Shatford v. Shatford

• Decision Date: 24 January 1949
• Docket Number: 4-8667
• Citation: 217 S.W.2d 917,214 Ark. 612
• Parties: Shatford v. Shatford
• Court: Arkansas Supreme Court

217 S.W.2d 917

214 Ark. 612

Shatford v. Shatford

No. 4-8667

Supreme Court of Arkansas

January 24, 1949

Rehearing Denied March 21, 1949.

Appeal from Union Chancery Court, Second Division; W. A. Speer Chancellor.

Reversed.

Wayne Jewell and Wilson & Kimpel, for appellant.

Mahony & Yocum, Walter L. Brown and Silas W. Rogers, for appellee.

OPINION

Ed. F. McFaddin, Justice.

This case originated as a suit by the man (hereinafter called Shannon) seeking to annul his marriage with the woman (hereinafter called Jean) on the ground of her fraud in obtaining the marriage. The Chancery Court granted the prayed relief, and annulled the marriage; and this appeal challenges that decree. The voluminous record has 680 pages, which include the 18-page opinion of the learned Chancellor. Three questions are presented, which we will discuss under suitable topic headings.

I. The Cause of Action. The complaint alleged that Jean represented to Shannon that she was pregnant by reason of their sexual intercourse, and that he was the father of the unborn child; that said representations by Jean as to paternity of her unborn child were "false and fraudulent and were known to her at the time to be false and fraudulent, and that thereby defendant perpetrated a fraud upon the plaintiff"; that Shannon relied on Jean's representations (as to the paternity of the unborn child), since he did not know they were false; that because of such representations the parties were married on January 25, 1947; but that after the marriage Shannon learned of the falsity of the representations as to the paternity of the unborn child. This suit for annulment was instituted on March 4, 1947. The child was born to Jean on September 18, 1947. The chancery decree of annulment was rendered December 15, 1947.

In short, the question is: On the ground of fraud, will a court of equity grant the husband an annulment of the marriage when the wife falsely represented to the husband -- in order to obtain the marriage -- that he was the cause of her pregnancy because of their ante-nuptial sexual relations, and when the wife knew the truth to be that some other man was the cause of her ante-nuptial pregnancy? Section 9021, Pope's Digest, provides: ". . . where the consent of either party shall have been obtained by . . . fraud, the marriage shall be void from the time its nullity shall be declared by a court of competent jurisdiction." In Mason v. Mason, 164 Ark. 59, 261 S.W. 40 this language appears: "It has been held that a marriage induced by misrepresentation as to the paternity of a child will afford grounds for annulment, where the parties had been having sexual intercourse before the marriage and the husband was induced to believe, by the false representations, that he was the father of the child. Nelson on Divorce and Separation, §§ 607, 608, 609." While the quoted language was not necessary to the decision in the Mason case, nevertheless, the quotation is a correct statement of the trend of the modern cases. In 35 Am. Juris. 264 this appears: "Later cases have generally granted relief by way of annulment of a marriage entered into by a man because of the fraudulent representations by a woman that the child with which she is pregnant is his." See, also, annotations, "Right to Annulment of Marriage Induced by False Claim that Husband was Cause of Existing Pregnancy", in 11 A. L. R. 931 and 19 A. L. R. 80.

The earlier decisions held that the husband was not entitled to an annulment in circumstances as here alleged. Most of these cases denying the husband relief were based on either the equitable maxim that "He who comes into equity must come with clean hands", or that "Equity aids the vigilant." Cases based on the first maxim hold that the husband, having practiced antenuptial unchastity with the woman who subsequently became his wife, could not expect equity to aid him in granting an annulment. Cases based on the second maxim hold that the husband should have made diligent inquiry before marrying his wife, since he knew of her ante-nuptial unchastity; and that his subsequent desire for annulment came too late. For cases denying the husband annulment, see: Foss v. Foss, 12 Allen, [Mass.] 26; Crehore v. Crehore, 97 Mass. 330, 93 Am. Dec. 98; Safford v. Safford, 224 Mass. 392, 113 N.E. 181, L. R. A. 1916 F, 526; States v. States, 37 N.J.Eq. 195; Seilheimer v. Seilheimer, 40 N.J.Eq. 412, 2 A. 376; Santer v. Santer, 324 P. 140, 188 A. 531.

In Morris v. Morris, 1 Terry, 480 (Del.), 13 A.2d 603, this statement is made in that scholarly opinion: "It is a noteworthy fact that no case, pertinent to the present discussion, denying relief to the husband, has been determined since 1892." The modern cases allow the husband relief in the situation here alleged, and grant him an annulment of the marriage. The reasoning on which most of these cases are based is well stated by the Supreme Court of Wisconsin in Winner v. Winner, 171 Wis. 413, 177 N.W. 680, 11 A. L. R. 919:

"To say that, under such circumstances, the man has no right to rely upon the woman's statements that he is the father of the child she is bearing, and that he must make inquiry elsewhere as to her chastity, is to negative all virtue, all truthfulness, and all decency in every woman that may have been imprudent enough to anticipate with her lover the rights of the marriage relation. . . . The act of marriage in such a case is not the result of negligent credulity, but of honorable motives to repair, as far as possible, wrongs inflicted or shared by him. Such conduct should be encouraged, to the end that lesser wrongs be remedied instead of being followed by greater ones."

Among cases announcing and following the modern rule as stated in Winner v. Winner, supra, there are the following: Lyman v. Lyman, 90 Conn. 399, 97 A. 312, L. R. A. 1916E, 643, Wallace v. Wallace, 137 Iowa 37, 114 N.W. 527, 14 L. R. A., N. S. 544, 126 Am. St. Rep. 253, 15 Ann. Cas. 761; Gard v. Gard, 204 Mich. 255, 169 N.W. 908, 11 A. L. R. 923; Jackson v. Ruby, 120 Me. 391, 115 A. 90, 19 A. L. R. 77. See, also, Ritayik v. Ritayik, 202 Mo.App. 74, 213

S.W. 883; Di Lorenzo v. Di Lorenzo, 174 N.Y. 467, 67 N.E. 63, 63 L. R. A. 92, 92 Am. St. Rep. 609; Short v. Short, 265 Ill.App. 133; Morris v. Morris, (Del.) 480, 13 A.2d 603; Yanoff v. Yanoff, 237 Mich. 383, 211 N.W. 735; and Yager v. Yager, 313 Mich. 300, 21 N.W.2d 138. Our own case of Mason v. Mason, supra, is in line with the modern rule. See, also, Rowell v. Rowell, 184 Ark. 643, 43 S.W.2d 243. We hold that the complaint in the case at bar stated a cause of action.

II. The Admissibility of Certain Evidence. Shannon was permitted to testify that he had no sexual intercourse with Jean prior to January 4, 1947; and witnesses were permitted to testify as to declarations they claimed to have been made to them by Jean:

(a) Some testified that in December, 1946, Jean first said that a man named Wedgeworth was the cause of her pregnancy, and later said that a man named Grace was the cause of her pregnancy.

(b) Some testified that Jean confided to them that she was pregnant several weeks before she ever met Shannon.

It is strenuously insisted by the appellant that all of such evidence was inadmissible, since it tends to bastardize the child born after she married Shannon; and we are cited to Kennedy v. State, 117 Ark. 113, 173 S.W. 842, L. R. A. 1916B, 1052, Ann. Cas. 1917A, 1029, wherein we adopted the so-called "Mansfield Rule." We quote from Kennedy v. State:

"Lord Mansfield, in Goodright v. Moss, 2 Cowp. 591, declared as follows: 'It is a rule founded in decency, morality and policy that they' (husband and wife) 'shall not be permitted to say, after marriage, that they have had no connection and that therefore the offspring is spurious.'

"The weight of authority in this country at the present time is in favor of the doctrine announced by Lord Mansfield, and it is now generally held that, in the absence of a statute authorizing a married woman to testify as to the fact of nonaccess of her husband, she is incompetent to testify to that single fact in an affiliation or bastardy proceeding. 3 Ruling Case Law, § 11, p. 731; 6 Am. & Eng. Ann. Cas. 816, note.

"In Tioga County v. South Creek Township, 75 Pa.St. 433, the court said: 'Many reasons have been given for this rule, prominent among them is the idea that the admission of such testimony would be unseemly and scandalous, and this is not so much that it reveals immoral conduct upon the part of the parents, as because of the effect it may have upon the child who is in no fault but who must nevertheless be the chief sufferer thereby. . . . That the parents should be permitted to bastardize the child is a proposition which shocks our sense of right and decency, and hence the rule which forbids it.'" See, also, Jacobs v. Jacobs, 146 Ark. 45, 225 S.W. 22.

The Mansfield Rule has been severely criticized by Prof. Wigmore in his work on Evidence, Vol. VII, 3rd Ed., § 2063. But this rule is so firmly recognized in this State and in most other jurisdictions that we are unconvinced by Prof. Wigmore's statements. For other cases and notes discussing the Mansfield Rule, see: 60 A. L. R. 380; 68 A. L. R. 421; 89 A. L. R. 911, 13 Er. Rul. Cas. 312; 3 Jones on Ev. (4th Ed.), § 733, p. 1316; 7 Am. Juris. 630, § 21. See, also, Yanoff v. Yanoff, 237 Mich. 383, 211 N.W. 735 and O'Reily v. O'Reily, 120 Nebr. 720, 234 N.W. 916, where the parties were held incompetent to testify even in an annulment proceeding.

But the present proceeding is neither a proceeding to establish paternity nor to determine heirship, and under our statute -- § 9021, Pope's Digest -- the annulment, if granted would make the marriage void only from the time of the...