Long v. . LongLong v. . Long
- Reporters:
- Before:
- Rodman
“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
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, in Scroggins v. Scroggins, 14 N.C. 535, it was decided that it is not. Indeed, that was a stronger case than this. There the wife was pregnant at the time of the marriage and was subsequently delivered of “a mulatto child,” whereas both she and her husband were white. So that it was certain that the husband was not the father, and it was equally certain that a negro was. The case was elaborately argued on both sides, and an elaborate opinion delivered by Judge Ruffin, the Court being then composed of those great names — Henderson, Ruffin, and Daniel, — and it was decided that a divorce could not be granted. In delivering the opinion, Judge Ruffin said: “The case now before us rests upon a matter existing at the time of the marriage. And it must be admitted to be as strong a case as can well be if the petitioner acted properly. . . . The petitioner puts the case upon the ground of fraud.
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, 24 N. J., 517. But it was by a divided Court. So that we have to choose whether we will stand by our own decision and our own legislation until our own Legislature shall declare a different policy, or whether we shall forsake the old landmarks and go abroad after novelties.
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, 14 N.C. 548