Gatto v. Gatto

• Decision Date: 04 March 1919
• Citation: 106 A. 493
• Parties: GATTO v. GATTO.
• Court: New Hampshire Supreme Court

106 A. 493

GATTO

v. GATTO.

Supreme Court of New Hampshire. Hillsborough.

March 4, 1919.

stances, marry her if she was not a chaste woman, and wife assured husband she was chaste and virtuous, although in fact she had for a number of years been guilty of incest with her father, husband was entitled to decree annulling marriage.

Exceptions from Superior Court, Hillsborough County; Kivel, Judge.

Suit by Joseph Gatto against Josephine Gatto. Decree for plaintiff, and defendant excepts. Exceptions overruled.

Petition for a decree annulling the marriage of the parties. It appeared that they had been acquainted for about three years before they were married; that the petitioner had repeatedly said to her that his family was a respectable one, and he did not desire to bring into the family as his wife a woman whose character was not above reproach; that if she were not such they would go their respective ways, as he would not, under any consideration, marry her if she were not a chaste and virtuous woman; that she told and also wrote to him to the effect that she was a virtuous girl, and that he, relying upon her representations as true, married her on January 7, 1917, whereupon the marriage was consummated. Shortly after she disclosed to him the fact that she had been guilty of incest with her father for a number of years. Thereupon the petitioner left her, and has not cohabited with her since. It is found that she made the false representations as to her chastity, concerning which he was ignorant, with the intent to deceive him as to her true character and to induce him to marry her. The court entered a decree of nullity, and the defendant filed a bill of exceptions which was allowed at the January term, 1918, of the superior court.

Doyle & Lucier, of Nashua, for plaintiff.

Henri A. Burque, of Nashua, for defendant.

WALKER, J. The claim of the defendant that the court is without jurisdiction to grant a decree of nullity is without merit. In a case requiring that remedy the power of the court is ample. True v. Ranney, 21 N. H. 52, 53 Am. Dec. 164; Bickford v. Bickford, 74 N. H. 448, 453, 69 Atl. 579.

According to the law as announced in Moss v. Moss, L. R. P. D. (1897) 263, the plaintiff is not entitled to a decree of nullity. It was there held that the fraudulent concealment by a woman from her husband at the time of the marriage of the fact of her existing pregnancy by another man does not render the marriage null and void, or afford him any ground for a decree of annulment. This result was reached by the application of a principle that, while consent is essential to the marriage contract, fraud inducing consent is immaterial. The court say (page 268):

"In the case of duress with regard to the marriage contract, as with regard to any oth er, it is obvious that there is an absence of a consenting will. But when in English law fraud is spoken of as a ground for avoiding a marriage, this does not include such fraud as induces a consent, but is limited to such fraud as procures the appearance without the reality of consent," as in case of false personation or of imposition inducing one of feeble mind to enter into the contract which he did not understand. "In all these, and I believe in every case where fraud has been held to be the ground for declaring a marriage null, it has been such fraud as has procured the form without the substance of agreement, and in which the marriage has been annulled, not because of the presence of fraud, but because of the absence of consent. * * * But when there is consent no fraud inducing that consent is material."

In support of this view the court quote with approval the language of Sir William Scott in Sullivan v. Sullivan, 2 Hagg. Cons. 238, 248, where he says:

"The strongest case you could establish of the most deliberate plot, leading to a marriage the most unseemly in all disproportions of rank, of fortune, of habits of life, and even of age itself, would not enable this court to release him from chains which, though forged by others, he had riveted on himself. If he is capable of consent and has consented, the law does not ask how the consent has been induced."

The theory of these cases seems to be that marriage between competent parties and in accordance with statutory requirements creates a status, which upon grounds of public policy cannot be annulled. This public policy had its origin in the ecclesiastical courts, and is based upon the religious idea that marriage is a sacrament. While it is admitted that there can be no legal marriage without the agreement of the parties based upon their consent, it is said, in substance, that a formal consent, willingly given though induced by active fraud, does not render the contract void. In a case where duress is practiced the argument is that the willing mind is absent, and hence there is no contract; as in case of a formal promise to marry one impersonating the one intended, or where the ceremony is performed as a mere matter of amusement or jest, with no intention of creating the marriage status, there is no willing mind, but where the marfiage status is actually created by the formal, intelligent consent of the parties it is argued that the law precludes any investigation into the inducements that led the parties to assume that relation, in an annulment proceeding; while in an action for breach of promise, which precedes the marriage, such investigation is permitted. In the one case fraud in its usual common-law sense may be a legal defense, while in the other case it is an immaterial circumstance.

It is said that a contract of marriage fully executed results in a peculiar status, which cannot be annulled on the ground of fraud in a material matter practiced by one of the parties at the time the contract was made upon the other party, who was thereby induced to consent to the formality of marriage; that if the defrauded party, having sufficient mental capacity, freely consents to the marriage, he is ipso facto caught in the meshes of an unyielding status, from which there is no escape in law. But why is there no legal redress? Why is justice denied him in this situation which the law would be swift to afford him in the case of an ordinary civil contract? The usual answer is that the distinction is based upon grounds of public policy which seeks to render the marriage status permanent and unassailable.

But this answer does not fairly meet the issue. It assumes that there is a marriage when one of the parties has not assented to it. If one is compelled by duress to formally assent to a marriage, it is uniformly held that there is no binding contract for want of mutual agreement; it is as though no technical assent had been given; the freedom of mental action upon the subject is suspended. Hence there is no effective contract and no marriage, and public policy does not give vitality to the ceremony; but when one's mind is controlled and influenced by an outrageous fraud perpetrated by the other party, and is thereby induced to assent to a formal marriage, it is not apparent why the ceremony is any more effective than in the case of duress, or why public policy should attach different results to the supposed cases which are identical in the entire lack of a free and unrestrained consent. If the formal ceremony of marriage creates the status without regard to the means resorted to to induce consent, it would seem to follow that a free and intelligent consent is unimportant in any case, and that the final ceremony is the only important element of the marriage contract. But as the status must result from the contract, there can be no status in the absence of a contract, and there can be no contract in the absence of a free and mutual understanding and agreement. There is no public policy which binds parties to contracts they never made, either expressly or by reasonable implication.

But it is sometimes argued that in view of the assumed sanctity of the marriage relation and its importance to society and the state, though one may be induced by fraud to agree to the marriage ceremony, he is estopped, after that event, upon discovering the fraud, to set it up in a court of equity as a ground for a decree declaring the fraudulent ceremony of no force or effect. This theory is suggested by Bishop (Mar. and Div. § 460), where he illustrates his view in the case of a man who has been defrauded by the woman, by asserting that—

"In the act of marriage, he says to her in effect and in law, 'I take you to be my wife * * * whether you have deceived me or not.' In other words he waives the condition," upon which he agreed to marry her by going through the form of marrying her.

While the discovery of the fraud an instant before the ceremony would justify his breach of the previous promise of marriage, his discovery of it an instant after would afford him no grounds for relief, because unconsciously he has precluded himself from taking that position. It is hard to understand the reason for such a rule of law or to explain it by a reference to any sound principle of public policy or good morals, prevailing within this jurisdiction.

It cannot be successfully maintained upon legal principles that the marriage status, inadvertently entered into, instantaneously operates to the advantage of the guilty party and to the serious detriment of the defrauded party, or that the interest of the state is fostered and promoted by such a result. It would seem that public policy would denounce such a proposition as archaic and wholly unsuited to the present state of civilization and the prevailing ideas of juridical justice. It is evident that the doctrine of waiver or estoppel is not applicable in the case supposed. But if it is not tenable in such a case, then it is not true that as a general proposition the fraud of one of the parties, which produces the consent of the other party, furnishes no ground for an annulment of the marriage. The...