Eisenberg v. Eisenberg

• Decision Date: 04 May 1932
• Docket Number: 61-1932
• Citation: 160 A. 228,105 Pa.Super. 30
• Parties: Eisenberg, Appellant, v. Eisenberg
• Court: Pennsylvania Superior Court

160 A. 228

105 Pa.Super. 30

Eisenberg, Appellant, v. Eisenberg

No. 61-1932

Superior Court of Pennsylvania

May 4, 1932

Argued March 16, 1932

Appeal bye plaintiff from decree in equity of C. P., No. 1 Philadelphia County, June T., 1931, No. 10344, in the case of Israel Eisenberg v. Esther Kaliner Eisenberg.

Bill in equity for annulment of marriage contract. Before Kun, J.

The facts are stated in the opinion of the Superior Court.

The court dismissed the bill. Plaintiff appealed.

Error assigned, among others, was the decree of the court.

Affirmed.

Abraham Wernick of Evans and Wernick, for appellant.

Henry Arronson, and with him Simon Pearl, for appellee.

Before Trexler, P. J., Keller, Gawthrop, Cunningham, Baldrige Stadtfeld and Parker, JJ.

OPINION

Baldrige, J.

This appeal is from a decree dismissing a bill in equity.

The plaintiff alleged that he and the defendant, a resident of Philadelphia, were married, November 27, 1928, in Philadelphia; that subsequent to their marriage they lived for a period of six weeks in Collingswood, New Jersey, where the plaintiff now resides; that at the time of the marriage the defendant represented to him that she was in sound health, when, in truth, she had been suffering from epilepsy, an incurable physical ailment; and that the marriage had not been confirmed by cohabitation.

The controlling question is: Does the court of equity have jurisdiction to cancel a fraudulent contract of marriage? It is admitted by the appellant that courts of equity in Pennsylvania do not possess general powers of a court of chancery; their jurisdiction is confined to the authority conferred upon them by statute. See Pitcairn v. Pitcairn, 201 Pa. 368, 50 A. 963; Whyte v. Faust et al., 281 Pa. 444, 127 A. 234. We have never had distinct chancery courts in Pennsylvania, except from 1720 to 1736. For the next one hundred years equity jurisprudence had no distinct existence. "The necessity of enforcing equitable principles and remedies led to various devices whereby they were enforced under common-law forms, the courts asserting in themselves substantial powers to be executed in that manner:" 21 C. J. p. 26 (note 11). Under the Act of June 13, 1840, P. L. 666, sec. 39 (17 PS 286), the equity jurisdiction of the court of common pleas of Philadelphia County was extended to all cases "over which courts of chancery entertain jurisdiction (italics are ours) on the grounds of fraud, accident, mistake or account." This jurisdiction was extended under the Act of February 14, 1857, P. L. 39 (17 PS 283), to all the counties of the Commonwealth. In England, the courts of chancery did not have jurisdiction to annul marriages for fraud. The remedy was confined to an application to Parliament to dissolve the marriage, and the the statute of 1857 (20 & 21 Vict. c. 85), creating the divorce court, conferred no jurisdiction to annul a marriage for such cause: 9 R. C. L. 293, sec. 61. The action for annulment was neither an action at law, nor in equity; it was a proceeding sui generis, originally cognizable in the ecclesiastical courts: 38 C. J. 1348, sec. 120. We said in Starr v. Starr, 78 Pa.Super. 579, 583, "At the time of the establishment of the United States as an independent nation, when the British common law was adopted by the several states, matrimonial causes in England were within the exclusive jurisdiction of the ecclesiastical court. These courts derived their jurisdictional authority from the church, and in the determination of matrimonial causes the canonical law was applied almost entirely. Ecclesiastical courts were not established in any of the United States as a part of its judicial system. Consequently, up to the time of the creation of courts with a jurisdiction in divorce actions, ecclesiastical law relating to divorce remained unadministered for want of a tribunal. We must, therefore, look to the statutes and not to the common law for power to grant divorces." The chancery court's authority not extending to, or embracing, the annulment of marriage contracts on the ground of fraud, and the jurisdiction of the court of equity being no more extensive, it obviously follows that equity courts are without that power. It is true that we stated in Barnhart v. Brown, 86 Pa.Super. 437, that "a court of equity, in all cases of actual fraud has a concurrent jurisdiction with a court of law in remedying the fraud;" but, of course, that statement was subject to any statutory limitations. This is pointed out in Wagner v. Fehr, 211 Pa. 435, 60 A. 1043, where it was held that fraud, in obtaining an execution of a will, does not come within the jurisdiction of the court of equity.

A considerable number of authorities may be found to support the appellant's contention that the jurisdiction of the court of equity to annul marriages on the ground of fraud rests upon its general power to vacate contracts in all cases, including contracts of marriage where they have been procured by fraud. The conclusions reached in these cases are based very generally on statutes conferring jurisdiction. See 9 R. C. L. 294, sec. 62; Smith v Smith, 171 Mass. 404, 50 N.E. 933, 68 A. S. R. 440, 41 L. R. A. 800; Di Lorenzo v. Di Lorenzo, 174 N.Y. 467, 67 N.E. 63, 95 A. S. R. 609, 63 L. R. A. 92. It has been held, however, that the courts of chancery have the power to declare the annulment of marriages, independent of any statute conferring jurisdiction. See Kelley v. Kelley 161 Mass. 111, 36 N.E. 837; 25 L. R. A. 806; Griffin v. Griffin, 47 N.Y. 134; and there are other cases to like effect. But, in this Commonwealth, neither our law-making body, nor the courts, has shown any inclination to annul marriages on the ground of fraud. Since the Act of April 14, 1859, P....