
    Thomas W. Berry, Appellant, v. Margaret Berry, Formerly Known as Margaret Fyfe, Respondent.
    First Department,
    January 8, 1909.
    Husband and wife—annulment of marriage—former wife living — court—jurisdiction in matrimonial actions — principles of equity-control.
    While the entire jurisdiction of the Supreme Court in matrimonial cases is conferred and regulated by statute,.yet in the exercise of that jurisdiction, unless controlled by positive enactment, it proceeds as a court of equity.
    In actions to annul a marriage under the provisions of the Code of Civil Procedure the court acts as a court of equity.
    Section 1745 of the Code of Civil Procedure, providing that an action to annul a marriage upon the ground that a former husband or wife of one of the parties was living and the former marriage was in force may be maintained by either of the parties to the second marriage during the lifetime of the other, should not be construed to mean that a husband who has knowingly contracted a bigamous marriage may maintain an action to annul the same. The object of the section is to protect the innocent and relieve those who have acted in good faith.
    Said' section should be construed to mean that a second marriage can' be .annulled ' on the ground aforesaid on ,tlie suit of the party whose spouse was living only when contracted in good faith after the former spouse has absented himself' or herself for five successive years last past without being known to the plaintiff to have been living during that time.
    Hence, where a husband remarried before the lapse of five years with no reason to believe that his former wife was dead, and after discovering that his first wife was living continued to cohabit with the second wife, the court acting upon general principles of equity, will not annul the second marriage at the husband's suit, but will leave him where he has placed himself.
    Scott and Ingraham, JJ., dissented, with opinion. ^
    Appeal by the plaintiff, Thomas W. Berry, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 13th day of March, 1908, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the complaint upon the merits.
    
      H. B. Bradbury, for the appellant.
    
      Charles Weishaupt of counsel [I. G. Frauenthal, attorney], for the respondent.
   Clarke, J.:

This is an action to annul a marriage brought by the husband upon the ground that at the time of the marriage he had a legal wife, to: whom' he had been previously married, living and who was still living.

The learned court found, as matters of fact, that on or about'the 15th day of September, 1885, at Leeds in the county of York, England, plaintiff and one Emma Bulmer were married, and that subsequent to said marriage they lived together as man and wife for the period of about one year; that plaintiff left England and cathe to the city and State of New York, where lie has ever since resided; that at the time he left England he promised to send for said Emma Bulmer to come to New York at some future time; that prior to and continuously from September 15, 1885, to May 24, 19.07, the said Emma Bulmer resided in Leeds ; that during all of said period plaintiff’s father resided at 15 Fox and Grapes Yard, Leeds, and that the said Emma Bulmer and her whereabouts were well known to him; that on or about December 31, 1896, plaintiff received a letter dated December 21, 1896, from one Basfield, residing in Leeds, the material portions of which read as follows: “ I was sorry when I heard of Emma’s .death. ‘ I hope you. will have ■ got over it before this. I should think .you will be glad to have some one about you as a friend. Albert says you were just about to send for her over or had sent her money to come with. I am sorry at your disappointment and hope you will soon find comfort in another’s company.” That on or about February 22, 1897, plaintiff and defendant were married in the city of New York and lived and cohabited together as man and wife in said city from the time of such marriage to and until about the 1st day of March, 1906 ; that before contracting the marriage plaintiff failed and neglected to communicate with the proper and official authorities in Leeds, county of York, England, to ascertain the truth or falsity of the letter hereinbefore referred to, so far as it concerned the alleged death of said Emma Bulmer, or to make further necessary inquiries; that at the time of his marriage with the defendant plaintiff in answer to the officiating rector, when asked if he was single, widowed or divorced, replied that he was single,,and in reply to the question “ number of groom’s marriage,” replied that it was his first; that in the month of August, 1904, plaintiff went to Leeds, England, on a visit, met said Emma Bulmer, conversed with her, and returned the same month to the city of New York; that well knowing that said Emma Bulmer was still living, plaintiff continued to live and cohabit with defendant, as her husband up to and until March, 1906; that the allegation under oath in the complaint that at the time of the marriage between plaintiff and defendant, plaintiff had not seen nor heard from the said Emma Bulmer for a long period of time, to wit, more than five years,” is untrue; that plaintiff has not proven or established that Emma Buhner absented herself for five years or for any period. And as conclusions of law, that the plaintiff has not acted in good faith ; that the marriage should not be annulled at the suit of the plaintiff; that plaintiff has not made out a cause of action, and that the complaint should be and was thereby dismissed upon the merits.

The complaint was verified on the 13th of March, 1906. The evidence sustains the findings of fact and establishes that the marriage of plaintiff to the defendant was void under section 3 of the Domestic Delations Law (Laws of 1896, chap. 272), which provides that “ A marriage is absolutely void if contracted by a person whose • husband or wife, by -a e former marriage, is living, ■ unless -x- * * g_ guch former husband or wife lias absented himself or herself for five successive years then last passed, without being known to.such person to be living during that time.”- Section 4 thereof provides: “ Voidable marriages.— A marriage is void from "the time its nullity is declared by a court-of competent jurisdiction^ if either party thereto : * * . ■* 5. Has a husband or a wife by a former marriage living, and such former .husband or wife has absented himself or herself for five successive years then last passed, without being known to such party to be living during that time. Actions to annul a void or voidable marriage may be brought only as provided in the Code of Civil Procedure.”

Section 1743 of the Code of Civil Procedure provides that An action may also be maintained to procure a. judgment, declaring' a marriage contract void and annulling the marriage for either of the following causes existing at the time of the marriage: * * * 2. That the former husband or wife of one of the parties was living and that the marriage with the former husband or wife was then in force.” Section 1745 provides that An action to annul a marriage upon the ground that the former husband or wife of one of the parties was living, the former marriage being in force, may be maintained by either ef the parties during the lifetime of the other, or by the former husband or wife,” Provision is. also made for legitimatizing children where it appears, and the judgment determines, ■ that the subsequent marriage was contracted by at least one of the parties thereto in good faith, and with the full belief that the former husband or wife was dead, or without any knowledge on the part of the innocent party of such former marriage.

The question here presented is whether the conclusions of law are supported by the findings.©! fact, whether the husband who contracted a void marriage-in 'bad faith can main tain an, action to relieve himself of the consequences of said marriage by a judgment of the court annulling the same, and so obtain the.benefit of the provisions of section 1754 of the Code of Civil Procedure providing that, “ A final judgment annulling a marriage rendered during the lifetime of both the parties, is, conclusive evidence of the invalidity of the marriage in every court of record or not of record^ in any action or special proceeding, civil or criminal.” . The learned Special Term, in its opinion, stated that “ It is apparent that his allegation that he had not seen nor heard of the said Emma Bulmer for more than five years is untrue. It further appears from the complaint itself that plaintiff alleges that he lived with the defendant ‘as husband and wife from the 20th day of February, 1897, until about the first day of March, 1906.’ And, again, ‘ that since it has been so ascertained that the said Emma Bulmer was living and is still living, plaintiff and defendant have not cohabited together.’ But the record shows that plaintiff was certainly aware that Emma Bulmer was living in 1904. It is manifest, therefore, that plaintiff has sworn falsely in his complaint upon this head. And that he should now invoke the jurisdiction of a court of equity under such circumstances is reprehensible. The defendant should have been the plaintiff here. The plaintiff, at all events, by his conduct has forfeited any right to a hearing or to a decree.”

Does the court, in actions to annul a marriage, sit as a court of equity, and is the equitable maxim that a plaintiff must come into court with clean hands to be applied % Griffin v. Griffin (47 N. Y. 134) was an action to annul a marriage brought by the husband upon the ground that the former husband of the defendant was living at the time of making such marriage contract. Defendant had judgment and an allowance and costs were awarded, and the question before the court was the powér of the court to make such an award. Rapallo, J., said: “ It is conceded that there is no statute in terms authorizing the order, and that, if sustained, it must rest upon the incidental powers formerly vested in the Court of Chancery, in cases of this description, and to- which the Supreme Court has succeeded. The 35th section of art. 2, title 1, chap. 8, part 2 of the Revised Statutes (2 R. S. 144) provides, that suits to annul marriage shall be by bill, and shall be conducted in the same manner as other suits prosecuted in courts of equity; and the court shall have the same power to award issues, to decree costs, and to enforce its decrees, as in other cases.”

Referring to the provisions for alimony in divorce and separation cases, the court said: “ It has been the constant practice of the Court of Chancery, both before and since the Revised Statutes, to make equitable provision for all these matters; and in so doing, it has been guided by the decisions of the ecclesiastical courts of England in similar cases. * * * This has not been done upon the theory that the Court of Chancery of this State was vested with the jurisdiction of the ecclesiastical courts of England in matrimonial cases, or that (except in special cases hereafter referred to) it ever possessed any jurisdiction in cases of divorce other than that which was conferred by our own statutes; but upon the ground of the general equitable jurisdiction of the court, and also that when our statutes did confer jurisdiction upon the Court of Chancery, in those actions for divorce which by the English law are solely cognizable in the ecclesiastical courts, the grant of that jurisdiction carried with it by implication the incidental powers which were indispensable to its proper exercise, and not in- conflict with our own statutory regulations on the same subject. * * * Jurisdiction in cases oE divorce was conferred here, not as a special and limited jurisdiction granted to a common-law court, but it was granted to a chancery court; and the court; in administering it, has always called to its aid - its own equity powers and the decisions of the ecclesiastical courts of England in like cases. The Court of Chancery of this State has, in some cases, entertained bills to declare the nullity of marriages, independently of any statute conferring jurisdiction. But these were cases in which the marriage was sought to be declared void for some cause for which chancery had power to cancel or avoid all contracts, such as lunacy or fraud, and it was held that the marriage contract was not excepted from the operation of this general jurisdiction ; and that if it was not exercised by the Court of Chancery in England in matrimonial cases, it was not for wanit of jurisdiction, but because other tribunals existed there, competent to afford full relief. * * * Prior to 1787, there was no tribunal in • this State authorized to grant a divorce, and the only remedy of aggrieved individuals in matrimonial cases Was by application to the Legislature for relief. In 1787, an act was passed reciting that it was more advisable for the Legislature to make general provision 'for such cases, than to afford relief to individuals without a proper trial, and therefore, _ conferring jurisdiction upon the Court of Chancery to' decree divorces in cases of adultery. This was the only cause of divorce until the year 1813, when divorces, on the application of the wife on the ground of cruel treatment, was- authorized, and in 1824, the husband was enabled to sue for a divorce on the same ground. * * * By the Revised Statutes, the powers of the Court of Chancery on the subject of divorces were enlarged. Article 2 of title 1, chapter 8, part 3, entitled ‘ of divorces on the ground of the nullity of the marriage contract,’ enumerates live causes for which, if they existed at the time of the marriage, the chancellor may declare void the marriage contract. * * * The section was framed, as appears by the revisers’ notes, in view of the decisions in Wightman v. Wightman (4 J. Ch. 343), and Burtis v. Burtis (Hopkins, 557), and the revisers refer to the latter case as establishing that the whole jurisdiction of the Court of Chancery in relation to marriage (except when the contract is void on the same grounds on which other.contracts may be avoided) is conferred and limited by statute. * * * From this review it will be seen that in some actions for nullity the jurisdiction of chancery was derived wholly - from the statute; yet, in others, it existed independently of the statute, and as a part of the original jurisdiction of the court. * * It must be remembered that this jurisdiction was conferred, not upon a common-law court, but upon the Court of Chancery, and in view of its general powers to adjust remedies and annex conditions to the exercise of rights and the redress of in juries.” And upon this course of reasoning, although not authorized by any statute, the Court of Appeals affirmed the making of the order upon the general ground of the equitable powers of the court in which jurisdiction of the subject-matter had been vested.

The Supreme Court is vested with the powers of the Court of Chancery. I take it, therefore, that the doctrine is still true that while its entire jurisdiction in matrimonial causes is conferred and regulated by statute, yet in the exercise of that jurisdiction, unless controlled"by positive enactment, it proceeds as a court of equity. Indeed, the very provisions in the sections of the Code of Civil Procedure relating to divorce and separation, permitting counterclaims and denying relief to a guilty plaintiff, no matter how guilty the defendant may prove to have been, is statutory proof of the exist- . ence in that court in such actions of the maxim, “ the plaintiff must come into court with clean hands.” Actions to annul contracts for that which existed prior to or at the making thereof are equitablé ; and, as pointed out in the Griffin case, such actions to annul the marriage contract for certain causes were entertained in the Court of Chancery prior to the enactment of the statute and independent thereof.

It seems to me, therefore, that the court in actions to annul a marriage under the provisions of the Code of Civil Procedure, derived from the statutes theretofore existing, acts as a court of equity. If this were an ordinary contract which the plaintiff was seeking to have annulled in a court of equity, it cannot be doubted but that upon such evidence and findings of fact as appear in this case, he would be peremptorily dismissed as endeavoring to take advantage of his own wrong, as not coming into court with clean hands, and as attempting a fraud upon the court. An interesting case upon this very point in an action to annul a marriage upon like facts is Rooney v. Rooney (54 N. J. Eq. 231) where Chancellor PitnEy, then Vice Chancellor, denied the relief prayed.

But it is urged that section 174-5 of the Code of Civil 'Procedure provides that “An action to annul a marriage upon the ground that the former husband or wife of one of the parties was living, the former marriage being in force, may be maintained by either of the parties during the lifetime of the other, or by the. former husband or wife;” and that, as there.is no limitation in,the section, a guilty husband who has knowingly and wickedly contracted a bigamous' marriage, and subsequently grown tired of the new wife, and his obligations thereto, is entitled to bring the action to relieve himself for all time of such marriage, its obligations and its consequences.

I do not think that the statute is susceptible of such construction. I think that, reading all of the provisions together, the object of the Legislature was to protect the innocent and to relieve those who had acted in good faith. The Court of Appeals in Price v. Price (124 N. Y. 589), after a review of the prior condition of the law, said: ‘j Such was the condition of the law when the Be vised 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. (Citing the provisions of the statutes.) * * *

The changes effected by the Revised 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' voidable. 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 Red. 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.) ”

The words “ either of the parties ” may be entirely satisfied, it seems to me, when it shall appear that the plaintiff, although married at the time of the second marriage, was within the exception stated in the Domestic Relations Law, namely,, that such former husband or wife had absented himself or herself for five successive years then last passed, without being known to such person to be living during that time, and that he had acted with the good faith referred to in section 1745 of the Code of Civil Procedure. If the contrary appears, that he acted with knowledge and in bad faith, the court, under the general principles of equity jurisprudence, should give him no aid, but leave him in that condition in which he has put himself.

It follows that the judgment appealed from should be affirmed, with costs to the respondent.

Patterson, P. J., and Laughlin, J., concurred; Ingraham and Scott, JJ., dissented.

Scott, J. (dissenting):

It is perfectly clear from the facts found by the court below, and it is conceded on all hands that the marriage between plaintiff and defendant was void ab initio, because the plaintiff had, when he married defendant, another wife living, his marriage with whom had never been dissolved. (Dom. Rel. Law, § 3; Code Civ. Proc. § 1743.) The court below refused to enter a decree declaring the marriage void upon the ground “that plaintiff has not acted in good faith,” and that the marriage “ should not be annulled at the suit of the plaintiff,” thus applying to this purely statutory action a rule which is often applied in equitable actions where a plaintiff is denied affirmative relief when the appeal is to the judicial discretion of the court, because he has not come into court with clean hands.. The plaintiff does not ask that his marriage be annulled. Such relief would be appropriate when a marriage was valid when made, ■ but not to a case like the present when the marriage was never valid, but has always been void. And it will continue to be void whether or not a decree to that effect is entered in this action. I have said that this action is purely statutory, and so it is. It is true that even before the Bevised Statutes the Court of Chancery in this State in some cases sustained bills to declare the nullity of marriages independent of any statute conferring jurisdiction. But such cases were strictly limited to those in which the marriage was sought to be annulled for some cause for which chancery had power to cancel or avoid all contracts, such as lunacy and fraud, it’being considered' that the marriage contract was not excepted from the operation of tins general jurisdiction. But in all other cases the jurisdiction of. thb Court of Chancery of this State in actions for annulment or divorce, either on the ground of nullity or for some cause arising subsequent to marriage, has rested wholly upon the statutes. (Griffin v. Griffin, 47 N. Y. 134, 138.) The Domestic Delations Law,, after declaring that a marriage such as the court has found was entered into between these parties is absolutely void (§ 3), provides tliat “ Actions to annul a void or voidable marriage may be brought only as provided in the Code of Civil Procedure ” (§ 4). As has been remarked, the use of the word “ annul” with reference to a marriage void ab initio is not strictly accurate, for that which does not exist cannot be annulled. The Code (§ 1743) provides that “An action may also be maintained to procure a judgment declaring a marriage contract void and annulling the maniage for either of the following causes existing at the time of the marriage: * * *

2. That the former husband or wife of one of the parties was living, and that the marriage with the former husband or wife was then in force.” Section 1745 provides that “An action to annul a marriage upon the ground that the former husband or wife of one of the parties was living, the former marriage being in force, may be maintained by either of the parties during the life-time of the other, or by the former husband or wife.” Here is an express legislative ■ declaration that an action of this nature may be maintained by the party whose former husband or wife was living, as well as by the other party to the marriage contract, and it would be a waste of time to stop to argue that when the Code gives a party the right to maintain an action, the right to obtain a judgment, upon proof of the necessary facts, must follow. The latter part of section 1745 in no wise limits the right of the guilty party to maintain such an action, but deals solely with the legitimacy, custody and right to inherit of the children of such a void marriage, where the subsequent marriage was contracted by one of the parties in good faith and with the belief that the former husband or wife was dead.' As the parties to this action appear to have had no children, this portion of the section is irrelevant to the present discussion. Thus we have presented an absolutely void marriage, and an action to declare its invalidity brought by a party expressly authorized by statute to maintain such an action. Upon what ground then can a judgment be denied declaring such invalidity ? The only ground suggested is that because he acted, in contracting the second marriage, with knowledge of his incapacity to contract it, and in bad faith, the court, under the general principles of eqnity jurisprudence, should give him no aid, but leave him in the condition in which he has put himself. If the court was acting in such a case as this under its general equity jurisdiction, and if a decree declaring the marriage void would put the plaintiff in any better position than he is now in, there would be some force in the reason assigned for refusing a decree. But the court is not acting under its general equity powers. It is acting under jurisdiction conferred upon it by statute, and the plaintiff has brought himself precisely within the terms of the statute, hi or can the court, by any decree it makes, or by refusing a decree, change the status of the parties, or validate an absolutely void marriage. The plaintiff assumed no matrimonial obligations to the defendant by entering into it, and whenever an attempt is made to enforce any such obligations, he can relieve himself, decree or no decree, by showing the invalidity of the marriage. Such a decree would of course be no defense to a prosecution for bigamy, for in the very nature of things a bigamous marriage is always a void one, since the very definition of bigamy is the marriage with a second husband or wife while a former husband or wife is living. (Penal Code, § 298.) Whether or not a party who knowingly contracts a void and bigamous marriage' should be permitted to Maintain an action to have its invalidity judicially determined, is for tlie Legislature to decide, and not the courts. When the Legislature has enacted that he may maintain such an action, as I think it clearly has in this State, there is no ground for refusing to enter judgment for reásons which apply only to actions of purely equitable cognizance where the discretionary powers of a court of equity are invoked. In my opinion, upon the facts found, the plaintiff is entitled to a decree declaring 'his marriage with the defendant void, as it unquestionably is and has been from the beginning. The judgment appealed from should be reversed, and since all the facts necessary to support a judgment have been found by- the court below, a judgment should be rendered for the plaintiff.

Ingraham, J., concurred.

Judgment affirmed, with costs. 
      
      
        Sic. See pt, 2.— [Rep
     