Scottish Court of Session Decisions

Mrs Helen Geraldine Blackwood or Walker raised an action against (1) Graham Weir Walker, the heir-at-law and executordative of the deceased Nathan or Nathaniel Walker of Pitcurran, Abernethy, Perthshire, and against certain others who with the said Graham Weir Walker were the whole heirs in mobilibus of the deceased Nathan Walker, and (2) the marriage-contract trustees of the pursuer and her deceased husband Nathan Walker. The action was defended by the defenders first called. The pursuer sought to reduce a decree of divorce pronounced by Lord Salvesen (Ordinary), dated 7th July 1906, obtained at the instance of Nathan Walker, deceased, the husband of the pursuer, against the pursuer.

The facts of the case appear from the opinions of the Lord Ordinary (Cullen) and of the Lord President.

The pursuer pleaded—“(1) The pursuer's husband having condoned the adultery founded upon in the said action of divorc, and being thereby disentitled to decree therein, the pursuer is entitled to decree of reduction as craved. (2) The said decree of divorce having been obtained by means of fraud on the part of the pursuer in said action, decree of reduction should be pronounced. (3) The decree pronounced in said action of divorce should be reduced in respect that the pursuer therein wrongfully and illegally (1st) withheld material facts from the Court; (2nd) procured that no defences should be lodged thereto; and (3rd) employed the defender therein to assist in obtaining the evidence against herself. (4) In respect that the said decree of divorce is null and void, the defender, the said Graham Weir Walker, is bound to restore the trust estate, so far as extant, to the marriage-contract trustees, and, if necessary, a judicial factor should be appointed to administer said estate in terms of the said marriage contract. (5) The defenders as representing separately the late Mr Walker, are barred from maintaining the defences, and the pursuer having relied on the late Mr Walker's statements that she

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had no defence to the action of divorce, and being innocent of any fraud in the matter, is not barred from maintaining the present action.”

The defenders pleaded, inter alia, that the pursuer's averments were irrelevant, and also, so far as material, unfounded in fact. They further pleaded that the pursuer was barred personali exceptione from insisting in the action.

On 17th February 1909 the Lord Ordinary ( Salvesen) repelled the first plea-in-law for the defenders — which was founded on bringing the action after lapse of a year and a day, and after the death of the husband, on which the case is not reported — and before answer allowed to the parties a proof of their averments.

On a reclaiming note the First Division recalled the interlocutor of Lord Salvesen, and remitted to the Lord Ordinary before answer to allow the parties a proof of their averments.

On 7th December 1909 the Lord Ordinary ( Cullen), after a proof, pronounced this interlocutor—“Assoilzies the compearing defenders from the conclusions of the summons, and decerns.…”

Opinion.—“The pursuer was married to to the late Nathaniel Walker on 22nd December 1898. In September or October 1905, and again in December 1905, she committed adultery with a Dr Liddell. In respect of these acts of adultery her husband, on 25th May 1906, raised an action of divorce against her. The action was undefended, and, after proof, decree of divorce was pronounced on 7th July 1906. Mr Walker died on 22nd October 1907.

In the present action, which was raised on 8th October 1908, the pursuer concludes for reduction of the said decree in absence, and she maintains right to have it set aside on two alleged grounds, viz.—(1) that the adultery was condoned by her husband, so that she had a good defence to the divorce action although she did not propone it, and was, she alleges, ignorant of its being in law available to her, and (2) that the divorce proceedings were tainted with collusion between her husband and her, vitiating the decree. The summons contains a further conclusion directed to the restoration of the pursuer to the rights conceived in her favour in an antenuptial marriage contract. The defenders are (1) the persons who are interested in the succession of the husband and who compear, and (2) the trustees under the marriage contract, who denuded after the decree of divorce, and who did not compear. [His Lordship then dealt with and repelled certain preliminary pleas for the defence, on which the case is not reported.]

I now therefore pass to consider the pursuer's grounds of reduction on their merits. The first is that the acts of adultery, on which the decree of divorce proceeded, were condoned by her husband. In the fifth article of the condescendence the pursuer sets forth that on returning home to Pitcurran in January 1906, after being absent on a visit, her husband taxed her with having been guilty of adultery with Dr Liddell; that she admitted her guilt and was for given; and that thereafter she and her husband cohabited as man and wife till the end of May 1906.

It is common ground that at some period prior to the raising of the divorce action on 25th May 1906 the pursuer fully avowed her guilt, and also that the spouses continued to reside together at Pitcurran until the date of the pursuer's departure consequent on the service of the summons, which date was, I think, 26th May 1906, the day after service was made. A sharp controversy arises, however, as to the time when the pursuer first made confession. The pursuer, as already mentioned, places it in January 1906, while the defenders place it in April thereafter, when the pursuer admittedly made a detailed confession. I am of opinion that the pursuer has not proved her averments as to confession and forgiveness in January. Her story is that when she returned to Pitcurran on or about 12th January, after an absence from home of about three weeks, during which one of the acts of adultery took place, she was taken to task by her husband, confessed, and was straightway forgiven. Her account of the occurrence—so momentous a one in her married life—is unnaturally meagre and devoid of circumstance. She says, moreover, that she made the admission of her guilt and was forgiven in presence of her mother Mrs Blackwood, who does not corroborate her. Mr Walker's evidence is, of course, not available apart from his deposition in the divorce action, where he places his wife's confession in April. It is important to observe, however, that from December 1905 onwards he was consulting his solicitor Mr M'cann, S.S.C., having had his suspicions originally aroused through finding some of Dr Liddell's letters to his wife (not on the face of them incriminating) during her absence from home, and that Mr M'Cann depones that he never heard from his client of any confession having been made prior to April 1906. It is true that before April Mr M'Cann was, on Mr Walker's instructions, endeavouring to lay the train for an action of divorce, but it has to be noticed that Mr Walker's original suspicions had been fortified by the terms of certain intercepted letters. I think the truth of the January incident probably is that on the pursuer's return to Pitcurran along with her mother, there was some decided unpleasantness arising from Mr Walker's suspicions, and involving Mrs Blackwood, in whose house Dr Liddell had met the pursuer during her absence; that Mr Walker ultimately was or professed to be conciliated, and that the pursuer has magnified the incident into a confession of adultery with a remission of guilt by her husband. In any case I am of opinion that the pursuer has not proved the alleged confession and forgiveness in January.

On the other hand, it is certain that the pursuer did make a full confession to her husband in April 1906, when she gave him details as to when and where the acts of adultery took place; and I do not think that an earlier avowal of her

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guilt is proved. From the period of this confession until 26th May following, the spouses continued to reside together at Pitcurran, and the pursuer depones that sexual intercourse took place. She claims the benefit of a presumption in her favour, arising from the continuity of her residence with her husband. The proof, however, discloses a fact which, I think, turns the edge of the presumption, to wit, that in the end of August or the beginning of September previous Mr Walker had changed the sleeping arrangements, and had thereafter occupied a separate bedroom. The pursuer seeks to account for this by saying that Mr Walker was in use to smoke and read in bed; but this does not satisfactorily explain why he should have made a new departure at the period mentioned. On the other hand, the change corresponds with the time when Mr Walker learned that the pursuer had made an excursion to Dalmeny to meet Dr Liddell, and in his evidence in the divorce action, which disclosed the continued residence at Pitcurran, he deponed that he made the change because he then became suspicious.

There is another element in the case which has to be kept in view in estimating the significance of the continued residence of the spouses together. The pursuer was on markedly bad terms with her father, and had no means of her own. Her husband's financial position was extremely straightened, his income being £60 or £70 a-year. The defender's explanation of the pursuer's continued residence at Pitcurran is that her husband, although intending, as she was quite well aware, to sue for divorce, allowed her to stay there out of consideration for her, and in view of the difficulty there was in her finding or being provided with a home elsewhere. This view receives aid, I think, from the fact that Mr Walker's feelings do not seem to have ever become in any marked degree embittered towards the pursuer, and that even after the divorce he continued to maintain more or less friendly relations with her.

The pursuer depones that although her husband had a separate bedroom he resorted to her room and continued to have sexual relations with her. If this is true it involves either that Mr Walker's use of a separate room was not brought about by his suspicions of his wife, as he deponed it was in the divorce action, or that it was a mere device on his part to create, for use in divorce proceedings, the appearance of a withdrawal from cohabitation which did not in fact take place. Now even if I took a more favourable view of the quality of the pursuer's evidence than I do, I should feel unable to hold that it sufficed to make out her case, looking to the disadvantage the defenders are at in being put to meet a challenge of the decree of divorce after Mr Walker's death, and without the benefit of his testimony. I feel, however, bound to say that I think the pursuer's evidence on this and the other controverted questions of fact in the case falls to be taken with considerable reserve. The defenders made a forcible challenge of her credibility on various grounds, and her manner of giving her evidence was not reassuring.

The pursuer adduces in corroboration of her testimony as to her husband's practice of resorting to her room a Mrs Blyth, who was the house servant at Pitcurran, and who was a witness in the divorce proceedings, and then deponed that she saw that relations were strained between the pursuer and her husband, because they occupied separate bedrooms during the whole time that she was at Pitcurran. Mrs Blyth was a very unsatisfactory witness, and I regard her testimony as entirely unreliable. The pursuer's counsel, indeed, placed little or no stress upon it.

There remains finally for notice on this part of the case a point sought to be made on the correspondence, where Mr Walker is to be found speaking of having forgiven the pursuer. I think, however, it is clear enough, when the whole context of the circumstances is kept in view, that the use of this expression cannot be taken as signifying that there was any remissio injuriæ by the husband. The letter of 1st June 1906, chiefly founded on by the pursuer, contains the following passage — ‘There is no need of my mentioning anything about the case. You know I don't altogether blame you, and I told you I forgave you, but as long as you have a couple of hypocrites as your father and mother have made themselves out, hanging round about you and egging you on to do wrong, nothing will come of it. I know that your love has come back for the first man who gained it, and you care for him best; may he make you very happy, that's all I can wish.’ This letter was written a week after the service of the summons of divorce. In the pursuer's letter, which is undated, but apparently followed immediately on her departure from Pitcurran on 26th May, she had written — ‘I am sorry, very sorry dear; try and forgive your wife, and may God forgive me.’ I do not think that the expressions in Mr Walker's letter of 1st June above mentioned can be taken as meaning that he had condoned the pursuer's matrimonial offence, and had passed from his legal right to reparation therefor by means of divorce.

On the considerations above stated I am of opinion that the pursuer, on whom the onus lies, has failed to prove the condonation of her adultery which she alleges as one of her grounds of reduction.

The second ground on which the pursuer maintains her right to reduction is that the divorce proceedings were collusive. While admitting that she was guilty of adultery, and that her husband apart from the alleged condonation had a good ground of action against her in respect thereof, she founds on certain circumstances attending the mode of conducting the proceedings for divorce, which she says were improper in the eye of the law, and have the effect of vitiating the decree and making it voidable at her instance. She points to the following facts—That having

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been told by her husband that she had no defence to the action which he proposed to bring, she believing this (which apart from the alleged condonation was true) not only abstained from taking any steps with a view to defending the action, but made full confession of her adultery to her husband with details as to times and places, thereby facilitating the preparation of the evidence in the case; and that her husband, on the other hand, made an arrangement with her to the effect that in the divorce proof Dr Liddell's name would not if possible be mentioned in Court, and that he would endeavour to prevent the case being reported in the newspapers, the object of this being to avoid injury to the professional prospects of Dr Liddell, who had come under promise to marry the pursuer when the divorce was obtained.

I am unable to see that these facts afford the pursuer a good ground for reducing a decree of divorce which passed against her on account of her admitted adultery. She has in this action had full opportunity to establish the alleged condonation, which she says was not put forward formerly by way of defence in consequence of the representations made by her husband, and she has in my opinion failed to do so. As regards the facilities which the pursuer's confession gave to her husband in obtaining evidence for his action and the arrangements for the avoidance of publicity, these introduced no falsity into the divorce proceedings, and I do not see how it can be in the mouth of the pursuer to complain of them as vitiating the decree. I was referred to English cases in which, at the instance of the King's Proctor acting in the public interest, decrees nisi were set aside on the ground of arrangements of one kind or another between the spouses with a view to divorce, although the facts alleged and proved in the divorce proceedings were true in themselves, and although it was not shown that material facts had been left undisclosed. I do not think that these cases apply. It is one thing to stay the hand of the Court in the public interest so as to secure that the marriage tie shall not be dissolved in proceedings conducted under conditions which tend to prevent a full disclosure of the truth. It is, I think, a different case where, as here, one of the spouses seeks to set aside a decree of divorce. Apart from the effect by way of bar of her own participation in the arrangements which she now complains of, the pursuer is necessarily in knowledge of the whole truth, and if there were any material facts which were screened from the view of the Court in the divorce proceedings, she is in a position to state them when she now seeks to open up the decree. But apart from the alleged condonation she has not shown that the divorce proceedings were affected by any falsity either by way of misrepresentation or concealment of material facts, so as to infer that the decree pronounced against her involved any miscarriage of justice.

I am accordingly of opinion that the defenders fall to be assoilzied from the conclusions of the action.”

The pursuer reclaimed, and argued—The agreement between the husband and wife that she should not defend the action, and should furnish the particulars as to time and place of the adultery, while he in return was to do his best to prevent the name of her paramour appearing, and to bring about her marriage with him, amounted to collusion— Midgley v. Wood, 1859, 30 L. J. (P.M. & A.) 57; Lloyd v. Lloyd and Chichester, 1859, 30 L.J. (P.M. & A.) 97; Churchwards v. Churchward, [1895] P 7; Butler v. Butler, L.R., 15 P. D. 66; Chisim's case and Edwards' case at pp. 582 and 583 respectively of Macqueen's Appellate Jurisdiction; Barnes v. Barnes, 1867, L.R., 1 P. & D. 505. (2) There was collusion, or if that term were confined to the action of both parties, a fraud upon the Court in that there had been condonation in the sense of connection after the confession. Apart from the pursuer's own evidence, this was established by the fact that even if the confession took place, not in January as they maintained, but as late as April, the spouses had continued till the 24th of May to occupy the same house. By taking the oath of calumny the husband committed a fraud upon the Court. But in any case connection was not necessary to establish condonation; the offence might be blotted out by forgiveness apart from connection — Edgar v. Edgar, March 6, 1902, 4 F. 632, 39 S.L.R. 424; Ralston v Ralston and Lord Advocate, January 13, 1881, 8 R. 371, LordcCraighill at 380, 18 S.L.R. 233; Keats v. Keats and Montezuma, 1859, 28 L.J. (P.M. & A.) 57, at p. 63—and the letters showed that there had been forgiveness. Even if there had been no condonation the fact of the concealment from the Court of a material ground of defence, coupled with the fact that the wife had no separate legal advice, was sufficient for reduction. (3) The pursuer was not barred from pleading collusion and condonation; she, unlike her husband, did not know that a fraud was being committed on the Court. Moreover, it was pars judicis to take notice of condonation — Paul v. Paul, 1896, 4 S.L.T. 124 and 171; Stewart v. Stewart, February 27, 1863, 1 Macph. 449.

Argued for the defenders (respondents) — (1) There was no evidence of condonation apart from that of the pursuer and Mrs Blyth, and they were not credible witnesses, the evidence of Mrs Blyth being contradictory of her former evidence. Consequently no fraud had been committed on the Court. (2) The English cases cited on collusion had no application in Scotland, where a different system of law prevailed. There was, they maintained, no collusion in the agreement made. But assuming it amounted to collusion, the pursuer was barred from taking advantage of her own collusion or fraud— Graham v. Graham, December 15, 1881, 9 R. 327, Lord Young at p. 333–4, 19 S.L.R. 207.

At advising—