Bolmer v. Edsall

• Decision Date: 28 March 1919
• Docket Number: No. 45/339.,45/339.
• Citation: 106 A. 646
• Parties: BOLMER v. EDSALL.
• Court: New Jersey Supreme Court

106 A. 646

BOLMER

v. EDSALL.

No. 45/339.

Court of Chancery of New Jersey.

March 28, 1919.

Supplemental Memorandum, June 27, 1919.

(Syllabus by the Court.)

Ex parte suit for annulment of marriage by William Bolnier against Genevieve S. Edsall, otherwise Genevieve Bolmer. Exceptions by petitioner to the adverse report of a special master. Exceptions sustained, and special master's suggestion that petition be dismissed overruled, with leave to petitioner to take further testimony or to dismis; petition without prejudice.

Frank B. Jess, of Camden, for exceptant.

WALKER, Ch. This is an ex parte suit for annulment of a marriage. The special master has reported adversely, and petitioner excepts.

The parties were married October 19, 1917, and lived together little more than four weeks. They never had sexual relations.

The claim of the petitioner is that the wife, before marriage, conceived the idea of denying him sexual intercourse after marriage; never intended to permit him to copulate with her, and carried out that intent; that tills constituted a fraud in a material part of the marriage contract, and rendered it void.

The special master submits to the court that our divorce act does not authorize a dissolution of marriage on the ground taken by the petitioner, that this court has always confined itself in annulling marriages, for causes not specified in the statute, to such as were not de facto marriages, because void, and he further submits that the marriage of these parties was not void for want of contract, that its annulment is sought for cause which did not exist at the time of marriage, but arose since, and that such cause is not a circumstance going to the validity of the marriage, and therefore not ground for annulling it.

Since the status of marriage is conferred by contract, and since for avoiding contracts equity has jurisdiction over all questions of fraud, if such an impediment has entered into a marriage, a court of equity will pronounce it void. This is not the rule in England, because formerly there was there an express jurisdiction in the ecclesiastical courts, and now there is in the divorce court. 2 Bishop, M., D. & S. § 803.

We never had ecclesiastical courts in New Jersey, and with us the jurisdiction to annul for fraud resides in this court.

In Carris v. Carris, 24 N. J. Eq. 516, the Court of Errors and Appeals held that the Court of Chancery, under its general power to annul fraudulent contracts, has jurisdiction to annul a contract of marriage for sufficient fraud. And Chancellor Magie, in Crane v. Crane, 62 N. J. Eq. 21, 49 Atl. 734, held that, to annul for a fraudulent representation inducing the contract, the fraud must affect an essential of the matrimonial relation. Vice Chancellor Lane, in the very recent case of Davis v. Davis, 106 Atl. 644, not yet officially reported, annulled a marrlage because the defendant was suffering from hereditary chronic tuberculosis at the time of the ceremony, which fact he withheld from the petitioner, fearing that if she knew it she would not marry him, and pointed out that this court will annul a marriage imposed upon one party by false representations of the other in respect to an essential of the contract, unless it appears that to do so would be against good policy, sound morality, and the peculiar nature of the marriage relation. It is most obvious that the ease at bar does not fall within the exceptions stated.

In the case Anonymous, 24 N. J. Eq. 19, it was held by Chancellor Runyon that this court will annul a contract of marriage outside of its statutory jurisdiction where the contract is void. In this case (Anonymous) the chancellor refused to annul a marriage for impotence on the part of the husband which existed at the time of the marriage, had continued ever since, and was incurable; and this for the reason stated by Bishop, whom he. quotes, that is, because impotence is a canonical defect which only makes the marriage voidable, and not void, until sentence of nullity is pronounced. Our Legislature subsequently bestowed the power on this court to annul marriages for such impotence. The cause for nullity pleaded in the case at bar is no canonical defect; in fact, it is no defect at all. It is a fraud practiced by one of the parties upon the other affecting the contract in its inception. If it does not fall with the class of cases in which this court may annul for fraud, the injured party is remediless.

On the question that marriage is regarded in this state as a civil contract and that our Court of Equity will entertain suits to set aside such contracts on the ground of fraud, see Vanderbilt v. Mitchell, 72 N. J. Eq. 910, at page 918, 67 Atl. 97, 14 L. R. A. (N. S.) 304 (Court of Errors and Appeals 1007).

The master in his correct summary of the testimony says that the petitioner deposed that defendant at all times refused him sexual intercourse, although he attempted it, saying, first, that she could not, and, second, that the act was disgusting to her; and, further, he said she told him she bad made up her mind on the question before leaving Philadelphia to go to San Domingo, where, on the boat on which she made the voyage, they were married, between the ports of La Romana and Macoris, republic of San Domingo, She was called as a witness by the petitioner, which is allowable (McCauley v. McCauley, 88 N. J. Eq. 302, 103 Atl. 20), and testified that she know what the married state entailed in regard to sexual relations, and that before the wedding she made up her mind not to consummate the marriage, and that prior to the ceremony she never communicated this determination to the petitioner.

If these facts be true, then, to my mind, this woman perpetrated a palpable fraud upon this man in withholding from him information that she did not intend to submit to his sexual embraces, thereby depriving him of an absolute marital right. It may be safely asserted that Mr. Bolmer would not have gone through a marriage with Miss Edsall had he known that she had previously determined to make the ceremony a mockery.

In McClurg v. Terry, 21 N. J. Eq. 225, it was held by Chancellor Zabriskie that intention is necessary in a marriage, as well as in every other contract.

In True v. Ranney, 21 N. H. 52, 56, 53 Am. Dec. 164, a suit for nullity on the ground of the female's imbecility, prosecuted by next friend, the court observed that throughout the civilized world the willing mind is required as an essential attribute of the contract of marriage.

In Clark v. Field, 13 Vt. 460, the Supreme Court of the state of Vermont, at page 467, speaking of the power of chancery to annul a marriage, remarked that the necessity of such jurisdiction was apparent, and that the court apprehended that it falls within the ordinary equity jurisdiction to relieve against contracts obtained by fraud, or where one or both of the parties were deceived, and again at page 468 that it would be very singular if the court may relieve against all other contracts obtained by fraud or imposition, and could not relieve from this contract when obtained by such means, when consent was not given understandingly and the marriage was not consummated.

The master ends his report with the observation that, in view of his conclusion, it was unnecessary to express any opinion as to what credence was to be given to the testimony of the parties; whether or not the wife's testimony alone is sufficient corroboration upon which to base a decree of nullity, or whether there is collusion between the parties.

G—— v. G——, Law Rep. 2 P. & M. 287, 291, Law Journ. Rep. 1871, Pro. & Mat. N. S. vol. 40, p. 83, was a question of nullity of marriage. Mrs. G. instituted a suit for judicial separation on the grounds of cruelty. The respondent denied the charge and alleged that the marriage had never been consummated by reason of the incapacity of the petitioner, and prayed for a decree of nullity. Lord Penzance observed that it is clear that without sexual intercourse the ends of marriage, the procreation of children and the pleasures and enjoyments of matrimony, cannot be attained; that the invalidity of the marriage, if it cannot be consummated on account of some structural difficulty, is undoubted, but the basis of the interference of the court is not the structural defect, but the impracticability of consummation, and if therefore a case presents itself involving that impracticability (although it may not arise from a structural defect), the reason for the interference of the court arises. The impossibility need not be technical, but it must be practical; it cannot be necessary to show that the woman is so formed that connection is physically impossible, if it can be shown that it is possible only under conditions to which the husband would not be justified in resorting, among which is brute force. In this case (G—— v. G——) it does not appear (hat there was any fraud inducing the contract, with reference to the wife's unwillingness or inability to submit to sexual intercourse, but rather that the trouble was discovered after marriage, winch would be ground for nullity for impotence under our statute, if the difficulty were structural. But this makes no difference, as the ecclesiastical courts in England had power in both classes of cases, and that jurisdiction was devolved upon the present divorce court by act of Parliament; and the judge ordinary in G—— v. G—— had no occasion to consider any question of jurisdiction. It is true that the power to annul and divorce resides in the same court in this state, but that is a mere coincidence; the Legislature having bestowed the power to divorce upon our court having inherent jurisdiction to annul.

The defendant's testimony coincides with that of the petitioner, but by our divorce law that cannot be laid hold of as corroboration, unless her testimony is itself corroborated.

In Garrett v. Garrett, 86 N. J. Eq. 293, 98 Atl. 848, I adverted to the...