
    LINDSAY BRYANT v. LOULA BRYANT.
    (Filed 15 March, 1916.)
    Marriage and Divorce — Pregnancy—False Representations — Threats.
    Allegations made in the complaint of the husband in a suit for divorce, that the defendant falsely represented herself with child of which he was the father, and driven by threats of violence from her father and of criminal prosecution he had married the defendant, and that afterwards he found that she was not pregnant at the time, are not sufficient to sustain the action.
    Waleek, J., dissenting.
    Appeal by plaintiff at October Term, 1915, of WayNe, from judgment of Devin, J., sustaining tbe demurrer ore tenus to tbe complaint.
    
      Langston, Allen & Taylor for plaintiff.
    
    
      No counsel for defendant.
    
   Claek, C. J.

Tbis is an action by tbe busband for divorce. Tbe complaint avers tbat there were intimate and illicit relations between tbe plaintiff and tbe defendant; tbat the defendant falsely and fraudulently represented to plaintiff tbat she was pregnant, and tbat tbe plaintiff was father of tbe child with which she was pregnant, and threatened plaintiff with criminal prosecution unless be married her, and that in addition thereto tbe father of tbe defendant threatened. plaintiff with personal violence unless plaintiff married defendant; tbat on account of the fear induced by said threats of personal violence and criminal prosecution, and coerced through the fraudulent representations of the defendant, he married the defendant, but since the marriage plaintiff has learned that the defendant is not pregnant and has not bean, and he has refused to live further with her.

If the plaintiff had learned after marriage that the defendant at the time of the marriage was pregnant by another man, of which plaintiff was ignorant, it would be ground for divorce. Revisal, 1561 (4). But it is not ground for divorce that either party was unchaste or incontinent before marriage. Steel v. Steel, 104 N. C., 631. If it were, many a wife is entitled to divorce.

“It is the fiend’s arch mock
To lip a wanton and believe ber chaste.” — Byron.

But the plaintiff does not even allege that the defendant cohabited before marriage with any one but' himself, and the best reparation he could make was to marry her. So far from being entitled to rely upon her relations with him before marrying, the plaintiff was at least guilty of contributory negligence.

The plaintiff does not plead that he was deceived by the defendant being pregnant by another man, but the deception alleged is that the defendant was not pregnant by him. It is not averred that he was not iri’pari delicto.

The threat of criminal prosecution cannot be considered, for if he were not guilty of the charge, it would not have hurt him; but he admits the charge of fornication and adultery. Probably he feared proceeding for bastardy; but that is a civil, not a criminal proceeding. S. v. Morgan, 141 N. C., 726; S. v. Addington, 143 N. C., 685. If the defendant had been pregnant by him he should have paid the legal charge of saving the county from maintaining the child, if he were not just enough to “make the defendant an honest woman” by marrying her.

The plaintiff alleges “threats of personal violence” by the father if he did not make amends by marrying his daughter, which was but natural, as the plaintiff admits his misconduct. He does not set out any overt acts, that the court might see what was done by the father in his just indignation, nor does it appear that the plaintiff could not have had protection by causing the father to be bound over to keep the peace.

The plaintiff’s allegations present a most novel case. The demurrer was properly sustained.

Affirmed.

Wat.KER, J.,

dissenting: It may be that the plaintiff is in no worse case than he should be if we consider the matter solely from a moral standpoint; but we are not the keepers of his conscience nor the censors of his morals, and if he has a legal right which has been violated, the moral quality of Ms act is immaterial. He alleges tbat by tbe false and fraudulent representation of tbe defendant be was induced to marry ber, and tbat sbe made tbe false affirmation knowingly. It related to tbe essentials of tbe contract of marriage, wbicb requires capacity and consent as mucb as any other civil contract, and is governed, in tbis respect, by tbe same rules. Tbe authorities sustain tbis proposition. Tbe allegation of fraud is admitted by tbe demurrer, as mucb so as if tbe defendant bad answered and admitted it. It is suggested tbat plaintiff was not deceived by it, but tbe conclusive answer to tbis is tbat be says tbat be was deceived, because be alleges tbat be was induced thereby to enter into tbe contract, and be could not well have been induced to do so if be was not deceived. It is giving a very narrow .construction to tbe pleading to bold tbat be does not. allege deception, and tbe construction of it should be liberal, and especially as against a demurrer.

Tbe question in tbis case has been so recently and exhaustively treated in Di Lorenzo v. Di Lorenzo, 174 N. Y., 467, tbat I cannot do better than quote a passage from Justice Gray’s opinion in tbat case. After quoting from Judge Story, and declaring tbat free and full consent, wbicb is of tbe essence of all ordinary contracts, is one of tbe three indispensable elements of tbe marriage contract, be says: “Tbe minds of tbe parties must meet in one intention. It is a general rule tbat every misrepresentation of a material fact, made with tbe intention to induce another to enter into an agreement, and without wbicb be would not have done so, justifies the court in vacating tbe agreement. It is obvious tbat no one would obligate himself by a contract if be knew tbat a material representation, entering into tbe reason for bis consent, was untrue. There is no valid reason for excepting tbe marriage contract from tbe general rule. In tbis case tbe representation of tbe defendant was as to a fact, except for tbe truth of wbicb tbe necessary consent of tbe plaintiff would not have been obtained to tbe marriage. It was designed to create a state of mind in tbe plaintiff tbe operation of wbicb would be to yield a consent to marry tbe defendant in tbe belief tbat be was rectifying a great wrong. Tbe minds of tbe parties did not meet upon a common basis of operation. The artifice was such as to deceive a reasonably prudent person and to appeal to bis sense of honor and of duty. Tbe plaintiff bad a right to rely upon tbe defendant’s statement of a fact, tbe truth of wbicb was known to ber and unknown to him, and he was under no obligation to verify a statement to tbe truth of which she bad pledged herself. It was a gross fraud, and, upon reason, as upon authority, I think it afforded a sufficient ground for a decree annulling tbe marriage contract. Tbe jurisdiction of a court of equity to annul a marriage for fraud in obtaining it was early asserted in tbis State by tbe court of chancery, at a time when tbe limited powers of courts of law were inadequate for tbe purpose. Tbis jurisdiction was expressly rested upon tbe general power to vacate contracts in all cases where they bad been procured by fraud. From tbis general jurisdiction of equity a contract of marriage was not regarded as being excepted, wben 'tbe assent to it was tbe result of artifice or of gross fraud. See Ferlat v. Gojon, Hopk. Ch., 478, 14 Am. Dec., 554; Burtis v. Burtis, Hopk. Ch., 557, 14 Am. Dec., 563. If tbe plaintiff proves to tbe satisfaction of tbe court tbat, tbrougb misrepresentation of some fact wbicb was an essential element in tbe giving of bis consent to tbe contract of marriage and wbicb was of sucb a nature as to deceive an ordinarily prudent person, be bas been victimized, tbe court is empowered to annul tbe marriage. Sucb was tbe judgment of tbe trial court upon tbe facts in tbis case, and I think tbat tbe learned justices of tbe appellate division, wbo concurred in reversing tbat judgment, were in error in holding tbat tbe law of tbis State afforded no remedy to tbe plaintiff.”

Judge Story says that while marriage is regarded as an institution of society, it is yet founded upon tbe consent and free will of tbe parties, as other contracts are, and in tbat respect is governed by tbe same rules. Story’s Conflict Laws, sec. 108, N. It is said in 26 Cyc., 832, 833 : “To constitute a valid marriage, it must be entered into with tbe consent and agreement of both parties freely and intelligently given, wbicb may be expressed either verbally or in writing or implied from tbe acts of tbe parties or tbe ceremony performed; but without sucb consent on both sides tbe marriage is a nullity, although it was solemnized in form by a properly authorized minister or magistrate. Further, there must be an actual present intention on tbe part of both to entár upon an immediate and continuing matrimonial relation. Fraud or falsehood going to the essentials or fundamentals of tbe marital relation will deprive tbe contract of tbat intelligent consent necessary to its validity, and hence will render tbe marriage voidable at tbe instance of tbe injured party.”

The plaintiff makes another allegation tbat be was forced by threats and intimidation of the defendant’s father to enter into tbe contract. Tbis, of course, the demurrer admits. Tbe allegation is sufficient in form to show a threat of present or immediate bodily barm if be did not comply with tbe father’s illegal demand. Tbis vitiates tbe contract. 26 Cyc., p. 906.

It is freely conceded tbat both tbe fraud and duress must be sucb as goes to tbe fundamentals and essentials of tbe contract, but capacity and consent are surely to be considered as of tbis class. Vorhees v. Vorhees, 43 N. J. Eq., 411; McCreery v. Davis, 44 S. C., 195; Hulett v. Carey, 66 Minn., 329. They lie at tbe very foundation of tbe contract, and so say tbe books, as will appear by reference to tbe authorities above cited. Tbe fraud must, it is true, be material to tbe degree that, bad it not been practiced, the party deceived or affected'by it would not have consented to tbe marriage; but tbe fraud alleged in tbis case is of tliat kind. Di Lorenzo v. Di Lorenzo, supra. In Scott v. Shufeldt, 5 Paige, 43, a similar false representation was made, and tbe Court beld it sufficient to annul the contract.

Tbis case is much stronger in favor of tbe plaintiff than were tbe facts in tbe case of Di Lorenzo v. Di Lorenzo, which induced tbe decision there.

The antenuptial relations of plaintiff with tbe defendant, it has been beld in a well considered ease, do not deprive him of tbe right to have the marriage annulled. It is not considered, in law, as contributory to tbe result so as to have that effect. Wallace v. Wallace, 137 Iowa, 37. That case also is an authority upon tbe other question, as to fraud, discussed by me, and supports my conclusion.  