24 N.J. Eq. 516 | N.J. | 1873
Lead Opinion
The opinion of the court was delivered by
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
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,
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.
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
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
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
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
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
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.
Dissenting Opinion
dissenting.
The parties in this case were married on the 12th 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 cere
The power to grant divorces in this state, is lodged exclusively iu the Court of Chancery, and this branch of its jurisdiction is exercised, not by reason of any inherent power existing in the court over tins subject as one of its general equity powers, but solely by virtue of express legislative authority.
The act of 1794 (Pat. Laws, 143,) gave to the, Conn of Chancery jurisdiction of “ all causes of divorce,” bid added, as the act now in force dot's, “ by this act directed and allowed.” Nix. Dig. 246, Title Divorce.
The causes of divorce from the bond of matrimony specified in the act of 1794, are :
1st. Where the parties are within the prohibited degrees.
2d. Adultery.
3d. Willful and continued desertion for seven years.
4th. Where either of the parties had another husband os wife living at the time of the marriage; and
Easily, A divorce from bed and board for extreme cruelty.
By the revision of 1840 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 fraud
The language is, that the Court of Chancery shall have jurisdiction of all causes of divorce by this bill directed and allowed. Expressio unius, exelusio 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. 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 entered into by an infant twelve years of age, in jest,
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.
These cases were followed by Chancellor Zabriskie, in McClurg v. Terry, 6 C. E. Green 225, 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 ease, 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, § 46.
In these cases, either party could marry without being amenable to any penal consequences, before proceeding to annul the prior pretended marriage. 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,
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 cases.
In Ferlat v. Gojon, Hopkins Ch. 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. 567, he says : “ In the case of Wightman v. Wightman, one of the jmrties 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 dictum 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 the marriage is not void, but voidable. It was entered into by parties capable of contracting, and was fully
The New York eases are no authority for the claim that marriages, voidable only for fraud, can be declared void by our Court of Chancery. The distinction is clearly run between void and voidable, in Perry v. Perry, 2 Paige Ch. 501, where the court say, that in eases of absolutely void marriage's, 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 eases were not intended to countenance the doctrine that a marriage, only voidable for fund, could be dissolved by the Court of Chancery, is manifest by the ease of Burtis v. Burtis, before cited, in which the ground relied upon was impotemy. 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 hear children to her husband, by reason of her pregnancy by another at the time of the marriage, to he the very essence of the fraud. Yet the ..same judge who decreed the contract null, in Ferlat v. Gojon, refused to divorce, in Burtis v. Burtis, for impotency and this decision is affirmed in Berry v. Berry, upon the distinct ground that the marriage was not void, but voidable. Tiie 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 ease, 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 oilier case, there was a good marriage de facto, and the court very properly decided that the power to dissolve
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.
There is another stringent rule of interpretation which must be violated in order to hold that our statute is not one of limitation.
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 cause 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 than 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 annul and dissolve this contract for fraud must be co-extensive 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
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 different person. And it has been hold that where a party obtained a divorce in the spiritual courts by fraudulently persuading the court to believe that lie was impotent, and subsequently married and. had children by the second wife, such second marriage would be dissolved and the children declared illegitimate. 1 Bishop, § 114, note, (4th edition.)
In Bury's Case, 5 Coke 98, such second marriage was held to he 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, 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 caso, 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.
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 docs not give redress 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, that the fact relied upon for the divorce was proven 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.
Decree reversed by the following vote :
For reversal — Beasley, C. J., Bedle, Clement, Dalrimple, Depue, Scudder, Wales, Woodhull. 8.
For affirmance — Dodd, Van Syckel. 2.