Carris v. Carris

The opinion of the court was delivered by Bedle, J. The object of this bill is to annul a marriage between these parties on the ground of fraud. The case shows that they were married November 12th, 1871, and that about two and a half months after the marriage, the wife was delivered of a full grown child, of which the husband was not the father; also, that he had no knowledge or information that she was with child till its birth ; that he had not had any connection with her previous to the marriage, and that by reason of her artifice in her mode of dress and conduct, he, a very young man, was deceived and defrauded as to her condition. The testimony of the complainant is sufficiently supported to justify these conclusions. The complainant left his wife as soon as her condition was discovered. A decree was refused for the reason, “ that such want of chastity and concealment are no ground of divorce •” the ease having been likened by the Chancellor, as it seems to me, to one merely of ante-nuptial incontinence. Ante-nuptial incontinence is, undoubtedly, insufficient to annul a marriage, but this case goes farther than that, and rests not only there, but upon the fact of pregnancy and a fraudulent concealment at the time of the marriage. Has the Court of Chancery, then, for this cause, jurisdiction to annul the marriage ? I am not aware of any case in this state that will throw any light on that question, and the reason is, that previous to — 518 — the present constitution the marriage relation was dissolved by the legislature, when causes existed outside of those mentioned in the statute. Since the adoption of the constitution of 1844, providing that “ no divorce shall be granted by the legislature,” the question has become important, whether the Court of Chancery of this state has any jurisdiction to declare a marriage void, or to dissolve it for causes antecedent to it, except the two mentioned in the statute, which are, where another husband or wife is living at the time of the second marriage, and also where the parties are within the prohibited degrees. If the jurisdiction of the court is purely statutory, then there is no power in this state to declare the marriage of a lunatic, idiot, or infant, void. Such a marriage it is true, might be treated collaterally as void, but without the power stated, the ceremony that may have been performed in such a case could not be set aside by direct judicial action. And so in case of consent extorted by duress, where there 'may be a color of marriage, yet lacking the element of consent which is necessary in every marriage. Cases of this character necessarily call for the existence of an adequate jurisdiction in every well organized and enlightened government, and it can hardly be supposed that our existing system of courts is impotent to furnish it. The doubt arises from the fact that no such jurisdiction was exercised by the English Court of Chancery, and that it was exercised by the ecclesiastical courts alone. Practically speaking, therefore, that jurisdiction was exclusive of the Court of Chancery, and for that reason there is a want of adjudication as to the dormant powers of this latter court. The report of an anonymous case in 2d Shower (Case 269), shows that during the times of the English Revolution they sued for alimony in chancery. Alimony was peculiarly a subject of ecclesiastical jurisdiction. The language of the report is this : “ In the late times they sued for alimony in chancery, and the judges were then of opinion, that there being no spiritual courts nor civil law, the chancery had the jurisdiction in those days; but now we have courts Christian, — 519 — the chancery will allow of demurrers for such bills for alimony.” This would seem to indicate that there were latent powers in that court, not exercised by reason of the existence of other courts peculiarly adapted to those matters. And, in South Carolina, the Court of Chancery, without the aid of a statute, assumed jurisdiction upon the same subject. Jelineau v. Jelineau, 2 Dess. 45. This shows the adaptability of that court to supply a remedy within the scope of its general jurisdiction, where none is otherwise provided. The late Chancellor, in the case of McClurg v. Terry, 6 C. E. Green 226, believed, from the nature of the Court of Chancery, and the present character of our constitution, and of the courts established under it, that the power must necessarily exist to declare a ceremony of marriage void, where neither party in earnest consented to it, and accordingly declared the same a nullity. That ease holds the existence of such a jurisdiction, apart from the statute. To my mind, that decision is founded in sound law, and the principle of it would undoubtedly include all the cases of lunacy, idiocy and duress already instanced. The following ciases recognize such a jurisdiction as inherent in a court of equity : Wightman v. Wightman, 4 Johns. Ch. 313; Ferlat v. Gojon, Hopk. 478; Aymar v. Roff, 3 Johns. Ch. 49 ; Clark v. Field, 13 Vt. 460. The effect of lunacy, idiocy, infancy and fraud, upon contracts, and declaring void the same when so affected, are well settled matters of equity jurisdiction, and unless there is something so peculiar in the marriage contract, as to except it from the scope of such jurisdiction, there is no reason why it should not be exercised. Marriage is regarded in our law, although peculiar in its nature, and subject to many considerations of public policy, and having much of religious sanction about it, as a cavil contract. Under our political system it can only be looked at in its civil aspect. As a civil contract, the common law holds, among other essentials, that consent is necessary to its validity, and there is no difference in that respect, whether the adjudication is made by the ecclesiastical courts or the courts of common law in England. — 520 — In England, the ecclesiastical courts were a part of the religious establishment of the government, and had jurisdiction over the marriage relation, as well in reference to the mere civil or common law features of it, as to its religious. Such a religious establishment being inimical to our institutions, the policy of our laws has been to distribute among the common law and equity courts, or special tribunals adopted or constituted for the purpose, as in the case of the Prerogative and Orphans Courts, all the powers of the ecclesiastical courts which are necessary and proper for the protection and enforcement of civil rights. Whenever, then, it is necessary to secure a civil right, or to be redressed for civil wrongs, we naturally expect the proper jurisdiction to be found amongst the existing courts, even if those rights or wrongs were subjects of ecclesiastical jurisdiction. The mere fact that the marriage relation was always annulled in England by the courts .Christian, apart from an act of parliament, ought not in itself, when the case is not canonical merely, but founded on a common law right, to be sufficient to exclude judicial action, where no such courts exist, when an appropriate jurisdiction is found in another tribunal. Our constitution was framed on the idea that the legislative, executive and judicial departments of the government should be entirely distinct, and that all judicial power should be vested in the then existing courts, and such inferior courts as might be afterwards established. The dissolution of the marriage contract for antecedent causes was by judicial action ; the aid of parliament being sought only to dissolve for causes subsequent to the marriage, and then, as a rule, only after the ecclesiastical courts had separated the parties a mensa et thoro. Those courts had no power to dissolve for • subsequent causes, not even adultery, but for antecedent causes they could annul the marriage. Such action was purely judicial. So far then as that was based upon causes affecting the essentials of the marriage as recognized by the English common law, and divested of mere canonical considerations, to that extent the jurisdiction — 521 — of those courts should be regarded as lodged in our Court of Chancery under its appropriate powers, where the subjects are biting. This view, I think, must necessarily result from the cli-anicter of our constitution, for in its very framework there seems to be a necessary implication, that when the legislature was prohibited from granting a divorce and no substituted jurisdiction was specially provided, the existing tribunals were sufficient to secure the integrity of the marriage contract. It may be said that the structure of part of our act of divorce is such as to give encouragement to the idea that the jurisdiction of the Court of Chancery in the respect in question was purely statutory, for the first section provides that “ the Court of Chancery shall have jurisdiction of all causes of divorce, and of alimony or maintenance, by this hill directed and allowed.” The original act was passed in 1794, and I suppose that previous to that time the legislature, both colonial and state, did the whole business of divorcing. But that is not conclusive on the question before us, for no judicial tribunal in England could divorce absolutely for causes subsequent to the marriage, and without legislation our Court of Chancery clearly lias no such power. So far then as adultery and desertion are concerned, onr act was an enabling act. That consideration alone would explain the use of the general language stated, although some causes of divorce are mentioned upon which the court might perhaps act without it. The jurisdiction sought in this case is to annul for fraud, for fraud in the consent, and is akin to that in a case of lunacy, idiocy, or infancy, for these latter all have to do with the consent. Fraud is a well recognized subject of equity jurisdiction; the cause, speaking generally, is appropriate to an equity tribunal. The character of the relief sought is the annulling of the contract, and that also is a well settled equity power; and unless the action of the Court of Chancery can be invoked upon the contract itself, where consent is wanting, whether for idiocy, lunacy, want of age, or fraud, the strange result would follow, that such contracts could only — 522 — be attacked collaterally, and no way provided among an enlightened people, to relieve from the embarrassment and mischiefs of the illegal contract, by blotting it out. Speaking-generally then, the jurisdiction of our Court of Chancery to annul fraudulent contracts is sufficient to include the contract of marriage, and although a new application of it, I see nothing in the nature of the marriage relation, as viewed by our law, to prevent its exercise. The absence of ecclesiastical courts, the existence in the Court of Chancery of the general jurisdiction stated, and there being no provision in the constitution for a different tribunal, and consent being a common law essential to the marriage contract, all shew that that jurisdiction must embrace the right to annul such a contract for a sufficient fraud. Apart from the implication in our constitution and our system of courts, such is the opinion, in result, of learned writers, and is in accordance with respectable adjudication made without-the aid of any statute conferring-jurisdiction. 2 Kent 76, 77; Reeves Dom. Rel. 207; Wightman v. Wightman, Ferlat v. Gojon, Clark v. Field, already cited. No satisfactory light can be gathered on this subject from the history of acts in some states, in terms giving jurisdiction for fraud. Some of them may have been passed to quiet doubts upon the question, and some under the legislative belief of their necessity. But however that may be, it is a new question in this state, which must be met on principle, and decided accordingly. The remaining part of the question under consideration, is in reference to the sufficiency of the fraud. This is a delicate question, for the relation is peculiar, and not like other contracts, which may be dissolved by the mere act of the parties. Most serious considerations of public policy and good morals affect it, and demand that it should be indissoluble, except for the gravest causes. The mere presence of fraud in the contract, is not sufficient to dissolve it. The fraud must exist alone in the common law essentials of it, and then not to have the effect of avoiding it against sound — 523 — considerations of public policy. As already stated, ante-nuptial incontinence merely, though fraudulent, is not sufficient. Neither is the mere mistake of the husband, as to the paternity of a child born after marriage, but begotten before by another, where he himself had been guilty of criminal lewdness towards his wife before marriage, sufficient. Neither are false representations in regard to family, fortune, or external condition, sufficient. In granting relief, courts should always be careful that no violence is done to the nature of the relation and to sound morals. It must be extraordinary fraud alone, that will justify an avoidance of the bond. The fraud charged in this case is extraordinary, peculiar, and of the most flagrant character, entering into the very essence of the contract, and if allowed to succeed, either compelling the husband to disown the child for his own protection, or imposing upon him the necessity of recognizing and maintaining the fruit of his wife’s defilement by another, and having it partake of his inheritance. In either event, shame and entire alienation are the inevitable consequences. Surely, there can be no good policy in such action as will either compel parties to live together under these circumstances, having only the shadow of marriage, or compel them, as would be more likely, to live totally separate i, a continual annoyance to each other, and a source of the greatest unhappiness. If the contract is repudiated as soon as the fraud is discovered, so that there is no acquiescence in it, good morals and the protection of the integrity of the marriage relation require that an innocent man should be relieved from so great a fraud. The general principle of the law is, that fraud in a material part, vitiates a contract, and the only reason why it does not apply with full force to the marriage contract is, that marriage is sui generis in many respects, and should not be vitiated even if fraudulent, when against “good policy, sound morality, and the peculiar nature of the relation.” To be free from that restriction, the fraud must be of an extreme Mud, and in an essential of the contract. In addition to the — 524 — considerations stated, the character of the fraud in this case, and its effect upon the contract, are well described by Bigelow, C. J., in an analogous case, Reynolds v. Reynolds, 3 Allen 609. That jurist, after remarking upon the insufficiency of mere incontinence before marriage, to declare it void, and why, says: “ But a very different question arises, where, as in the case at bar, a marriage is contracted and consummated on the faith of a representation that the woman is chaste and virtuous, and it is afterwards ascertained, not only that this statement was false, but that she was, at the time of making it, and when she entered into the marriage relation, pregnant with child by a man other than her husband. The material distinction between such a case and a misrepresentation as to the previous chastity of a woman, is obvious and palpable. The latter relates only to her conduct and character prior to the contract, while the former touches directly her actual present condition, and her fitness to execute the marriage contract, and take on herself the duties of a chaste and faithful wife. It is not going too far to say that a woman who has not only submitted to the embraces of another man, but who also bears in her womb the fruit of such illicit intercourse, has during the period of her gestation, incapacitated herself from making and executing a valid contract of marriage with a man who takes her as his wife in ignorance of her condition, and on the faith of representations .that she is chaste and virtuous. In such a case, the concealment and false statement go directly to the essentials of the marriage contract, and operate as a fraud of the gravest character, on him with whom she enters into that relation. One of the leading and most important objects of the institution of marriage under our laws is the procreation of children, who shall with certainty be known by their parents as the pure offspring of their union. A husband has a right to require that his wife shall not bear to his bed aliens to his blood and lineage. This is implied in the very nature of the contract of marriage. Therefore a woman who is incapable of bearing a — 525 — child to her husband at the time of her marriage, by reason of her pregnancy by another man, is unable to perform an important part of the contract into which she enters; and any representation which leads to the belief that she is in a marriageable condition, is a false statement of a fact material to thh contract, and on well settled principles affords good ground for setting it aside and declaring the marriage void.” I have quoted thus at length, because, it is the judgment of a highly respectable court, on the essential character of the .fraud, and what should be its effect on the marriage relation. AY lien that ease was decided, there existed in Massachusetts a statute for the court to grant a divorce where a marriage is i-Mpposed to be void, or the validity thereof is doubted, on the ground of fraud but it designated no particular fraud that would avoid the contract, and left it to the court to determine, upon principle, the kind. The statute has reference only to the technical jurisdiction, assuming in principle that fraud would avoid. To my mind, that ease declares the true doctrine, and the opinion shows that the result was carefully reached, and with proper caution against the encouragement of any lax notions of the marriage tie. No danger resulted from that decision, as appear from two later cases— one, .Foss v. Foss, 12 Allen 27, in which a decree was refused whore a man married a woman with whom lie previously had connection, and of whose pregnancy he was aware, ho being assured by her that the child was Ms, but which turned out to be another’s; the oilier, Crehore v. Crehore, 97 Mass. 330, where the husband became acquainted with a woman, and soon after liad intercourse with her before marriage, when she stated she was then with child, but the next morning on being told that lie would not marry her if so, she said it was only nonsense, and not true. He married her, but was refused relief because he bad knowledge of her unchastity, and was put on his guard. The same principle contained in Reynolds v. Reynolds, is sustained in the case of Baker v. Baker, 13 Cal. 87, opinion by Field, J., afterwards and now Justice of the Supreme — 526 — Court of the United States. That also was an analogous-case to this. There was also a statute in California in regard to jurisdiction for fraud, but without indicating the character. In this country, the weight of adjudication is in favor of dissolving the marriage for fraud like this. In England, I find no case directly in point, yet the power of the ecclesiastical courts to annul for fraud in obtaining consent, is well settled,, as will be seen by the following references and cases : Rogers’ Ec. Law, 564; Dalrymple v. Dalrymple, 2 Cons. Rep. 54, 104; Sullivan v. Sullivan, 2 Ibid. 238, 246; Portsmouth v. Portsmouth, 1 Hagg. 355; Hanford, v. Morris, 2 Cons. Rep. 423; Hull v. Hull, 15 Jur. 710 (5 E. L. & E. 589). The apparent absence of direct adjudication on the point, may perhaps be accounted for by the meagre character of the reports previous to 1809, when Phillimore’s reports commence. (Bishop on M. & D., § 13). At any rate, there is no indication in the text books against it, and if fraud, under any circumstances whore the forms of consent have been gone through, is to be allowed as a ground of dissolution, it should, upon principle, be in this case. There ought always to be an indisposition in every court to weaken the force and sacreduess of the marriage tie. That consideration should induce great carefulness, but should not deter us from advancing where principle leads us, although before, in our courts the objective point has not been attained. The fraud in this case was so gross and far-reaching, as to avoid the consent, and for that reason the marriage must bo declared null and void, ab initio. The decree being otherwise is reversed, and the record remitted for the Chancellor to decree according to this opinion.