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Vol. I.)

Carris v. CARRIS.

(No. 2.

riage. But a marriage merely voidable is good for all purposes until it is dissolved by a competent tribunal; and if either party should die, pending the suit and before decree, the relation would be indissoluble, and all the property rights which flow from it could be maintained by the survivor.

The cases referred to are all void marriages, and equity, under its inherent power over fraud, could declare that there had never been a contract, as well as it could declare void a forged deed which had been put upon the record, without at all encroaching on the domain of divorce. In the case of a sham marriage, it is a fraud in either.party or in any third person to set it up as valid and binding.

If A by personating B should induce a clergyman to give him a certificate that B was lawfully joined in wedlock to C, it would not be doubted that our court of chancery could pronounce the supposed marriage void without arrogating to itself the divorce power. These are in no proper sense decrees of divorce; they are merely declaratory that a marriage in fact has never had existence, and consequently there can be no such thing as a divorce in such case.

In Ferlat v. Gojon, Hopk. 478, where the marriage was procured by abduction, terror, and fraud, Chancellor Sandford, on petition of the injured party, declared the contract to be utterly null; but he evidently regarded the marriage as to the plaintiff to be absolutely void and not merely voidable, and that in taking cognizance of the case he was not at all exercising the power of divorce.

In the subsequent case of Burtis v. Burtis, reported in the same book, p. 557, he says: “In the case of Wightman v. Wightman, one of the parties was a lunatic ; and in the recent case of Ferlat v. Gojon, the marriage had been procured by an atrocious fraud. These marriages were clearly void, and this court pronounced the sentence of nullity. If these two decrees are denominated divorces, they did not arrogate to this court any general power of divorce, in cases not prescribed by our statute." And in this opinion Chancellor Sandford expressly dissents from the doctrine of Chancellor Kent in Wightman v. Wightman, that the power over matrimonial causes is necessarily cast upon the court of chancery, because it is not vested in any other tribunal. If this were so, our statute would be useless. In the case now before us, the marriage is not void, but voidable. It was entered into by parties capable of contracting, and was fully consummated by their consent. It is claimed to be voidable because of the fraudulent concealment of a fact. No decree can adjudge it to be void without dissolving an existing bond.

The New York cases are no authority for the claim that marriage, voidable only for fraud, can be declared void by our courts of chancery. The distinction is clearly stated between void and voidable in Perry v. Perry, 2 Paige, 504, where the court say that in cases of absolutely void marriages, for all substantial purposes of justice, the courts of common law and equity in England had concurrent jurisdiction with the ecclesiastical courts, and that the court of chancery and courts of common law always exercised the power to declare such marriages absolutely void even in a collateral proceeding. That these cases were not intended to countenance the doctrine that a marriage only voidable for fraud could be dissolved by

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Vol. I.]

CARRIs v. CARRIS.

(No. 2.

the court of chancery is manifest by the case of Burtis v. Burtis, before cited, in which the ground relied upon was impotency. That it is a clear fraud in an imbecile to enter into this relation no one will doubt. In the case in 3 Allen, 605, the Massachusetts court held the temporary impotency of the woman to bear children to her husband, by reason of her pregnancy by another at the time of the marriage, to be the very essence of the fraud.

Yet the same judge who decreed the contract null in Ferlot v. Gojon refused to divorce in Burtis v. Burtis for impotency, and this decision is affirmed in Perry v. Perry, upon the distinct ground that the marriage was not void but voidable.

The court discriminated between the two cases in this language : “ The decision of Chancellor Sandford in Burtis v. Burtis is entirely consistent with that of his predecessor in Wightman v. Wightman. In one case the marriage was absolutely void, and this court in the exercise of its ordinary jurisdiction had a right to remove the apparent obstruction to the wife's contracting matrimony with any other person. In the other case there was a good marriage de facto, and the court very properly decided that the power to dissolve such a marriage did not exist in this State, except by interference of the legislature."

The cases in Massachusetts, California, and the later New York cases, and the cases in some other states, are under a statute extending the divorce power to cases of fraud, and are, therefore, of no authority here.

.... The insistment is that the court of chancery shall have jurisdiction not only of all causes of divorce by the statute specified, but of others not enumerated. In other words, that the statute was designed to add the specified causes of divorce to the causes for fraud which it is claimed equity could before that entertain. Now if it can be shown that one of the causes specified in the statute is fraud of a particular character, it must be held to exclude every other kind of fraud. Prior marriage is one of the causes named in the statute, and that it is a fraud of the most grievous character in one who is married to induce another to enter into that relation with him, will be admitted.

The fact, therefore, that in addition to causes not before cognizable in chancery one cause for fraud is specified by the statute, excludes every other kind of fraud but the one mentioned.

But if jurisdiction is assumed on the ground that marriage is a civil contract, and that equity has inherent jurisdiction to vacate all contracts for fraud, where will the line be drawn? The power to anvul and dissolve this contract for fraud must be coextensive with the power over other contracts, in analogy to which this power is claimed.

Bishop affirms that this is the most difficult topic of the entire subject of Marriage and Divorce, and that he is not satisfied with the views he has taken in the earlier editions of his work. In his last edition he recasts his former chapter on this subject, and lays down the proposition, that in reason whatever of fraud, of error, or duress will vitiate any other contract should ordinarily be received as sufficient to destroy and set aside this engagement, whether executed or executory, viewed as a thing separate from the consummation which follows; and he admits his inability to define what fraud, in kind and amount, should, under the cases, be deemed

Vol. I.]

CARRIS v. Carris.

(No. 2.

sufficient. The difficulty is inherent in the nature of the subject, for no court can accurately define what fraud is.

There may be a variety of fraudulent acts coupled with circumstances of conspiracy, neither of which, standing alone, would have the required force, but which, taken together, might impel the judicial mind to concede that the case was made out. Nor can any certain guide be drawn from adjudged cases in the ecclesiastical courts.

The frauds which I find have moved the spiritual courts to grant the separation are impotency, a prior marriage, and error, where the party, supposing he was joined to one person, was actually united to another and a different person ; and it has been held that where a party obtained a divorce in the spiritual courts by fraudulently persuading the court to believe that he was impotent, and subsequently married and had children by the second wife, such second marriage would be dissolved and the children declared illegitimate. Bishop, par. 114, note. In Bury's case, 5 Coke, 98, such second marriage was held to be voidable only, and to be good for all purposes until annulled by a competent tribunal.

If we adopt the view that this court will be controlled by established precedents in the ecclesiastical courts, not only must we divorce for impotency, for mistake as to identity of the other contracting party, and for fraud in setting up and obtaining a divorce for alleged impotency when it did not exist, but this case must fall unless it can be shown that those courts have granted a divorce for the specific cause here relied upon. No such case I think can be found.

If the limitation is claimed to be in public policy, the two obvious answers are:

First, that jurisdiction cannot be founded upon the fact that the rule will be so applied as to promote public policy. No court can claim an ungranted power because it will be wisely used.

Second, that this would be a limitation upon the exercise of the power, and not upon the power itself, and is a subject upon which the judge of to-day and his successor had a right to differ. This doctrine, stated in plain terms, would be this : that wherever a circumstance of fraud entered into the engagement, which in the discretion of the court should annul the relation, the divorce would be declared and the issue bastardized. This opens the entire field of fraud to this topic of contention.

There is another difficulty worthy of consideration which suggests itself. The statute does not apply to these cases of fraud, and, therefore, residence in the State is not necessary to enable suit to be instituted. Are our courts to be thrown open to citizens of other states to agitate the many questions which must arise in this new and untried field of litigation ?

If the framer of our statute had supposed that our court of chancery had any such extended power as is now claimed for it, he would undoubtedly have provided for this difficulty. It is an imperfection in our law that it does not provide for a wrong so grievous as that set up by the complainant in this bill, but it belongs to the legislature and not to this court to provide the remedy.

There is another obstacle in the way of granting this divorce. It may well be doubted whether the chancellor was satisfied from the evidence

[No. 2.

Vol. I.]

HORN v. LOCKHART.

that the fact relied upon for the divorce was proved by testimony other than that of the complainant himself. If he had refused the divorce on this account I should be unwilling to disturb his decree.

I am of the opinion that we have no power to grant the relief prayed for, and that the decree of the court below should be affirmed.

SUPREME COURT OF THE UNITED STATES.

[OCTOBER TERM, 1873.]

LIABILITY OF EXECUTORS FOR FUNDS INVESTED IN CONFEDERATE

BONDS.

HORN v. LOCKHART.

An executor is personally liable for money of his testator invested in Confederate

bonds, eren if such investment was approved by a court having charge of the settlement of the estate.

MR. JUSTICE FIELD delivered the opinion of the court.

Upon the accounts presented by the executor of the probate court in Alabama, for settlement, it appears that he received moneys from the sales of property belonging to the estate of the testator amounting to over $7,000, and invested the same in bonds of the Confederate States. By the decree of the probate court this investment was approved, and the executor was directed to pay the legatees their respective shares in those bonds. Now, the question is, whether this disposition of the moneys thus received, and the decree of the court, are a sufficient answer on the part of the executor to the present suit of the legatees to compel an accounting and payment to them of their shares of those funds.

It would seem that there could be but one answer to this question. The bonds of the Confederate States were issued for the avowed purpose of raising funds to prosecute the war when waged by them against the government of the United States. The investment was, therefore, a direct contribution to the resources of the Confederate government; it was an act giving aid and comfort to the enemies of the United States ; and the invalidity of any transaction of that kind, from whatever source originating, ought not to be a debatable matter in the courts of the United States. No legislation of Alabama, no act of its convention, no judgment of its tribunals, and no decree of the Confederate government could make such a transaction lawful.

We admit that the acts of the several states in their individual capacities, and of their different departments of government, executive, judicial, and legislative, during the war, so far as they did not impair or tend to impair the supremacy of the national authority, or the just rights of citizens under the Constitution, are, in general, to be treated as valid and binding. The existence of a state of insurrection and war did not MANHATTAN LIFE INSURANCE COMPANY v. FRANCISCO.

(No. 2.

Vol. I.]

e laws. fed, property the transfer one that

loosen the bonds of society, or do away with civil government, or the regular administration of the laws. Order was to be preserved, police regulations maintained, crime prosecuted, property protected, contracts enforced, marriages celebrated, estates settled, and the transfer and descent of property regulated precisely as in time of peace. No one that we are aware of seriously questions the validity of judicial or legislative acts in the insurrectionary States touching these and kindred subjects, where they were not hostile in their purpose or mode of enforcement to the authority of the national government, and did not impair the rights of citizens under the Constitution. The validity of the action of the probate court of Alabama in the present case, in the settlement of the accounts of the executor, we do not question, except so far as it approves the investment of funds received by him in Confederate bonds, and directs payment to the legatees of their distributive shares in those bonds. Its action in this respect was an absolute nullity, and can afford no protection to the executor in the courts of the United States.

The act of Alabama, which the executor invokes in justification of the investment, has been very properly pronounced unconstitutional by the highest tribunal of that State (Houston v. Deloach, 43 Ala. 364; Powell v. Boon f Booth, Ib. 459), and the attempt of its legislature to release executors and trustees from accounting for assets in their hands invested in a similar manner rests upon no firmer foundation.

Had the legatees of the testator voluntarily accepted the bonds in discharge of their respective legacies, the case would have presented a very different aspect to us. The estate might then have been treated as closed and settled, but such is not the fact. The bonds were never accepted by the legatees, nor does it appear that the executor even went so far as to offer the bonds to them.

It is urged by counsel for at least a modification of the judgment of the circuit court, that the money received by the executor was in Confederate notes, which at the time constituted the currency of the Confederate States. It does not appear, however, that he was under any compulsion to receive the notes. The estate came into his hands in January, 1858, and no explanation is given for his delay in effecting a settlement until the war became flagrant. And even then he was not bound to part with the title to the property in his hands without receiving an equivalent in good money, or such, at least, as the legatees were willing to accept.

Judgment affirmed. SWAYNE, DAVIS, and STRONG, JJ., dissented.

LIFE INSURANCE. — RULE AS TO ANSWERS TOUCHING FORMER HEALTH.

MANHATTAN LIFE INS. CO. v. FRANCISCO.

It is for the jury to determine what is meant by the term disease, as used in the

application for insurance. Substantial truth is alone required in the answers of the assured. MR. JUSTICE STRONG delivered the opinion of the court.

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