Scroggins v. Scroggins

• Decision Date: 31 December 1832
• Citation: 14 N.C. 535
• Court: North Carolina Supreme Court
• Parties: MARVILLE SCROGGINS v. LUCRETIA SCROGGINS.

14 N.C. 535

MARVILLE SCROGGINS

v.LUCRETIA SCROGGINS.

SUPREME COURT OF NORTH CAROLINA

DECEMBER TERM, 1832

1. Fraud in the contract of marriage, to entitle a party to a divorce, must consist of something more than mere concealment of defects—there must be such misrepresentations as would deceive a person of ordinary prudence; and where the husband, at the marriage, might have known that his intended wife was pregnant, and five months afterward she had a mulatto child: It was held that he was not entitled to a divorce.

2. The construction of the Act of 1827, ch. 17, giving the Superior Court exclusive jurisdiction in all cases of divorce, stated by RUFFIN, J.

THIS was a petition for a divorce. The petitioner stated that the marriage took place on 18 December, 1828; that the parties "lived together in uninterrupted harmony for near five months, when the infidelity and fraud of the defendant was manifested by an occurrence which admitted of neither explanation nor palliation, and dissipated all hopes of happiness, etc.; that on 1 May, 1829, the defendant became the mother of a mulatto child." The petitioner proceeded to negative the idea of condonation on his part, and prayed for a divorce, a vinculo matrimonii.

His Honor, Martin, J., at BUNCOMBE, on the spring circuit of 1831, dismissed the petition, thinking that the facts stated in it, if true, did not authorize the sentence prayed for. From this judgment the plaintiff appealed.

(540)

RUFFIN, J. The Legislature, in the Act of 1814, authorizes divorces in two cases: the one, impotency at the time of the marriage, and still continuing; the other, a separation by one party from the other, and living in a state of adultery. The Act of 1827, ch. 19, empowers the Superior Courts to divorce either from the bonds of matrimony, or from bed and board, whenever they may be satisfied of the justice of the application.

This act imposes a task of great difficulty on the courts, and one perhaps less agreeable than any they can be called on to perform, that of acting upon a most important subject without a rule laid down for them by the Legislature, or heretofore adopted by their predecessors. The jurisdiction is a new one to our courts, and we find no precedents in those adjudications from which we draw our learning upon other subjects. Where such a jurisdiction is created, and the Legislature marks out those boundaries within which, in their wisdom, they think it proper the courts should be confined, or to which they shall go, obedience is both an easy and a pleasing duty. It is when we are told to do what is right, but not told what they deem right, that we are lost in the mazes of discretion. I cannot suppose, however, that the discretion conferred is a mere personal one, whether wild or sober, but must from the nature of things be confined to the cases for which provision was before made by law, or for those of a like kind. This presumption is the stronger when the subject is one upon which it is known that specialists and moralists have much disputed, differing as to the policy of divorces and their influence upon the parties themselves, during their union, and after their separation, and upon which lawgivers,

acting upon experience and disregarding theory, have generally been agreed in refusing them altogether, where the marriage was lawful, except in the case of impotency. If the Court could think that the duty to be performed was intended to be referred to the private opinions of the judges, it would be promptly, though reluctantly, executed; for there is no member of the Court who is not strongly impressed with the conviction that divorces ought in no ease to be allowed, but in that already mentioned, and near consanguinity. We know that individuals may experience much misery by an unhappy connection, where tempers are incompatible, where there are disgusting personal defects, moral depravity, mutual injuries, proceeding even to unfaithfulness and unchastity. We know, too, that like consequences often follow from a mere change of affection, and that the growing indifference of the one not only produces pain to the other, but irritates and provokes reproaches, until hatred takes the place of former regards, and the tie between them is severed, as far as the law will allow it. If the consequence of dissolving the union entirely stopped with those parties, and conferred on them peace instead of the pain they suffered, it were but cruelty not to unloose the chain. But the knowledge that when this last stage of distress arrived, it would of itself bring relief, would precipitate its approach. Slight differences would grow into lasting dissensions, and a single act of unfaithfulness could easily be converted into habitual adultery. These evils are, in a great measure, avoided by the principle of our law, which declares the marriage contract to make a perfect union between the parties, so that they become one; and, to carry it out, they ought to believe and feel that they are ever to remain so—that absolute union is also indissoluble. That, and that alone, can impress upon each the necessity of mutual forbearance, of submitting to slight inconveniences, overcoming antipathies, and contributing to theenjoyments of each other. We reconcile ourselves to what is inevitable. Experience finds pain more tolerable than it was expected to be, and habit makes even fetters light. Exertion, when known to be useless, is unassayed, though the struggle might be violent if by possibility it could be successful. A married couple, thus restrained, may become, if not devoted in their affections, at least discreet partners, striving together for the common good, and steady friends, ready to perform all offices of kindness required by the other, instead of the dissentient heads of a distracted family, driven by inflamed passions to a degree of madness not to be satisfied with less than an entire separation, though it bring disgrace on themselves and their offspring, and deprive the latter of the greatest earthly advantage, the nurture and admonitions of a parent. For these reasons, in most, and I believe in all, Christian countries, although the contract be regarded by the law merely as civil, it is usually

executed with some religious ceremonial; so, as in a degree to impress upon it in the eyes of the individuals themselves a character of holiness, that it may appear to be entered into before a witness who cannot be deceived or forget, and therefore to be infrangible. Our restless dispositions and capricious tastes and tempers require these checks and restraints. Why shall they be removed? Why give way to those very propensities in our nature, which it is our interest to repress? Is it not wiser, better, kinder to the parties themselves and their issue to declare the engagement to be unsusceptible of modification, much less abrogation; to make their union so intimate, so close, and so firm that no discoveries of concealed defects, more than supervenient disease, depravity, dissoluteness, or dissension could rend it asunder? Such being the case, the state would be the more discreetly entered into, and the intercourse through life be the more harmonious. Such considerations have produced the private convictions felt by those who are now the judges of the Court. But they seem not to have made the same impressions on all, and it is our duty, notwithstanding the unlimited powerswhich we are commanded to exercise, to endeavor to ascertain, as well as we may, in what cases the Legislature would, upon ascertained facts, authorize the parties to abandon their former choice, and make a new selection.

To the extent of the Act of 1814, we consider the Court constrained to go. And from the second section of the Act of 1827, we suppose...