was based on the doctrine that ’a husband who drives his wife away from his house by his cruel treatment of her is guilty of desertion in such manner as to warrant a decree at once in favor of his wife for support, it does not deal with, or throw any light upon, the question as to what must be the character of the continuance of such a desertion -in order to warrant a decree a vinculo.
The first and only reported case which dealt with that question is McVickar v. McVickar, 46 N. J. Eq. (1 Dick.) 490.
There the separation had lasted for about twenty years, during which time the wife had received no support from her husband. The cause of the cruel treatment was his devotion to intoxicants acting upon a naturally brutal disposition. The use of intoxicants with their effect upon his conduct continued for three or four years after the separation. He then appeared to reform, but made no attempt to make known to his wife his reformation or to resume his cohabitation with her or to support her. So there was not only the cruelty, which, in the opinon of the court, was a sufficient justification of the wife in leaving the husband, but also a complete failure on his part to furnish her with any support.
I can find no case where there has been a constructive desertion, justified by cruelty, and the husband has during the continuance of the desertion supported his wife, in which a decree a vinculo has been granted.
On the contrary, I find the case of Kyle v. Kyle, 52 N. J. Eq. (7 Dick.) 710, where there was a suit for divorce on the ground of desertion, where the petitioner charged that the desertion occurred in July, 1880, and the petition was filed some ten [41]*41years later, and less than a year later she sued him in Now York for a divorce a mensa et thoro on account of his cruelty and succeeded. It was held that such decree was a bar to her action. While that case is not in point I think it has some significance.
In the present case the wife upon her separation, as the evidence, as I recollect it, clearly shows and as was admitted by counsel, accepted from her husband and rested satisfied with a competent monthly support, which was continued up to the time that he learned of her adultery.
In short, she received, without a suit, all that she would have obtained by a suit by reason of her husband’s cruelty, and, as I have said, a separation from bed and board and alimony is the statutory remedy for extreme cruelty.
In my judgment, in order to turn a voluntary separation by a wife by reason of cruelty into a desertion by the husband with such a continuance as satisfies the statute, there must not only be the cruelty justifying the separation, but there must be the failure on the; part of the husband to render to his wife that support which is tire statutory punishment for his cruelty, and that failure must continue for the statutory period.
Tf this view is correct, the cruelty alleged by the wife, the defendant in this case; will not help her, and it is not worth while to try the issue unless the petitioner, out of abundant caution in case of appeal, prefers to traverse the allegation.
It only remains to say that, supposing the cruelty were judicially established and the monthly payments proven in the case had been awarded by the court as alimony, the continuance of such alimony would be conditional upon the wife living a chaste life.
Under a divorce a mensa et thoro the marriage relation still exists and with it the duty of chastity. Such a divorce is not a license to the wife to indulge in sexual connection with another man, and the argument from the case of a divorce a mensa et thoro to that of a voluntary support and its acceptance is a fortiori. In the latter the court will introduce into [42]*42the agreement for support the element that it will be conditioned upon a chaste life.
The case briefty stated, in solido, is this:
The parties were married in 1871 and lived together twenty years when they separated by mutual consent for the reasons, now for the first time claimed by the wife, first, for his impotence, and second, for liis cruel and bestial practices.
Shortly after the separation the husband sued the wife for divorce on the ground of her adulte^, which she defended on the merits, not setting up either the impotence or the cruelty, and succeeded in her defence. She then accepted from her husband a competent support in money and enjoyed it for ten years, and then solaced herself with the marital ministrations of another man while enjoying her husband's pecuniary support. Being discovered in her adultery and sued • therefor by her husband she their, for the first time, sets up his impotence and cruelty, not as a direct defence but as the ground of a divorce from her husband. Such a case on her part does not commend itself to an equity judge.
I will advise a decree according to these views.
The vice-chancellor adds the following:
After the foregoing opinion was promulgated and a decree accordingly advised but not yet signed by the chancellor, a motion was made before me to open it and permit the defendant to make actual proof of the impotence alleged. This mo.tion was based on several grounds. The only one of which I considered open to discussion after the foregoing opinion was that the evidence was competent under the general denial of the adultery by way of showing acquiescence, consent and connivance. I denied the motion on several grounds: First, that it could only operate as a defence by way of confession and avoidance and had not been so pleaded; second, that at the time of the trial it had not been offered to be proved and put in evidence under the issue of adultery or no adultery; and third, that the whole course of the proof of the case by the defendant and the facts established thereby in connection with the pleadings negatived the idea o£ actual consent, con[43]*43nivance or acquiescence. Those facts are that the parties separated hy mutual consent in 1891, and had lived separately ever since, and apparently had not met; that during the period covered by the adulteries proven herein, and for some time prior thereto;, the petitioner was living in the city of Trenton and the defendant in the city of Yew York, over fifty miles apart; that the petitioner had sued defendant for adultery in 1892, which of itself was the very opposite of consent, acquiescence or connivance; that defendant did not set up in defence to that action his impotence as a ground of defence or any connivance based thereon. In short, I found no place in the case proven by the defendant where the defence of positive consent, connivance or acquiescence could reasonably intervene, and so far as regards any possible constructive consent arising out of the bare fact of the impotence, I think it is covered by my previous opinion.
I ought to state that the counsel who actually tried the case before me asserted, as I understood him, that he did, in fact, formally offer to prove the impotence while his client was on the stand, but an examination of the stenographer’s notes shows that he was mistaken.
Then the other counsel of defendant urges that, as a result of the mode in which the court requested the several issues to be dealt with, his client has missed the opportunity of mitigating the character of her offence and of putting herself in the position of being entitled to the charitable viev? thereof, which naturally arises from the impotence of her husband. I think the defendant is not entitled to the assistance of the court in that direction. Before she solaced herself with the marital ministrations of another man, she should have dispensed with the pecuniary support of her lawful husband and should have sought and obtained a dissolution of the marriage tie.
It was suggested that the discussion of the value of the cross-bill was sprung upon the defendant’s counsel without proper notice.
The fact, as shown clearly by the stenographer’s notes, which [44]*44were written up within three clays and with which my own recollection agrees, is that after I had stated my reasons for finding the defendant guilty of the adulteries charged, a full discussion followed as to the argument of the motion to strike out the charge of impotence found in the cross-bill. A day was fixed on which the defendant’s counsel should hand in a written argument. The defendant’s counsel subsequently asked for and took additional time for that purpose and then handed up a typewritten argument covering the question.
There can be no> question that the defendant’s counsel had every opportunity necessary to support the value of his client’s case on that charge except the actual production of the proofs. As my opinion is, of course, based upon the truth of the allegation of impotence, I do not see how defendant is injured thereby, and if I am wrong the defendant has her remedy by appeal.