Anonymous

This action was brought under sections 1743, 1750, Code Civ. Proc., by a. mother, to annul for fraud the marriage of her minor daughter. The following facts were proved upon the trial before me, at which both parties were represented by counsel:

The marriage was solemnized on February 9, 1897. The wife was then 20 years of age. Before the ceremony, in a conversation be

The case is almost of first impression, and the law upon the subject of the annulment of marriage for fraud is by no means clear. Its general principles, however, are well settled. Where there has been a consent, and the minds of the parties have met when they joined in the bond, the fact that either of them entered into it upon the faith of a misrepresentation so material as to avoid an ordinary contract is in most cases no ground for allowing him or her to be relieved upon a discovery of the fraud. “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 dissolution, 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 governed 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 Bish. Mar. & Div. §§ 183, 184; Schouler, Husb. & 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 contract (1 Schouler, Husb. & 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. Bish. Mar. & Div., supra; Wier v. Still, 31 Iowa, 107 . If, when the relation is entered into, the party is competent to make

The language of Judge Rapallo in Blank v. Blank, 107 N. Y. 91 , 96, 13 N. E. 615 , and the decision of the equity term of the superior court of the city of New York in Keyes v. Keyes, 6 Misc. Rep. 355 . 26 N. Y. Supp. 910 , would support a more liberal doctrine; but, in view of the express disapproval of King v. Brewer, 8 Misc. Rep. 587 , 29 N. Y. Supp. 1114 , and the limitations laid down in Fisk v. Fisk, supra, this case will be measured by the rule laid down in the opinion of Judge Rumsey, above quoted. The fraud which vitiates the marriage must be one which relates to the fundamentals of the relation; and one of those fundamentals is a physical capacity to discharge the marital duties, and for each sex to do its part towards the production of their offspring." The rule, however, is not restricted to a fraudulent concealment of physical impotency. For, in cases where the parties have had complete physical congress, marriages have been annulled because of the fraudulent concealment of the fact that at the time of their celebration the woman was pregnant by a man other than her husband. Scott v. Shufeldt, 5 Paige, 43; Reynolds v. Reynolds, 3 Allen, 605 ; Morris v. Morris, Wright, 630. The fraudulent concealment or denial of antenuptial incontinency by either party with others, or even of the previous birth of an illegitimate child by the woman, are not, however, adequate grounds for the annulment. The reason for the distinction is clearly stated by Judge Pryor, in Shrady v. Logan, 17 Misc. Rep. 329 , 330, 40 N. Y. Supp. 1010 :

‘‘Pregnancy with an illegitimate child at the time of the marriage avoids if. for the reason, as stated by the courts and writers, that it disables the wife for the present discharge of her proper functions, namely, giving offspring to her husband, and because it brings a bastard to his bed to compete for his fortune with his lawful issue.”

The duties imposed by the marital relation are reciprocal, and each has an equal right to the performance of those imposed upon the other. The wife, as well as the husband, has the right to offspring, and a fraud which conceals his disability to discharge Ms

“The representations made by the defendant to the plaintiff, and to her friends and relatives on her behalf, as to his physical condition and freedom from constitutional and organic disease, constitute a fraud on plaintiff, and entitle her to have the marriage aforesaid, contracted between herself and the defendant in reliance upon such misrepresentation, absolutely annulled and dissolved.”

Although the disease fraudulently concealed in the case at bar was of a less virulent character, and one that, perhaps, would be more correctly described as local rather than as constitutional, the principle seems to be the same; and this decision would be binding updn me even if it were in conflict with my own views. The issues are, consequently, decided in favor of the plaintiff, and a report herewith submitted recommending the annulment of the marriage.

Ordered accordingly.