
    KERRISON v. KERRISON.
    
      N. Y. Supreme Court, First District; Special Term and Chambers,
    
    
      October, 1880.
    Marriage nr Evasion or? Prohibition in Judgment op Divorce.
    A marriage cannot be annulled on the complaint of a party thereto, on the ground that the plaintiff and defendant, being domiciled in this State, and knowing that one of them was prohibited from marrying again by a judgment of a court of this State granting a divorce to a former spouse, contracted their marriage in another State, to which they went temporarily for the purpose of evading the prohibition while the former spouse was living.
    
    Even if such a marriage is void, the plaintiff is equally in the wrong with the defendant, and the court will not grant relie’
    Motion to confirm report of referee.
    Olivia M. Kerrison, otherwise Olivia M. Jeens, brought this action against John D. Kerrison, to annul their marriage.
    The defendant and one Ellen Flynn had formerly intermarried, in the month of May, 1869, at Toronto, Canada. On May 21, 1875, judgment of divorce was obtained in this court against the defendant by his wife Ellen, for his adultery, and by the terms of the judgment the defendant was prohibited from marrying again until Ellen should be actually dead. On October 14, 1875, Ellen being still living, the parties to this action, for the purpose of evading the prohibition contained in such decree, went to the State of New Jersey, and were there married, intending to return and in fact returning soon thereafter to the State of New York, where the defendant was at the time a domiciled resident, and where the plaintiff also resided. At the time this action was begun the defendant was and now is a British subject, and a resident of Canada, where the summons herein was personally served upon him, under an order for the publication thereof.
    The defendant appeared and answered, but in his answer he denied the jurisdiction of the court.
    The referee reluctantly followed the authority of Marshall v. Marshall (2 Hun, 238), and pronounced the marriage of the plaintiff and defendant void.
    
      Francis M. Scott, for the plaintiff.
    
      O. Stewart Davison, for the defendant.
    
      
       Compare Loud ®. Loud, Mass. Supreme Ct., Mem. in 22 Alb. L. L. J. 535; Torsion ®. Torston, 5 Stewart (32 N. J. Eq.), Rep. mem. 22 Alb. L. J. 17; Elliott v. Wohlfrom, Sup. Ct. Cal., Pac. Coast L. J. Sept. 4, p. 81. Otherwise in a proceeding by the State, when the marriage was iudictable by the law of the domicile. Kinney v. Commonwealth, 30 Gratt. (Va.) 858.
    
   .Macombee, J.

[After stating facts above.]—It is quite unfortunate that the expectation expressed in the vote of the learned presiding justice of the court which pronounced that decision (Marshall v. Marshall) was not realized, and the case reviewed by the court of appeals. But it seems that the action ended with the judgment there given. On this account, and in view of the persuasive dissenting opinion delivered by Mr. Justice Daniels, the decision has not, I think, commanded that cheerful acquiescence of the bench and the bar which is ordinarily accorded to the deliverances of that court. It has, however, upon' the most important social matters—namely, the devolution of property and the legitimacy of offspring—served to add uncertainty and insecurity to the laws, whose greatest value consists in their certainty and repose. Were I permitted to do so, and were it necessary to decide this case upon the principle involved in the Marshall case, I should accept the opinion of Judge Daniels as the exposition of the law. Indeed, has not legislation upon the subject since the decision of that case rendered it entirely competent for the court, even at special term, to in-in quire into the reason for now holding to the rule which it is. claimed was established in Marshall v. Marshall ?

By chapter 321 of the Laws of 1879, section 49 was amended so as in a proper case to enable the court to relieve a person of the penalties of a divorce for his or her adultery. That section, as amended, reads as follows : “Wherever a marriage has been or shall be dissolved, pursuant to the provisions of this article, the complainant may marry again during the lifetime of the defendant; but no defendant convicted of adultery shall marry again until the death of the complainant, unless the court in which the judgment was rendered shall in that respect modify such judgment, which modification shall only be made upon satisfactory proof that the complainant has remarried, that five years have elapsed since the decree of divorce was rendered, and that the conduct of the defendant since the dissolution of said marriage has been uniformly good.”

This is, as it seems to me, a legislative enactment and. a legislative interpretation of the old statute that a prohibition against a subsequent marriage was intended only as a punishment of the offending party.

It is true the subsequent section of the original act declares void marriage contracted in violation of the s¿atute. But should it not be borne in mind when marriages like this, contracted abroad, are sought to be adjudged void, when it is attempted to give to our statute and a decree of our court extra-territorial effect, that, after -all, the offense against our laws was not-radical, but only of such a nature that a court could permit it to be done even on our own soil. The offense, therefore, which persons commit who go hence to be married is not malum in se, but malum prohibitum, against the effect of which they might have been relieved by a court. Can it then be reasonably contended that an act of such a character, which was lawful in the State where it was committed, shall be so treated by the courts of this State as to upset the law of inheritance and legitimacy? This is far different from the prohibition against polygamous and incestuous marriages, whether they be those under the so-called Levitical laws or under a statute of the State. These things go to the root of social and State matters ; the others, so far as affecting the peace and purity of the State, are non-essentials.

As it seems to me, for our courts to hold a marriage, concededly valid in a sister State where solemnized, invalid in our own State, simply because our statutes and a judgment of our courts have prohibited one of the parties to marry again within a limited period, as a punishment for misconduct in our State, is not in the true spirit of interstate comity which was intended to be secured by section 1 of article 4 of the Federal Constitution, nor is it in the direction of unenlightened comity of Christian nations. On the contrary, it savors a little of extra moral arrogance.

The two cases mainly relied upon as sustaining the prevailing opinion in Marshall v. Marshall arose as follows: Brooks v. Brooks (7 Jur. N. S. 422), upon a marriage regarded by the British laws as incestuous, and the other, Commonwealth v. Hunt (4 Cush. 47), upon a marriage pronounced polygamous. By statute (5 & 6 William IV. c. 54, 1835-6) marriages between parties within the prohibited degrees are declared to be absolutely null and void. What those degrees are is not stated by the statute, but this is determined by the previously-established rules of the canon law and older statutes. Relationship both by consanguinity and affinity is comprehended within the prohibition, in accordance with the so-called Levitical decrees; hence it is that marriage in England with a deceased wife’s sister is within those degrees, and consequently void. In the way of such marriages, the Catholic Church long ago put an impedimatum divinus. That prohibition became a part of the canon law, and later it was enacted into the civil law. The case of Brooks v. Brooks should be read in the light of this history, which fully explains the language of Lord Campbell when he brought that case within the exception to the general rule, which he fully recognized, that a marriage valid where contracted was valid everywhere. So, too, of the case of Commonwealth v. Hunt. Polygamy has never been recognized by any Christian State. ■ Until the statute pronounced the marriage polygamous, the courts of Massachusetts, I think with uniformity, held such a marriage valid. (See opinion of Judge Daniels, above referred to.)

The learned judge, writing the opinion of the majority of the court in Marshall v. Marshall, refrains from considering how far the case would be affected had the element of a departure from the .State with the intent to avoid the former judgment been wanting. But there is, it seems to me, no middle ground. On the hypothesis of the Marshall case a due respect to logic or reason will carry us to the conclusion that a,marriage contracted in another State in good faith, cannot be recognized here, if prohibited by our laws, on any ground. Otherwise there would be imputed to the delicate and complicated contract of marriage, validity or invalidity, accordingly as the intent of the parties was respectful or discourteous to our sovereignty. This would make such a relationship insecure, and would thrust into the marriage contract an element necessary to its validity which no other contract requires, and would upset the well-founded rule that an act, otherwise valid, is not' rendered invalid by the intent with which it was performed (Ponsford v. Johnston, 2 Blatchf. 51).

By reason of the act of 1879, quoted above, the question supposed to be closed in the supreme court is, I think, fairly open. But I do not purpose to enter upon a discussion of it further, nor to rest my decision on ground adverse to the Marshall case, for I see at hand another and a sufficient reason for dismissing the plaintiff’s complaint.

If the marriage of the parties was illegal, the plaintiff is not in position to ask to be relieved from its bond. The complaint alleges—“That this plaintiff and said defendant left this State as aforesaid and proceeded to said State of New Jersey as aforesaid, and procured said marriage ceremony to be performed in said State of New Jersey as aforesaid, with the object and intention and for the purpose of avoiding and evading the prohibition contained in the aforesaid decree of this court hereinbefore set forth, and the effect and consequences of the statute pursuant to which said prohibition was included in said decree. That at the time said marriage ceremony was performed as aforesaid, neither this plaintiff nor the said defendant had any intention of residing or remaining in said State of New Jersey, but they both intended and expected to return to this State as soon as said marriage ceremony had been performed.”

These allegations, being fully borne out by the proofs, render it extremely improper for the court to afford the plaintiff any relief. The law does not interfere between those who are equally in the wrong. In pari delicto potior est conditio defendentis (Peck v. Burr, 10 N. Y. 294; Tracy v. Talmadge, 14 Id. 162, 181, 216; Candee v. Lord, 2 Id. 269. 276; Meech v. Stoner, 19 Id. 28; Nillis v. Clark, 20 Wend. 28; Vischer v. Yates, 11 Johns. 26; Story Eq. Jur. § 61, 298; Story on Ag, 198).

The plaintiff was swift in her steps to evade the judgment of this court pronounced against her lover, and made that lover her husband notwithstanding such judgment. The court, I think, now reposing on the maxim already quoted, exercises its highest prerogative in doing nothing. It leaves the parties equally in the wrong, where it finds them. The plaintiff has made her bed—let her lie in it.

The .defendant’s exceptions to the findings of fact of. the referee are overruled. His exceptions to the conclusions of law are .sustained. .Judgment is directed for the defendant upon the facts found, but not with costs. 
      
      
        2 R. S. 144; § 49, as amended by L. 1879, p. 231, c. 164; L. 1879, p. 405, c. 321. See as to this statute, the next case.
     