Bielby v. Bielby

• Decision Date: 20 February 1929
• Docket Number: No. 18994.,18994.
• Parties: BIELBY v. BIELBY.
• Court: Illinois Supreme Court

333 Ill. 478

165 N.E. 231

BIELBY

v.BIELBY.

No. 18994.

Supreme Court of Illinois.

Feb. 20, 1929.

Suit by Amelia Bielby against Joseph E. Bielby, who filed a cross-bill. From a decree dismissing complainant's bill and granting the relief prayed by the cross-bill, complainant appeals.

Reversed and remanded, with directions.

Appeal from Circuit Court, Cook County; D. J. Normoyle, judge.

Smith, Marx & Smith, of Chicago (Charles W. Lamborn, of Chicago, of counsel), for appellant.

Newby & Murphy, of Chicago (John K. Murphy and George M. Burditt, both of Chicago, of counsel), for appellee.

STONE, J.

Appellant, Amelia Bielby, filed a bill in the circuit court of Cook county for separate maintenance. Appellee, Joseph E. Bielby, answered the bill and filed a crossbill seeking annulment of his marriage with appellant on the ground of fraud, and to set aside a conveyance in joint tenancy to appellant and appellee of 40 acres of land owned by appellee at the time of the marriage. On a hearing before the chancellor a decree was entered dismissing appellant's bill for separate maintenance, and decreeing that the marriage between appellant and appellee be annulled and that the deeds of conveyance be set aside. Amelia Bielby has appealed.

The parties were married on July 8, 1925, and the land involved was by mesne conveyances vested in them in joint tenancy. The bill for separate maintenance charges that the parties cohabited together as husband and wife until July 10, 1925, when appellee left and abandoned appellant and refused longer to live with her or provide for her. Appellee's answer to the original bill admitted that they were married, but averred that they at no time lived and cohabited together after the marriage, but that appellant had at all times refused to live and cohabit with him at any place as his wife; that she consented to marry him for the sole purpose of cheating and defrauding him out of his property, in the furtherance of which scheme she simulated affection for him, but informed him that unless he would consent to deed the property to them jointly she would refuse to enter into the marriage ceremony; and that he consented. The answer denies abandonment and a refusal to support appellant or provide a home for her, but avers that he at all times offered to live with her and provide a home, but that she refused to go with him to his home or to live or cohabit with him at any place. Appellee filed a cross-bill praying that the marriage with appellant be annulled and that she be required to convey the 40 acres of land to him and that the deeds made be set aside. He charges that the deeds were procured by fraud and that she procured and induced the marriage for the sole purpose of inducing him to convey his land to her in joint tenancy; that though he frequently went to her home and requested and demanded that she live with him, she refused to do so.

Appellant contends that the decree is against the manifest weight of the evidence. The parties to the case had lived in the same neighborhood for a number of years. Appellee lived with his brother near the 40 acres involved in this case. Appellant lived between three and five miles distant, with her mother, farming 40 acres of land belonging to her mother and doing the farm work as well as assisting with the household duties. She was approximately 40 years of age, while he was sixty. In the spring of [333 Ill. 481]1925 he began calling upon her, and according to his testimony first broached the question of their marriage during the month of June. She consented, provided he would deed his 40 acres of land so that it would be owned by them both as joint tenants, to which he agreed. They together visited a lawyer prior to their marriage, who advised that they think it over and that the deed be not made until after the marriage ceremony. It was agreed between the two that after the marriage he would go to her home and there live with her and her mother, who had given her consent to this arrangement. On July 8 of the parties went to Willow Springs and there took a street car into the city of Chicago, where they obtained a license and were married by a minister in a church on Washington boulevard. When the ceremony was completed they went to the office of appellant's attorney, named Welk. Appellant told the attorney that they desired to have the deeds executed, whereupon a deed was drawn transferring the property to Catherine Rammer, a stenographer in Welk's office, who in turn conveyed the property to appellant and appellee in joint tenancy. The parties thereupon left Welk's office and after having dinner took the street car to Willow Springs. They both testify that it was agreed that the marriage would be kept secret, though they do not agree as to who desired that arrangement; each testifying that the other proposed that the matter be kept secret. They agree in their testimony that their wedding rings were taken off before they started driving home, and that when they arrived at the road leading to the residence of his brother, appellee got out of the buggy and they bade each other good night. He testified that he thought it was best for him to go to his brother's that evening and that she said she thought it was all right. It appears from the testimony of both that he went over to her home the next morning and assisted with the work on the farm during the day. He had his meals there and in the evening returned to his brother's home. He was asked whether she requested that he remain with her, and he replied that ‘she kinda mentioned that, yes,’ further testifying that she told him that they had a davenport in the parlor and he could sleep on that. Both parties also testify that each day for a period of approximately six weeks after the 9th of July he came to her home, assisting more or less with the work, and each evening returned to his brother's home. Part of the time he walked the distance and part of the time appellant took him part way with the horse and buggy. It appears from his testimony that at different times she invited him to stay over night; that she said they could pull out the davenport in the parlor and he could sleep on that. He also admitted on cross-examination that she had asked him to bring his clothes and stay there. He did not at any time, however, remain over night at her home and she never at any time stayed at his home. After a period of about six weeks he discontinued his visits to her home. She testifies, and it is not denied by him, that she went to him to find why he had not come, and he replied that he had a lawyer and she could talk to him. There is also the testimony of her brother that about that time appellee had told him that he had been told that appellant had gone away with a good-looking young man. This testimony is disputed by appellee. It is admitted, however, that he did not call at the home of appellant or see her from the early autumn of 1925 until April, 1926. The evidence, however, is that on advice of his counsel he built a portable house on the 40 acres in November, 1925, although he does not say that between that time and April, 1926, he told appellant that he had built such a home. She testifies that she knew nothing of it.

[1] The first question arising on this record is whether the court erred in decreeing annulment of the marriage. The cross-bill is based on the charge that appellant simulated affection for appellee for the purpose of securing an interest in his property and married him in furtherance of that purpose and in fraud of him, and that she did not thereafter carry out her obligations as a wife. Appellee testified that he wanted a home and that his purpose in making the proposition of marriage to appellant was that he might have a home, that she would take care of the home for him, and that was the consideration for the deed and marriage. The cross-bill charges that the marriage should be annulled and the conveyance set aside because of appellant's fraud in the procurement of the deeds. It is also charged in the cross-bill that appellant refused to enter into the relationship of marriage or to consummate the marriage; that appellee frequently requested and demanded that she live with him, but she refused to do so. The only times at which appellee testifies that he requested appellant to live with him were in the latter part of August, 1925, and in April, 1926, at the home of Claus Sheels. She denies any request was made in August. The testimony shows that the parties met at Sheels' home in April at the instance of Sheels and one Keeney, who were friends of the parties, and appellee told appellant that he had prepared a home for her on the 40 acres owned by them in joint tenancy and asked her to come and live with him, but that she refused to do so. Appellant testifies that she was not asked to go to appellee's house, but that she told him she would take him back if he would behave himself. The evidence of Sheels and Keeney is, however, that she refused to go to the home which appellee had prepared on the 40-acre tract. Appellee testified that the marriage relation was not consummated; that they never cohabited as man and wife. She denies this statement, and says that the marriage relation was consummated. Appellee does not testify that he ever requested that the marriage be consummated or that she ever refused so to do.

[2][3][4][5][6] It is argued that appellant falsely promised to live with appellee and make a home for him without any intention of so doing. Fraud sufficient to vitiate a marriage must go to the essence of the marriage relation. The degree of fraud sufficient to vitiate an ordinary contract will not afford sufficient ground for the annulment of a marriage. It is not sufficient that the complainant relied upon false representations and was deceived. False representations as to fortune, character, and social standing are not essential elements of the marriage, and it...