
    Stephen R. Fisk, Appellant, v. Mary Frances Fisk, Respondent.
    
      Divorce—jurisdiction to annul a ma/i'riage because of fraud—equitable/not-statutory — the, fact that the wife was a divorced woman is not enough.
    
    The jurisdiction Of the court to annul a marriage upon the'ground.of fraud is not derived from statute, hut arises from the inherent jurisdiction of a court of chancery to, set aside-any contract into which one of the parties has-been induced to enter by fraud. ■
    The fraud, however, which, will induce the court to set aside a contract of marriage, is different from.that which will lead the court to set aside an ordinary contract, whether executed or executory; the contract of marriage forms the basis of the family, and both its formation and its.dissolution affect the body of the community ,
    It is well settled that no fraud will avoid a marriage which does not go to the very essence of the contract and which is not, in its nature, such a thing as would prevent the party; either from entering into the marriage relation, or suchas, after the party has entered the. relation, would preclude him or her •from the performance of the duties which the law and custom imposes upon a party to such a contract.
    If, when the relation is entered into, the party is competent to make a marriage contract, is mentally competent to perform the. duties which the contract involves, and is physically able to meet its obligations, nothing' more can be required.
    The fact that a husband supposed that his wife had not, at the time when he married her, ever been married, when in fact she had formerly been married to a .person’from whom she- had -procured a valid divorce, is insufficient" to support an action to annul the marriage as one procured by fraud. -
    Appeal by the plaintiff, Stephen B. Fisk, from • a judgment" of the Superior Court of the city of Few York in favor of the. defendant, entered in the office of the clerk of said court on the 4th day of June, 1895, upon the decision of the court rendered after a trial before the court without a jury dismissing the complaint.
    
      A. Oakey Hall and Jamies P. Niemcmn, for the appellant.
    
      John G. Coleman and J. Adrianee Bush, for the respondent.
   Rumsey, J.:

The action was brought to annul a marriage which the plaintiff claims was procured by fraud, practiced upon him by the defendant. The marriage took place in 1861. The plaintiff was younger than the defendant. The fraud of which he complains is, that the defendant was a divorced woman at the time of the marriage,, whereas he supposed that she had never been married. He does not complain that any false representations were made to him on the subject, or that the divorce was not valid. In fact, he concedes that the divorce was a valid one, and that she was not married at the time she became his wife. The plaintiff says that the fact of his wife’s previous marriage and divorce' was not discovered by him until the year 1867, and that he at once ceased to cohabit with her, and that he never has cohabited with her since that time. As a matter of fact, it appears that soon after that time he went to-Europe, where he remained seven or eight years, and that upon hip, return to this country he continued to live separate from the defendant, and that they had not seen one another from the time the plaintiff went to Europe until the trial of this action. . The action was brought in 1894. The court dismissed the complaint and judgment was entered upon that decision.

The learned judge at Trial Term held that, conceding the story of the plaintiff to be true, the fact that the defendant married him without disclosing to him her previous marriage and divorce was not such a fraud as would warrant an annulment of the marriage.

There has been in this State a considerable increase in the number of actions to annul marriages upon the ground that they were procured by the fraud of one of the parties, and the reported cases show a considerable departure from the strict rules which have heretofore been laid down on the subject. The right to bring such an action is now established by section 1743 of the Code of Civil Procedure, but the jurisdiction of the court to annul a marriage upon the ground of .fraud is not acquired by the provisions of any statute. It arises from the inherent jurisdiction of a court of chancery to set aside any contract when one of the parties was induced to enter into it by fraud upon him. (Ferlat v. Gojon, Hopkins’ Ch. 478.) But while the jurisdiction to annul a marriage is based upon the ordinary equity jurisdiction of the court, the fraud which will induce the court to set aside a contract .of marriage is something different from "the fraud which will induce the court to set aside an ordinary contract which has been executed, or even a contract' which is still •executory.. The contract of marriage is something more than a .mere civil agreement between the parties, the existence of which -affects only themselves. It is the basis of the family, and its dis-solution, as well as its formation, is matter of public policy in which ’the body of the community is deeply interested, and it is to be góv«erned by other considerations than those which obtain with regard ■■-to- any ordinary civil contract inter partes. For that reason the -courts have been strict in laying down and in maintaining rules as to ¿the annulment of this contract, and in requiring a somewhat higher •degree of proof before permitting it to be set aside for fraud, than ■is requisite for the annulment of ordinary contracts, and in insisting ■also that the fraud which shall invalidate the contract must be something more than a mere misrepresentation as to. collateral matters.

Without examining fully into all the cases upon this subject, 'it may be sufficient to say that the rule is well settled that no ’fraud will avoid a marriage which does not go to the very essence -of the contract, and which is not in its nature such a thing as either -would prevent the party from entering into the marriage relation, or,, having entered into it, would preclude performance of the duties which the law and custom imposes upon the husband or wife as a party ■to that contract. (1 Bishop on Marr. & Div. §§ 183, 184; Schouler on Husband & Wife, § 27; Reynolds v. Reynolds, 3 Allen, 605.) Within that rule it has been held that fraudulent representations of •one' party as to birth, social position, fortune, good health and ■temperament do not vitiate the contráct (1 Schouler on Husband & Wife, § 27); and so also, it seems to be a well-established rule that no misconception of one party as to the character or fortune or temper of the other, however brought about, will support an allegation of fraud on which a dissolution of the marriage contract, when once executed, can be obtained in a court of justice (1 Bishop on Marr. & Div., supra ; Weir v. Still, 31 Iowa, 107). If, when .the relation is entered into, the party is competent to make that contract, is mentally competent to do the duties which the contract involves, and physically able to meet its obligations, nothing more can be required; and however the other party may be disappointed as to physical or mental characteristics which he or she expected would exist, such disappointment is no ground for setting aside the , contract, which the public gqod requires should be rendered indissoluble except for the gravest reasons. In the application of this rule the courts have properly proceeded to an extent which seems sometimes to work a hardship. Undoubtedly it is gravely important to every respectable man that the woman whom he .takes to wife should be virtuous; and yet it is thoroughly 'well settled that the mere fact that the woman, previous to her marriage, has, without the knowledge of her husband, been guilty of incontinence affords no ground for setting aside the marriage contract, if she has reformed. (Reynolds v. Reynolds, 3 Allen, 605; Leavitt v. Leavitt, 13 Mich. 452; 1 Bishop on Marr. & Div., supra.) If that be true — and it is undoubtedly the well-established law — much more may it be said that where the only objection is that the party complained of has once been married, but is now free to enter into a new relation, it can afford no possible barrier to her entering into such relation; and if her previous condition was not disclosed, that is no such fraud as would warrant the court in setting aside the marriage contract.

The case of Blank v. Blank (107 N. Y. 91) has no application here. It appears that the defendant in that case, who was the wife, represented herself to be a widow, whereas she had been divorced and her former husband was living, and the decree of divorce was not a valid one, so that, in fact, she was not competent to enter into the marriage contract.

. We are aware that there are some cases in this State which have gone beyond the rules above laid down and sought to annul a marriage for less cogent reasons. The case of King v. Brewer (8 Misc. Rep. 587) may be cited as an illustration. In that case it was held by the Special Term of the Superior Court of the city of Hew.York that where the defendant enjoyed a. good reputation at the time of his marriage, and the plaintiff learned nothing against his character, but in fact he was engaged in a disreputable occupation, that was such á fraud practiced upon the plaintiff as would entitle her to avoid the contract. There is no other case reported which would warrant such an extension of the rule, and we are not willing that it should be so extended, or to approve the doctrine laid down in that case. We are inclined rather to adhere to the stricter rule of the cases cited above, and to hold that the marriage is not to be dissolved unless the conditions exist tvhich are stated in the former, part of this opinion. It was held in O Clarke v. Clarke (11 Abb. Pr. 228) that the fact that one of the parties had been divorced, and that that fact had not been disclosed to the other party, was not a ground for annulling the marriage on the ground of fraud. The rule laid down in that. case is one which we approve. It is the one applied in this action and which we think should be applied in actions of this nature.

The judgment must be affirmed, with costs.

Van Brunt, P. J., Barrett, O’Brien and Ingraham, JJ., concurred.

Judgment affirmed, with costs.  