Barden v. Barden

• Decision Date: 31 December 1832
• Citation: 14 N.C. 548
• Court: North Carolina Supreme Court
• Parties: JESSE BARDEN v. ANN M. BARDEN.

14 N.C. 548

JESSE BARDEN

v.ANN M. BARDEN.

SUPREME COURT OF NORTH CAROLINA

DECEMBER TERM, 1832

1. Where a man was induced to marry a woman by her representing to him that a child she had was his, and that, as to all the world but him, she was virtuous, and after the marriage he discovered that the child was black: It was held, RUFFIN, J., hesitante, that he was entitled to a divorce, if the color was so indistinct as to mislead a man of ordinary diligence, or if the child had been carefully kept from his view.

2. Per RUFFIN, J. A case of this kind is a concession to the deep-rooted prejudices of the community upon this subject.

3. The Act of 1827, ch. 19, giving the Superior Courts jurisdiction in cases of divorce, is retrospective in its operation.

THIS was a petition for a divorce, in which the petitioner alleged that at the time of the marriage he knew that the defendant had a child, but he thought it was his; that the defendant, by her artful conduct before the marriage, induced him to believe that she had ever behaved modestly and virtuously except in the instance above mentioned, which she pretended was the result of her attachment to him; that soon after the marriage he discovered that the child was a mulatto, upon which he had instantly parted from her. The plaintiff prayed a divorce, a vinculo matrimonii.

On the fall circuit of 1830, at WAYNE, the cause came on to be heard before Donnell, J., when it appeared that the marriage took place before the Act of 1827, ch. 19, his Honor dismissed the petition, and the plaintiff appealed.

RUFFIN, J. The Act of 1827, ch. 19, is not altogether prospective. The remedy given by it is not confined to cases that might thereafter

happen, but applies to those also in which the grievance then existed. This is plainly to be inferred from the preamble, which denotes the purpose of the Legislature to relieve itself forthwith and entirely from the consideration of any application for divorce, whether for existing or future causes.

Upon the merits, I confess that I am individually inclined to concur with the judge of the Superior Court, for the reasons upon which the case of Scroggins v. Scroggins was decided, ante, 535. But my brethren think there is a difference, and that this petitioner may provehimself entitled to relief. The petition was dismissed upon the face of it, and therefore all the facts stated in it must be taken in this stage of the proceedings to be true. Among them is the one of deep dye, that the child is black; and to that is added the belief of the petitioner that it was his own, and that this belief was created by the artful representations of the defendant. It is thought by the majority of the Court that when a man is acting in good faith, and marries with the design on his part to repair the injury done to a female, whom he supposes to be the reluctant victim of his own solicitations, with a strong and exclusive affection for him made her unable finally to resist, advantage shall not be taken of his confidence and honorable principles of action to draw him on by false tokens and artful devices of this sort. If he had married before the parturition, he ran risks, and must patiently abide the results. The risks were obvious...