
    AURELIA C. BROWN vs. EARL WESLEY SCOTT.
    
      Annulment of Marriage — Fraud.
    Regarded as a ground for the annulment of marriage, there is no distinction between a fraud which induces consent, and a fraud which induces the appearance but not the reality of consent. pp. 265-267
    In Maryland a marriage procured through fraud may be avoided. p. 267
    Where fraud- is recognized as a ground for the annulment of a marriage contract, it must be of such a character as to go to its very essence, and affect the free consent thereto of the injured party, and therefore, in any inquiry as to the existence of such fraud, the capacity of the party upon whom it was practiced is a material fact. ' p. 26S
    Where the misrepresentations or fraud relate to accidental matters, such as rank, fame, fortune, habits, temperament or the like, they do not go to the essence of the contract, and are not sufficient to justify the annulment of the marriage, but where the fraud relates to essential matters necessarily affecting the health or well-being of the parties themselves or any offspring of the marriage, it is sufficient for this purpose.
    p. 268
    Where a fraud, practiced upon a person of immature years or weak mind, of such a character as to necessarily affect the health or well-being of the person injured, and where the true facts are such that no person of ordinary prudence would- have made the contract with knowledge of them, induces such person to enter into a marriage contract, that contract may be avoided upon the- application of the injured person, provided the application is made promptly upon the discovery of the fraud, where the status of the parties has not been affected by the intervention of the rights of children, born or unborn. p. 270
    Where a professional swindler, whose life had been largely spent in prisons and reformatories, and who was thereafter arrested and sentenced for crimes previously committed, induced a girl eighteen years old to marry him by false statements that lie had left college to serve in the World War, that he was four years in service at the front and had been severely wounded, and that he was an honorable member of society, occupying a responsible position, held that, the girl having, as soon as she discovered the fraud, severed their relations and repudiated the marriage, she was entitled to have the marriage annulled. p. 271
    
      Decided January 13th, 1922.
    
    Appeal from the Circuit Court for Cecil County, in equity (Wkuíhs, J.).
    Bill by Aurelia C. Brown against Earl Wesley Scott, alias Joseph Earl Wesley Scott, alias Paul Worthington, alias Caleb Bragg. From a decree for defendant, plaintiff appeals.
    Reversed.
    The cause was argued before Boyd, O. J., Briscoe, Thoaias, Pattisoet, ITrwer, Stockbridoe, and Offtttt, JJ.
    
      Stevenson, A. Williams, with whom was Fred. B. Williams on the brief, for the appellant.
   Offittt, J.,

delivered the opinion of the Court.

The only question presented by tbe appeal in this case is whether the fact t-hat the marriage between the parties would not have been contracted by tbe appellant but for her belief, induced by false statements and fraudulent concealment on the part of the appellee, that he was a, respectable citizen, whereas actually he was a, convicted felon and had even then committed crimes for which he was afterwards sentenced to the federal penitentiary, was sufficient ground for the annulment of the marriage contract between them, when it also appeared that the appellant, as soon as she learned of the fraud, severed her relations with the appellee and repudiated the marriage.

The facts out of which that question arises are these:

In November, 1918, Aurelia O. Brown, then eighteen years of age, lived with her parents at Germantown, a suburb of Philadelphia, where she attended the Walnut Lane School as a day student. On the 29th of that month she was introduced by the usual “girl friend” at the Adolphia Hotel to the appellee, who then went under the name and title of “Lieutenant Earl Wesley Scott.” His personal appearance, manners and conversation, as well as the air of romance that he becomingly wore as a wounded hero of the Great War, made a profound and pleasing impression not only upon Miss Brown but upon the members of her family, as indicated by the following extracts from their testimony: Mrs. Matilda Heath Brown, the grandmother of Miss Brown, said: “H'e was tall and handsome, light hair, blue eyes, pretty teeth, and very attractive manners; * * * He certainly had the power of attracting most any woman particularly as she became impressed with the various events of his career and the eloquent way he described them.” Mrs. Fanny O. Brown, her mother, said: “He was a very attractive looking boy; looked like a college athlete; blue eyesj wavy hair, beautiful teeth and remarkable conversational powers,” while the appellant herself added this to the symposium: “He was about five feet nine inches and weighed about 160 pounds, with very blond hair, blue eyes; he was very well dressed in a brown suit and overcoat, black shoes, he wore a wrist watch and was very good looking.”

After their introduction on the occasion referred to, Scott and Miss Brown frequently met and in the course of these meetings he gave her this very spirited account of his life and experiences: “Enlisted in 1914 in the Royal Flying Corps among the first ones and had been four years in the seawice of the front; he said that he was a Harvard student and quarterback on the football team, he influenced seven of his chums to enlist ;• he told how all his chums were killed and he was the only one left, how one of his chums had been wrecked in a plane and had gone down behind the German line; he told how he felt responsible for these lads. He said sooner times, when he was alone, he would see their dying faces and hear their dying words, sometimes in the night he would wake up .and think he was over there and see the dying eyes of the Germans. He spoke of how he suffered in the mud, the rain and the cold; he told how in the hospital, at the front it was just like a bloody death, with all the guns and the noises and sounds in the hospital. He told how he was sent from the hospital in the front to England and then to Canada and he was discharged from there and had a pension given to him by the English Government. He said he was in the hospital the day it was first reported the armistice was signed and he left the hospital that night, and came to the United States, and in Buffalo he tried to enlist in the American Army and due to his injuries he was put in the secret service of the United States, instead of in the army, at a salary of $5,000 a year. He also said that at the time I met him he was working for the Sun Shipping Company at Chester under orders from his chief and he received a, salary there which he was. allowed to- keep. H’e was supposed to get information in regards to slackers and profiteering; he got his information there and stayed at the Walton Hotel awaiting orders from his chief. He was afraid his money would not hold out because several back checks had not been received from the Government. lie also said that he was in Harvard at the time the war broke out aud gave me various accounts of his different experiences and his interest in football. He spoke with a Bostonian accent and said he was horn in Malden, Massachusetts, and had lived for a while in Boston, that his family had spent summers in Atlantic City at the Haddon Hall Hotel.”

Miss Brown was so much affected by the combined force of his personal charms and this stirring tale of varied adventure that, instead of going to school on November 19th, 1918, as her family thought she did, she eloped with the appellee. They first went to Media to be married, but could find no one to marry them there because the appellee was “too young,” and from there they went to Elkton, where they were married by the “Rev. McElmoyle.” After the marriage she returned home and to school “as usual.” This state of affairs continued until December 24th of the same year, when her father confronted her with proofs of the marriage, and on December 27th Scott was arrested at the Hotel Walton on a charge of impersonating a government officer. On the 26th of December, at her father’s request, the appellant spoke to Scott over the telephone, and besought him to tell her more about himself and his family. He replied that all the things he had told them were “bunk and war whoop,” which indeed proved to be the case. Upon an investigation it was discovered that Scott was an ex-convict, who had under various names led a life of crime since his boyhood. He had been convicted in the Criminal Court of Cook County, Illinois, of larceny in 1914, and had been sentenced to the Illinois State Reformatory for the “maximum term fixed by the statute”; he had been convicted of a similar crime in Philadelphia in 1913, and had been sentenced to a term of from a year to' fifteen months in the Eastern Penitentiary of Pennsylvania, and there is evidence in the record of doubtful value that he had been convicted of other crimes prior to 1918, but because of the character of the evidence we will not refer particularly to them. His photograph was filed in what was described as the “Rogues’ Gallery” of the Eastern Penitentiary of Pennsylvania, and he was known to the police of Philadelphia, Chicago, and other places, as a criminal.

Scott was arrested at the Hotel Walton on the charge of impersonating a federal official, and was subsequently tried and convicted of that offence and sentenced to six months in the Mercer County Jail. Upon his release he was tried and convicted in the District Court of the United States for the Middle District of Pennsylvania on the charge of falsely pretending, on November 15th, 1918, to be an officer and employee of the Secret Service Division of the Treasury Department of the Federal Government, with intent to defraud Emma E. Flemming’, and on the 9th of December, 1919, was sentenced to- serve two years and one month in the.United States penitentiary at Atlanta, Georgia.

When he first met Miss Brown, Scott pretended to he suffering severely from wounds received in France, and, to quote the record: “He was introduced as a. member of the Koval Flying Corps, who had been wounded in France several months before, and who just came from a hospital in Canada; he showed signs of wounds by a scar on his forehead and on his mouth, and his whole left side was affected; he walked with a slight limp and couldn’t use his left hand to any extent. It would take him about five minutes to get up from a chair, and he would gasp with agony. On the street he would have to stop with apparent pain.” These appearances, however, were entirely misleading and false, and only adopted by Scott as a part of the pose which he had assumed, and were designed to g'i've an appearance of verity to the story which he told.

The appellant stated in her testimony that she was induced to marry the defendant by his fraudulent representations and that had she known who he was she would not have married him.

Helving upon these facts, the appellant- filed her bill of complaint in the Circuit Court for CeciL County, asking for the annulment of the marriage. The defendant, who was then in the federal penitentiary at Atlanta, Georgia, although given actual and constructive notice of the suit, interposed no defence, and a decree pro confesso was taken against him. Testimony supporting the bill was filed, and the case submitted for final decree. The lower court, in a very careful opinion, reached' the conclusion that the facts referred to-by us were not sufficient to warrant an annulment of the marriage, -and accordingly dismissed the bill, the reason assigned for that conclusion being that no fraud, however gross its character, which merely induces consent to a marriage is material in a proceeding for annulment, and in support of that position the case of Moss v. Moss (1897), Prob. Div. 268, was cited.

Briefly restated, the material and essential facts involved in a review of this decree are these: An unscrupulous and plausible swindler, prepossessing in appearance and with the easy manners and. the flowing speech of his kind, secured an introduction to a school girl, whose discretion in nowise exceeded her years. At that time not only was he an ex-convict with a long criminal record, but had even then committed other crimes for which he was afterwards imprisoned. This was his real character, but this character he concealed from the appellant, and to render the deception more secure he told her the false and ivholly fabricated story of his life, which he afterwards characterized as “bunk,” and at the same time artfully simulated the appearance and actions of a wounded soldier. By such means he secured her confidence, and induced her to go through a clandestine marriage ceremony with him, which she would not have done had she known the truth.

We cannot agree with the lower court that these facts are not sufficient to warrant the anntilment of the marriage.

The record unquestionably shows that the marriage was induced by deliberate fraud.

One line of cases, of which Moss v. Moss, supra, is illustrative, holds that such a fraud, one which merely induces consent to the marriage, is not ground for avoiding a marriage contract, and that rule is very clearly stated by Ste P. PI. Jetjne, President, in these words: “But when in English law fraud is spoken of as a ground for avoiding a marriage, this does not include such fraud as induces a consent, but is limited to such fraud as procures the appearance without the reality of consent * * * In all these, and I believe in every case where fraud has been held to be the ground for declaring a marriage null, it has been such fraud as has procured the form without the substance of agreement, and in which the marriage has been annulled, not because of the presence of fraud, but because of the absence of consent. * * But wlien there is consent no fraud inducing that consent is material.”

The over nice and tenuous refinements resorted to in this case to support the conclusion that, while fraud is ground for avoiding a marriage where the consent to it is apparent, hut not real, it is not a ground where the consent is real, but induced by fraud, are in our opinion unnecessary and contrary to legal principles long established and very generally recognized. In the cases referred to by the court, in reaching that conclusion, fraud was not even a necessary element, but only an incident of the principal and essential fact upon which those cases turned, which was the want of consent. As, for instance, where one party to the marriage pretended to be another, or where one party was weak minded and did not understand the contract, or where the parties went through a real marriage ceremony, believing it to be only a mock ceremony. In such eases the real ground for relief is the want of consent, and if that be shown, it is immaterial whether it he accompanied by fraud or not, because there can be no contract unless the parties to it consent to its terms, and where it appears for any reason that the parties did not consent, there is no contract. The fault of the reasoning and the rule adopted in Moss v. Moss is that in effect it ignores the influence fraud may have in preventing the real consent or agreement of the parties to the contract. Fraud may be as effectual in preventing actual consent as mistake or a want of capacity, and, where such is the fact, in dealing with ordinary contracts its effect is to vitiate and invalidate them, and there seems to be no good reason wliy it should not have the same effect upon a marriage contract. This view is very forcibly expressed in Scott v. Seabright, 12 Prob. Div. (1887) 23, where it is said: “The courts of law have always refused to recognize as binding contracts to which the consent of either party has been obtained by fraud or duress, and the validity of a contract of marriage must be tested and determined in precisely the same manner as that of any other contract. True it is that in contracts of marriage there is an interest involved above and beyond that of the immediate parties. Public policy requires that marriage should not be lightly ■set aside, and there is in some cases the strongest temptation to the parties more immediately interested to act in collusion in obtaining a dissolution of the marriage tie. These reasons necessitate great care and circumspection on the part of the tribunal, but they in nowise alter the principle or the grounds on which this, like any other contract, may be avoided.”

In Moss v. Moss, supra, decided in the same court ten years later, this criticism of the decision in Scott v. Seabright appears: “Standing by themselves, these words may appear capable of a wider effect than any other English authority of which I am aware would warrant. But read in connection with the facts before the court, which showed a case of deception and force acting on a weakened mind, they do not appear to' me to go further than to lay down that in the case of marriage, as in that of other contracts, fraud and duress may be so employed as to render an apparent consent in truth no consent at all.” But while it may be possible to project as a pure abstraction a distinction between a fraud which induces consent, and a fraud which induces the appearance but not the reality of consent, the application of such a principle to actual concrete cases would result in much confusion, uncertainty and injustice.

A case of an apparent but not a real consent, which is frequently used to illustrate the distinction, is where a person is induced to think that a marriage is with one person where in fact it is with- an entirely different person, really does not support the distinction at all. In that case there is, of conrse, no real consent. 'That is, there is a physical consent in which the mind does not concur, because it is not cognizant of the real nature of the contract, but believes it to be a different thing from what it actually is. But that may also be equally true of a fraud which induces consent to a contract. That is, if by fraud a person is induced to assent to a proposition or an offer which is quite different from what it appears as the result of the fraud to' be, there is no real consent.

As where a person, as in Moss v. Moss, was fraudulently led to believe he was contracting marriage with a chaste woman, when at the time of marriage she was pregnant by another man, there was the same want of real consent as in Scott v. Seabright, where the contract of marriage was made because the woman as a result of fraud believed that, unless she married, she would be subjected to bankruptcy proceedings and exposure. In the one case the error related to the parties, in the other to the consideration which induced the marriage. Tn neither case did the parties actually consent to what as a result of fraud they appeared to agree to. And yet the same court avoided the contract in Scott v. Seabright and sustained it in Moss v. Moss.

But whatever may be the law of England in respect to the effect of fraud on a marriage contract, the rule in force in this State is that a marriage procured through fraud may be avoided. In LeBrun v. LeBrun, 55 Md. 496, in speaking of the jurisdiction of a court of equity to annul a marriage on that ground, it is said: “If the marriage be procured by abduction, terror, fraud, or duress, the court, in declaring it a nullity, acts in virtue of its general jurisdiction in matters of fraud affecting contracts.”

And in Ridgely v. Ridgely, 79 Md. 307, it is said: “Undoubtedly in the eye of the law marriage is a civil contract differing from other contracts in the circumstance that it cannot be rescinded by the mere consent of the parties. Being then a contract, it seems to follow that where it has been procured by fraud or duress, it may be set aside by a court whose inherent jurisdiction gives it authority to annul any ordinary contract- procured in the same way; provided the application be promptly made and before a consummation of the marriage by voluntary cohabitation.”

In the case last cited it will be noted that, in speaking of the jurisdiction of courts of equity to annul marriage contracts, it was said that it attached in cases where application was promptly made, before a consummation of the marriage by voluntary cohabitation, but that language was not intended to exclude cases where the actual status of the parties had not been changed by the intervening rights of children born or unborn, and where the application for relief is made promptly upon the discovery of the fraud. If, then, courts of equity in this State have the power to avoid a marriage procured by fraud, the question arises as to what is the nature and kind of fraud that will warrant the exercise of that power.

In dealing with that question, the age and mental condition of the person injured by the fraud are important and at times controlling factors, since it is a matter of common knowledge that persons of immature years, or those whose will is weakened by age or disease, are more easily duped by designing people than are mature persons in the enjoyment of normal health and vigor. 26 Cyc., 906.

Where fraud is recognized as a ground for the annulment of a marriage contract, it must be of such a character as to go to its very essence, and affect the free consent thereto of the injured party, and, therefore, in any inquiry as to the existence of such fraud, the capacity of the party upon whom it was practiced is a material fact.

In determining what facts will constitute such a fraud, there appears to be no rule more definite than this, that is, that where the misrepresentations or fraud relate to accidental matters, such as rank, fame, fortune, habits., temperament or the like, they do. not go to the essence of the contract and are not sufficient, but where the fraud relates to essential matters necessarily affecting the health or well being of the parties themselves or any offspring from the marriage it is sufficient. The application of these principles may be illustrated by referring to a few cases in which this question has arisen.

In Cox v. Cox (N. J.), 110 Atl. 924, where a girl seventeen years of age was fraudulently induced by the defendant’s mother, to whose care she was entrusted, to marry her son, upon application prior to the consummation of the marriage, it was annulled.

In Christlieb v. Christlieb (Ind.), 125 N. E. 486, a girl sixteen years of age was induced, by the defendant’s representations that he had never been married and had no children and was of good character, to marry him. These representations were false, and because of that fraud, taken in connection with the youth of the complainant, the marriage was annulled.

In Lyndon v. Lyndon, 69 Ill. 43, the defendant, who was a coachman, fraudulently induced the fifteen year old daughter of his employer to marry him. In securing the marriage license he committed the crime of perjury, of which crime she had no knowledge. In an opinion annulling: the marriage, the court quoted with approval the opinion in Robertson v. Cole, 12 Tex. 356, in which it is said: “The license under which the officer of the law was officiating was not issued in good faith or on truthful statements, hut, on misrepresentations and false oaths. * * * Can the law condemn this victim of deception to a perpetual association with the criminal, by whom she has been inveigled into what, as, to her, should be regarded as a mere mockery of marriage? If so, the boast of the law, that all its partialities expire in its, antipathy to fraud, will be but mere idle words, having no> foundation in truth.”

In Gatto v. Gatto (N. H.), 106 Atl. 493, the defendant induced the plaintiff to marry her by fraudulently representing to him that she w'as a, chaste woman. After the consummation of the marriage she informed him that she had been guilty of incest. In sustaining a decree of annulment the court said: “As marriage is deemed to be a civil contract and not a sacrament, fraud in a material respect which prevents a substantial meeting of the minds, of the parties in an intelligent agreement for marriage cannot be said to be immaterial, or beyond the province of the court to correct by a decree of annulment. The public policy of this state, evidenced by the statutes, the decisions, or the general consensus of opinion, does not regard a fraudulent marriage ceremony as sacred and irrevocable by judicial action; it does not encourage the practice of fraud in such cases by investing a formal marriage, entered into in consequence of deceit, with all the force and validity of an honest marriage. While marriage is a contract attended with many important and peculiar features in which the state is interested, and while it is one of the fundamental elements of social welfare, its transcendent importance would seem to demand that wily and designing people should find it difficult to- successfully perpetrate fraud and deceit as inducements to the marriage relation, rather than that such base attempts should be regarded as of trivial importance and be wholly disregarded by the courts. Unhappy and unfortunate marriages ought to- be discouraged. Sch. Dom. Rel., 24. The successful perpetration of fraud is not deemed to be a subject for judicial encouragement (Lyman v. Lyman: 90 Conn. 390, 411, 97 Atl, 512, L. R. A. 1916 E, 643), nor is the court authorized to legislate in favor of such a policy.”

In New York, in a line of casesi of which Di Lorenzo v. Di Lorenzo, 174 N. Y. 467, is representative, it is held that a marriage contract is not excepted from the general rule that any fraudulent misrepresentation of a material fact is sufficient ground for avoiding a contract induced thereby. While we are not to be understood as adopting in their entirety the conclusions reached in the cases referred to; they are cited as supporting] the principle that where a fraud practised upon a person of immature years or weak mind of such a character' as to necessarily affect the health or well being of the person injured, and where the true facts are such that no person of ordinary prudence would have made the contract with knowledge of them, induces such person to enter into a marriage contract, that contract may be avoided upon the application of the injured person provided the application is made promptly upon the discovery of the fraud, where the status of the parties has not been affected by the intervention of the rigjhtsi of children bom or unborn.

Applying these principles to the case before ns we have no difficulty in reaching the conclusion that the marriage be>tween the parties to this appeal should he annulled.

There could he no more cruel or injurious deception or one more seriously and permanently affecting the marriage relation than that practiced upon the appellant in this case. She was led by the appellee to believe that he was an honorable and honored member of society who had served and suffered in the defence of the nation in foreign lands, with whom she might reasonably have expected to live a happy and useful life. In reality he was a professional swindler whose life had been largely spent in penitentiaries and reformatories, and who was shortly after the marriage arrested, convicted, and sentenced for crimes he had committed before he met the appellant. Hot only would life with him under such circumstances bo abhorrent to a person of ordinary instincts and refinement, but every purpose of the marriage relation would he defeated.

To approve and sanction a fraud so- gross and destructive, and to condemn this school girl to live out her life bound by the ties of marriage in an alliance so degrading, would be revolting to the common sense of justice, and would profane the very marriage relation itself. She was, it is true, culpar My imprudent and indiscreet, but she was only a, child, and therefore peculiarly an object of the solicitude and protection of a court of chancery, and the appellee should not be permitted by it to retain the profits of his. fraud, which sucv ceeded only because of that very imprudence and want, of discretion so often associated with youth, upon which he relied.

.For the reasons given the decree appealed from must be reversed and tbe cause remanded in order that a decree annulling the marriage between the parties may be passed.

Decree reversed and canse remanded for the passage of a final decree in conformity with this opinion. Costs to be paid by the appellee.  