Mr. Chief Justice Wolverton,
after stating the facts in the foregoing language, delivered the opinion.
This is a brief resume of the evidence in the case, without attempting to quote the witnesses at large, and upon this testimony it is insisted (1) that it has not been shown that the defendant willfully deserted plaintiff; and (2) that it has been shown that the plaintiff assented to her [179]*179living separate and apart from Mm, and therefore that desertion contrary to his will and without his consent has not been established.
1. “Desertion” has been defined by Mr. Bishop in his work on Marriage, Divorce and Separation (vol. 1, § 1662), to be the “voluntary separation of one of the married parties from the other, or the voluntary refusal to renew a suspended cohabitation, without justification either in the consent or wrongful conduct of the other. ’ ’ This language is quoted with approval in Sisemore. v. Sisemore, 17 Or. 542 (21 Pac. 820). Perhaps a more terse definition is that given in 9 Am. & Eng. Enc. Law (2 ed.), 764. The author says : “Desertion is the willful termination of the marriage relation by one of the married parties without lawful or reasonable cause, or a refusal without reasonable cause to renew the marriage relation after the parties have been separated.” An intentional desertion is willful, within the meaning of the term as defined by the statute. The term does not carry with it the element of malice or a purpose of doing injury. The act is willful when there is a design to forsake the other spouse wrongfully or without cause, and thereby break up the marital union: Benkert v. Benkert, 32 Cal. 467. Before the plaintiff can prevail, he must therefore show that the defendant willfully — that is, intentionally and wrongfully, or without cause — deserted him, and continued in such desertion for the space of one year.
2. Aside from what defendant said to Earl, there is nothing in the record to show her intention except the circumstances attending the act. She left home without leaving any message for her husband, of whose early return from England she had been advised, or without disclosing her purpose to her mother-in-law, with whom she left her children. She remained away some three or four months, without writing to any of the family except her [180]*180son. There appears to have been no legitimate cause or sufficient excuse for her going. The only one assigned by her is that she was afraid there might be bloodshed ; but, if there was ever any real danger of such a thing, it was wholly within her power to have prevented it by a considerate loyalty to her husband. The intention to desert may be shown by the acts and circumstances attending the separation: Morrison v. Morrison, 20 Cal. 431; 1 Nelson, Div. & Sep. § 107. In the present instance, such intention is palpably manifest. The burden is also with the-plaintiff to show that the desertion was wrongful of without just cause, and there is no question but that this has been shown, as it relates to the separation primarily.
3. This brings us to the second feature of the case, which, under -the facts proven, is more difficult of solution. It may be predicated of the statute that the desertion must continue for the period of one year, — that is to say, the act is continuing in its nature, — and, if suspended in the meanwhile by reconciliation or by the repentance of the party at fault, with a proper and sincere effort towards reconciliation, manifesting a purpose to return and again resume the marital relations, then the desertion is at an end. If the parties separated by mutual consent and understanding, then there is no desertion, because of the consent to the existing relations. So, if there is willful desertion without cause, and the party in fault in good faith seeks a reconciliation, and the other party repels it .with out othef cause for continuing the separation, he thereby assents to the prevailing condition. What is more, he is himself put in the fault, and is guilty of desertion, such as will constitute a cause for divorce against him: Crow v. Crow, 23 Ala. 583. The rule is well stated and illustrated by Mr. Justice Bailey, in Albee v. Albee, 141 Ill. 550 (31 N. E. 153), [181]*181under a statute making two years’ desertion a cause of divorce. The case is so apt that we may be pardoned if we quote somewhat at length: “However willful the desertion may be, and however destitute of reasonable cause, it is no'ground for divorce, unless it is continued for two years. At any time during that period the offending party has an undoubted right to put an end to it, and if that is done no cause of divorce has arisen. If at any time during the two years the party guilty of the desertion, in good faith and with an honest intention to resume marital relations, returns, or offers to return, to the deserted husband or wife, the continuity of the desertion is broken. Nor can the deserted party prevent this by refusing to receive back and to resume marital relations with the one guilty of desertion. He or she cannot, because the other has taken a position, however willful or causeless it may have been, hold him or her to it. For the two years the door for repentance and return must be kept open, and, if it is closed and barred when an offer to return is made in good faith, not only is the desertion terminated, but the circumstances may be such as to reverse the legal attitude of the parties, and constitute the party originally offended against, from that time forth, the offender.” Nor has the husband, as declared by Mr. Vice-Chancellor Van Fleet, in Newing v. Newing, 45 N. J. Eq. 498 (18 Atl. 166), a “right to require his wife, even when she is in the wrong, to crawl back to him. It is his duty to take her back upon such terms as will permit her to preserve her self-respect.” The husband, however, is not called upon, where the wife has willfully deserted him, to make overtures to her, or to entreat her to return, upon pain of having his silence construed as a consent to her separation from him.
4. Closely allied to this thought is another, which is that the relationship could not be changed by an inquiry [182]*182as to what he might have done if his wife had made proper overtures for reconciliation. Such an inquiry is speculative and conjectural, and is not a suitable test of the husband’s purpose. “No person knows what he would have done under conditions in which he was never placed:” Monteath v. Monteath, 51 Ill. App. 126. Mr. Justice Holmes has covered both phases of the question in Ford v. Ford, 143 Mass. 577 (10 N. E. 474), wherein he says : “When one party terminates the cohabitation by desertion, the other is not bound to take any steps to restore it. If he remains silent until he files his libel, his silence does not take away his right to a decree. Conduct which in itself is proper cannot be made improper by inquiring what he would have done in an event which did not happen. The mode of testing that was for the wife to offer to return. A tender under a contract would not be excused by the contractee’s subsequent admission that he would not have accepted it if made, provided he had done no overt act or waiver. In.
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Mr. Chief Justice Wolverton,
after stating the facts in the foregoing language, delivered the opinion.
This is a brief resume of the evidence in the case, without attempting to quote the witnesses at large, and upon this testimony it is insisted (1) that it has not been shown that the defendant willfully deserted plaintiff; and (2) that it has been shown that the plaintiff assented to her [179]*179living separate and apart from Mm, and therefore that desertion contrary to his will and without his consent has not been established.
1. “Desertion” has been defined by Mr. Bishop in his work on Marriage, Divorce and Separation (vol. 1, § 1662), to be the “voluntary separation of one of the married parties from the other, or the voluntary refusal to renew a suspended cohabitation, without justification either in the consent or wrongful conduct of the other. ’ ’ This language is quoted with approval in Sisemore. v. Sisemore, 17 Or. 542 (21 Pac. 820). Perhaps a more terse definition is that given in 9 Am. & Eng. Enc. Law (2 ed.), 764. The author says : “Desertion is the willful termination of the marriage relation by one of the married parties without lawful or reasonable cause, or a refusal without reasonable cause to renew the marriage relation after the parties have been separated.” An intentional desertion is willful, within the meaning of the term as defined by the statute. The term does not carry with it the element of malice or a purpose of doing injury. The act is willful when there is a design to forsake the other spouse wrongfully or without cause, and thereby break up the marital union: Benkert v. Benkert, 32 Cal. 467. Before the plaintiff can prevail, he must therefore show that the defendant willfully — that is, intentionally and wrongfully, or without cause — deserted him, and continued in such desertion for the space of one year.
2. Aside from what defendant said to Earl, there is nothing in the record to show her intention except the circumstances attending the act. She left home without leaving any message for her husband, of whose early return from England she had been advised, or without disclosing her purpose to her mother-in-law, with whom she left her children. She remained away some three or four months, without writing to any of the family except her [180]*180son. There appears to have been no legitimate cause or sufficient excuse for her going. The only one assigned by her is that she was afraid there might be bloodshed ; but, if there was ever any real danger of such a thing, it was wholly within her power to have prevented it by a considerate loyalty to her husband. The intention to desert may be shown by the acts and circumstances attending the separation: Morrison v. Morrison, 20 Cal. 431; 1 Nelson, Div. & Sep. § 107. In the present instance, such intention is palpably manifest. The burden is also with the-plaintiff to show that the desertion was wrongful of without just cause, and there is no question but that this has been shown, as it relates to the separation primarily.
3. This brings us to the second feature of the case, which, under -the facts proven, is more difficult of solution. It may be predicated of the statute that the desertion must continue for the period of one year, — that is to say, the act is continuing in its nature, — and, if suspended in the meanwhile by reconciliation or by the repentance of the party at fault, with a proper and sincere effort towards reconciliation, manifesting a purpose to return and again resume the marital relations, then the desertion is at an end. If the parties separated by mutual consent and understanding, then there is no desertion, because of the consent to the existing relations. So, if there is willful desertion without cause, and the party in fault in good faith seeks a reconciliation, and the other party repels it .with out othef cause for continuing the separation, he thereby assents to the prevailing condition. What is more, he is himself put in the fault, and is guilty of desertion, such as will constitute a cause for divorce against him: Crow v. Crow, 23 Ala. 583. The rule is well stated and illustrated by Mr. Justice Bailey, in Albee v. Albee, 141 Ill. 550 (31 N. E. 153), [181]*181under a statute making two years’ desertion a cause of divorce. The case is so apt that we may be pardoned if we quote somewhat at length: “However willful the desertion may be, and however destitute of reasonable cause, it is no'ground for divorce, unless it is continued for two years. At any time during that period the offending party has an undoubted right to put an end to it, and if that is done no cause of divorce has arisen. If at any time during the two years the party guilty of the desertion, in good faith and with an honest intention to resume marital relations, returns, or offers to return, to the deserted husband or wife, the continuity of the desertion is broken. Nor can the deserted party prevent this by refusing to receive back and to resume marital relations with the one guilty of desertion. He or she cannot, because the other has taken a position, however willful or causeless it may have been, hold him or her to it. For the two years the door for repentance and return must be kept open, and, if it is closed and barred when an offer to return is made in good faith, not only is the desertion terminated, but the circumstances may be such as to reverse the legal attitude of the parties, and constitute the party originally offended against, from that time forth, the offender.” Nor has the husband, as declared by Mr. Vice-Chancellor Van Fleet, in Newing v. Newing, 45 N. J. Eq. 498 (18 Atl. 166), a “right to require his wife, even when she is in the wrong, to crawl back to him. It is his duty to take her back upon such terms as will permit her to preserve her self-respect.” The husband, however, is not called upon, where the wife has willfully deserted him, to make overtures to her, or to entreat her to return, upon pain of having his silence construed as a consent to her separation from him.
4. Closely allied to this thought is another, which is that the relationship could not be changed by an inquiry [182]*182as to what he might have done if his wife had made proper overtures for reconciliation. Such an inquiry is speculative and conjectural, and is not a suitable test of the husband’s purpose. “No person knows what he would have done under conditions in which he was never placed:” Monteath v. Monteath, 51 Ill. App. 126. Mr. Justice Holmes has covered both phases of the question in Ford v. Ford, 143 Mass. 577 (10 N. E. 474), wherein he says : “When one party terminates the cohabitation by desertion, the other is not bound to take any steps to restore it. If he remains silent until he files his libel, his silence does not take away his right to a decree. Conduct which in itself is proper cannot be made improper by inquiring what he would have done in an event which did not happen. The mode of testing that was for the wife to offer to return. A tender under a contract would not be excused by the contractee’s subsequent admission that he would not have accepted it if made, provided he had done no overt act or waiver. In. general, a person does not lose rights which he may lawfully renounce until he has renounced them by an overt act.” There are authorities which seem to impose a larger duty upon the husband, and require him to seek the wife, and entreat or make some especial effort to induce her to return. See Newing v. Newing, 45 N. J. Eq. 498 (18 Atl. 166); Herold v. Herold, 47 N. J. Eq. 210 (20 Atl. 375, 9 L. R. A. 696); Wright v. Wright, 80 Mich. 572 (45 N. W. 365). But it is doubtful whether these authorities go to the extent of holding that such advances should be made where the husband is entirely blameless for his wife’s acts. The whole doctrine seems to be well stated in Herold v. Herold, 47 N. J. Eq. 210 (9 L. R. A. 696, 20 Atl. 375), as follows: “It is abundantly estab-, lished that a husband who, not being blameless for the act, makes no effort to prevent his desertion by his wife, [183]*183and appears to acquiesce in and be satisfied with its continuation, cannot appeal successfully to the court for a divorce on the ground of desertion.” Again, it is a question for the court to determine, under the circumstances of the case, whether the offer to return and renew the cohabitation is made in sincerity, and with a bona fide intention to renew the marital duty : McClurg’s Appeal, 66 Pa. St. 366.
5. With this understanding of the law, we must now inquire whether the defendant has, in fact and in good faith, made overtures to the plaintiff, with a genuine purpose of reconciliation, and, if so, whether the plaintiff has, without good cause, rejected them, so as to put him in the fault, or in the position of having consented to her separation from him. The letters of Mrs. Ogilvie, written to her husband at Fossil, purported copies of which were received in evidence by the court below, are relied upon somewhat as showing her desire to return. It may be well doubted whether these are properly in evidence for any purpose ; but, even if we admit them as evidence in the case, they do not prove what is contended for them. In the first she says : “I thought I would drop you a few lines to let you know where I am. I am at Mrs. Spears’ hotel. Come up Sunday. I want to see you. I have your ring, and I wear it, and when I take it off my finger you will know I am not true to you.” There is here no indication that she desired to again renew the marital relations between them, nor does she intimate that the purpose of the desired interview was to effect a reconciliation in any manner with her husband. That she still wore the ring as a sign that she was true to him could not be construed that she desired a reconciliation. The second letter was entirely concerning money matters, and does not even request an interview. She testifies that she told him at the interview at the house that she had come back [184]*184to take up her family duties again; but the offer does not impress one as having been made with a sincere purpose, if, in fact, she made it at all, which is doubtful, in the face of his strong denial, accompanied by circumstances tending to his corroboration. It does not appear to have been attended with any attempted explanation of her acts, and, standing alone, is a meaningless formality. Upon the next day, by the terms of the written agreement, she formally declared that she had deserted her husband. This she could hardly have been induced to do if she had a genuine yearning for the restoration of the marital relations with him. She may not have been settled in her own mind as to what she might do in the future, as she said to Mr. Hendricks that she believed they might live together some time, but she had determined that it “wasn’t proper for them to try to do so now.” The manner of her attempted interview with her husband at Portland does not indicate any desire upon her part to return to him, as she merely asked for an interview, without disclosing any purpose whatever, and for aught that appears she may have had in view something entirely foreign to a reconciliation of their differences. In view of all the evidence, and in the light of surrounding circumstances, we can come to no other conclusion than that defendant is still in the fault, that plaintiff has in nowise assented to her desertion of him, and is therefore entitled to a divorce.
6. Another question was presented in connection with the written agreement between the parties, which is that the writing shows an assent by the husband to the separation. This agreement was made, however, after it had actually taken place by the desertion of the wife ; and it was held in Henderson v. Henderson, 37 Or. 141 (38 L. R. A. 766, 60 Pac. 597), that where a separation has been induced, not by collusion, but by the vicious conduct of one of the parties, without inducement or fault of the [185]*185other, and it has furnished just grounds for divorce, then a contract looking to a settlement of the property rights and the proper maintenance of the one not in fault could properly be entered into, as not repugnant to public policy. Such an agreement does not justify an inference that there was a separation by mutual consent: Nichols v. Nichols (Ky.), 11 S. W. 286. The decree of the court below will be affirmed. Affirmed.