24 App. D.C. 160 | D.C. Cir. | 1904
delivered the opinion of the Court:
This is a suit for the annulment of a marriage on the ground of fraud, which alleged fraud consisted in the concealment from Charles E. Lenoir, the appellant, the complainant, or petitioner in the court below, of the fact that the appellee, Laura E. Lenoir, at the time of the marriage was pregnant with child by a person other than the appellant. The relief prayed for was denied by the supreme court of the District of Columbia, wherein the suit was instituted, on the ground that, although the fraud was sufficiently proved, yet the petitioner had condoned the offense and had continued to cohabit with the appellee after the discovery of the fact. The petitioner has appealed to this court from the decree dismissing his/ petition.
It is conceded that fraud in its procurement will vitiate the contract upon which marriage is based as well as any other contract, and will justify its annulment by the courts. Ridgely v. Ridgely, 79 Md. 298, 25 L. R. A. 800, 29 Atl. 597; Le Brun v. Le Brun, 55 Md. 496; Erkenbrach v. Erkenbrach, 96 N. Y. 456; Carris v. Carris, 24 N. J. Eq. 516; Clark v. Field, 13 Vt. 460; True v. Ranney, 21 N. H. 52, 53 Am. Dec. 164; Tefft v. Tefft, 35 Ind. 44. Sections 966 and 1285 of the Code remove all doubt upon the subject, if any ever existed, for they provide in express terms that marriage contracts may be decreed to be void when they have been procured through coercion or fraud. But there is a radical divergence of opinion and of judgment between the courts of England and those of America upon the question whether, when a woman about to enter into the matrimonial relation conceals from her prospective husband the fact that she is pregnant at the time by another person, the conceal
There is no serious difficulty, therefore, about the general principles of law that are applicable in the present case; nor is there any great difficulty about some of the salient facts in the case. It is established by the testimony that these parties were married on December 24, 1902; and that on May 15, 1903, which was less than 5 months afterwards, a fully developed male child was born to the appellee, of whom the appellant repudiates the paternity. The appellant, testifying on his own behalf, stated that his acquaintance with the appellee began in the year 1891, when he was about 18, and she was about 11 years of age; that their intercourse then lasted for 2 or 3 years; that it was then discontinued until about February 22, 1900, when he went to see her and her family at their home in Maryland, near the District line; that the next time he saw her was in December of 1902, when he called on her in response to a letter from her, and when arrangements were forthwith made for their marriage, which took place in the same month, as stated; and that he had had no sexual intercourse with her before their marriage. He further testified that it was about the 1st of March, 1903, that he began to suspect her physical condition; that in March or April of that year he met a physician in the street, while his wife was with him, and asked him about her condition, and the physician informed him that she was then well advanced in pregnancy ; that he continued, however, to cohabit with her; that, on
Now, apart from the fact of the marriage of these parties, and from the fact that a fully developed child was bom thereafter prematurely with relation to the date of the marriage, the sole testimony in this case that bears upon the two important questions in the case is that of the appellant himself, wholly uncorroborated by other evidence. These two questions are: (1) Whether he was himself, or whether someone else was, actually the father of this child, the paternity of which is by law imputed to him until the contrary is shown; (2) whether, if he was not such father, he did not condone the fraud upon him, and preclude himself from the relief which he now seeks, by continued cohabitation with the appellee after the discovery of it. We are confronted with the inquiry whether the appellant himself is a competent witness to determine these two questions in his own favor. For it is to be remarked that the appellee has not appeared in the case at all, and has permitted it to go by default; and that counsel, who has been appointed by the court for the defense, under § 982 of tbe Code, to protect the public interest in the matter, has, in consequence of such persistent default, found it impossible to adduce any testimony adverse to the petitioner, and has been compelled to rely exclusively upon the cross-examination of the petitioner and his witnesses.
In the case of Bergheimer v. Bergheimer, 17 App. D. C. 381, we held that in divorce cases the parties to a suit are not competent to testify as witnesses in their own behalf. Therein we followed the ruling of the general term of the supreme court of the
In order to annul the marriage in the present case the one important thing to be shown is that the appellant is not the father of the child born during that marriage. This may be somewhat difficult of proof. The sole proof that we have of it is the bare statement of the appellant to that effect; but we think that under the statute this is not sufficient. There must he “other evidence” of it, as required by the statute, in order that the petitioner may succeed.
The same course of reasoning will apply to the other question raised, the question whether, even if the appellant be not the father of the child that was bom, he did not condone the fraud
While we have no reason to doubt the truthfulness of the appellant’s statements in his testimony, yet, as the other evidence required by the statute is wanting in his case, we cannot see that there was any error is the refusal of the relief which he prayed. But, as there may be hardship in his case which further developments may establish, we think that his petition might well be dismissed without prejudice to his right to renew it hereafter, if testimony should be forthcoming sufficient for the purpose.
The decree appealed from will be affirmed, with costs, but with the modification that it shall be without prejudice to the appellant to renew it hereafter as he may be advised. Affirmed.
A motion by the appellant to modify the opinion and decree overruled July 8, 1904.