Heath v. Heath

• Decision Date: 01 March 1932
• Citation: 159 A. 418
• Parties: HEATH v. HEATH.
• Court: New Hampshire Supreme Court

159 A. 418

HEATH

v. HEATH.

Supreme Court of New Hampshire. Sullivan.

March 1, 1932.

Transferred from Superior Court, Sullivan County; Scammon, Judge.

Suit for annulment of marriage by Jessie Oram Heath against Eugene E. Heath. Transferred without ruling on issue.

Petition dismissed.

Petition to annul a marriage. The petitioner's consent to marry was pleaded to have been obtained by the petitionee's fraudulent statements that he was of sober and industrious habits, had properly saved, had committed no sexual immorality, and had not been convicted of crime. Conviction for adultery was averred.

The court transferred without ruling the issue if the petitioner is entitled to a decree of annulment on proof of the fraud.

Henry N. Hurd, of Claremont, for petitioner.

ALLEN, J.

The case presents the issue how far bad character, bad conduct, and material worthlessness, fraudulently denied to induce a marriage, renders the marriage voidable at the instance of the defrauded spouse. The issue is one of difficulty, and has far-reaching bearings. If proof of the charges, collectively or separately, is held sufficient to authorize annulment, it is through an advance of judicial power not hitherto exercised and accomplished by a declaration of public policy in expression of views of social welfare.

Summarized, the charges of falsehood are of sober and industrious habits and sexual virtue in respect to character, of savings in respect to material worth, and of law-abiding conduct when there had been a conviction for the crime of adultery. Admittedly so important and serious as to underlie the petitioner's consent to the marriage, is the fraud so material that the marriage may and should be annulled?

It is said in Keyes v. Keyes, 22 N. H. 553, 556: "Fraud is an element which vitiates all contracts, and may be of a character to vitiate and will vitiate even the marriage contract." No rule or test is made in definition of the kind of fraud which will entitle the defrauded party to an annulment. But a test was undertaken in Gatto v. Gatto, 79 N. H. 177, 184, 106 A. 493, 497, in this pronouncement: "As marriage is deemed to be a civil contract, and not a sacrament, fraud in a material respect which prevents a substantial meeting of the minds of the parties in an intelligent agreement for marriage cannot be said to be immaterial, or beyond the province of the court to correct by a decree of annulment."

Thus defined, the rule permits the avoidance of marriage for any fraud of the guilty spouse if it is important enough to be a substantial inducement of the marriage. It signifies no narrowing of the general principle of avoidance for fraud. It makes no discrimination between different inducements by which the fraud is accomplished. It would apply to promises of future conduct not intended to be kept when made.

Going further, the opinion declares in general terms that public policy "does not regard a fraudulent marriage ceremony as sacred and irrevocable by judicial action." It is conceded in the opinion that marriage is a contract "attended with many important and peculiar features in which the state is interested," and "is one of the fundamental elements of social welfare." It is maintained that its importance should make it "difficult to successfully perpetrate fraud and deceit as inducements to the marriage relation," rather than that the fraud should be "wholly disregarded by the courts." In conclusion of the argument, it is said that "the successful perpetration of fraud is not * * * a subject for judicial encouragement, * * * nor is the court authorized to legislate in favor of such a policy."

The reasoning comes to the proposition that the public concern in the marital status is such as to call for the annulment of all marriages tainted with "material" fraud. The public interest in the welfare of the institution of marriage is promoted by the erasure of such marriages. Not to cancel them is against the public interest because "unhappy and unfortunate marriages ought not to be encouraged," and, if judicial relief is not given, the courts are open to the charge of upholding wrong.

Carried to its logical conclusion, the case would appear to leave "material" fraud preventing a "substantial" reality of agreement to be determined as a question of fact in each case, by the rule it defines. The effect of the fraud in the particular case as well as its general nature would have large bearing. To some the fraud would be more serious than to others. The rule is so broad and general in its comprehensive scope that it leaves much to the discretion of the trier, and practically each case would be largely decided on its own special merits. The uncertainties and discrepancies that would thus arise would produce an unsatisfactory situation both from the public's and the individual's standpoint.

In view of the insecurity and disturbance which the rule would seem to lead to, and in view of the serious doubts with reference to its statement of the public policy on the subject in its application to such cases, it is thought proper to consider if the reasoning of the case is to receive credit as accepted and established authority. The case was one of extreme urgency, and no such broad latitude for the play of fraud in affecting the validity of the marriage contract as the case holds is authorized was necessary to reach the result of sustaining the annulment which the trial court had decreed.

The issue of what constitutes a voidable marriage is not readily determined, as is shown by a rather hopeless conflict of authority and a large variety of rules among the different jurisdictions. As the subject is approached and emphasized from the standpoint of contractual relations or from that of public interest, difference of opinion naturally appears. In the ascertainment of the extent and limits of the public interest, varying conclusions are reached. It would seem that matters of doubt and of personal opinion are at times resolved into settled rules and principles of policy, Almost necessarily the conclusions are not uniform.

The courts have authority to annul void marriages. They also have some authority to hold a marriage voidable and annul it. But such authority is exceptional, and does not mean the right to hold a marriage voidable as though it were an ordinary contract.

It is said in the Gatto Case that there is no public policy against the annulment of fraudulent marriages, as evidenced by the statutes, decisions, and general consensus of opinion. Statutes and decisions are admittedly sources of the ascertainment of public policy, but general opinion or the state of the public mind as an independent matter of investigation has been questioned. It is said in Spead v. Tomlinson, 73 N. H. 46, 58, 59 A. 376, 379, 68 L. R. A. 432, that public policy is "the policy of the state as evidenced by its laws," and that on the issue of a policy "the only matters which can be considered are its Constitution and statutes and the provisions of the common law as evidenced by the decisions of the courts; for the common law, modified by the Constitution and statutes of the state, is the law of the state." This limitation of evidence to show policy is followed in Glover v. Baker, 76 N. H. 393, 419, 83 A. 916. It therefore becomes necessary as a preliminary inquiry to resolve the conflict between the rule of these cases and the broader rule employed in the Gatto Case.

In the statement that the common law, as modified by organic and statute law, is the law of the state, the common law, with its adaptability to change, is not fully defined. The constitutional enactment (Const. pt 2, art. 90) that "all the laws which have heretofore been adopted, used, and approved, in the province, colony, or state of New Hampshire, and usually practiced on in the courts of law, shall remain and be in full force, until altered and repealed by the legislature * * *" did not perpetuate "any part of the common law incompatible with our institutions, or not adapted to our circumstances." Lisbon v. Lyman, 49 N. H. 553, 582, and cases cited. And, while legislation "cannot alter by reason of time," "the common law may, since cessante ratione cessat lex." Cole v. Winnipisseogee Lake Cotton & Woolen Mfg. Co., 54 N. H. 242, 285. When a rule is no longer "adapted to our circumstances," a change of circumstances, whether in a matter of policy or otherwise, invokes a change of the rule. And the circumstances, with their changes, are to be noticed.

It seems self-evident that law incompatible with our institutions or unadapted to our circumstances is against public policy. And it seems equally self-evident that the institutions and circumstances must be first known to tell what the policy is, in an original inquiry. The law to be declared is one that conforms with our institutions and circumstances, and their determination is no more and no less than an ascertainment of public policy. The difference of phraseology represents no real difference of thought. When it is determined what the public interest requires, the rule of law respecting it is determined.

The early cases abundantly support this proposition. As far back as 1818, it was said in Eustis v. Parker, 1 N. H. 273, 278: "It is undoubtedly true, that the great body of the common law is in force here; but it is equally true that many of its principles have been rejected, as not adapted to the situation of the country." In Houghton v. Page, 2 N. H. 42, 44, 9 Am. Dec. 30, an early common rule of interest was discarded on the principle that the only common-law rules here in force are those expressly adopted or those impliedly binding as being "applicable to our state of society and of jurisprudence, and founded on axioms of intelligent reason." In Pettingill v. Rideout, 6 N. H. 454, 25 Am. Dec. 473, the court considered the English common-law rule deferring the enforcement of civil liability for a criminal act until tie...