Hides v. Hides

The referee wrote the following opinion: A. Wait, Referee. —The plaintiff and the defendant Mary Hides intermarried in September, 1880, at Saratoga Springs, and on the same day of the marriage, but prior thereto, the plaintiff, in pursuance of an ante-nuptial agreement between them, conveyed to her by warranty deed certain real estate in Ballston Spa, the deed reciting that the same was “in consideration of the sum of one dollar and a marriage settlement between the parties hereto to him duly paid and contract of marriage carried out.” This suit was commenced in October, 1880, for the purpose of nullifying said marriage, on the grounds : — 28 — 1st. That the plaintiff’s consent to said marriage was obtained by fraud. 2d. That the defendant at the time of her marriage to the plaintiff had a former husband who was then living, and that her marriage with her former husband was then in force. The complaint also sets up that said deed of real estate was fraudulently obtained by the defendant from the plaintiff, and judgment is prayed that said deed be therefore canceled and set aside. The allegations of fraud in the complaint are controverted by the answer. On the subject of a former marriage it is averred in the complaint, upon information and belief, that the defendant Mary was, at and prior to the time of making and receiving said conveyance, and at the time of her marriage with plaintiff, a married woman, and then had, and still has a living husband from whom she has not been divorced, and at that time was, ever has been, and still is incapable of contracting a valid marriage with plaintiff, and that said marriage of the plaintiff and the defendant Mary was and is invalid and void. The answer contains a denial of each of these allegations by the defendant, and an allegation upon her information and belief that at the time of her marriage with the plaintiff herein her former husband was dead ; and further alleges that at the time of her marriage with the plaintiff herein, the former husband of the defendant had absented himself for the space of five successive years and more, without being known to the defendant to be living during said time, although defendant during said time made constant and diligent search and inquiry for him. Upon this question of a former marriage it was proved on the part of the plaintiff that, the defendant Mary was married at Schenectady in June, 1856, to one Michael McMahon; that four children were bom to them, some of whom are now living; that they lived together until about 1861, when McMahon went to the war. He returned from the war and — 29 — was living as late as March, 1875, with relatives at and near Schenectady. At this time defendant Mary resided at and near Troy, and though she undoubtedly knew that her husband was living within a few miles of her, she did not return to him but was living in open and notorious adultery with one Alexander Laundry, at Troy, Green Island and West Troy. While thus living she conversed with the witness James Bowers about her husband (who was known as well by the name of “Mac” as McMahon). She said she did not care for him that he ivas “ played out;” that when one man gave out it was good to have another, and when it was mentioned that . she was not married to the man with whom she was living she did not deny it. This was in 1873 or 1874. In the spring of 1873 she lived in a house on Green Island which she rented under the name of “Mrs. Mack,” from the witness Midiólas Bulger. She described herself to him as a widow. Here she lived with Laundry, holding the apparent relation of wife to him. During this time she claimed Laundry to be her husband although she knew her husband McMahon was living and she had not been divorced from him. Soon after this she purchased under the name of Mary Laundry a house in West Troy of the witness John Mason, and she and Laundry lived there together, and were known to the neighbors as husband and wife. She failed to pay for the property and Mason took it back. She went to the house of Esther Perry, in Troy, and remained there two or three, nights sleeping with Laundry. She declared- to Mrs. Perry that Laundry was her husband, and that she had a child by him. She left Mrs. Perry’s after remaining there two or three nights, but Laundry remained. She declared to David Butcher and Willard Hammond that Laundry was her husband. This was in 1874. She said she was married to Laundry at Burnt Hills, Saratoga county. In that year the defendant Mary commenced an action in the supreme court — 30 — against one John D. Lawrence, for seduction under promise of marriage. In her complaint after alleging the promise and breach, she averred that Lawrence “ taking advantage of the confidence she had in him by reason of such promise seduced and cohabited with her and that she became and then was pregnant by him,” and she demanded $5,000 for her damages. To the truth of this complaint she made oath the 29th of April, 1874. In March, 1875, at the time fixed for the trial of that action, Michael McMahon, the husband of the defendant Mary, was produced in court, and she suffered judgment to be taken against her by default. On the morning of the trial McMahon was seen in Troy, and started to go away, but no further account of him appears from the evidence on the part of the plaintiff. In the same year the defendant Mary again lived with Laundry as his wife, and continued to assert that he was her husband; and as late as October, 1875, she was living with him, and traded with "Willard Hammond under his name. Prior to this time, on the 26th of March, 1874, the defendant Mary began a suit in justices’ court by the name of Mary Laundry against Aaron Tedder, returnable April twenty-seventh, in which she personally appeared and took part, .and was sworn in her own behalf under the name of Mary Laundry; and was also so sworn, in the cause named, in the county court on appeal in June, 1874. It was proved that Laundry had been married some twenty-nine years ago to a woman named Sophia Bell, and had never been divorced from her, and that said Sophia Bell was living at the time of this trial; that Laundry left his wife in Michigan in 1862 and returned there to her in 1875 ; and that said Laundry was living in July, 1881. It does not appear that Laundry held, and it was admitted on the trial that he did not hold, any communication with his wife Sophia from 1862 to 1875, or she with him. In-the summer of 1877, the defendant Mary was stopping — 31 — at a house in Saratoga Springs with a man who passed by the name of Charles Hendricks, cohabiting and lodging with him as his wife for some ten or fifteen days, and claimed to be his wife. Hendricks at the time was the proprietor and manipulator of a Punch and Judy show at the “ Indian Encampment ” in that village, and the defendant was engaged in the occupation of “ fortune telling ” at the same “ Encampment.” The same summer the defendant Mary was stopping at another house in Saratoga Springs, cohabiting with Hendricks as his wife some six weeks. And the same summer she was stopping at another house in Saratoga Springs with said Hendricks, cohabiting and lodging with him as his wife for about two months, claiming to be the wife of Hendricks. Hendricks was living in June, 1879. His real name was Frederick B. Hendricks. It was proved that in 1864 said Hendricks was married to one Margaret Ann Riley, who was sworn as a witness on the part of the defendant on this trial. There was no further evidence given of any marriage, or any pretended marriage, of the defendant Mary with anyone, except as to her marriage with the plaintiff in this case. If it be true that the defendant Mary married Laundry at the time and under the circumstances disclosed by the evidence in this case, as she represented and claimed she did, she was guilty of bigamy. It appears that she then knew that her lawful husband, Michael McMahon, was then living. Such marriage, if it took place as claimed by the defendant Mary, was contracted in violation of the provisions of the statute on the subject of marriage, and was absolutely void. Both Laundry and herself, under the evidence in this case, were legally precluded from entering into such a contract. There was no ceremonial marriage between them proved, and their cohabitation in the beginning -seems to have been meretricious as claimed by defendant’s counsel. But they may, as the defendant Mary claimed, have entered into a contract of marriage. Marriage with us is but a civil contract, and no ceremonial — 32 — is necessary to create the relation. A contract of marriage made “per verba ” de presentí amounts to an actual marriage, and is valid when there is no legal impediment in the way of the parties to prevent their entering into such contract. And it is competent to prove marriage by cohabitation, acknowledgment of the marriage by the parties themselves, reception of them as man and wife by their relatives and neighbors and common repute (Ogara v. Eisenlohr, 38 N. Y., 298, and cases cited). If the defendant, as she claimed, contracted marriage with Laundry she did not regard it as in the way of her entering into another contract of marriage with Lawrence while her marriage with Laundry was in full force. Under the contract with Lawrence, and in reliance upon it, the defendant was, as she claimed, seduced and became pregnant. She was, as it appears, ready and willing to enter into the marriage relation with Lawrence at that time, and would have done so but for his refusal to carry out the contract. •Her subsequent cohabitation with Hendricks at Saratoga Springs in the character of a wife, under the circumstances detailed in the testimony, was, I think, unquestionably meretricious, and her claims and pretenses . that she was liis wife were untrue. . Assuming that the defendant Mary at the time was free to enter into the marriage relation with Hendricks, and in fact did so, such marriage was absolutely void, as Hendricks at the time was a married man, and 1ns wife was then living and from whom he had not been divorced. The ¡plaintiff fails to establish the allegations'of the compdaint that the defendant Mary at the time of her marriage with the plaintiff was a married woman and had a living husband from whom she had not been divorced, and was therefore incapable of contracting a valid marriage with the plaintiff, unless it appears from the evidence that her former husband, McMahon, was living at the time of such marriage. McMahon was in Troy in March, 1875, as a witness in the — 33 — suit of his wife against Lawrence, and was seen there the morning before the dismissal of the complaint in that action. Ho further evidence was given on the part of the plaintiff as to the existence of McMahon subsequent to that time:. The witness Frank McMahon, a young man about, twenty-three years of age, son of the defendant Mary, testified on her part that lie last saw his father, Michael McMahon, in 1871; that he saw him then in the street in the city of Troy; that he heard of his being in Troy in 1875, and of his- disappearance at that time. This witness was not in Troy in 1875, but was- absent froim that city in the years 1873,1874 and 1875, and returned therein 1876. On his return in 1876, as he testified, he made inquiries to find his father. He inquired of persons who had' known his father, and of his uncles and aunt (brothers and-sister of his mother), residing at Troy and West Troy, or in that vicinity. They informed him that his father was drowned in 1875, and his body had been found in Albany in the Hudson river. Ilis uncle informed him that his father was- in Troy on a “ tare,” or “ spree,” there the last they saw of' him. This witness testified that he also inquired of his mother and she told him the same story. On his cross-examination he testified that the relatives of whom he made inquiries did not say that they knew his father was drowned, but that they thought he was ; that they had heard so, and heard that he was buried by the city authorities of Albany; that his aunt, who resides-on Green Island, of whom he inquired in 1876, said that liisfather was there on a “ spree,” and left there to go over the river, and that was the last she ever saw or heard of him. Patrick Kennedy, a witness sworn on the part of the plaintiff, testified, on his cross-examination, that he had resided in the town of Glenville, about four miles from the city of Schenectady, about twenty-three years ; that after McMahon returned from the war he worked in Schenectady, or in that vicinity; and when out of work made it his home with the — 34 — witness, usually in the winter time; that the witness knew of ¡McMahon’s going to Troy to attend the Lawrence trial in 1875, as a witness; he was then working for Mr. Eckrich, a farmer who lived near the witness. At the time McMahon left to go to Troy on that occasion he left all of his clothes except those that he wore at the house of the witness. He also left some money and a bank book in charge of the witness, who still retains the same. McMahon never appeared to claim the same; and the witness has not seen or heard anything of- him since that time. The witness was an uncle of McMahon, and he and another uncle, living near there, some time after McMahon went away to Troy, as stated, made efforts at Troy and vicinity to find him, and put an advertisement in the Troy Times, and consulted the police and had them make inquiries for him, and searched for him in all the places about Troy wheie they thought he would be likely to be found or heard of, but got no tidings of him. Another uncle of McMahon, residing at Elmira, was at the house of the witness in July last and they spoke of the absence of McMahon, but neither of them knew anything of him since he went to Troy in 1875. This witness subsequently made inquiries of people at different times, and some said they had seen him in Troy, and on further inquiry found it was a lie or mistake. This is substantially all of the evidence in the case upon this ques- • tion. Upon this issue under the pleadings the plaintiff held the affirmative, and his relation to the question was unchanged upon the trial (Banker agt. Banker, 63 N. Y., 409, 418; Hinmon agt. Hood, 62 N. Y., 448, 455). The plaintiff proved that the defendant Mary intermarried with Michael McMahon, June 27, 1856, and that McMahon was alive March 27, 1875, and gave no further evidence upon the subject, reposing upon the presumption of the continuance of McMahon’s life. As a general rule the law presumes the continuance of life, and the death of neither husband or wife will be presumed — 35 — until an absence of seven years without being heard from (O'Gara agt. Eisenlohr, 38 N. Y., 301). The defendant’s counsel insist that such presumption in a case of this character is balanced by the presumption against the commission of crime and immorality, and hence that the plaintiff did not make out a prima facie case, demanding evidence on the part of the defendant to overcome it. Justice Pratt, in his opinion in the case of Clayton agt. Wardell (4 Comst., 240, 241), says that between these conflicting presumptions courts of justice will not decide; that the principles growing out of the presumption of innocence have been uniformly extended to all cases calling for their application. Thus, in the case of The King agt. The Inhabitants of Twining (2 Barn, & Ald., 386) the same principle was applied. The case involved simply the settlement of a pauper. A woman had been married to a soldier, who soon after left for the East Indies. Within twelve months the woman married again and the question turned on the validity of the second marriage. It was held that the death of the first husband before the second marriage might be presumed and the latter was valid. Bailey, J., deemed it a case of conflicting presumption; the presumption of the continuance'of life being balanced by the presumption against the commission of crime. The same rule has been applied in a civil action for libel where the defendant had charged the plaintiff with the crime of bigamy and attempted to justify by proving the truth of the charge (Weimath agt. Harmer, 8 Carr & Payne, 695). Justice Harris, in his opinion in the case of Clayton agt. Worden (4 Comst., 237), says that when there is a. conflict of presumptions the rule is that that must yield which has the least degree of probability to sustain it. The presumption of innocence and against the commission of crime and immorality does not always prevail in the conflict (O’Gara agt. Eisenlohr, 38 N. Y., 302). Presumptions of fact are but inferences drawn from other facts and circumstances in the — 36 — case and should be made upon the common principles of induction (Id., 303). The defendant Mary was a party to two “ ceremonial” marriages, one with McMahon and the other with the plaintiff. She claimed to have married Laundry at a time and under circumstances making such marriage criminal and immoral. She knew that McMahon was then living, and did not seem to regard her marriage to him as any hindrance to her marrying another man. In those days she seemed to regard the marriage relation as one of mere temporary convenience that might be assumed and discarded ad libitum. It may be that in this case the presumption of innocence and against the commission oí crime and immorality should prevail over the presumption invoked by the plaintiff of the continuance of McMahon’s life. But the defendant very properly, as I think, did not choose to leave the question to be determined upon these conflicting presumptions unaided by evidence to show the probable death of McMahon. Assuming that the plaintiff established prima facie that McMahon was alive, based upon the legal presumption' of the continuance of life, and that such presumption was not overcome by the conflicting presumption of innocence and against the commission of crime and immorality, it was competent for the defendant to rebut such presumption and answer such yyrimafacie case by evidence from which it could be reasonably presumed that he was in fact dead prior to the marriage in question. When there is no definite evidence of the fact of death, as in the case of a person absent and unheard of, the law receives all proper evidence of the circumstances which can throw light upon motive, cause and casualty, and incivil cases inquires not whether it is possible that he can be alive, but whether the circumstances do not warrant that strong probability of death upon which a court of justice should act (Merritt agt. Thompson, 1 Hill, 550, 555, and oases cited). It appears from the evidence that at the time McMahon was last seen alive he was — 37 — intoxicated and was near the Hudson river at Troy. He had left his place of residence temporarily to go to Troy in obedience to a subpoena to attend as a witness on the part of the defendant, on the trial of the suit brought by his wife against Lawrence. He had no other business calling him away, and apparently intended to return to his residence, in the vicinity of Schenectady, as soon as he was relieved from further attendance as such witness at Troy. When subpoenaed he was at work for a farmer near the residence of Kennedy, his life-long friend and relative. He had boarded in the family of Kennedy for several winters, and made it his home there when out of work. His bankbook and his clothes were there. He took nothing away with him except the clothes he wore and a few dollars in money. He had no property except the sum of thirty-five dollars deposited in a Schenectady bank, and his wearing apparel and such money as he had with him to bear his expense when lie started for Troy. His relations with Kennedy and his family were entirely friendly and agreeable. It is strange that he did not return to his old friend Kennedy, or that he should absent himself, if living, without communicating with him and calling for his money and his clothing. His sudden and mysterious disappearance, being intoxicated when last seen alive near the river in proximity to danger, is, under the circumstances, strongly suggestive of accident and death. Some years prior to this time McMahon being drunk fell from a culvert and was badly hurt and was carried on a door to his home, then on Green Island. McMahon had not lived with his wife, nor had they liad any intercourse whatever with each other, for some years before this time, though being but a few miles apart. Whatever affection he may have had for his wife at the time of their marriage, and when they were living together in the years before he went to the war, would seem to have been entirely extinguished long before this time; and how — 38 — ever disagreeable it may have been for him to have obeyed the requirements of a subpoena to attend a trial in which his wife claimed to have been seduced under a promise of marriage to another man and to be pregnant from her illicit intercourse with her alleged seducer, it is not probable that he was so affected by the circumstances as to commit suicide. And there is .nothing in the circumstances connected with McMahon, as shown by the evidence, from which it may reasonably be inferred that he came to his death by suicide. Being habitually addicted to the use of ardent spirits he would be very likely to do as he did, indulge intemperately in their use on that occasion and become intoxicated. The unavailing inquiries and search that was made for him by his friend Kennedy soon after his disappearance and subsequently. The fact that he has not been heard of since by those who would have been likely to have heard of him if alive. The repute and belief among his friends and relatives that he is dead, and the circumstances surrounding McMahon and connected with his departure and disappearance warrant in my opinion that strong probability of his death upon which a court of justice should act. ■ The rumor which was credited among his friends and relatives soon after his sudden disappearance that he was at that time drowned in the Hudson river, was, I think, probably well founded. Upon the whole evidence in the case bearing upon the question it does not appear that McMahon was alive at the time of the marriage of the defendant Mary with the plaintiff. There was no evidence that she knew or believed McMahon to be living at that time. But on the contrary, I am satisfied from the evidence that he was in fact dead prior to that time, and that the defendant Mary fully believed when she married the plaintiff that her former husband, McMahon, was dead. It remains to be determined whether the plaintiff is entitled to the relief prayed for,' on the grounds set forth in the amended complaint involving fraud. It is alleged therein: 1st. That on the 29th day of Sep — 39 — tember, 1880, the plaintiff and defendant Mary intermarried at Saratoga Springs. 2d. That prior to said marriage, as an inducement thereto and as the basis thereof, the defendant Mary stated and represented that she was a pure and virtuous woman, with a character unblemished and above reproach. 3d. That the spirits had commanded her or directed her, she being a medium, to inform the plaintiff that the spirits had commanded and directed her and the plaintiff to marry each other; and had commanded the plaintiff to convey to her the real estate specified in the complaint. 4th. That the plaintiff relied and acted upon said statements, and believed the same to be true; and he, the plaintiff, had no knowledge or information to the contrary when he intermarried as above stated. 5th. That before said marriage and on the same day the plaintiff, in consideration of said marriage and of said representation and statements by tire defendant Mary, by warranty deed, duly executed and delivered, did convey to said defendant Mary, by the name of Mary McMahon, a large and valuable quantity of real estate, a copy of which deed is annexed to the complaint and is a part thereof. 6 th. That the defendant Mary represented hersélf as a spiritual physician, and for some time before said marriage pretended to doctor plaintiff for deafness under the direction of spirits. 7th. That plaintiff is upwards of seventy-four years of age, and for years last past has been feeble and infirm in health; and for many years has been a believer in what is commonly known as spiritualism; and believed that spirits of the dead communicated their wishes and desires, and what they knew to be for the benefit and. good of the living, to whom such communications from said spirits were communicated through mediums. 8th. That plaintiff married defendant Mary, and transferred such real estate to her in consequence of her representations to him as aforesaid, and believing the same to be true; whereas, in truth and in fact, the same were false and untrue. 9th. That the real estate so conveyed was, and is of the value of $20,000, and embraced nearly all the property the plaintiff — 40 — then owned or possessed. 10th. That at the time of said marriage the defendant Mary was a lewd, unchaste and impure woman, of ill-repute and bad character, lltlx. That the plaintiff was induced to, and did [marry the defendant Mary, and conveyed to her said real estate, relying solely upon her said representations. 12th. That all of said representations were and are false, and were known by defendant JSiLary to be false when made. After a careful consideration of all of the evidence in the case in regard thereto, I am satisfied that each of the foregoing allegations of the complaint is substantially proved. The defendant Mary was present on the trial at some of the hearings and was at liberty to take the stand as a witness and give her version of the way, the courtship, or modus operandi, by which her marriage to this 'old man and the deed of real estate from him to her was brought about and obtained. But she was not called as a witness and the testimony of the plaintiff is uncontradicted. In her answer, which is verified by her oath, she denies specially the several allegations of the complaint on the subject. And she further denies, in the answer, that she was at the time of her marriage with said plaintiff, or for any time previous thereto, had been a lewd, unchaste or impure woman, or of ill repute or of bad character. When she verified the answer she knew that denial was untrue. If at the time of her marriage with the plaintiff and shortly prior thereto, when she represented to him that she was virtuous and pure “ as the white snow,” she was not then in fact unchaste and impure, there had been a renewal and change in her character extraordinarily sudden and remarkable. Such “new birth” in the light of the evidence beggars belief. This defendant further answering the complaint denies that all or any of the alleged representations therein set forth were- or are false, excepting only the alleged representations that she, the defendant, was a spiritual physician and that spirits had commanded her and directed her, she being a medium, to — 41 — inform the plaintiff that the spirits had commanded and directed her and the plaintiff to marry each other, and had commanded the plaintiff to convey the real estate specified in the complaint to her, and as to the said alleged representations the defendant denies that she made the same. “And upon Tier information and belief, alleges that all times prior to the time mentioned in the amended complaint at that time, and ever since the spirits, if any, were and are otherwise occupied than in interfering with or directing mundane transactions concerning either matrimony or real estate.” The uncontradicted evidence shows that she did in fact make such representations, and the foregoing allegations of her sworn answer, shows that according to her information and belief those representations so made by her were false. She had practiced as a “ clairvoyant physician ” and “ fortune-teller ” for years, but it is not claimed in her answer and does not appear from the evidence that at any time except in her ante-nuptial “ treatment ” of and interviews with the plaintiff that she assumed to be a spiritual medium, or pretended to have any faith in “ spiritualism.” So far as she was informed and believed, the spirits, “ if any,” have always been otherwise occupied “ than in interfering with or directing mundane transactions concerning either maUdmony or real estate.” This defendant alleges in her answer as a separate defense, upon her information and belief, that subsequent to the intermarriage of the plaintiff and the defendant, and before the commencement of this action the plaintiff voluntarily cohabited with this defendant as her husband, with a full knowledge of the facts constituting the fraud, if any, alleged in the amended complaint. There is an entire failure of proof to sustain this defense. The evidence shows otherwise. This old man was circumvented and entrapped into this marriage, and his consent thereto obtained by the false and fraudulent representations and devices- of the defendant referred to. But, nevertheless, — 42 — it is strenuously insisted by the defendant’s counsel that such a case as this is not within the purview of the statute, providing that an action may be maintained to procure a judgment declaring a marriage contract void, and annulling the marriage when the consent of one of the parties was obtained by fraud, and that the equity power of the court, independent of the statute, is inadequate to relieve the plaintiff from a contract of marriage thus obtained. In Griffin agt. Griffin (47 N. Y., 138), it is said, by justice Bapallo, that the court of chancery of this state has in some cases entertained bills to declare the nullity of marriages, independently of any statute conferring jurisdiction. But these were cases in which the marriage was sought to be declared void for some cause for which chancery had power to cancel or avoid all contracts, such as lunacy or fraud, and it was held that the marriage contract was not excepted from the operation of this general jurisdiction; and that if it was not exercised by the court of chancery in England in matrimonial cases, it was not for want of jurisdiction, but because other tribunals existed there competent to afford full relief. But in all other cases it must be conceded that the jurisdiction of the court of chancery of this State in actions for divorce, either on the ground of nullity or for cause arising subsequent to the marriage, is founded wholly upon the statutes (Perry agt. Perry, 2 Paige, 506; Burtis agt. Burtis, Hopk. Ch., 550). Prior to 1787 there was no tribunal in this state authorized to grant a divorce, and the only remedy of aggrieved individuals in matrimonial cases was by application to the legislature for relief. In 1787 an act was passed reciting that it was more advisable for the legislature to make general provisions for such cases than to afford relief to individuals without a proper trial, and, therefore, conferring jurisdiction upon the court of chancery to decree divorces in cases of adultery. This was the only cause of divorce until the year 1818, when divorces, on the application of the wife, on the ground of cruel treat — 43 — ment was authorized, and in 1824 the husband was enabled to sue for divorce on the same ground. In 1820, in Weightman agt. Weightman (4 Johns. Ch., 343), chancellor Kent decreed the nullity of a marriage on the ground of lunacy of one of the parties at the time of its alleged solemnization; and in 1825, in Terlat agt. Gojou (Hopk. Ch. R., 478), chancellor Sanford decreed a marriage void for fraud. ' Both of these cases were based upon the general jurisdiction of the court of chancery in cases of lunacy and fraud and not upon the jurisdiction of ecclesiastical courts. Accordingly, in Burtis agt. Burtis (Hopk. Ch., 557), decided also in 1825, chancellor Sanford decided that the court of chancery had no jurisdiction to annul a marriage on the ground of impotence, holding that the statutes of this state, before referred to, are founded upon the supposition that the causes of divorce which they define were not causes of divorce by any pre-existing law in force in this state, and that they could not be regarded as an adoption of the English ecclesiastical law on the subject of divorce, but as conferring power only in the cases which they specify. By the Bevised Statutes the power of the court of chancery on the subject of divorces was enlarged. Article 2 of title 1, chapter 8, part 3, entitled “of divorces on the ground of the nullity of the marriage contract,” enumerates five causes, for which, if they existed at the time of the marriage, the chancellor may declare void the marriage contract, viz.: 1st. Either of the parties not having obtained the age of legal consent. 2d. Either of them having a former husband or wife living. 3d. One of them being an idiot or lunatic. 4th. Consent having been obtained by fraud. 5th. Physical incapacity of either party. Some of the cases here enumerated were caxises which rendered the marriage void at common law, and on which the court of chancery had already assumed jurisdiction. Other new causes not formerly cognizable in chancery. The section was framed, as appears by the revised notes, — 44 — in view of the decisions in Weightman agt. Weightman (4 Johns. Ch., 343) and Burtis agt. Burtis (Hopk., 557), and the revisers refer to the latter case as establishing that the whole jurisdiction of the court of chancery in relation to marriage (except when the contract is void on the same grounds on which other contracts may be avoided') is conferred and limited by statute, and they criticise as extra judicial the remarks of chancellor Kent in Weightman agt. Weightman as to the power of the court of chancery to annul incestuous marriages, and refer to the fact that up to the time of the revision of the statutes there was no law of this state defining or prohibiting incestuous marriages. From this review it will be seen that in some actions for nullity the jurisdiction of chancery was derived wholly from the statutes. Yet in others it existed independently of the statutes and as a part of the original jurisdiction of the court. By the constitution of 1846, the jurisdiction formerly rested in the court of chancery became vested in the supreme court. If there be any doubt of the power of the supreme court in the exercise of equity jurisdiction, independent of statute, to adjudge a marriage contract void obtained by fraud, the power to so adjudge is expressly conferred upon the court by statute re-enacted in the Code (Sec. 1743). The plaintiff should have judgment declaring the marriage in question void, and annulling the same if it is established by the evidence that his consent to the marriage was obtained by fraud. All marriages procured by force or fraud or involving palpable error are void, for here the element of mutual consent is wanting so essential to every contract. Tiie law treats a. matrimonial union of this kind as absolutely void db initio, and permits its validity to be questioned in any court at the option, however, of the injured party, who may elect to abide by the consequences when left free to give or withhold assent. Force implies a physical restraint of the will; fraud, some deception practiced whereby an unnatural — 45 — state of the will is brought about (Schouler on Husband and Wife, sec. 27). Lord Hardrickb in his enumeration of frauds for which equity will grant relief (2 Ves., 155) says: “ First fraud, dolus malus, may be actual, arising from facts and circumstances of imposition, which is the plainest case.” An actual or positive fraud is the intentional and successful employment of any cunning, deception or artifice used to circumvent, cheat or deceive another (1 Story Eq. Jur., sec. 186). Story, in his “ Equity Jurisprudence ” (vol. 1, sec. 222), says: The general theory of the law in regard to acts done and contracts made by parties affecting their rights and interests, is that in all such cases there must be a free and full consent to bind the parties. Consent is an act of reason accompanied with deliberation, the mind weighing as in a balance the good and evil on each side. And, therefore, it has been well remarked by an able commentator upon the law of nature and nations that every true consent supposes three things: First. A physical power. Secondly. A moral power; and, Thirdly. A serious and free use of them. And Crotius has added: That what is not done with a deliberate mind does .not come under the class of perfect obligations, and hence it is that if consent is obtained by meditated imposition, circumvention, surprise or undue influence, it is to be treated as a delusion and not as a deliberate and free act of the mind. For although the law will not generally examine into the wisdom or prudence of men in disposing of their property or in binding themselves by contracts or other acts, yet it will not suffer them to be entrapped by the fraudulent contrivances or cunning or deceitful management of those who purposely mislead them. The concealment by defendant before her marriage of her previous unchaste character, or the false representations made by her inducing the plaintiff to believe her chaste, are not, it. seems, such a fraud as will support a judgment declaring a marriage void. — 46 — It was so held in the supreme court of Wisconsin in a recent case under a statute similar to ours (Varney agt. Varney, 23 Alb. Law Jour.). It was so held in Massachusetts (Reynolds agt. Reynolds, 3 Allen, 605). This doctrine seems to have been uniformly sustained by the courts whenever the question has been raised (See cases cited by judge Taylor, in Varney agt. Varney). Justice Bigleow, in Reynolds agt. Reynolds (3 Allen, 605), says: “ While marriage by our law is regarded as a purely civil contract, which may well be avoided and set aside on the ground of fraud, it is not to be supposed that every error or mistake into which a person may fall concerning the character or qualities of a wife or husband, although received by disingenous or even false statements or practices, will afford sufficient reason for annulling an executed contract of marriage. “ In the. absense of force or duress and where there is no mistake as to the identity of the person, any error or misapprehension as to pei’sonal traits or attributes, or concerning the position or circumstances in life of a party is deemed wholly immaterial and furnishes no good cause of divorce. Therefore no misconception as to the character, fortune, health or temper, however brought about, will support an allegation of fraud on which a dissolution of the marriage contract, when once executed, can be obtained in a court of justice. These are accidental qualities which do not constitute the essential material elements on which the marriage relation rests. “ The great object of marriage in a civilized and Christian community is to secure the existence and permanence of the family relation and to insure the legitimacy of offspring.” Bishop, in his work on Marriages and Divorce, concurs fully in this view (Id., sec. 168), and holds “that the nature of the marriage contract forbids its validity to rest upon any stipulations concerning these accidental qualities. In Klein agt. Wolsohn (1 Abb. New Cases), it was held that a divorce cannot be granted for the husband’s fraud in inducing the marriage by false representations as to his — 47 — character and property. In that case the plaintiff alleged that she was induced to consent to her marriage by certain representations made to her by the defendant which she believed at the time of her marriage to be true. The representations were that he was a man of good character, and was worth $15,000, and from his income he could support himself and plaintiff. Whereas, in fact, he was a man of bad character and was not worth the amount he claimed, and had no property or means. That'upon discovering ■the falsehood of the statements she refused to live with him. The court held that the fraud for which a court of equity would be justified in decreeing a dissolution of the marriage contract was clearly not of that character. And that the marriage is not to be annulled upon every ground of false representation which was sufficient to cancel an ordinary contract. Following the doctrine of the authorities cited, I must hold that the representations of the defendant as to her chastity and purity, her pedigree, condition in life and personal qualities however false, are immaterial. If the plaintiff’s claims for relief rested solely upon such a foundation it could .not be sustained. That would not constitute fraud within the meaning of the state, and however improvident' and unhappy such a marriage might be, the law would hold the aggrieved party to the contract thus obtained. But the claim for relief in this case, as I view it, stands upon other and more substantial grounds. The evidence shows that the defendant was unable to obtain and did not obtain the consent of the plaintiff to the marriage and the deed of the property, which she coveted, by means of such false pretenses alone. It was not because the defendant induced the plaintiff to believe that she was a virtuous and honest woman and of unblemished reputation and possessed the attributes of a spiritual medium that the plaintiff consented to the contract. It was by means of the false and fraudulent representations of the defendant that through her, as such medium, the spirits had — 48 — commanded and directed their marriage, and had commanded the plaintiff to convey to her the real estate, that the plaintiff’s consent to such marriage and conveyance of property was obtained. That was the determining cause of the contract. Without the aid of that artifice it is evident that the plaintiff would not have yielded to the overtures of the defendant. She undoubtedly .knew of his strong belief in and reliance upon so-called spiritual communications, as it was a matter of common notoriety at Ballston Spa. She was no novice. She had had much experience as a “ fortune-teller ” and otherwise, and availing herself of her cunning and craft she took undue advantage of the plaintiff’s religious belief, and by the false representations alluded to entrapped and controlled him. This, as I regard it, was an atrocious fraud, and the case as to the marriage contract is fully within the meaning of the statute, and is a case in which the benign jurisdiction of the court can, be successfully invoked for the relief demanded in the complaint. The deed should also be canceled, as it is not merely tainted with but was steeped in the same fraud by which the marriage contract was obtained. A deed given in consideration of a marriage procured by fraud and the execution of which was obtained by the devices practiced by the defendant in this case cannot well be said to have been given for a meritorious consideration. I cannot agree with counsel for defendant that as the marriage was the consideration of the deed and the parties were in fact married and cohabited together, and the plaintiff cannot return or pay back what he has received or enjoyed, the deed must therefore stand. It is not claimed that the defendant became pregnant by such cohabitation or suffered any special injury therefrom. By the dissolution of the marriage contract the defendant is substantially restored to the same condition in which she was before the marriage. And that will suffice in a case of this character. — 49 — The law cares very little what the loss of the fraudulent party may be, and it only requires the injured party, as far as-he can, to undo what had been done in the execution of thacontract. “ This is all the disfrauded party can do and all that honesty and fair dealing require of him. If this fail to extrieate the wrong-doer from the position that he has assumed, it is in no sense the fault of his intended victim, and upon the principles of eternal justice whatever consequences may follow should rest on the head of the offender alone” (Per Beardsley, J., Mason agt. Bovett, 1 Denio, 69; approved by court of appeals, Hammond agt. Pennock, 61 N. Y., 145, 153). There should be judgment for the plaintiff annulling the marriage and canceling the deed in question. A motion was made at Schenectady special term held by Landor, J., for confirmation of the report so far as it directed that the marriage between the parties be annulled. It was so confirmed, Mr. justice Lardor writing the following opinion : Landon, J. Motion for judgment to annul the marriage between the parties. It clearly appears by the evidence upon which the referee bases his report, that the plaintiff’s consent to this marriage was obtained by fraud. He was seventy-four years of age, and for many years had been a believer in the fact and the authority of spiritualistic communications made to himself through the agency of alleged mediums. Important events in his own experience had occurred, as he believed, through such influence, and these had strengthened and confirmed his belief. The defendant, whose character as disclosed by the evidence was infamous, sought and made his acquaintance in the assumed character of a. clairvoyant physician and spiritual medium-. She soon gained his confidence, and then she represented to him that the spirits had' laid out her mission for her ; that they had brought the plaintiff and herself together; that they must be married within two weeks, and if they did not marry within that time’ — 50 — the spirits would not be responsible, but something mysterious would happen ; what, she did not know, but the spirits did; that she saw the spirits around him time and time again, and they said he must give her a deed of a part of his farm. By such methods she subjected his will to her own and he gave her the deed she requested of property valued at $25,000 and on the same day married her. He soon discovered the fraud when his cohabition with her ceased, and this action was commenced. His consent was given under the delusion that the authority which he held in the highest awe and reverence commanded him to give it, and would be gravely offended if he did not. She created that delusion by falsely ■representing that the spirits gave the command. That his mind was predisposed by the faith of many years to a readiness of belief in the truth of such representations made him, it is true, the more easily a dupe and a victim, but it does not make the grossness of the deception less nor accord to the 'imposter any protection. It may be that a person of ordinary prudence would not have been deceived by such representations, but the law does not out-law from its protection the old, the weak and the infirm. A pretense, says Mr. Bishop (2 Cr. L., secs. 432, 436), calculated to mislead a weak mind, if practiced on such a mind, is just as obnoxious to the law as one calculated to overcome a strong mind if practiced upon it. Besides, ordinary prudence is a flexible term and we cannot say that ¡any other person of average capacity would not, under similar circumstances, have been deceived by such representations provided his spiritual or religious belief was of the same kind and intensity as the plaintiff’s. Our law •prescribes -no religion, but tolerates all and condemns none, and therefore the plaintiff’s case suffers no detriment because ibis religious belief exposed him to the arts of the defendant. 'The Code of Civil Procedure (sec. 1750) authorizes an action ¡to annul a marriage on the ground that the consent of one of — 51 — the parties thereto was obtained by fraud, provided the parties have not voluntarily cohabited as husband and wife after discovery of the fraud. This is but a formulated expression of the equity power of the courts. The cases in our own courts show that the fraud which will lead the court to annul a marriage must be such as shocks the sense of fairness and is successful by its very audacity and baseness (Scott agt. Shufelt, 5 Paige, 43; Ferlot agt. Gojon, Hopk., 478; Sloan agt. Kane, 10 How., 66; Clarke agt. Clarke, 11 Abb. Pr., 228; Klein agt. Wolfsolm, 1 Abb. N. C., 134). Tested by this stringent rule, I think this marriage should be annulled. Because of the same fraud the deed should be set aside. The report is confirmed, the facts found by the referee approved, and judgment, as advised by him, directed.