Pretlow v. Pretlow

• Decision Date: 21 April 1941
• Docket Number: Record No. 2340.
• Citation: 177 Va. 524
• Court: Virginia Supreme Court
• Parties: LOUISE CURDTS STORY PRETLOW v. ROBERT ASHTON PRETLOW.

Page 524

177 Va. 524

LOUISE CURDTS STORY PRETLOW v. ROBERT ASHTON PRETLOW.

Record No. 2340.

Supreme Court of Virginia, Richmond.

April 21, 1941.

Present, Campbell, C.J., and Holt, Gregory, Browning, Eggleston and Spratley, JJ.

1. DIVORCE — Annulment — Equitable Jurisdiction in Cases of Fraud — Case at Bar. — In the instant case, a suit for divorce, respondent filed a cross bill alleging fraud and the evidence showed that the marriage was never consummated, that the plaintiff was to blame and that she never at any time intended that it should be consummated. The proceedings involved the settlement of property rights and one of the major objections set out in a demurrer to the cross bill was that equity jurisdiction was not conferred by statute and did not exist. The trial court held that fraud which goes to the fundamentals of marriage relations gives jurisdiction and that property rights growing out of that fraud could be adjusted also.

Held: No error.

2. DIVORCE — Generally — Marriage Cannot Be Dissolved by Mutual Agreement. — Marriage contracts cannot be dissolved by mutual agreement.

3. DIVORCE — Generally — State Is Interested Party in Marriage Relation. — The State is interested to preserve the integrity of the marriage tie, and to enforce its laws against prohibited marriage, and general rules applicable to private contracts should not be permitted to thwart the public policy of the State established for the protection of society.

4. FRAUD AND DECEIT — Equity — Alert to Discover. — Equity is alert to search out fraud.

5. DIVORCE — Annulment — Equitable Jurisdiction in Cases of Fraud. — Since the status of marriage is conferred by a contract, without which it cannot exist, and since for avoiding contracts equity has jurisdiction over all questions of fraud, mistake, and lunacy, if one of these impediments has entered into a marriage, a court of equity, in the absence of any other jurisdiction, will on due application pronounce it void.

6. DIVORCE — Annulment — Unconsummated Murriage Annulled More Readily than Consummated Marriage. — Annulment of an unconsummated marriage may be secured more readily than in a case where the parties have cohabited.

7. DIVORCE — Annulment — Unconsummated Marriage Will Be Dissolved for Fraud. — Marriage before consummation will be dissolved for any kind of fraud which would render a contract voidable.

8. JURISDICTION — Divestiture — Statutory Declaration Must Be Clear. — Jurisdiction once acquired is not lost unless there is some statutory declaration which makes the purpose of the legislature plain.

9. JURISDICTION — Concurrent Jurisdiction — Equity Jurisdiction Not Ousted by Subsequent Legal Remedy. — Courts of equity having once acquired jurisdiction never lose it because jurisdiction of the same matters is given to law courts, unless the statute giving such jurisdiction uses prohibitive or restrictive words.

10. DIVORCE — Annulment — Divorce Is Statutory While Annulment Rests in Inherent Power of Equity. — Divorce is the creature of statute, while annulment rests within the inherent power of equity, inherited by it from the ecclesiastical courts of England.

11. DIVORCE — Annulment — Statutory Grounds for Annulment Not Exclusive in Equity — Case at Bar. — In the instant case, a suit for divorce, respondent filed a cross bill alleging fraud and the evidence showed that the marriage was never consummated, that the plaintiff was to blame and that she never at any time intended that it should be consummated. Respondent contended that the marriage was void or at least voidable at his election, while plaintiff contended that since section 5105 of the Code of 1936 in general terms gave to equity jurisdiction in suits to annual marriages and sections 5087 to 5089, and section 5100 specified when marriages might be annulled and named causes for such annulment, the enumerated causes were inclusive and that since other causes, such as incapacity to perform marital duties, were nowhere mentioned such other causes were excluded.

Held: That fraud, particularly before consummation, was within reach of the long arm of a court of equity, and that the power to annul was not lost because other grounds were specifically mentioned in the statutes. It was a power not conferred by statute but inherent with respect to all civil contracts voidable upon grounds recognized by it.

12. LACHES — Acquiescence — Action Should Be Taken upon Discovery of Fraud. — As a general rule, he who discovers fraud imbedded in his contract must, upon its discovery and without delay, seek rescission if he is to prevail.

13. FRAUD AND DECEIT — Choice of Remedies — Cannot both Affirm and Disaffirm. — While the party entitled to relief may either avoid the transaction or confirm it, he cannot do both; if he adopts a part, he adopts all; he must reject it entirely if he desires to obtain relief.

14. FRAUD AND DECEIT — Choice of Remedies — Affirmance or Disaffirmance — Facts Control Each Case. — In applying the rule that a party cannot both affirm and disaffirm, the Supreme Court of Appeals looks to the facts in each particular case.

15. LACHES — Elements — Delay Must Be Prejudicial. — Prejudicial delay must be shown before the defense of laches can be successfully maintained. Laches, in legal significance, is delay that works a disadvantage to another. So long as the parties are in the same condition, it matters little whether a right is pressed promptly or slowly within the limits allowed by law. The disadvantage may come from loss of evidence, change of title, intervention of equities and the like, but there must be prejudice from the delay.

16. LACHES — Delay in Repudiation — Situations Calling for Prompt Repudiation. — A condition in which situations are changing or one in which there could be no change calls for prompt repudiation, if repudiation is to be sought at all.

17. LACHES — Generally — Court Looks to Particular Facts. — In determining whether the doctrine of laches should be applied the Supreme Court of Appeals looks to the facts.

18. LACHES — Elements — Delay Must Be Prejudicial — Case at Bar. — In the instant case, a suit for divorce, respondent filed a cross bill alleging fraud and the evidence showed that the marriage was never consummated, that the plaintiff was to blame and that she never at any time intended that it should be consummated. Respondent contended that the marriage was void or at least voidable at his election, while plaintiff contended that even if the equitable right had attached it would have been lost through laches since the respondent waived the right by electing to continue the marital relations for some eight months after he was fully advised of the alleged fraud.

Held: That there was no merit in the contention of the plaintiff, since the parties could be placed in status quo, as the marriage had not been followed by cohabitation, and property rights remained as they were and the delay had done no harm.

19. HUSBAND AND WIFE — Transactions Between — Gift before Marriage Can Be Recovered If Engagement Broken. — If an intended husband make a present, after the treaty of marriage has been negotiated, to his intended wife, and the inducement for the gift is the fact of her promise to marry him, if she break off the marriage, he may recover from her the value of such present.

20. HUSBAND AND WIFE — Transactions Between — Gift Prior to Marriage Can Be Recovered upon Annulment — Case at Bar. — In the instant case, a suit for divorce, respondent filed a cross bill alleging fraud and the evidence showed that the marriage was never consummated, that the plaintiff was to blame and that she never at any time intended that it should be consummated. During the engagement of plaintiff and respondent, respondent paid an indebtedness of the plaintiff because he thought that a refusal might break up the marriage and for the same reason made a marriage settlement upon the plaintiff. The trial court, in granting the annulment of the marriage, required the plaintiff to make restitution of the amount of the indebtedness paid by the respondent during their engagement.

Held: No error, since the marriage was in form only and was in fact no marriage at all.

21. DIVORCE — Annulment — Allowance for Counsel Services on Appeal — Case at Bar. — In the instant case, a suit for divorce, respondent filed a cross bill and the trial court entered an order that respondent pay a certain sum as allowance to counsel for complainant for services rendered.

Held: That counsel for the plaintiff were entitled to an allowance for services on appeal.

Appeal from a decree of the Circuit Court of Southampton county. Hon. Allan R. Hanckel, judge presiding.

The opinion states the case.

Savage & Lawrence, for the appellant.

Hunton, Williams, Anderson, Gay & Moore and H. Merrill Pasco, for the appellee.

HOLT, J., delivered the opinion of the court.

Louise Curdts Story Pretlow, plaintiff in the court below and appellant here, married Robert Ashton Pretlow on March 10, 1937. Her maiden name was Curdts. In 1917 she married a Mr. Story and with him moved to the town of Franklin. He died in 1927, leaving two children, Dorothy, then ten years old, and Elliott, six, fruits of that marriage. After Mr. Story's death she continued to make that town her home. Mr. Pretlow was a widower who also lived in Franklin. He had three children, all of whom are now living and one of whom lives with him.

As might have been expected, Mr. Pretlow and Mrs. Story were casual friends, but his interest in her became more than casual in the autumn of 1936. About the first of February, 1937, he proposed marriage and was then accepted. On March 6, 1937, an ante-nuptial settlement was entered into, and they were married four days thereafter. Mr. Pretlow was then 67 years old and she was 44. She moved into the Pretlow home and lived there about six months. In June, 1938, she filed her bill charging cruelty and desertion and...