122 N.Y.S. 892 | N.Y. App. Div. | 1910
Lead Opinion
This is an action by a husband to annul his marriage for fraud in that, prior to the marriage,, his wife represented to him that she had been a wife of a man then deceased, to whom her child was born, when in truth she had been that man’s mistress and the child, was his bastard. The plaintiff pleaded that since the discovery of the fraud he had not cohabited with the defendant. It was conceded on the record that the parties had cohabited together for six years,
In Reynolds v. Reynolds (3 Allen, 605), Bigelow, Ch. J., says that it has been contended by some writers, especially the commentators on the civil law, that chastity is a quality that lies at the foundation of the contract of marriage and constitutes, one of its essential elements,'citing Voet, 24, 2, 15, which see, and 1 Fraser’s Domestic Delations, 231. Montesquieu in his Spirit of the Laws (23, 21) writes that since the time of TJlpian a freeman was forbidden to marry a woman who had led a disorderly life. - (See, too, 1 Bishop Marr., Div. & Sep. §479 et seq.) But many decisions and many text writers have pronounced against annulment of marriage subsequent- to consummation on the ground of the false representation of the wife, previous to her marriage, that she was chaste. For examples, see Reynolds v. Reynolds (supra); Carris v. Carris (24 N. J. Eq. 516, 524); Allen's Appeal (99 Penn. St. 196); Smith v. Smith (8 Oreg. 100); Wier v. Still (31 Iowa, 107); Leavitt v. Leavitt. (13 Mich. 452); Shrady v. Logan (17 Misc. Rep. 330); Schouler Husband & Wife (§ 27); Bishop Marr., Div. & Sep. (supra).
The proposition of the Special Term must be that a false representation of such fact cannot sustain an action brought after the marriage and its consummation for an annulment on the ground of fraud.
Unanimous Opinion
writing for a unanimous court in Di Lorenzo v. Di Lorenzo (174 N. Y. 472) says : “While, then, it is true that marriage contracts are based upon considerations peculiar to themselves and that public policy is concerned with the regulation of the family relation, nevertheless, our law-considers marriage in no other light than as a civil contract. (Kujek v. Goldman, 150 N. Y. 176.) The free and full consent, which is of the essence of all ordinary contracts, is expressly made by the statute necessary to the validity of the marriage contract. The minds of the parties must meet in one intention. It i-s a general rule that every misrepresentation of a material fact, made with the intention to induce another to enter into an agreement and without which he would not have done so, justifies the court in vacating the agreement. It is obvious that no one
I think, then, that under the authority of Di Lorenzo's Case (supra) the soundness of the proposition of the Special Term must be determined by answering the question whether, as matter of law such a false representation, can be material to that degree that, had it not been practiced, the party deceived would not have consented to the marriage. It may be said that in our civilization a man assumes that his proposed wife is chaste and that without reason he would hot pay her the insult of query as to her virtue. But I can conceive of a case where a man before consenting to a contract of marriage might -aslc such a question of the woman outright, and rely upon her. answer. Or the case at bar is an instance where the circumstances might compel some representation in explanation of them. It is quite true that such a representation is not as to the essentialia of the marriage contract, for previous chastity, is not a- necessary qualification for cohabitation or for the full discharge of the duties of consortium. But it seems to me that the question is whether such representation may not be as to a fact material to the consent of , the other party to make the contract. Cannot a m’an regard chastity as an essential qualification of the woman he proposes to marry, and be unwilling to take evén: an Aspasia to his bed and board? In Di Lorenzo's case the misrepresentation was that a child .was the issue of the illicit relations of the parties. That representation could not strike at the essentialia of marriage, and yet the court-profiounced it material,saying: “In this case, the representation of the defendant was as to a fact, except f.or the truth of which the necessary consent of the plaintiff would not have been obtained to the marriage. It was designed to create a state of mind in the plaintiff, the operation of which would be to yield a consent to marry the defendant, in the belief that lie was rectifying a great wrong.
I think, then, that such a misrepresentation can afford ground for the annulment of a marriage for'fraud because, as matter of law, it can be materiabupon the question of consent, which is essential to the contract of- marriage. To reach any other'conclusion is to say in effect that the fact that the woman, otherwise acceptable, is unchaste cannot be-sufficient motive for a man of average intelligence and prudence to refuse consent to marriage. This doctrine would put a Gyprian on.the marriage plane of a virgin, and makes no distinction in respect to virtue-as between a woman who had been a mistress and one who had been a wife.
I cannot perceive that the question is- affected by the circumstance that the marriage was consummated; for- the sole relation, of tlie false representation, as viewed by -the law, is to the consent to contract of marriage, and the sole limitation to the action, as pointed out in Di Lorenzo's Case (supra) is voluntary cohabitation subsér quent to the full knowledge of the facts. This court' must decide this question . upon- the law as. declared by our statute and as expounded by our highest court. That- court has well said in Kujek v. Goldman (150 N. Y. 182): “While it is not agreeable to treat.a subject of sacred importance upon, this narrow basis; it is necessary to do so, for our law considers marriage in no other light than as a civil contract.” My conclusion is .that the alleged false misrepresentation can be material in such án action and, therefore,
Dissenting Opinion
(dissenting):
The plaintiff, after living with the defendant as his wife for six years, now asks that the marriage be annulled on the ground that she procured his consent théreto by false and fraudulent representations ; that she was, at that time, the widow of one Manson, and that her child, then about six years old, was the offspring of her marriage with Manson, when in fact Manson and she, though living together, had never been married, and the child was born out of. lawful wedlock. His complaint was dismissed on the opening of thp trial on the ground that it did not set forth facts sufficient to
It is quite true that the Court of Appeals placed its decision in the Di Lorenzo case upon the ground that under our statutes mar-, riage is a civil contract, and must be annulled, on the complaint of the injured party, if it be entered into through fraud as to a material element of the consent. This rule, however, as before- indicated, is not different to that which applied in the ecclesiastical courts,, where marriage was deemed sacramental when entered into by baptized persons. The beginning of the relation even there was contractual, and implied free consent, for its inception. If this consent was procured by a material fraud, it was always held that the marriage could be annulled" on proper proof. What we call “fraud ” they call “error ” in regard, to matrimonial causes. We divide fraud into “ material ” and “immaterial.” We consider as “ material ” that which reaches the essence of the consent of the parties. The canonists divided “ error ” into “ error substantialis ” and “ error accidentalis.” “ Error substantialis ” was one that reached the essence of the consent and was- material to it, while “error accidentalis” arose where the fraud or mistake was inci-. dental rather than material. On the question of the necessity and freedom of consent both our own law, as applied in the Di Lorenzo case, and the canon law are. in full harmony. At the same time neither at canon law nor heretofore in equity has a mere representation as to previous chastity been considered as “ material,” or as producing “ error substantialis ” in the giving of the required consent for a valid marriage. -Nor do I think we should be justified in inferring from the decision of the Court of Appeals-in the Di Lorenzo case that it intended to declare any new rule on this question, bfor should we be swayed too much by the supposed logical deductions from the rule there declared. Law and logic should work
It should not be supposed that there is any analogy between the question here considered and the one-time rule in Roman law, quoted by Hr. Justice Jerks from Montesquieu, that an impediment to legal marriage existed as to a woman who had- led “ a disorderly life.” The rule is found in the “ Fragments of Ulpian,” and is taken from the “ Lex Julia,” which was an edict of Augustus aimed at a condition of society then existing. It forbade senators, and later, free men, from marrying common prostitutes. It was directed not against a woman who had simply been unchaste, and in that sense “ disorderly,” but against those who marketed their bodies. Even this legal impediment was not continued by Justinian in the Institutes, or Pandects, aud is not to be found in any system of jurisprudence since existing. If the rule, contended for so forcibly and so elegantly by my brother Jenks, is to find its way into our system of jurisprudence, I presume it will be necessarily of equal application regardless of sex. If so, we may well recall the opening of Pandora’s box.
For the reasons above given, I vote to modify the judgment by striking therefrom the words “upon the merits,” and to affirm the , judgment as so modified. • ,
Burr, J., concurred in separate memorandum.
Concurrence Opinion
I concur with Mr. Justice Carr. The vital question in this case is whether previous chastity is a material fact, misrepresentation as to which will justify the annulment of a consummated marriage on the ground of fraud. While it may be unfortunate that a man or
I think that the judgment should be affirmed.
Judgment reversed' and new trial granted.
Concurrence Opinion
concurred, the former in separate memorandum ; Carr, J., read for a modification of the judgment and . affirmance, with whom Burr, J., concurred in separate memorandum.
Concurrence Opinion
(concurring):
The defendant, it must be assumed, represented that she, in the purity of wedlock, had given birth to her child, and thereby induced the plaintiff to enter into the contract of marriage. In fact, for eight years she had been the mistress of another, and in such offensive state became the mother of an illegitimate child. • Hence the plaintiff became the husband of an.unchaste woman, and the stepfather of a bastard, whereby his family life was tainted in its most intimate relations. Presumptively a man would abhor such marriage, not only on account of the personal society into which it would bring him and his offspring if such there should be, with the accompanying impairment or destruction of the sacred love and respect that justify marriage, but also on account of the obloquy and social ostracism that the connection upon exposure might entail. I can conceive of no more distressing affront to the sensibilities, nor more profound injury to the sanctity of the marriage relation; and where it is effected by actual fraudulent representation that the woman is pure and thechild legitimate, the court should not hesitate to relieve the person who has been led into the most inviolable of all personal contracts.