75 N.Y.S. 878 | N.Y. App. Div. | 1902
Lead Opinion
This action was brought for the purpose of annulling the marriage celebrated between the parties at the city of New York on November 18, 1891, on the; ground that plaintiff’s consent thereto was procured by fraud. The fraud alleged is that the defendant, the wife, had falsely represented to the plaintiff, and had caused him to believe, that shortly before said marriage she had been delivered of a male child of which he was the father, then and there producing a child and exhibiting the same to him, when, as a matter of fact, she had not given birth to such child, and that the plaintiff, believing this story, was induced to marry the defendant. The
The question to be decided upon this appeal is whether the facts as found by the jury, embodied in the decision of the learned court at Special Term, are sufficient to entitle the plaintiff to the judgment appealed from, and we are of the opinion that this question is-not without the jurisdiction of this court because defendant’s attorney may not have made all of the motions, objections, exceptions, etc., which would, in an ordinary action, be necessary to secure a review. The State has an interest in the disposition of questions of this character which cannot be waived by individuals. ¡Marriage is something more than a contract, though founded on an agreement of the parties. When Once formed a relation is created between the parties which they cannot change, and the rights and obligations of each depend, not upon their agreement, but upon the law,
The exact question has never been adjudicated in this State, so far as we are able to discover, after a careful research, nor yet in any jurisdiction which would form a controlling precedent here, but there are a number of cases bearing some analogy to the case at bar, which, in view of the conflicting conclusions as to some of them, may profitably be considered in an effort to arrive at the correct rule in such cases. In the early case of Scott v. Shufeldt (5 Paige, 43), where the parties were white persons, and the complainant was charged by the oath of the defendant as the putative father of her bastard child, and the complainant thereupon, believing the child to he his, married her to obtain his discharge from the proceedings under the Bastardy Act, and he subsequently ascertained that the child was a mulatto, and that the defendant knew that fact at the time she swore it to be his, she then haying been delivered and having seen the child, it was held that the complainant was entitled to a decree declaring the contract void on the ground that his consent was obtained by fraud. This marriage was never consummated by cohabitation, and. the learned chancellor says that if the child had not been born at the time of the marriage the complainant would have had some difficulty in showing that he had been intentionally deceived and defrauded by the defendant, as she might possibly have supposed the.child to be his, although she had also had connection with a negro about the same time. This case holds only that the plaintiff could not be called Upon to father the child of a negro when the defendant knew at the time that the .plaintiff could not have been the father of her child, It is no authority for the annulment of a consummated marriage where there has, in fact, been no child born to the defendant.
The case of King v. Brewer (8 Misc. Rep. 587), decided at an equity term of the Superior Oourt of New York, which would appear to hold almost any kind of a misrepresentation as a sufficient ground for annulling a marriage, has never been sanctioned by an appellate court, and was specially disapproved in Fisk v. Fisk (6 App. Div. 432, 436), in which we fully concur.
In Tait v. Tait (3 Misc. Rep. 218) the more wholesome doctrine is laid down that, if a woman pretends to a man that she is pregnant
In the case of Ferlat v. Gojon (1 Hopk. Ch. 478) a marriage procured by abducting a young woman and compelling her, under fear, to acquiesce in the ceremony, was set aside, it appearing that the marriage was not voluntarily entered into, and that it was never consummated, the young woman returning to her friends and at once disclaiming the act. The learned chancellor declares: “ The complainant never consented freely .to become the wife of' the defendant; she has never cohabited with him; and this marriage was a foul fraud practiced upon her by the defendant,” language none too strong for the facts disclosed by the evidence.
In Wightman v. Wightman (4 Johns. Ch. 343), where the fact of the insanity of the plaintiff at the time of the marriage, as charged in the bill, and the fact that the parties had never since lived together, or in any manner-cohabited with each other, was proved to the satisfaction of the chancellor, it was held that, as a necessary consequence of these conditions, the marriage was null and void from the beginning, by reason of the want of capacity in the plaintiff to contract, and has never since obtained any validity, because the plaintiff has never, since the return of her lucid interval, ratified or consummated it. (See Lewis v. Lewis, 9 L. R. A. 505, and authorities cited in notes.)
In Anonymous (21 Misc. Rep. 765), where the husband had, previous to his marriage, represented himself to be in sound health, when in fact he Was afflicted with a chronic and contagious venereal disease, which he communicated to his wife, causing her great suffering, which continued up to the time of the trial, it was held that the facts justified an annulment of the marriage upon the ground that the husband had been guilty of a fraud. In this case the wife, immediately upon discovering the condition of her husband, sepa
In Donnelly v. Strong (175 Mass. 157) the husband alleged, as a ground for annulment of his marriage with the defendant, that she had represented to him that “ she was unmarried; that she had never been married; that she had never before been in the family way, and- that she had never. had sexual intercourse with any one other than” him. The court say: “ So far as these representations related to her previous chastity, they form no ground for decree of nullity, if for no other reason than that the libellant himself knew that at the time they were made she was unchaste, and was thereby put upon his guard, and this would be. so even if her prior sexual intercourse had been illicit.”
In Reynolds v. Reynolds (3 Allen, 605) the court, granted an annulment of a marriage where the wife, while representing herself to be chaste, was in fact pregnant by another, man, and in the careful discussion of the principles involved the court say: “ 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 on 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 gravest character on. him with whom she enters into that relation. As has been already stated, one of the leading and
In Kujek v. Goldman (150 N. Y. 176, 179) the court say: “It is difficult to see why a fraud, which, if practiced with reference to-a contract relating to property merely, would support an action, should not be given the same effect when it involves a contract affecting not only property rights, but also the most sacred-relation of life.” This is a wholesome doctrine, but it is to be understood, not in the abstract, but in connection with the facts then under com sideration. The plaintiff in that action had been induced to marry one Kitty Moritz by the representations of the defendant that she was a pure and virtuous girl, when, in fact, she was pregnant by the defendant, and the court in holding that the plaintiff could maintain an action for damages, by reason of this.fraudulent representation on the part of the defendant, made use of the language above
As a result of these cases we are of the opinion that the law is well settled that the degree of fraud sufficient to vitiate an ordinary contract may not suffice for the annulment of a marriage; that it is not enough that the party relied upon the false representations and was deceived, or that important facts were concealed, with intent to deceive, but that the marriage relation is a status controlled and regulated by considerations of public policy which are paramount to the rights of the parties. When, however, the fraud is discovered before the marriage is consummated, and the innocent party refuses to cohabit, the marriage is so inchoate and incomplete that the status of the parties is similar to that of parties to an executory contract, and may be annulled without violating any considerations of public policy. We are also persuaded that where a woman conceals the fact that she is pregnant by another than her future husband at the time of marriage, the husband may have the marriage annulled for such fraud, unless precluded by his own conduct, and that .a marriage will not be annulled for fraud where a woman induces a man to marry her by falsely representing that their illicit intercourse has rendered her pregnant, when, in fact, she is not pregnant. (19 Am. & Eng. Ency. of Law [2d ed.], 1184-1187, and notes.) The rule as laid down in Fisk v. Fisk (supra) and followed in the case of Wendel v. Wendel (30 App. Div. 447, 452) that if, when the relation is entered into, the party is competent to make that contract, is mentally competent to do the duties which the contract involves, and physically able to meet its obligations, nothing more can be required, is the law of this State upon this subject, and the plaintiff has failed to establish that the defendant was lacking in any of the elements essential to the contract. She was free to marry ; she was not insane, nor yet an idiot; and from the fact that she cohabited with the plaintiff, both before and after the marriage on November 18, 1891, we must assume that she was physically capable of meeting the demands entailed by entering
The judgment appealed from should be reversed, with costs.
All concurred, except Goodrich, P. J., who read for affirmance, and Jerks, J., who voted for affirmance.
Dissenting Opinion
(dissenting):
I dissent. By this appeal we are practically asked to sanction a scheme by which a woman, who had been previously convicted at the Court of Special Sessions in the city of New York of keeping a disorderly house, induced the plaintiff to marry her On the false representation that he was the father ,of an illegitimate child of which .she had been delivered, when in fact no such, child had been born. The motive of the defendant’s scheme may possibly be found in the fact that the plaintiff was worth $65,600.
The plaintiff had been living in illicit relations with the defendant ¡at," before and after the time when the conception of a child might have taken place. The woman' represented that a child was born on' October 5, 1891. From May, 1890, till April, 1891, the parties had been continuously cohabiting. Consequently it was not strange that the plaintiff was induced to believe the false representation that he was the father of the child. I concede that if it had been the fact the plaintiff could not obtain an annulment of the marriage for that cause.
In Scott v. Shufeldt (5 Paige, 43) the court annulled a marriage between white persons where similar facts existed except that a child was actually born which the husband afterward discovered to be ai mulatto and consequently the child of a negro. The chief difference between that case and the case at bar is the fact that in the present .case no child was born. We are, therefore, asked to say that when the woman exhibits to the man a child which she represents to be the fruit of their- illicit cohabitation, when in fact no such child has been born, and threatens to institute bastardy procéedings against him, thus necessarily declaring her readiness-and intention to
I vote for affirmance of the judgment.
Judgment reversed and new trial granted, costs to the appellant to abide the final award of. costs.