
    KING v. BREWER.
    
      N. Y. Superior Court, Special Term;
    
    
      May, 1894.
    
      J. Marriage j annulment for fraud.] A man’s secret following of a criminal occupation at the time of making an engagement of marriage furnishes a ground to the woman for the annulment of her marriage with him for fraud, where she married him after a long acquaintance and due inquiry, under a mistaken belief in his reputation as a law-abiding citizen of good moral character, and has not condoned his fraud by cohabitation after she discovered the truth.
    
    S. The same.] Defendant, in an action by a woman to annul her marriage for fraud, enjoyed at the time of the marriage a good reputation in society as a young man who attended church and acted the part of a law-abiding citizen, but had for some time previous to the marriage, unknown to the plaintiff, secretly run a pool room. The plaintiff was a young woman of twenty, of good standing in society, and had known the defendant for some years without learning anything to his detriment. She had also been assured as to his character by her brother, who made inquiries in her behalf (her father being dead), and also by her pastor. A few months after the marriage defendant was arrested for obtaining money under false pretences and confined in prison. While there the plaintiff frequently visited him under the belief that it was his first offence, but on his release shortly afterward, having in the meanwhile discovered the truth, she refused to cohabit with him,—Held, that the-plaintiff’s consent to the marriage had been obtained by fraud, which she had not condoned by her subsequent conduct, and. that she was entitled to have it annulled. •
    Triál by.the court.
    Action by Marther M. King to annul her marriage with Thomas C. Brewer on the ground that her consent had been obtained by fraud.
    The further facts are fully stated in the opinion.
    
      James R. Fancher, for plaintiff.
    We propose to show ,the progress which the law has made on this subject of the annulment of a marriage by commencing with the-common law rule and following the leading Américan. cases down to date.
    I. Annulment at common law.
    “The principle of the common law upon the question of divorcing for matter existing at the time, is well established. If the marriage was not forbidden to both parties by their relationship, it was dissoluble at the instance of one for pre-contract and impotency” (3 Dev. 543).
    II. The first American case.—Scroggins v. Scroggins, (N. C. 1832), 3 Devereaux, 535. This action was brought purely on common law grounds. There was no statute to' call in to aid. It decides: That where a white man marries a white woman, not knowing she is pregnant, and five months afterward, she is delivered of a mulatto child,, the husband is not entitled to an annulment. The opinion goes on to say : “ We know that individuals may experience much misery by an unhappy connection, where tempers are incompatible ; where there are disgusting: personal defects, moral depravity, mutual injuries, proceeding even to unfaithfulness and unchastity (p. 541). . . . We reconcile ourselves to what is inevitable. Experience finds pain more tolerable than it was expected to be, and habit makes even fetters light (p. 542). . . A married couple thus constrained may become, if not devoted in their affections, at least discreet partners, striving together for the common good, and steady friends (p. 542). . . But the fraud here consists in the other party not having the qualities and character he supposed her to have. It would be dangerous to lay down a rule of that sort (p. 544). . . There is, in general, no safe rule but this: that persons who marry, agree to take each other as they are, . . . and we canno't but say, that nothing could be more dangerous than to allow those who have agreed to take each other in terms for better, for worse, to be permitted to say, that one of the parties is worse than was expected, and, therefore, the contract ought to be no longer binding ” (p. 545).
    Upon this case as a binding precedent it was held in Long v. Long, 77 N. Car. 304 (1877), that the husband was not entitled to a divorce, although the jury found that the marriage, so far as the plaintiff was concerned, was procured by the fraud of the defendant in not disclosing the fact of her then pregnancy, and that the plaintiff immediately upon the discovery of such fact separated himself from her. The opinion proceeds with these remarks: “ 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 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.”
    Rodman, J., dissented.
    III. Massachusetts opens the door.—Reynolds v. Reynolds, 3 Allen; 605 (1862). This case was brought under a statute similar to our own, in that respect differing from the two North Carolina cases given above. Hov/ever, the Puritanic spirit breathed throughout both of the North Carolina cases, while, as will be seen, the Massachusetts Court has a more liberal spirit, in keeping with our times. The court decides : That where a man marries a pregnant woman unwittingly, not the.fruit of his loins, such fraud is ground for divorce.
    The opinion further says: “ It follows that the question whether fraud exists sufficient to vitiate a contract always depends very much on the nature .of the transaction, the means of information possessed by the parties, and their relative situation and condition towards each other. The only general rule which can be safely stated is, that to render a contract void on the ground of fraud, there must be a fraudulent misrepresentation or concealment of some material fact. What amounts to such misrepresentation or concealment, and whether the fact misstated or so withheld is material, are questions to be decided according to the circumstances developed in each case, as it arises for judicial! determination ” (pp. 606-7). . . . Nor is it unreasonable that each one should take on himself the burden of inquiring into representations concerning the character and qualities of the person whom, he intends to marry, which, by the exercise of due caution and discretion, can be ascertained to be true or false, instead of lying by and using them to defeat a contract after it has become executed, and a portion of its fruits enjoyed ” (p. 608).
    We may infer from the foregoing that if one of the parties has “ exercised due caution and discretion ’’ in attempting to ascertain the true character of the other and has failed, the obligation resting upon that person has been satisfied.
    IV. New Jersey advances a step further.—Carris v. Carris, 24 N. J. Eq. 516 (1873). This action was brought upon common law grounds purely. There was no statute to aid. The court held : That where a wife was delivered of a child two and one-half months after the marriage, and the husband was ignorant of. her condition before the marriage, this was a good' ground upon which to bring an'action to annul the marriage.
    The opinion says : “ The jurisdiction sought in this case is to annul for fraud, for fraud in the consent, and is akin to that in a case of lunacy, idiocy, or infancy, for these latter all have to do with the consent (p. S21)- . . . As a civil contract ” (marriage) “ the common law holds, among other essentials, that consent is necessary to its validity (p. 519). . . The remaining part of the question under consideration is in reference to' the sufficiency of the fraud. This is a delicate question, for the relation is peculiar, and not like other contracts, which may be dissolved by the mere act of the parties. Most serious considerations o.f public policy and good morals affect it, and demand that it should be indissoluble, except for the gravest causes. The mere presence of fraud in the contract is not sufficient to dissolve it. Neither are false representations in regard to family, fortune, or external condition sufficient (p.522). . . In granting relief, courts should always be careful that no violence is done to the nature of the relation and to sound morals. It must be extraordinary fraud alone that will justify an avoidance of the bond (p. 523)- • • The general principle of the law is, that fraud in a material part vitiates a contract, and the only reason why it does not apply with full force to the marriage contract is, that marriage is sui generis in many respects, and should not ■be vitiated even if fraudulent when against ‘ a good policy, sound morality and the peculiar nature of the relation ’ (p. 523). . . Surely there can be no ■good policy in such action as will either' compel parties to live together under these circumstances, having only the shadow of marriage, or compel them, as would be more likely, to live totally separate, a continual annoyance to each other, and a source of the greatest unhappiness. If the contract is repudiated as soon as the fraud is discovered, so that there is no acquiescence im it, good morals and the protection of the integrity of the marriage relation require that an innocent man should be relieved from so great a fraud ” (p. 523).
    ' A brief resumé of the history of the law on this point as given above shows : That the common law annulled a. marriage but on two grounds only (leaving out of consideration incestuous marriages) viz: a former marriage and impotency. The North Carolina case states the. law negatively, to wit: that character cannot be a material question, and even if a prostitute should palm herself off" as a virtuous woman and by fraudulent means become married, there is no ground for an annulment. The Massachusetts Court in an unusually long and able opinion,, makes such a case an exception to the general rule about character, and while frequently asserting that the general rule still holds, yet says justice demands that this exception be engrafted thereon. It remained for the highest court of New Jersey, after a most exhaustive and learned-exposition of the law by eminent counsel, and resting wholly upon the principles of the common law, not merely to decide -that lack of virtue was sufficient cause, but to-enunciate plainly and unmistakably that where a person.' of bad character, by imposition of fraud, marries another, the injured party may find relief in the court of extraordinary jurisdiction.
    It will be noted that all of the cases on this subject-are where the husband is the one aggrieved. The courts say that an unchaste woman shall not be at liberty to^ practice her wiles and blandishments with impunity.
    Now, if it is wrong to keep in bonds a man with an impure wife, how much greater a wrong is it to compel a refined woman to be forever united to a criminal, or to a man with criminal tastes and tendencies ? How many women can say before marriage that they have never-sinned ? Which is the greater evil, unchastity, or gambling and forgery ? The Penal Code of this State says the-latter is.
    V. The Law in New York State open for a precedent.— We have examined all the New York cases, both those.which have arisen under the statute and outside of it.
    In Scott v. Shufeldt, 5 Paige, 43 (1835), a decree of annulment for fraud was granted where a man was forced to marry a woman who was about to have a bastard child,, both being white, and the child proving to be a mulatto.
    In Blossom v. Barrett, 37 N. Y. 434 (1868), it is held', that a decree was granted for fraud where a married man induces a woman to marry him, she believing him to be-single.
    In Sloan v. Kane, 10 How. Pr. 66 (1854), it is held that: a decree of annulment for fraud was granted where a young girl under the influence of champagne was married by a priest, it appearing that both the husband and priest, had connived for mercenary motives, and that she had. never lived with said husband and had refused to acknowledge him as such.
    In Glinsman v. Glinsman, 12 How. Pr. 32 (1855), a decree of annulment was denied because before suit, brought, the offence was condoned.
    In Clarke v. Clarke, 11 Abb. Pr. 228, the case of Blossom. v. Barrett, 37 N. Y. 434, cited above, seems to have been, overruled, the facts in both cases being similar, if not exactly in point. But inasmuch as the court of appeals have never reviewed their own decision, we may rely on the latter case for the law.
    In Klein v. Wolfsohn, 1 Abb. N. C. 134 (Supm. Ct. 1876), a decree of annulment was denied where the plaintiff “ blindly relied upon defendant’s representations as to his character and property,” and where she “ heedlessly ” entered into marriage without having informed herself of" the character and means of defendant, or without even attempting to so inform herself.
    In Moot v. Moot, 37 Hun, 288 (1885), a decree was. granted on the ground of fraud; where a girl of fifteen years of age entered into a marriage ceremony, being informed her parents were willing, and with the understanding that they should not live together for three or four years, and where the marriage was never consummated.
    No appearance for defendant.
    
      
      See the next case.
    
   Gildersleeve, J.

The question here presented is a delicate and unusual one. The action is brought to annul a marriage contract, under § 1743, subd. 4, of- the Code, on the ground that the consent of plaintiff was ■obtained by fraud.

The state of facts upon which the charge of fraud is based is as follows : The parties were married on April 12, 1893. The defendant, at that time, seems to have enjoyed a good reputation in society as a young man who .attended church and acted the part of a law-abiding ■citizen of good moral character. The plaintiff had known him for some years, and for two years previous to the marriage, quite intimately. She believed him to be a man worthy of her affection. The plaintiff herself was at the time of the marriage about twenty years of age, and was a young lady apparently of religious instincts and refined nature, and enjoyed the respect and esteem of the society in which she moved. . Her brother, who seems to have stood in the place of guardian to her, as her father was dead, made investigations prior to the marriage concerning the character and antecedents of defendant, and was satisfied that there was nothing against his character. Her pastor also seems to have had a good opinion of ■defendant, and from all her friends who knew defendant ■she apparently heard nothing that would tend to cause her any doubt of defendant’s good moral character. With this opinion of defendant, she consented to marry him. It seems, however, that for some time previous to his marriage, defendant kept a pool room, unknown to plaintiff. Ostensibly, he carried on business as a stationer, and was apparently engaged in earning an honest livelihood, but he also, at the same time, rap a.pool room, which is an offense punishable by imprisonment for one year, or by a fine of not over $2,000, or both (See Penal Code,% 351). The plaintiff and defendant lived together as man and wife from the date of their marriage, i. e., April 12, 1893, until about August 1, 1893, when defendant was arrested ón a charge of obtaining money under false pretenses, and was placed in Ludlow Street Jail, where he remained a month, and was then released. T.he testimony is very meagre on this point, and I do not know whether he was let out on bail, or whether the matter was adjusted in some way. The plaintiff was made aware of his offense, but seems to have in a measure condoned it, for she visited him in prison, and seems to have acted like a model wife under trying circumstances. Her explanation of this is as follows : “ I thought it .was his first offense. I thought that if he came out he would do what was right; „ . . he promised me he would.” She also swears that after her marriage defendant admitted to her that he ■ had kept a pool room during some months previous to their marriage; but at what time after the marriage he made this confession does not appear, so it is difficult to determine whether or not she also condoned this fault or deception by continuing to live with him, or whether she left him immediately afterwards. After his release from prison, he again ran counter to the law, and got into trouble by running a Pontiac Bank; whereupon plaintiff left him for good, resumed her maiden name, ánd has since refused to have anything to do with him, except that, on one occasion, in November, 1893, she consented to grant him an interview, but refused apparently to become reconciled to him. Indeed, she swears that she has pot cohabited or-lived with him since the month of August, 1893. ^

On April io, 1894, about one year after her marriage, -she brought this action to annul the marriage contract. The defendant has not appeared in the action, but has allowed the case to go against him by default. The question here to be determined is, do the above circumstances constitute a fraud on plaintiff by defendant in procuring her ..consent to the marriage, within the meaning of § 1743, ■subd. 4, of the Code ? Plaintiff, at the time of the marriage, believed defendant to be a good man, whereas, in .point of fact, he had kept a pool room, and to that extent was a man of criminal propensities. These propensities wére further developed after the marriage ; but they existed at the time of the marriage, although they were not dis■covered by plaintiff until after the marriage. Would .plaintiff have consented to marry the defendant had she ■known that he was or had been engaged in a criminal occupation and was a man of criminal propensities ? Presumably not; although, as I have said, it is difficult to ■ determine from the evidence whether or not she condoned his deception in concealing from her the fact that he had ■kept a pool room previous to his marriage. Certainly it would seem to have been a deception on the part of .defendant to keep the plaintiff in ignorance of his pool room until after the marriage. Plaintiff did not rush ¡blindly into the marriage, but had excellent reasons for ¡supposing defendant to be a worthy person. Subsequent to the marriage she discovered that she had been deceived in defendant’s character, and that at or shortly before the time of his marriage he had been engaged in a criminal occupation. Since the marriage the bad character of -defendant has become of common repute through newspaper notoriety. It certainly seems a very hard fate for . a young woman scarcely out of her teens to find herself ¡bound to a man of criminal instincts, whom at the time -of the marriage she had supposed to be, and had good ’■■reason to believe was, an honest and worthy man. But if, after full knowledge of the facts constituting the fraud or deception, she voluntarily continued to cohabit with defendant, she cannot maintain an action for the annulment of the marriage (Code Civ. Pro., § 1750).

The testimony on this point is not very satisfactory. She learned after the marriage that he had kept a pool room previous to the marriage; but whether or not she left him immediately after such fact had come to her knowledge or not does not appear. When he was arrested for obtaining money on false pretenses she visited him in prison, and sympathized with him because she thought it was “ his first offense,” and that he would do better after he got out. This would imply that at that time she had not yet heard of the pool room, since she thought the charge upon which he was arrested was his first offense. It appears from the testimony that after he came' out of jail she did not again cohabit with him. I think, therefore, it is safe to assume that she did not condone the fraud or deception by voluntarily cohabiting with him with a full knowledge 'of the facts constituting the fraud.

When I look for some precedent to sustain a decree of-annulment herein, the result is not encouraging; but the authorities on the other side are.not conclusive. The ■case of Klein v. Wolfsohn (1 Abb. N. C. 134) would seem to hold against plaintiff. But in that case the plaintiff “ blindly relied upon defendant’s representations as to his ■character and property,” and “ heedlessly ” entered into the marriage without informing herself of the character and means of defendant; whereas in the case at bar the plaintiff had excellent reasons for believing implicitly in the good character of the defendant. She had known him intimately for two years, and everyone spoke highly of his moral worth, including those in whom she had perfect ■confidence, i. e., her brother, who had made investigations as to defendant’s character, her pastor, and others. Let us reverse the position of the parties in the case at bar. .Let us suppose the wife bore an excellent reputation and everyone spoke highly of her, and those who knew her, and in whom the husband had perfect confidence, assured him that she was above all reproach, and he married her, believing her to be a good, virtuous woman ; and then suppose that, after the marriage, he learned that she had been, at the time of the marriage, a prostitute ; could he not maintain an action to annul the marriage for fraud ? I think he certainly could (See Carris v. Garris, 24 N.J. Eq. 516; Scott v. Schufeldt, 5 Paige, 43). And why, then, should not the same rule hold good where the position's are reversed, and it is the wife who seeks to have the marriage annulled, and to be freed from a criminal whom she has married in the conviction tl"at ■ he was a good and worthy man ? This court, at Equity Term, has gone very far in maintaining this proposition. In the case of Keyes v. Keyes (6 Misc. 355), the doctrine is laid down' that where defendant, by fraudulently representing himself as an honest, industrious man, induced plaintiff to many him, when, in fact, he was a professional thief, .whose picture was in the Rogues’ Gallery,” and who, at the time of the trial, was in State Prison, the case was within the provisions of § 1743 of the Code, and that a decree of nullity on the ground of fraud should be granted. The facts in that case are not quite the same' as in the case at bar, but the same principle applies to both cases. The learned counsel for the plaintiff, in his excellent brief, cites a number of cases tending to show the gradual progress from a somewhat Puritanical view of the subject, as exemplified in the case of Scroggins v. Scroggins (3 Devereaux, N. Car. 535), towards a more liberal view, as manifested in the case of Keyes v. Keyes, above referred to. I do not think that any of the cases can be regarded quite as a precedent for the case at bar, although some of them go far towards sustaining this court in granting the decree here asked for. In this case, as in the Keyes case, there will be no children to suffer by reason of the annulment of the marriage. Justice and right seem to require the separation of these two lives, so wrongly and unfortunately united. A court of equity does not go too far when it gives this young plaintiff, who has been grievously wronged while doing no wrong herself, .the opportunity to commence life again free and untrammeled.

After a careful consideration of the circumstances of the case, I am of opinion that a decree annulling the marriage contract should be granted.  