King v. Brewer. disposed to strain legal principle to the utmost in reparation of his wrong. But, when I consider that he still took the woman to his bosom after revelation of the shocking perfidy she had perpetrated upon him; that he then employed her in a conspiracy to extort money from the defendant; and that now it is through her instrumentality as a witness that he recovers a judgment for two thousand dollars, I cannot but regard the action as an experiment in blackmailing by legal process. My associates view the case differently; but, such being my conviction of its character, I decline to overthrow fundamental and immemorial principles in carrying it to a triumphant consummation. KING v. BREWER. N. Y. Superior Court, Special Term; May, 1894. 1. Marriage; 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.* 2. 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 * See the next case. King v. Brewer. 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. Trial 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 American 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, pro King v. Brewer. ceeding 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 cannot 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. However, the King v. Brewer. 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 King v. Brewer. 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. 521). . 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 of 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 |