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Vol. I.]

Carris v. Carris.

(No. 1.

by Solomon Carris, for the purpose of having the marriage contract, existing between him and Bertha Carris, declared null and void. The bill set forth that the said Solomon Carris was joined in wedlock to Bertha Carris ; that two months after the marriage a full-grown child was born of the said Bertha Carris ; that the child was the offspring of some person unknown to the complainant, and that the complainant had had no intercourse with the said defendant until the marriage ; that the defendant at the time of her marriage to the complainant concealed her pregnancy from him so that he remained in ignorance of the real condition of the defendant until she gave birth to the child. The bill further set forth that the complainant would not have entered into the said marriage contract had he known that the defendant was with child, and that he was induced to marry her on the belief of her being a virtuous woman, &c.

The chancellor dismissed the bill on the ground that the complainant was not entitled to the relief prayed for, for the following reasons : “The bill is filed for a decree on the ground of ante-nuptial incontinence, and on the ground that two months after marriage she was delivered of a fullgrown child, gotten by some one besides the complainant, and concealed her pregnancy from him.”

“Such want of chastity and concealment are no ground for divorce.”

Samuel Kalisch, Esq., for the appellant, argued as follows:Marriage under our law is considered in no other light than as a civil contract. 1 Black Com. p. 433. We find in it all the ingredients necessary to constitute a valid contract — parties, consent, subject matter, and consideration. The law, however, in its wisdom exalted the marriage contract a grade higher than other civil contracts based on reasons springing from public policy. The distinction which exists between a marriage contract and other civil contracts arises after the marriage contract is consummated. For the law, having a peculiar regard for the social welfare, guards the marriage relation with peculiar jealousy. It prevents the parties from rescinding, while in other civil contracts no such restriction exists. In making, however, a marriage contract, the same requisites necessary to constitute a valid civil contract are required; and the peculiarity of the contract exists in the fact that the indissolubility of it does not attach unless all the previous essential elements necessary to make a valid contract are fully and fairly complied with. If fraud is used it vitiates it. Now, in a marriage contract we have parties, the male and female ; consideration, the promise for promise ; subject matter, the marriage and consent.

For instance, where there is no consent, or consent is obtained by fraud, and all the other elements concur, can it be said that the peculiar status of a marriage contract attaches ? Can it be considered a valid contract of marriage ? Is it a contract at all ? It cannot be considered a valid contract, for its most essential ingredient is lacking, that of consent. The contract it seems would be void ab initio. Now, in the case in question, we find A, an inexperienced man of twenty-one; B engages his affection and he consents to marry her; B, however, is pregnant, which fact sho adroitly and effectually conceals from the knowledge of A. B is aware in her own mind that if she discloses the fact to A that she is with child by C, A will refuse to marry her. She remains perfectly silent, and alVol. I.]

Carris v. Carris.

(No. 1.

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lows A to be misled and to defraud himself. A believes that in marry. ing B he marries a chaste and virtuous woman, and the offspring of such marriage shall be of his own blood and not that of another. A married B, and two months after marriage she gives birth to a child, upon which A immediately leaves B. It is now contended that B misled A, and practised fraud on him by concealing her pregnancy ; that their minds never met, because, if A had full knowledge of the facts which were material, he would never have entered into a marriage contract with B. So skil. ful was the defendant in her manner of dressing, that even persons who were at the head of large families did not detect that the defendant was with child (notwithstanding their daily contact with her) until she gave birth to one. Although she made no express representations in respect to her chastity, she did by her acts and manner effectually conceal her condition from the complainant for the purpose of ensnaring him into a marriage with her. It is settled in the State of Massachusetts that express representations are not necessary; and the court held there as follows: “ In order to sustain a petition for a sentence of nullity of marriage on the ground of fraud in the contract, that the woman was pregnant by another man than the petitioner at the date of the marriage, and that she fraudulently induced him to believe she was chaste, it is not necessary to prove express representations by the woman as to her chastity.” See 9 Allen, 120. And this seems to be the general rule. The withholding of material facts which ought to be disclosed in other contracts, and which would have prevented the contract from being made, and thereby one of the parties to the contract is misled, being ignorant of such facts, such contract no doubt would be set aside by a court of equity on the ground of fraud.

“And if a woman be with child by a stranger and her intended husband be ignorant thereof, he shall have a divorce, for the fraud upon him vitiates the contract.” 13 Cal. 87. And all the cases upon this topic show that where a woman is pregnant by a stranger, and conceals that fact from her intended husband, and he marries her on the faith that she is chaste and virtuous, and able to comply with the marital obligation and rights, and he discovers that she bears in her womb the fruits of an illicit intercourse, courts of equity will annul the marriage contract on the ground of fraud. Bishop on Mar. and Div. 19, sec. 105; Reynolds v. Reynolds, 3 Allen, 605, 606, and 607 ; Wright (Ohio) 1, 630 ; Scott v. Shufeldt, 5 Paige Ch. 43; 9 Allen, 140.

The present case is one of far greater strength than those in which courts of equity have interfered. The testimony shows a clear case of deliberate fraud on the part of the defendant. It is apparent from a careful perusal of all the cases above cited, that the powers of a court of equity were not invoked for the purpose of granting divorces for mere ante-nuptial incontinence or pregnancy, but upon the ground of fraud, by concealing the pregnancy from the knowledge of the complainant.

Courts of equity have unlimited jurisdiction over cases of fraud, and their power in that respect is not questioned. Although there is no statutory power given to the chancellor to grant divorces for any other causes except those specified in the statute, there is no restriction, nor ever has been, on the power of the chancellor to vacate contracts fraudulently

Vol. I.]

CARRIS 0. CARRIS.

(No. 1.

made. And whether a marriage or other civil contract, courts of equity have full power to set it aside. In New Jersey, in the case of McClurg v. Terry, 6 C. E. Green, 229, the chancellor says: “ In the State of New York, Chancellor Kent and Chancellor Sandford both held with statutes more restricted than that of New Jersey, that the power of declaring marriages void for fraud or force was vested in the court of chancery. See Aymar v. Roff, 3 John. Ch. 49; Wightman v. Wightman, 4 Johns. Ch. 343; Ferlat v. Gojon, Hopk. 478. And the supreme court of the State of Vermont, in Clark v. Field, 13 Vermont, 460, on appeal from chancery, in a well considered opinion delivered by Chief Justice Williams, held that the court of chancery of that State had the power, without any direct delegation of it for that purpose, to declare a marriage produced by fraud and force to be void. I am satisfied that this court has the power, and this is the proper case to declare the marriage a nullity."

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 12, 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; also that he had not 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 grounds of divorce," — the case 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 further 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 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 inarriage 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 of want of age, void. Such a marriage, it is true, might be treated collaterVol. I.]

CARRIS v. CARRIS.

(No. 1.

ally 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 second 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 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 Des. 15.

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 case holds the existence of such a jurisdiction apart from the statute. To my mind that decision is formed in sound law, and the principle of it would undoubtedly include all the cases of lunacy, idiocy, and duress already instanced. The following cases recognize such a jurisdiction as inherent in a court of equity : Wightman v. Wightman, 4 Johns. Ch. 343; 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 frauds 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 civil 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.

Vol. I.)

Carris v. CARRIS.

(No. 1.

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 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 court exists, 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 inarriage, 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 of those courts should be regarded as lodged in our court of chancery under its appropriate powers where the subjects are fitting. This view I think must necessarily result from the character 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 specially provided, that 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 bill 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 had no such power.

So far then as adultery and desertion are concerned, our act was an enabling act. That consideration alone would explain the use of the

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