Ryder v. Ryder

• Decision Date: 16 April 1894
• Parties: RYDER v. RYDER
• Court: Vermont Supreme Court

28 A. 1029

66 Vt. 158

RYDER

v. RYDER

Supreme Court of Vermont. Windham.

April 16, 1894.

Exceptions from Windham county court; Rowell, Judge.

Petition by William J. Ryder against Cora B. Ryder for divorce. The petition was dismissed, and petitioner excepts. Reversed.

Waterman, Martin & Hitt, for petitioner.

ROSS, C. J. This is a petition for annulling a marriage, upon the grounds—First, that it was procured by fraud; and, secondly, that the petitionee was physically incapable of entering into the marriage state. Rev. Laws, § 2349, provides that "the marriage contract may be annulled when at the time of the marriage either party * * * was * * * physically incapable of entering into the marriage state, or when the consent of either party was obtained by force or fraud." It is found that, "at the time of this marriage, the petitionee had chronic syphilis, which was incurable; that at this time he supposed her to be chaste; that in about two months she communicated the disease to him; that they then both consulted a physician, who treated them some time, when she got better; that he believed from that time, until the child was born, she had got well of the disease, and would not be troubled with it again; that he did not know she had disease until she communicated it to him; that he voluntarily cohabited with her both before and after he knew of her disease; that a child was born to them about a year and four months after the marriage; that the child was a mass of syphilitic sores, attributable to the condition of the mother, and soon died; that, at the birth of the child and afterwards, the mother was in about the condition of the child from such sores; that he never had intercourse with her after the birth of the child; and that at no time could he have sexual intercourse with her without great danger of contracting the disease." Upon these facts the question is whether the trial court was in error in refusing to annul the marriage. A majority of the court think it was. It is not found that the petitionee was fully aware of her condition at the time of the marriage. This court cannot presume she was, to find error in the judgment of the trial court. It has made no finding on that subject. This court would presume she was not, rather than otherwise, to uphold the judgment of the trial court. If it were found that she was fully aware of her condition, she would have been guilty of a fraudulent concealment, in not disclosing it to the petitioner. It would be an essential fact, entirely within her knowledge, not within his, nor open to his observation nor to his inquiry upon any reasonable principles which do or should prevail in...