Griffin v. Griffin

130 Ga. 527 | Ga. | 1908

Evans, P. J.

1-3. The plaintiff, against whom a warrant for seduction had been issued, stopped the prosecution by marrying the female alleged to have been seduced, and by giving the statutory bond. Section 388 of the Penal Code provides, that a prosecution for seduction “may be stopped at any time by the marriage of the parties, or a bona ñde and continuing offer to marry on part of the seducer: Provided, that the seducer shall at the time of obtaining the marriage license from the ordinary of the county of the female’s residence, give a good and sufficient bond in such sum as said ordinary may deem reasonable and just, taking into consideration the condition of the parties, payable to said ordinary and his successors in office, and conditioned for the maintenance and support of the female and her child or children, if any, for the period of five years. If the defendant is unable to give the bond, the prosecution shall not be at an end until he shall live with the female, in good faith, for five years.” The plaintiff seeks in this proceeding to have his marriage annulled, and the bond canceled, because of the conduct of his wife and her father, alleged in the petition. He contends that the circumstances under which he married amounted to duress. “Duress consists in any illegal imprisonment, or legal imprisonment used for an illegal purpose, or threats of bodily or other harm, or other means amounting to or tending to coerce the will of another, and actually inducing him to do an act contrary to his free will.” Civil Code, §3536. The facts relied on to constitute duress are, the assertion by Rags-dale to the plaintiff’s father that Ragsdale’s daughter had been seduced by the plaintiff, and that Ragsdale intended to prosecute the plaintiff for seduction, unless the plaintiff married her, and that the neighbors of Ragsdale had made up a large, sum of money to be employed in the prosecution; that after the warrant had been issued, the plaintiff’s father communicated these matters to him, and advised and commanded him to stop the prosecution, by marrying the woman alleged to have been seduced, and giving the bond required by the statute in such cases. There is no charge that the warrant was illegally issued, or that the money which was to he contributed by the neighbors was to be unlawfully employed in aid of the prosecution. Nor is it alleged that any force or threat of personal violence was used to induce the plaintiff to marry. On the contrary, it appears that when his father received information that Ragsdale intended to prosecute him, and had caused a warrant to be issued, the father advised with the son as to the best course to pursue. In that conference the plaintiff-protested his innocence. The father had previously taken legal advice, and told his son that the Ragsdales’ standing was such that they would convict him,' — -that is, that a jury would likely believe their testimony. Two courses were open to him; either to face a trial and abide its legitimate consequences, or to stop the prosecution, in compliance with the statute. The plaintiff’s conduct shows that he-made his election not because of any demand of Ragsdale, but to avail himself of the statute, to escape the consequences of a prosecution for seduction. Force, to 'constitute duress in law, must be unlawful; and a man lawfully arrested on a warrant for seduction, who, to procure his discharge, marries the woman, can not have the marriage declared void, as procured by duress. 1 Bishop on Mar. Div. & Sep. § 543 ; Marvin v. Marvin, 52 Ark. 425 (12 S. W. 875, 20 Am. St. R. 191) ; La Coste v. Guidroz, 47 La. Ann. 215 (16 So. 836) ; Johns v. Johns, 44 Tex. 40 ; Williams v. State, 44 Ala. 24 ; Sickles v. Carson, 26 N. J. Eq. 440. It would be a travesty of law for a man to be able to avoid a criminal prosecution for seduction, by virtue of a statute allowing him so to do, and then be permitted, immediately thereafter, in a court of equity, to set aside the marriage on the ground that he subsequently discovered evidence to disprove the charge brought against him.

The validity of the marriage is further attacked on the ground of fraud. The alleged fraud is, that the Ragsdales, at the timé of preferring the charge of seduction against him, knew that the woman was not virtuous, and that he did not discover, until sometime after his marriage, that some three years previously she had committed fornication with a certain person, named in the petition. The plaintiff admits that at the time of marriage he was informed that his wife was pregnant, but denies that he had carnal knowledge of her up to that time. If it be true, as he so positively affirms, that he had never carnally known his wife prior to his marriage, then her pregnancy gave him indubitable information that she was not a virtuous woman, notwithstanding the representations to the contrary. With such knowledge he can not be considered as deceived by the representations as to his wife’s virtue.

We have discussed the merits of the case on the assumption that a marriage may be annulled in equity. But the marital relation involves something more than a civil contract between the parties; it represents a most important status of our social fabric, in which the public is interested. It therefore may be doubted whether an equitable suit for the annulment of a marriage is maintainable for causes which are recognized by the statute as grounds for divorce. Brown v. Westbrook, 27 Ga. 102. Fraud or duress in .obtaining the marriage are grounds for divorce. Civil Code, §2426. Can a marriage be set aside on these grounds, except in a statutory divorce proceeding? Qucere. Compare Civil Code, §2416.

4. It is clear that the plaintiff is not entitled to cancel the bond given under the Penal Code, §388, to stop the prosecution for seduction. To slightly paraphrase the language of Mr. Justice Cobb, in the case of Duke v. Brown, 113 Ga. 310 (38 S. E. 764), the plaintiff was given his choice between the penitentiary and the contract; and if he elects to enter into the contract instead of the-penitentiary, he must not forget that he has purchased his liberty-at the price of the undertaking, and he is not entitled, to have his undertaking, which he elected to make in lieu of a possible term of penal servitude, set aside because he may now be able to demonstrate his innocence of the crime of seduction. See also Crew v. Hutcheson, 115 Ga. 511 (42 S. E. 16).

5. But it is insisted that even if the grounds alleged in the petition are insufficient to entitle the plaintiff to sue for an annulment of his marriage and a cancellation of his bond, the petition should have been retained for the purpose of permitting him to obtain a total divorce, on the ground of adultery since his marriage. This can not he done; for- the reason that there is no prayer for a divorce; nor is it even alleged in the petition that the plaintiff has been a resident of the State for a year immediately preceding the filing of his petition. Such residence is a prerequisite to an application for a divorce of any kind. Civil Code, §2431. This jurisdictional averment is essential to every application for a divorce. Besides, the proceeding for an annulment of the marriage, and the proceeding for a divorce upon grounds arising since the marriage, are entirely separate and distinct causes of action. One proceeds upon the theory that the marriage is void ab initio, and the other admits the validity of the marriage and asks a divorce from its bonds. One is a proceeding in equity, the other a statutory proceeding. A single verdict in the equity case is all that would he required to support a decree of annulment; whereas in a divorce proceeding there must be two concurrent verdicts, and the jury returning the last verdict is invested with discretion as to removing the disabilities of the defendant. There was no error in dismissing the petition, on demurrer.

Judgment affirmed.

All the Justices concur.