Peipho v. Peipho

88 Ill. 438

• Court: Illinois Supreme Court
• Decided: January 15, 1878
• Status: Published

Opinion

Per Curiam :

Appellant seeks a divorce for impotency. The circuit court sustained a demurrer to the bill. Taking all the allegations of the bill as true, we agree with the circuit court in holding that appellant is not entitled to the relief sought.

The allegations in a bill, like allegations in other pleadings, where they are in any degree equivocal, must be taken in the sense most unfavorable to the party whose pleading is the subject of construction.

Testing the allegations of this bill by this rule, it fails to show that the malformation complained of is such as necessarily to constitute impotency.

In this case no complaint on account of the cause alleged seems to have been made by complainant until in May, 1876; nor was there any election on his part to avoid the marriage contract on that ground until at that time. This was more than thirteen years after the marriage. For near eight years complainant cohabited with appellee, with full knowledge and without complaint of this cause.

In the absence of strong rebutting facts, he must be taken to have accepted the situation, and can not now be heard to complain. Mere motives of delicacy are not a sufficient explanation of such long continued acquiescence.

We think the decree of the circuit court" was right, ahd it must be affirmed.

Decree affirmed.