Allen's Appeal

Chief Justice Sharswood delivered the opinion of the court, January 2d 1882. By the first section of the Act of Afay 8th 1854, Pamph. L. 614, it is provided that “ it shall be lawful for the courts of common pleas of this Commonwealth to grant divorce where the alleged marriage was procured by fraud, force or coercion.” By this language must of course be understood such fraud as would at common law render a marriage void. It is settled beyond all controversy, that fraud which, would vitiate any other contract — even an executory contract to marry — will not have that effect when the marriage has actually been solemnized and [200] consummated. “ It is well understood,” says Chancellor Kent, “ that error and even disingenuous representation, in respect to the qualities of one of the contracting parties in his condition, rank, fortune, manners and character, would be insufficient. The law makes no provision for the relief of a blind credulity, however it may have been produced:” 2 Kent’s Comm. 77. It assumes that the party in entering into so solemn a contract — involving the most important duties and responsibilities for life, and upon which his happiness so much depends — has made all proper inquiries or is willing to take the other party upon trust without inquiry. According to the form of the marriage service of the Church of England, each party takes the other “ for better, for worse, for richer, for poorer, in sickness and in health, to love and to cherish till death them do part according to Cod’s holy ordinance.” The fraud must be in what has been sometimes termed the essentialia of the contract. False personation by one of another person would undoubtedly be such a case. As to any other it will be found difficult, after looking through all the authorities, to lay down any rule which can sharply define and distinguish what are and what are not essentials. Every case must, to some extent, depend on its own circumstances. Thus it is well settled that want of chastity on the part of the woman — ante-nuptial incontinence — even though she may have expressly represented herself as virtuous — forms no ground for avoiding the contract. Mr. Bishop, who has studied the subject with great care and research, in his valuable treatise on Marriage and Divorce, § 179, considers, that on well-established principles, if the woman has even been a common prostitute, and has reformed her life, yet conceals her former misconduct, the man-iage would still be good. The marriage contract is an express renunciation by her of all unlawful intercourse with others than her husband; and he makes a similar renunciation. According to the marriage service before referred to, they both solemnly promise, “ forsaking all others,” to keep themselves solely to each other. I consider this marriage service as good evidence of the ancient common law of England. This seems to be also the dictate of humanity and in conformity to the gospel which so strongly throughout inculcates the rule of mutual forgiveness. For otherwise, one of strong passions, led astray by them or seduced by the wicked arts of others, could have no hopes from reform. In such cases it is best for society that the past should be entirely buried in oblivion, and that the poor, erring creature should have the chance of a new life of respectability and honor. It is best that the other party should know, when the sin is afterward revealed to him, that it can do no good, but unmixed evil, to make it public by applying for a divorce. They must learn to submit to the inevitable. [201] In tliis country — certainly in this state — -adultery is a ground for divorce a vinculo matritnonnii; so that if there should be a relapse after marriage, the marriage can be annulled. The only practical result, therefore, of declaring the marriage absolutely void, ab initio, for simple ante-nuptial incontinence — ■ whether in one instance or many — would be to render innocent children ■illegitimate. And if anto-mrptial incontinence be a sufficient ground of nullity as against the woman, it is not easy to see why it should not be so likewise against the man, and the consequences of such a doctrine it is not difficult to predict. Actual pregnancy at the time of the marriage presents an entirely different question. It introduces a different element. The marriage status of the parties is changed. The man is then necessarily put to the alternative of either publishing his wife’s shame or submitting to have the child of a stranger, an alien to his blood, introduced, recognized and educated as his own legitimate offspring. If a man, indeed, mandes a woman knowing her to be pregnant, even though he may believe that he is the father, he cannot set up the fraud, if afterwards discovered ; for no man would do such a thing unless conscious of having had bimself previous connection with her ; and though she may have falsely assured him that the child was his, if he chooses to rely on that assurance he must bear it as a misfortune. In one very strong case, where, the parties being white, the child born after the marriage proved to bo a mulatto, yet the woman simply concealed from the man the fact of having received a negro’s embraces about the time she did his, the marriage was adjudged valid : Scroggins v. Scroggins, 3 Dev. 535. In support of these general views it will be sufficient to refer besides to Reynolds v. Reynolds, 3 Allen 605; Leavitt v. Leavitt, 13 Mich. 452; Hedden v. Hedden, 6 C. E. Green 61; Faw v. Faw, 2 McArth. 35; Foss v. Foss, 12 Allen 26; Crehore v. Crehore, 97 Mass. 330: Baker v. Baker, 13 Cal. 87; and our own case of Hoffman v. Hoffman, 6 Casey 417. “ There is no absolute rule,” says Mr. Bishop, § 180, “that; pregnancy will entitle him (the lmsband) on discovering the fact to have the marriage declared void. In some circumstances it will, in others it will not; depending on the extent and nature of the fraud in the particular instance, as appearing in the facts special to the individual case.” Applying these principles to the facts of this case, we think that under the evidence it was submitted to the jury with proper instructions. There was no sufficient evidence that the libellant bad ever had sexual intercourse with the respondent before marriage. He positively denied it. The respondent indeed swore that it was his child. She admitted that she had said that it was the child of Samuel Williams, but that it was at [202] Alleifs request upon a promise tliat if she would, lie would live with her. This again lie utterly denied. It was a strange story, but the jury were the judges of the credibility of the witnesses. The child ivas born about seven months after the marriage, so that there could have been nothing in her appearance at that time to indicate her condition. It was certainly not necessary that she should have expressly denied her pregnancy before the marriage. No man would think of asking such a question of a woman he was about to make liis wife. Jt would be regarded by her as an insult, if she was, as lie then must have supposed, a virtuous woman. Upon the question of whether Mrs. Johnston was an expert, it was very, much in the sound discretion of the court, and we never reverse in such cases unless the discretion has been grossly abused, which it certainly was not in this instance. Decree affirmed and appeal dismissed at the costs of the appellant.