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Vol. I.)


[No. 1.

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 settled equity power; and unless the actions 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 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, and the existence in the court of chancery of the general jurisdiction stated, and no provision in the constitution for a different tribunal, and consent being a common law essential to the marriage contract, all show 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 Domestic Relations, 207; Whitman v. Whitman; 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 considerations of public policy. As already stated, ante-nuptial incontinence 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. În 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

Vol. I.)

CARRIS v. Carris.

No. 1.

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 those 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.

The general principle of the law is that fraud in a material part vitiates a contract, and the very 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 kind and an essential part of the contract. In addition to the 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 in 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 in 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 grossest 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 board and lineage. This is implied in the very nature of the contract of marVol. I]


No. 2.

riage. Therefore, a woman who is incapable of bearing a 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 this contract, and on well settled principles affords good ground for setting it aside and declaring the marriage void.”.

I have quoted this 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. When that case was decided there · existed in Massachusetts a statute for the court “ to grant a divorce where a marriage is supposed 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 case 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 appears from two later cases, one in 12 Allen, 26, Foss v. Foss, in which a decree was refused where a man married a woman with whom he previously had connection, and of whose pregnancy he was aware, he being assured by her that the child was his, but which turned out to be another's; the other in 97 Mass. 330, Crehore v. Crehore, where the husband became acquainted with a woman and soon after had intercourse with her before marriage, when she stated she was then with child, but the next morning on being told that he would not marry her if so, she said it was only nonsense, and not true. He married her, but was refused relief because he had knowledge of her uncertainty and was put on his guard.

The same principle contained in Reynolds v. Reynolds is sustained in a case in 13 Cal. 87, Baker v. Baker, opinion by Field, J., afterwards and now justice of the supreme 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 : Dalrymple v. Dalrymple, 2 Hagg, Cons. R. 104; Sullivan v. Sullivan, Ib. 246; Portsmouth v. Portsmouth, 1 Hagg. Eccl. 355 ; Harford v. Morris, 2 Hagg. Cons. 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, where Phillimore's Reports commence (Bishop on Marriage and Divorce, sec. 13). At any rate there is no indication in the text-books against it; and if fraud under any circumstances where 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 soundness of the marriage tie. That consideration should

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Vol. I.)

(No. 2. induce great carefulness, but should not deter us from advancing where principle leads us, although before in our courts the objective 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 be 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.

Reversed and remanded. VANSYCKEL, J., dissenting. The parties in this case were married on the twelfth day of September, 1871, and in the following January the defendant gave birth to a child.

The husband filed his bill for a divorce on the ground that he was not the father of the child and did not know at the time of the marriage that his wife was pregnant. The chancellor refused the divorce, and an appeal was taken to this court.

The power to grant divorces in this State is lodged exclusively in the court of chancery, and this branch of its jurisdiction is exercised not by reason of any inherent power existing in the court over this subject as one of its several equity powers, but solely by virtue of express legislative authority.

The act of 1794 (Pat. Laws, 143) gave to the court of chancery jurisdiction of “ all causes of divorce," but added, as the act now in force does, “ by this act directed and allowed.” Nixon, 246, title Divorce (3d ed. p. 223). .

The causes of divorce from the bond of matrimony, specified in the act of 1794, are: 1. Where the parties are within the prohibited degrees; 2. Adultery; 3. Wilful and continued desertion for seven years; 4. Where either of the parties had another husband or wife at the time of the marriage ; and, lastly, a divorce from bed and board for extreme cruelty.

By the revision of 1846, the chancery powers in respect to the grounds for divorce are in no respect amplified. Unless, therefore, it can be shown that the court of chancery as constituted in this State has a general or limited power over the question of divorce independent of any statutory enactment, the appellant is remediless.

Our court of equity has the same jurisdiction as the English chancery, with such addition as is made to it by positive law. In England, the court of chancery never extended its jurisdiction to the subject of divorce, but left the power to dissolve the marital relation to be administered exclusively by the ecclesiastical courts. The law matrimonial, so far as it obtains in this State, must lie dormant and inoperative until some court is constituted to apply it. We have as yet no judicature possessing the general power of the spiritual courts of England over this domestic relation.

But it is insisted that the jurisdiction of equity over fraudulent contracts is sufficiently comprehensive to include the contract of marriage. I think no case can be found in England where the court of chancery dissolved the marriage contract, and that here to act outside of the specified cases would be not only a clear extension of equity power, but would be in contravention of the correct interpretation of our statute, according to Vol. I.]

Carris v. CARRIS.

[No. 2.

the correct rule of statutory construction, as well the divorce act of 1794, as our present law, must be held to limit the causes of separation to those enumerated, and not to enlarge them.

The language is that the court of chancery shall have jurisdiction of all causes of divorce by this bill directed and allowed. Expressio unius exclusio alterius. This is a positive rule of construction, and the statute must in this case be a prohibition to us, unless it can be shown either that at the time of its adoption it was the settled practice of the court of chancery to grant divorces in cases of fraud, or that the power to grant such divorces was fully acknowledged.

Neither of these conditions to which this rule of interpretation may yield can be shown to exist. From the passage of the act of 1794 to the present time no one has attempted to invoke any such authority as is claimed here. This fact shows the settled conviction of our bar, which has always been learned and astute in pursuing remedies to their utmost limit.

In England, the court of chancery never exercised any power over this subject, the entire control over it being in the spiritual courts until the act of 20 and 21 Vict. c. 85, which went into operation in 1858, transferred it to a new court, styled “ The Court for Divorce and Matrimonial Causes,” and no case can be found in this country, where, in the absence of an express statute authorizing it, a divorce in the proper sense of that term has been granted for fraud.

The cases referred to do not establish a contrary doctrine.

In Aymar v. Roff, 3 Johns. Ch. 49, where the marriage was performed by an infant twelve years of age, in jest, Chancellor Kent did not declare it null, but made an order prohibiting all intercourse between the parties. In the subsequent case of Wightman v. Wightman, 4 Johns. Ch. 343, the same learned judge declared the marriage of a lunatic null and void.

The cases were followed by Chancellor Zabriskie in McClurg v. Terry, 6 C. E. Green, 226, in which a marriage ceremony performed in jest was declared to be a nullity.

These were all cases of a pretended marriage contract, not voidable, but absolutely void. In neither case was there any contract at all, but an entire absence of the consent necessary to consummate every contract. There was no marriage to be dissolved, nor was any decree of dissolution pronounced. The divorce power was not invoked or exercised in these cases, and they cannot be relied upon as authority to dissolve an actually existing relation for some cause which does not make it absolutely void, but merely voidable.

All that Chancellor Zabriskie says in McClurg v. Terry, and all he intends to say, is, that where the contract is absolutely void by reason of fraud or force, he can declare it null. It is important to draw sharply the distinction between void and voidable marriages. “A marriage is void when it is good for no legal purpose, and its invalidity may be maintained in any proceeding, in any court, between any parties, whether in the lifetime or after the death of the supposed husband or wife, and whether the question arises directly or collaterally.” 1 Bishop, par. 105.

In these cases, either party could marry without being amenable to any penal consequences, before proceeding to annul the prior pretended mar

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