Scott v. Shufeldt — 5 Paige Ch. 43

Majority

p. 43

Scott vs. Shufeldt.

Headnote

"Where the parties were white persons, and the complainant was, charged by the oath of the defendant as the putative father of her bastard child, and the complainant thereupon, believing the child to be his, married her to obtain his discharge from the proceedings against him under the bastardy ■act, and he subsequently ascertained that the child was a mulatto, and that the defendant knew that fact at the time she swore it to be his, she then having been delivered and seen the child; Held, that the complainant was entitled to a decree declaring the marriage contract void, on the ground that his consent was obtained by fraud.

If a party knowing that he cannot be the father of a bastard child is induced to many the mother to avoid a prosecution, it is no ground for annulling the marriage contract on the ground of fraud, although he should afterwards be able to establish the fact that the child was not his.

Although it is legally impossible that a white man should have a mulatto child by a white woman, yet if the former, before the birth of the child, believing it to be his child, marries the mother on the ground of such belief, it seems he cannot have a decree annulling the marriage, notwithstanding her concealment of the fact from him that she had received the embraces ■of a negro about the time she was receiving his.

The bill in this case was filed for the purpose of annulling a marriage contract, on the ground that the consent of the husband to such marriage was obtained by fraud, force and coercion. The bill alleged that the complainant had occasionally visited the defendant, and that she afterwards made oath before a magistrate that she had been delivered of a bastard child, and that the complainant" was the father of such -child ; that the complainant was thereupon arrested upon a warrant, and was required to give bail as the putative father of such bastard; and believing it to be a white child, and being unable to procure bail, he consented to marry the defendant, and was thereupon married to her by the magistrate before whom he was brought on such warrant; that he subsequently ascertained that the child, of which the defendant had been delivered a few days previous, was a negro child; the complainant and defendant being both white persons; and that he had not cohabited with the defendant subsequently to such marriage. - The complainant, therefore.

p. 44

prayed that the marriage contract between him and the defendant might be annulled, and declared and decreed to be void, on account of the fraud, force and coercion, by which his consent thereto had been obtained. The bill having been taken as confessed,

Killian Miller, for the complainant, now moved for an order of reference to a master to examine and report as to the truth of the allegations contained in the complainant’s bill, and that special directions be given to the master on the subject of the reference.

There is nothing in this case which

can authorize the court to declare the marriage contract void on account of force or coercion. Although the statute authorizes the court to annul a marriage when the consent of the complainant was obtained by force, it never was intended to apply to a case where the putative father of a bastard elects to marry the mother, instead of contesting the fact, sworn to by her, that be is the father of the child. There is no pretence in this case that the magistrate, who issued the warrant, upon which the complainant was arrested, was not acting in good faith. The only ground upon which this bill can be sustained, therefore, is, that the complainant was defrauded by the defendant, by her inducing him to suppose he might be the father of her illegitimate child, when she in fact knew it was not bis, but the child of a negro. If he knew it could not be his child, there was no fraud as to him, although he afterwards ascertained that it was the child of a negro, instead of its being the child of some white person other than himself. From the allegations in the bill, however, it is probable he had some reasons to suppose it might, be his child, although he appears to have had doubts on that subject from the beginning. Under such" circumstances, if the mother, at the lime she charged him as the putative father, and induced him to marry her under the supposition that the child might possibly be his, knew it was not his child, but that it was the child of a negro, she was not only guilty of perjury, but she also intentionally defrauded the complainant in such a manner as to

p. 45

authorize this court to declare the marriage contract a nullity. If the child had not been born at the time of the marriage, the complainant would have had some difficulty in showing that he had been intentionally deceived and defrauded by the defendant, as she might possibly have supposed the child to be his, although she had also had connection with a negro about the same time. But if she knew it was a black child at the time she charged the complainant with being the father thereof, I am not such a convert to the theory of Br. Mitchell, suggested by him in his evidence in Whistelo’s case, (3 Wheeler’s Cr. Cas. 194,) as to believe it possible she did not intend to commit a fraud upon the complainant; by charging him as the father of this child, when she had the most satisfactory reasons for beliving it could not be his, but that it was in fact the child of a negro, with whom she must also have had connection.^[1]

I shall therefore direct a reference to a master residing in the county of Columbia, to report as to the truth of the matters alleged in the complainant’s bill. And particularly, that the master ascertain and report whether the child of which the defendant charged the complainant as being the father, was a negro or mulatto child; and whether, at the time she made that charge, and at the time of the marriage, she knew or had reason to believe it was a negro or mulatto child, and intentionally concealed that fact from the complainant. The master must also ascertain and report "whether the parties to this suit have voluntarily cohabited as husband and wife since the alleged marriage. And the master is to report the testimony which he shall take in the case, with his opinion thereon, without delay: to the end that upon the coming in of that report, a decree of nullity may be pronounced if the allegation of fraud, in this respect, shall be established by the proof.

(a) (a) See Beck's Medical Jurisprudence, 5th edition, voL 1, 485»