77 N.C. 304 | N.C. | 1877
RODMAN, J., dissenting. The plaintiff alleged that he was married to the defendant on 22 January, 1874; on 8 March following he discovered that she was pregnant and had been so for more than four months; on 29 July following she was delivered of a child; on discovering her condition in March as aforesaid, he separated from the defendant; that the defendant practiced a fraud on him in contracting the marriage, he supposing her to be a virtuous woman, and that at the time of the marriage she was more than two months gone in pregnancy, and the plaintiff was informed thereof by the defendant's own confession. Wherefore the plaintiff demanded judgment that the marriage contract be declared null and void. The defendant filed no answer, and the jury found the facts in accordance *227 with the allegations in the complaint. The plaintiff then moved for judgment, which was refused by his Honor, and the plaintiff appealed. There are but three causes assigned for divorce by our statutes:
"1. If either party shall separate from the other and live in adultery.
"2. If the wife shall commit adultery.
"3. If either party at the time of the marriage was and still is naturally impotent."
This is the declaration of the legislative will as late as 1871. The Legislature has not only restricted the causes for divorce, but it has also been careful as to the manner of ascertaining the causes. The declarations or admissions of the parties in court or out of court go for nothing. Every allegation is to be deemed as denied, whether it is denied or not, and nothing is to be allowed except what is found by the jury. Bat. Rev., ch. 37, sec. 7.
There are with us no such things as "divorces made easy," "divorces without publicity," and the like, as are said to prevail elsewhere; but our policy always has been, and is now, to regard marriage as indissoluble, except for such grave causes as are named above, and to hedge in the trial with such precautions as prevent collusion, surprise, or imposition.
If the findings of the jury are to govern, we must see what those findings were:
"1. Were the parties married on 22 January, 1874? Yes.
"2. Was the marriage, so far as the plaintiff was concerned, procured by the fraud of the defendant? Yes.
"3. Did the plaintiff separate himself from defendant immediately on discovering the fraud? Yes."
No one will pretend that there is anything whatever in the verdict to authorize a divorce under our statute. The marriage was procured by fraud. What fraud? Did she represent herself to be rich, when she was poor? Had she false teeth? Did she paint — or, what (306) else?
As a divorce cannot be granted upon such a verdict, it is not necessary and scarcely proper to look to the complaint to see what the verdict relates. We find that the fraud complained of was that the defendant was more than two months gone with child at the time of marriage, which fact she did not disclose. That fact may have been true and yet no fraud, for she may not have known it herself at that early stage. And if she knew, as she must have known, that the fact might be so, yet she may have known also that he knew as much about it as she did, for *228 he does not deny that he was the father of it. It is true that he says he did not know that she was pregnant until she confessed it some two months after marriage; yet that is quite consistent with his being the father of it, especially as she did not say that anybody else was, and still more especially as he does not say that anybody else was, and does not deny that he was.
It is also true that he says that immediately on discovering her condition he sent her away and has not cohabited with her since; yet that is consistent with his fear that the birth of his own child, earlier than the laws of nature would allow within marriage, would disgrace him for having gotten it before.
It is also true that he says she held herself out to be virtuous, and he thought her to be so at the time of the marriage; yet that may be quite consistent with the fact that he knew her to be so, in regard to all others except himself, because he himself had seduced her and no one else had, and that he was enabled to do so only by a promise of marriage.
Now, all this may be hard measure to the plaintiff, but he has courted it by seeking the dissolution of marriage with one who he says was an "orphan girl," and whom he or some one else ruined, and to turn her and her child, wrecks upon the world without the courage on his part to deny in express terms that he is the author of their ruin, and (307) without daring to charge any other fault than that she did not disclose the fact that she was pregnant.
The fact that the complaint and the issues present a case so suspicious and so insufficient can find no excuse in the unskillfulness of counsel, for they are able and experienced, and it is our duty to assume that the fault is with the plaintiff. But consider the case in the best light for the plaintiff: He was a worthy man; married, as he supposed, a chaste woman, and found that he was deceived and had an impure woman with child by another. Is that a cause for divorce under our law? As long ago as 1832, inScroggins v. Scroggins,
It is true that there have been always other grounds for declaring marriages void, but they do not fall properly under the head of divorce. They are such as idiocy, precontract, etc., in which cases there was no marriage at all. It was absolutely void for want of power to contract.
It is also true that in some of our sister States the courts have undertaken to grant divorces in cases where there was fraud in (309) procuring the marriage contract. That has been done in the very respectable courts of Massachusetts, New York, and California. But it is said that they have done so under statutes expressly authorizing it. And in New Jersey it has been done where there is no statute to authorize it so far as we are informed, but it is upon the broad ground of the power of a court of equity to relieve against fraud. Carriss v. Carriss, *230
At the same term when Scroggins v. Scroggins, was decided, there was another case before the Court, where a man had married a woman who had lately had a child which she induced him to believe was his, but which had found to be a mulatto, and, of course, not his. The court below had dismissed the case, and the Supreme Court sent the case back to be tried, and in doing so Judge Ruffin seems to have been somewhat in conflict with what he said in Scroggins v. Scroggins. We do not know what became of the case. It is Barden v. Barden,