It was followed in Crehore v. Crehore, 97 Mass. 330 (93 Am. Dec. 98), the opinion in which case in full is as follows:

"The facts show that the libellant had full knowledge that the libellee was unchaste, before he entered into the marriage contract, and was thereby put on his guard so that he cannot allege that he was induced to contract the marriage by such fraud and deceit on the part of the libellee as will enable him to avoid the contract."

-and Foss v. Foss is cited as authority for the holding.

In the late case of Safford v. Safford, 224 Mass. 392 (113 N. E. 181, L. R. A. 1916F, 526), the same question again arose, and again upon the authority of Foss v. Foss, the relief was again denied, the court among other things saying:

"In view of the undisputed facts as disclosed by the record, it seems plain that he is not entitled to a decree declaring the marriage void in the absence of evidence to show that he made any inquiry or investigation to ascertain the truth of her statement that he was the father of the child."

These holdings of the Massachusetts court are not as persuasive to us as the holdings of that court usually are, due to the fact that this court has repeatedly held in cases involving fraud that it does not lie with one charged with fraud, who assumes to have knowledge of a subject of which another may well be ignorant, to claim that such other should have used greater diligence to discover the fraud, should have been more vigilant, less credulous. Eaton v. Winnie, 20 Mich. 156 (4 Am. Rep. 377); Smith v. McDonald, 139 Mich. 225; Yanelli v. Littlejohn, 172 Mich. 91; Lewis v. Jacobs, 153 Mich. 664; Smith v. Werkheiser, 152 Mich. 177 (15 L. R. A. [N. S.] 1092, 125 Am. St. Rep. 406); John Schweyer & Co. v. Mellon, 196 Mich. 590; Johnson v. Campbell, 199 Mich. 186.

In Carris v. Carris, 24 N. J. Eq. 516, the New Jersey court had before it a case upon the facts similar to Reynolds v. Reynolds, supra, and it was disposed of in the same manner, the court saying:

"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 separated, 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."

In Seilheimer v. Seilheimer, 40 N. J. Eq. 412 (2 Atl. 376), and Fairchild v. Fairchild, 43 N. J. Eq. 473 (11 Atl. 426), that court had before it the question here involved. In both cases the parties had sustained illicit relations before marriage, and in both cases the woman had represented that she was pregnant by the man induced to marry her when in fact she was pregnant by another. In both cases the relief was denied. Both cases seem to go upon the theory that the parties were in pari delicto and must abide the consequences.

The forceful language of Mr. Justice Field, then a member of the supreme court of California and later Justice of the Supreme Court of the United States, in the case of Baker v. Baker, 13 Cal. 87, may well be considered. He said:

"A woman, to be marriageable, must, at the time, be able to bear children to her husband, and a representation to this effect is implied in the very nature of the contract. A woman who has been pregnant over four months by a stranger, is not at the time in a condition to bear children to her husband, and the representation in this instance was false and fraudulent. The second purpose of matrimony is the promotion of the happiness of the parties by the society of each other, and to its existence, with a man of honor, the purity of the wife is essential. Its absence under such circumstances as necessarily to attract attention must not only tend directly to the destruction of his happiness, but to entail humiliation and degradation upon himself and family. We can conceive no torture more terrible to a right-minded and upright man than an union with a woman whose person has been defiled by a stranger, and the living witness of whose defilement he is legally compelled to recognize as his own offspring, as the bearer of his name and the heir of his estate, and that, too, with the silent, if not expressed, contempt of the community."

Later, however, the supreme court of California in Franke v. Franke had before it a case where illicit relations had been indulged in prior to the marriage. The wife was pregnant of another at the time of the marriage. The opinion is not reported in the official reports of the court (see 96 Cal. XVII) but is found in 31 Pac. 571 and 18 L. R. A. 375. An examination of the opinion discloses that the husband was a man of 40 years, father of five children by a former wife, who claimed he was seduced by a 17-year-old girl, daughter of a neighbor, and who married the girl to avoid a lawsuit, and rather than "give money away," and with the further assurance from the attorney of the girl that if the birth of the child did not correspond with "plaintiff's reckoning" he would get him free "without a cent." Under these facts the relief was denied.

Let us now turn to the North Carolina cases. The

case of Scroggins v. Scroggins, 3 Dev. (N. C.) 535, is a much cited case. It was written in 1832 when that court was made up of Henderson, Ruffin and Daniel, and the great learning of these eminent jurists entitles it to more than ordinary consideration. In that case the child born to the woman was a mulatto and could not have been begotten by the husband; the birth occurred about five months after the marriage; the relief was denied. But the force of the opinion is minimized if not entirely negatived by the case which follows it in the same volume, that of Barden v. Barden, 3 Dev. (N. C.) 548, decided at the same term. In that case the man was induced to marry a woman, with whom he had been intimate, upon the representation that a child she had was his; the child was the offspring of a negro and the relief was granted. By way of explanation it was said that the case was a concession to the "deep-rooted prejudices" of the community on the subject. It may be well to understand the legislative policy of that State upon the subject of marriage and divorce at the time the Scroggins Case was written. An examination of the legislation of the State indicates a strong inclination to regard the marriage relation as indissoluble. The act of 1827, before the court in the Scroggins Case, contained some general language considered fully by Mr. Justice Ruffin, but specifically enumerated but two grounds of divorce, being the same grounds found in the act of 1814, viz.: (1) impotency at the time of the marriage and still continuing: and (2) separation by one party from the other and living in a State of adultery. That the legislative policy was deliberate and fixed is evidenced by the further fact that although the court called attention of the legislature to the construction put upon the added general words of the act of 1827 no change was made for nearly half a century and it was not until 1871 that adultery, unless

amounting to lewd and lascivious cohabitation, was made grounds of divorce. That the courts followed the legislative policy is evidenced by the case of Moss v. Moss, 2 Ired. (N. C.) 55, where the court declined to dissolve the marriage, even though the wife was living in open adultery with another; the court basing its decision on the ground that the husband had without cause driven the wife from his home without providing for her support and had thereby submitted her to the temptations to which her weakness and necessities exposed her. Indeed in the Scroggins Case it clearly appears that the court viewed the rules of the ecclesiastical law as preferable to the common law, as it was expressly stated that, "There is no member of the court who is not strongly impressed with the conviction that divorces ought in no cases be allowed, but in that already mentioned (impotency) and near consanguinity." It was in this atmosphere that Scroggins v. Scroggins was written. The North Carolina court has followed it but not without dissent; see Long v. Long, 77 N. C. 304 (24 Am. Rep. 449); Bryant v. Bryant, 171 N. C. 746 (L. R. A. 1916E, 648, 88 S. E. 147). Whether the legislative policy of that State is better than the legislative policy of this State is a question upon which publicists may differ, but it is not a question for our solution.

In Scott v. Shufeldt, 5 Paige (N. Y.), 43, the marriage was procured on the representation that the child was the child of the husband. Both the husband and wife were white. The child was a mulatto and could not have been begotten by the husband. It was held that if the husband married in the belief that the child was his the marriage should be annulled on the grounds of fraud.

Three courts of last resort have recently spoken on this subject with definiteness and precision upon facts substantially on all fours with the instant case.