
    Constance B. Price, App’lt, v. Walter J. Price et al., App’lts.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed April 21, 1891.)
    
    
      
       1. Dower—Marriage—After five years absence. ,
    Where a wife absents herself from her husband for five successive years without being known by him to be living within that time, and he contracts a second marriage, which is annulled in an action between them, because the first wife is living, such second wife is not entitled to dower in the real estate owned by him at the date of the entry of judgment of nullification.
    3. Same—Annulment of marriage.
    Sections 8 of 1R. S., 740, and §48 of 3R.S., 146, denying the wife’s right to dower when divorced for her adultery, do not relate to the rights of persons whose marriages are annulled, but only to those of persons divorced for adultery.
    Cross appeals from an interlocutory and final judgment of the general term of the supreme court in the first judicial department, awarding dower to the plaintiff.
    April 23d, 1839, Walter W. Price and Susanna Butler intermarried in England and lived together as husband and wife at Birmingham for about one year, when he came to the United States where he resided until his death.
    July 1, 1865, Price and Constance Bridget Tallón, the plaintiff in this action, intermarried at the city of New York, and lived together as husband and wife until July, 1871, having two children born unto them, who survive.
    In May, 1873, Price began an action in the supreme court of this state to have his last marriage annulled on the ground that the first wife was then living, which resulted in a judgment entered April 15, 1874, annulling the marriage. The court found that the first wife Susanna had absented herself from her husband since 1843, had not been heard of by him for more than five years, and that the marriage between Walter W. Price and Constance B. Tallón was contracted in good faith, believing that his former wife was dead. It was adjudged that their marriage was null and void, but “ only from the time that its nullity is hereby pronounced, to wit, from and after the date of this judgment.” It was further adjudged that the children of the marriage were legitimate and entitled to succeed in the same manner as legitimate children to the real and personal estate of the father and mother or either of them. At. the date of the entry of this judgment Walter W. Price owned the real estate described in the interlocutory judgment in this action, about fourteen acres of which 0 he conveyed in July, 1875, to Walter J. Price. June 6, 1876, Walter "W. Price died seized of all of said real estate except that so conveyed, which he disposed of by will. This action was begun by the plaintiff June 7, 1880, to have dower admeasured in the real estate of which Walter. W. Price .was seized at the date of the entry of the judgment' annulling the marriage. The defendants are the devisees, grantees and mortgagees of the devisees of Walter W. Price. They set up in their answers, among other defenses, (1) That the marriage was null and void and had been so adjudged ; (2) That February 25, 1874, the plaintiff received from Walter W. Price a sum of money in satisfaction of all claims to dower in his property.
    
      Charles Jones„ for pl’ff; David Wilcox and James R. Marvin, for def’ts.
    
      
       Reversing 37 N. Y. State Rep., 110.
    
   Follett, Ch. J.

The primary question underlying this case is whether, when a wife absents herself from her husband for five successive years without being known by him to be living within that time, and he contracts a second marriage which is annulled in an action between them because the first wife is living, such second wife is entitled to dower in the real estate owned by him at the date of the entry of the judgment of nullification ?

In this state the right to dower arises out of the rules of the common law, except in so far as they have been changed by our statutes.

By the common and canon law a marriage by one having a spouse living and undivorced, though the spouse had been absent and believed to be dead, was void ah initio, and the person contracting a second marriage was guilty of a felony. 1 Scrib. Dow., 115, § 5; 1 Black. Com., 436; 2 Steph. Com., 11th ed., 256; 2 Kent’s Com., 79 ; 1 Bish. M. & D., § 299.

An examination of the legislation on the subject of marriages between persons, one of whom has a spouse living, becomes necessary to enable us to determine whether the rule of the common law has been changed.

By chapter XI of the first year of James the First, it was enacted that a person marrying a second time, whose husband or wife had been continually absent for seven years immediately preceding the second marriage and not known by such person to be living within that time, should not be guilty of bigamy. The rule prescribed by this statute has' remained the law of England to this day. 4 Steph. Com., 11th ed., 90. A statute containing the same provisions, though reducing the period of absence to five years, was enacted in this state February 7, 1788 (2 J. & V., 214), which with slight modifications has been continued in force to the present time. 1 Bev. Acts of 1801, 122; 2 Bev. Laws of 1813, chap. 102; 2 B. S., 687; Penal Code, §§ 298, 299.

It was held in this state that the statute concerning bigamy did not render such a second marriage valid. Fenton v. Reed, 4 Johns., 52; Williamson v. Parisien, 1 Johns. Ch., 389, and such is the rule in England. Shelf. M. & D., 89, 223, 230, 479.

Such was the condition of the law when the Bevised Statutes of this state were enacted, and, experience having proved that the statute in respect to bigamy had induced the contraction of second marriages by persons having spouses who had been absent for five years and believed to be dead, which, after the return of the absent husband or wife, were found to be void and the issue illegitimate, it was, for the purpose of alleviating some of these consequences, enacted. 2 B. S., 139.

“ Sec. 5. No second or other subsequent marriage shall be contracted by any person, during the lifetime of any former husband or wife of such person , unless,” * * * and “every marriage contract in violation of the provisions of this section shall, except in the case provided for in the next section, be absolutely void.”
“ Sec. 6. If any person whose husband or wife shall have absented himself or herself, for a space of five successive years, without being known to such person to be living during that time, shall marry during the lifetime of such absent husband or wife, the marriage shall be void only from t'he time that its nullity shall be pronounced by a court of competent authority.”

It was also provided, 1 R. S., 142:

“ Sec. 20. The chancellor (supreme court) may, by a sentence of nullity, declare void the marriage contract for either of the following causes existing at the time of the marriage:
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“ 2. That the former husband or wife of one of the parties was living; and that the marriage with such former husband and wife was then in force.”
# * * * * * *
“ Sec. 23. When it shall appear and be so decreed that such second marriage was contracted in good faith, and with the full belief of the parties that the former husband or wife was dead, the issue of such marriage born or begotten before its nullity be declared shall be entitled to succeed in the same manner as legitimate children to the real and personal estate of the parent who, at the time of the marriage, was competent to contract; and the issue so entitled shall be specified in the sentence of nullity.”

By these provisions such marriages ceased to be void and became voidable and subject to be annulled, with the consequences incident to the annullment of marriages by the rules of the common law, except in so far as they were changed by the above sections and the two hereinafter quoted.

By the common law, neither dower nor curtesy arises from a voidable marriage, if it be annulled during the lifetime of the parties, and when annulled by the judgment of a competent court they are in the same situation in respect to each other, and to rights in the property of each other, as though a marriage had never been entered into, and the children born of it are illegitimate, unless legitimated by statute. Aughtie v. Aughtie, 1 Phill., 201; Cage v. Acton, 1 Ld. Raym., 521; Bish. on M. & D., §§ 116, 118, 690, 712; Bish. on H. & W., §§ 247, 479, 482; 1 Bright H. & W., 7, 322; 2 id., 366 ; 1 Roper H. & W., 332; Stewart M. & D., §§ 147, 429, 437.

And in the absence of a statute saving the right to dower, the dissolution a vinculo of a valid marriage, for the fault of either party, bars it. Barrett v. Failing, 111 U. S., 523; Frampton v. Stephens, 21 Ch. Div., 164; 14 Am. & Eng. Encly. Law, 537; 5 id., 921.

It is contended by the learned counsel for the plaintiff that the rule of the common law was altered by the sections of the Eevised Statutes hereinbefore set forth and by the two next quoted, which are the only ones relied on as effecting a change.

“ Sec. 8. In case of divorce, dissolving the marriage contract for the misconduct of the wife, she shall not be endowed.” 1 B. S., 740, § 8.
“Sec. 48. A wife being a defendant in a suit for divorce brought by her husband, and convicted of adultery, shall not be entitled to dower in her husband’s real estate, or any part thereof, nor to any distributive share in his personal estate.” 2 R. S., 146, § 48.

The last section was repealed by chap. 245, Laws 1880, after it had been made a part of § 1760 of the Code of Civil Procedure.

In Wait v. Wait, 4 N. Y., 95, it was held that adjudgment dissolving a valid marriage for the adultery of the husband did not cut off the wife's inchoate right to dower in lands of which he was at the date of the judgment, or theretofore had been seized; and she having survived, dower was assigned. The court rested its decision on the ground that the sections denying a wife’s right to dower when divorced for her adultery by fair implication saved it when a divorce was granted for the adultery of the husband. The learned judge who wrote in the case last cited seems to have overlooked Charruaud v. Charruaud, 1 N. Y. Leg. Obs., 134; Day v. West, 2 Edw. Ch., 592; and Reynolds v. Reynolds, 24 Wend., 193, and the judgment has not escaped criticism, Moore v. Hegeman, 27 Hun, 68, aff’d 92 N. Y., 521; 2 Bish. M. & D., § 706, but the result reached by it has been lately confirmed by statute. Code Civ. Pro., § 1754.

The changes effected by the Eevised Statutes in the rights of parties entering in good faith into a marriage while one has a living and undivorced spouse who has been absent for five years and not known to be living, are (1) the marriage is not void from the beginning, but vbidable ; (2) when judicially annulled, it is only void from the date of the judgment; (3) when so annulled, the issue may be adjudged entitled to succeed to the estate of the parent who was competent to marry, in the same manner as legitimate children; (4) it has been held that while such a marriage remains unannulled the cohabitation of the parties is not adulterous, Valleau v. Valleau, 6 Paige, 207; also that the survivor is entitled to administration, White v. Lowe, 1 Redf., 376; and before the passage of the acts for the. protection of married women, that the husband.could hold and transfer the personal property of the wife. Cropsey v. McKinney, 30 Barb., 47.

We do not express the opinion that other changes than these mentioned have not been wrought, for we are only concerned with the claim that it has changed the common law in respect to the right of a wife to dower under such a marriage after it has been judicially annulled.

■ The absence of a husband or wife for five years, unheard of during that time, and who is believed to be dead, is not in this state a cause for an absolute divorce.

The effect of a judgment annulling a marriage upon the right of a wife to dower has never been determined in this state in any-reported case, except in the one at bar. In Spicer v. Spicer, 16 Abb., N. S., 112, the second marriage, through which the wife claimed dower, was never dissolved, and she survived her husband, nevertheless, dower was denied her. In Jones v. Zoller, 29 Hun, 551; 32 id., 280 ; S. C. sub. nom. Jones v. Fleming, 37 id., 228; rev’d. 104 N. Y, 418; 5 N. Y. State Rep., 695, the second marriage had not been dissolved and the wife survived her husband. In Brower v. Bowers, 1 Abb. Ct. App. Dec., 214, and Griffin v. Banks, 24 How., 213, rev’d. 37 N. Y., 621, the voidable marriages considered remained in force until the death of one of the spouses, and were never judicially annulled.

In the case at bar the learned general term rested its judgment-on the authority of Wait v. Wait, supra, which was decided upon the ground that the sections above quoted preserved the wife’s inchoate right of dower in case she was innocent and he guilty, but in the case at bar it was found and adjudged in the action wherein the marriage was annulled, that both parties contracted their marriage in good faith, believing that the husband’s former wife was dead; which judgment is declared by the statute to be conclusive between them. 2 R. S., 144, § 37.

The referee upon the trial of the issue in this action found, and the general term affirmed the finding, that both parties contracted their marriage in good faith. But we do not think those-sections (8 and 48) relate to the rights of persons whose marriages are annulled, but only to those of persons divorced for adultery. There now is, and always has been a broad distinction made by the common law, and in the statutes of this state, between actions brought to annul marriages, by reason of the incapacity of the parties to legally contract them, and actions brought for their dissolution by reason of acts committed after their due and legal solemnization. The former class was provided for by article second of the Bevised Statutes and the latter by the third and fourth articles of the same chapter. The same distinction is still preserved by the Code of Civil Procedure. Title 1, chap. 15, Code Civ. Pro.

Section 48 above quoted is contained in the third article, which relates to divorces a vinculo on the ground of adultery, and - has no application to actions or judgments annulling marriages for causes existing prior to their solemnization.

The word “ misconduct,” in the eighth section, 1 R. S., 740, has been held by this court to mean adultery, Van Cleaf v. Burns, 118 N. Y., 549 ; 29 N. Y. State Rep., 860, and the section is not applicable to this class of actions.

The plaintiff is not entitled at common law nor under the statutes of this state to dower in any of the lands described in her complaint

The conclusion reached renders it unnecessary to consider the other questions raised by the defendants’ appeals, of those presented by the appeal taken by the plaintiff.

The judgments and orders reviewed, subsequent to the judgment entered on the report of H. H. Anderson, referee, reversed, and the judgment entered on the report of H. H Anderson, referee, on the 9th day of August, 1888, dismissing the complaint, with costs, is affirmed, with costs to each of the defendants appearing by separate attorneys.

All concur.  