Kawabata v. Kawabata

PbR Curiam. This is an action for the annulment of a marriage on the ground that the consent to such marriage was obtained by fraud. The defendant demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was overruled, and defendant appeals. The ground on which annulment is sought is that the plaintiff’s consent to the marriage was obtained by virtue of a false representation made by the defendant that he was a citizen of the United States. It is contended by the defendant that the alleged misrepresentation as to citizenship does not constitute fraud within the purview of the above quoted statute, and that hence the complaint fails to state a cause of action for the annulment of a marriage. It is asserted that fraud, as contemplated bv this statute, must relate to something which goes to the essentials of marriage relation itself, and that misrepresentations as to other matters, however important such as to birth or condition of life, do not affect the validity of a marriage. In support of this many authorities are cited, .among which are 2 Kent, Com. 77; Schouler on Domestic Relations § 23; Nelson on Divorce and Separation, § 616; 1 Bishop on Marriage and Divorce, § 167; Chipman v. Johnston, 237 Mass. 502, 130 N. E. 65, 14 A. L. R. 119; Lyon v. Lyon, 230 Ill. 371, 82 N. E. 850, 13 L. R. A. (N. S.) 996, 12 Ann. Cas. 25; Trask v. Trask, 114 Me. 60, 95 Atl. 352; note 14 A. L. R. p. 121 et seq. [1162] A majority of the court, namely, Mr. Chief Justice Birdzell and Associate Justices Christianson and Robinson, are inclined to the view that the rule invoked by the defendant is applicable, and that the alleged false representation set forth in the complaint does not constitute such fraud as is contemplated by the statute relating to the annulment of marriage; but the court does not find it necessary to base its decision in this case on the ground stated, for the members of the court are all agreed that there are other reasons why the complaint fails to state a cause of action. Under the statute a marriage may be annulled by an action in the district court, for the reason, among others : “When the consent of either party was obtained by fraud, unless such party afterward, with full knowledge of the facts constituting the fraud freely cohabited with the other as husband or wife.” Subdivision 4, § 4368, C. L. 1913. But action for annulment of marriage on this ground must be brought within four years after the discovery of the facts constituting the fraud. Subdivision 4, § 4369, C. L. 1913. It is a general rule (subject to certain exceptions) that the validity of' a marriage is to be determined by the law of the place where it was contracted or celebrated. 26 Cyc. 832; 18 R. C. L. p. 388; 19 Am. & Eng. Ency. L. p. 1211 et seq.; Garcia v. Garcia, 25 S. D. 645, 127 N. W. 586, 32 L. R. A. (N. S.) 424, Ann. Cas. 1912C, 621. This rule is embodied in the statutory law of this state. Section 4366, C. R. 1913. The laws of this state relative to marriage and divorce recognize that (1) certain marriages are void; (2) others voidable; and (3) that all marriages which do not fall within these two classes are valid. The different statutory provisions relating to void and voidable marriages were considered, and to some extent quoted, in Woodward v. Blake, 38 N. D. 38, 164 N. W. 156, L. R. A. 1918A, 88, Ann. Cas. 1918E, 552. A marriage which is void or voidable may be annulled by an action for annulment as prescribed by the statute. A valid marriage can be dissolved only (1) by the death of the parties; or (2) by a judgment of a court of competent jurisdiction decreeing a divorce of the parties. Section 4379, C. R. 1913. A divorce may be decreed only for one of the causes prescribed by the legislature. 9 R. C. L. p. 269. An action for annulment is predicated upon some ground existing at the time the marriage was entered into, and the decree therein in effect declares that á valid marriage never existed. An action for a divorce is predicated upon grounds arising after the marriage, and the decree therein, in effect, declares the [1163] marriage valid and dissolves it. 19 Am. & Eng. Ency. L. p. 1218; 9 R. C. L. p. 267. In view of these fundamental propositions it seems manifest that a petition for the annulment of a marriage must allege the place where the marriage was contracted or celebrated; and that is the rule laid down by the authorities. The Encyclopedia of Pleading and Practice (13 Ency. PI. & Pr. p. 875) says: “In every petition for annulment the plaintff must allege the marriage sought to be annulled, by stating the time and place where the marriage was celebrated.” The complaint in this case does not show where the marriage was contracted or celebrated. So far as we know,' the marriage may have been celebrated in any one of the states of the Union, or it may have been celebrated in some foreign country. This action was commenced in February, 1921. The complaint shows that the plaintiff and defendant were married on April 27, 1916. The complaint does not show when the facts constituting the alleged fraud were discovered. There is merely a statement that “the time in which an action for the annulment of this marriage has not expired.” Actions for the annulment of marriage are not governed by the statute of limitations embodied in the Code of Civil Procedure. The 'period of limitations prescribed for such actions are embodied in the statute giving the right of action. Hence we believe that the limitations so prescribed affect the right or cause of action itself, and not merely the remedy, and that, if the right granted by the statute is not asserted within the limited period, it ceases to exist. Mayer v. Walsh, 111 U. S. 31, 4 Sup. Ct. 260, 28 L. ed. 340. Hence, when the complaint shows that the marriage sought to be annulled on the ground of fraud was contracted more than four years before the action for annulment is brought, it should further appear from the averments therein when the fraud was discovered, and the date of discovery must be within four years before the commencement of the action. The Encylopedia of Pleading and Practice (13 Ency. Pl. & Pr. p. 876) says: “The facts constituting the fraud, reliance upon the misrepresentations of the defendant, the date of discovery of the fraud, and the subsequent conduct of the parties should be alleged as in actions for equitable relief from contracts procured by fraud.” It follows, from what has been said, that the trial court should have sustained the demurrer, and the order appealed from is reversed. [1164] Birdzell, C. J., and Christianson, Bronson, and Robinson, JJ., concur.