Jakar v. Jakar

• Decision Date: 26 January 1920
• Docket Number: 10333.
• Citation: 102 S.E. 337,113 S.C. 295
• Parties: JAKAR v. JAKAR.
• Court: South Carolina Supreme Court

102 S.E. 337

113 S.C. 295

JAKAR v. JAKAR.

No. 10333.

Supreme Court of South Carolina

January 26, 1920

Appeal from Common Pleas Circuit Court of Richland County; Wm. H Townsend, Judge.

Action by Marie M. Jakar against Isaac Jakar to set aside a marriage. From a judgment denying relief, plaintiff appeals. Affirmed.

The report of the master and decree of the trial judge are as follows:

Report of Master.

This cause was referred to me by order of his honor Thomas Sease presiding judge, dated January 13, 1919, to take the evidence upon all the issues herein and make report thereof with my findings and conclusions of law and fact.

The summons and complaint were duly served upon the defendant on the 13th day of December, 1918, as shown by proof of service attached to the complaint, and the defendant gave no notice of appearance, and filed no plea in this cause.

The action is for the purpose of having declared null and void, on the ground of fraud and deceit, the marriage entered into between the plaintiff and defendant at Columbia, S. C., on the 25th day of September, 1918. I took the testimony of several witnesses offered by the plaintiff which testimony is herewith reported, and upon this testimony I make the following findings and conclusions, to wit:

(1) The defendant, Isaac Jakar, first met the plaintiff a short time perhaps a week, before the marriage. He was accompanied in his first visits and several of his visits by another man who he introduced as Capt. Pullen, though he was in reality a lieutenant, as he himself seems to have corrected the error. The defendant visited the plaintiff first at the place where she was employed as a milliner in the city of Columbia, and then saw her at the Y. W. C. A., where she was making her home, on several occasions.

(2) The defendant represented himself as of Belgian birth, a physician who had been an instructor in a medical college in Brussels, and stated that he was an officer with some 20 physicians employed under him, at the hospital at Camp Jackson. He also represented himself as a man of considerable and independent means and extensive education.

(3) He pressed his suit with much ardor and insisted on hastening the marriage upon the plea that the government would make him an allowance on account of being married for his rooms and quarters if he was married, and it was necessary for this purpose that he should be married before the 25th of September to get his application for apartments for officers into Washington by the 1st of the month.

(4) These statements as to his means, as to his rank, and as to his education were made in the presence of the secretary of the Y. W. C. A., and of Miss Smith, a friend of the plaintiff, and in the presence of Dr. Pullen, who was a commanding officer in the United States army, in the medical service. He also stated that he spoke ten different languages.

(5) The name of the plaintiff before her marriage was Marie Corvette, who had come to this country from Belgium 12 years ago, and the home of her parents was Rowesville, in Orangeburg county, but she had worked for nine seasons as a milliner with Haltiwanger, in Columbia, and was at this time working there, and was rooming at the Y. W. C. A.

(6) Through his representation as a citizen of Belgium he seems to have been able to open a way of communication and social relations with the plaintiff.

(7) During his courtship he seemed to have spent his money freely and acted ostensibly as a man of means, entertaining the plaintiff at the best hotels and restaurants in the city.

(8) He furnished the usual jewelry, to wit, a wedding ring and a diamond ring, which latter, however, plaintiff says, was paste.

(9) Soon after the marriage, he succeeded in borrowing $50 from the plaintiff's scanty supply, by misrepresentation, and he never paid that back. He also borrowed from a friend of the plaintiff a small sum, and the plaintiff paid that back. He undertook to give a check on a Western bank, and that bank reported he had no funds. He became very harsh and cruel almost immediately after the marriage, and it soon developed that all of his statements about his position, his wealth, and his education, and even the land from which he came, were entirely false. The evidence tends to show that he killed a former wife. He brought other people into his wife's bedroom when she was sick. He visited her father's home in Orangeburg county, and tried to take her away by force, and made an assault on her father with a pistol, and acted more like a maniac than a human being.

(10) The evidence of plaintiff, and this is undisputed, shows that the marriage was never consummated by cohabitation.

Conclusion: In my opinion, the alleged marriage was procured by fraud, misrepresentation, and deceit, and was not and is not a valid contract, and it should be set aside and declared null and void.

Decree of Circuit Court.

This case comes on to be heard on the master's report of his findings of fact and conclusions of the law.

I have carefully considered the report of the testimony, and concur generally in the master's findings, except his findings that the evidence tended to show defendant had killed a former wife. The evidence tending to show that was incompetent hearsay, and cannot be considered in court. The plaintiff's testimony that the marriage was never consummated by cohabitation is inconsistent with the circumstances, to which she testifies, that she and defendant occupied the same room for several days after the marriage, and fails to establish to the satisfaction of the court the jurisdictional fact that the marriage was never consummated by cohabitation. Davis v. Whitlock, 90 S.C. 242, 73 S.E. 171, Ann. Cas. 1913D, 538; Civil Code, § 3753.

But, if I should be in error in finding that the evidence fails to establish the fact "that the marriage contract was not consummated by the cohabitation of the parties thereto," I am still of the opinion that the complaint should be dismissed. The contract, from its peculiar nature and on general grounds of public policy, the law regards as especially sacred and inviolable. It cannot be voided or set aside on the ground of fraud, except on the most plenary and satisfactory proof of deceit and imposition, touching matters which constitute the essentials of the marriage relation. Reynolds v. Reynolds, 85 Mass. (3 Allen) 605; Foss v. Foss, 94 Mass. (12 Allen) 26; Boehs v. Hanger, 69 N. J. Eq. 10, 59 A. 904. "False representation of a party as to his character, social standing or fortune do not constitute such fraud on the opposite party as to avoid a marriage induced thereby," even though he conceal the fact that he has served a term in the penitentiary. Wier v. Still, 31 Iowa, 107; Fisk v. Fisk, 6 A.D. 432; Williamson v. Williamson, 34 App. D. C. 536, 30 L. R. A. (N. S.) 301, and note. "The fraudulent representations for which a marriage may be annulled must be of something essential to the marriage relation--of something making impossible the performance of the duties and obligations of that relation or rendering its assumption and continuance dangerous to health or life." Lyon v. Lyon, 230 Ill....