Sissung v. Sissung

• Decision Date: 15 February 1887
• Citation: 31 N.W. 770,65 Mich. 168
• Court: Michigan Supreme Court
• Parties: SISSUNG v. SISSUNG.

31 N.W. 770

65 Mich. 168

SISSUNG v. SISSUNG.

Supreme Court of Michigan

February 15, 1887

Appeal from Monroe. In chancery.

George M. Landon, for complainant.

George Gartner, for defendant and appellant.

MORSE J.

This is an appeal from the Monroe circuit court, in chancery, from an order overruling the general demurrer of the defendant to the bill of complaint filed in this cause. We are therefore to determine from the bill, taken as true, whether it alleges a cause of action.

The complainant shows that he intermarried with the defendant February 10, 1886; that he resides in Frenchtown, in the county of Monroe, and has lived in this state the requisite statutory time, and upwards, previous to the filing of his bill. While he lived with the defendant she gave birth to a male child, born April 20, 1886, whose father is one Joseph Shoemaker, as he is informed by defendant, and verily believes; that his acquaintance with said Gertrude began in the month of June, 1884, at which time she visited friends in the neighborhood of your orator's home, for about one week; that she again came to visit said friends on or about the month of January, 1885, and remained for about one month and then left for her father's home, in said county of Wayne, as he is informed and believes; that, after her said return, your orator neither saw nor heard from her again until the latter part of November, or the first part of December, 1885, at which time she again visited her friends for about one week, and returned home; that about six weeks after said last visit, said Gertrude requested your orator to come and see her, because she was sick since her last visit; that he went to visit her, and she informed your orator that she was pregnant by him, and insisted upon being married to him. Your orator further represents that, being without experience, and relying wholly on the truthfulness of said representation, and being willing to repair, so far as in his power, any wrong that he may have done, and to save the reputation and character of said Gertrude as well as his own, and intending to do as nearly right as he could, in the circumstances, married said Gertrude as aforesaid; that he took said Gertrude to his home in Frenchtown, in said county of Monroe, and that they took and occupied a house together and lived together as husband and wife, until the birth of said child, as aforesaid, up to which time your orator had, in good faith, believed said child to be his own. He alleges that he never had sexual intercourse with the defendant before her last visit, in the latter part of November or first part of December, 1885; that said child was full grown, and that the defendant had carried the same for the full period of gestation; that said child is not his, as falsely and fraudulently claimed by said defendant when she persuaded him to marry her; that defendant knew all the time that he was not, and could not be, the father of said child, but falsely pretended she was pregnant by him, and by so pretending induced him to marry her. He was deceived and defrauded into said marriage, and ought not to be held as the father of said child. He remained in the house with said defendant four days after her confinement, under the advice of a physician, and attended to her wants for the sole purpose of seeing that she did not suffer; that, as soon as suitable help could be procured, he left, and went to his father's house, since which time he has had no communication or intercourse with defendant. He avers the absence of any collusion or agreement, in conformity to the rule; and prays for a divorce; and that the child may be declared to be the child and heir of the defendant, but not of himself; and for general relief.

It seems to be well settled that a fraudulent concealment by the female of her pregnancy by another person, will avoid her marriage to one ignorant of this fact, and believing her chaste at the time of the marriage. If a woman is with child by a stranger at the time of the marriage, and her intended husband is ignorant of the fact, he may have the marriage declared null for fraud. Baker v. Baker, 13 Cal. 87-102; Reynolds v. Reynolds, 3 Allen, 605; Morris v. Morris, Wright, 630; Ritter v. Ritter, 5 Blackf. 81; Scott v. Shufeldt, 5 Paige, 43; Carris v. Carris, 24 N.J.Eq. 516.

A woman to be marriageable, it is said, must, at the time, be able to bear children to her husband; as the first purpose of matrimony, by the laws of nature and society, is procreation. A woman who is pregnant at the time of marriage by a stranger is not in a condition to bear children to her husband, and the concealment of that fact, or a misrepresentation, is a gross fraud upon the husband, and sufficient to avoid the marriage, if he was ignorant of her situation, and believed her chaste and virtuous. But most of the reported cases upon the subject hold that when the husband has had intercourse with the wife before marriage, and knows that she is pregnant, but is falsely led to believe that the child is his, and its birth proves it not to be his, yet, nevertheless, he must submit to the bonds of matrimony, and the presumed paternity of the child. Foss v. Foss, 12 Allen, 26; Crehore v. Crehore, 97 Mass. 330; Carris v. Carris, 24 N.J.Eq. 517.

In 97 Mass. the court say that the husband had full knowledge that the woman was unchaste before he entered into the marriage contract, and was thereby put on his guard, so that he cannot allege that he was induced to contract the marriage by such fraud and deceit of the defendant as will enable him to avoid his contract.

In Scroggins v. Scroggins, 3 Dev. 535 the petitioner was married on the eighteenth of December, 1828, and a mulatto child was born to his wife, May 1, 1829. The opinion states that he did not venture to swear that he belieyed her chaste at the time of his marriage, and for that reason denied his petition. But in a later case, Barden v. Barden, reported in the same volume, at page 548, where the petitioner alleged that he knew at the time of the marriage that the defendant had a child, but that he thought it was his, and that she, by her artful conduct before marriage, induced him to believe that she had been modest and virtuous, except in the one instance, which she pretended was the result of her attachment for him, and that soon after marriage he discovered that the child was a mulatto, upon which he had instantly parted from her, the court, composed of the same judges who united in the opinion in the case of Scroggins v. Scroggins, held the petition good. In Long v. Long, 77 N.C. 304, the majority of the court followed the decision in Scroggins v. Scroggins.

In Scott v. Shufeldt, 5 Paige, 43, the complainant alleged in his bill that he had occasionally visited the defendant, and that she afterwards made oath before a magistrate that she had been delivered of a bastard child, and that the complainant was the father of such child; that he was arrested upon the charge of bastardy, and required to give bail as the putative father of the child; believing it to be a white child, and being unable to procure bail, he consented to marry defendant, and did marry her; that he subsequently ascertained that the child was a negro child, the complainant and defendant being both white persons; and that he had not cohabited with the defendant subsequently to such marriage. It was held by the chancellor that the defendant intentionally defrauded the complainant in such manner as to authorize the court to declare the marriage contract a nullity. The court remarks that "if the child had not been born at the time of the marriage, the complainant would have had some difficulty in showing that he had been intentionally deceived and defrauded by the defendant, as she might possibly have supposed the child to be his, although she had also had connection with a negro about the same time."

This case sustains the bill of the complainant in this case. It authorizes the nullifying of a marriage procured by the fraud of the woman in representing to the man that she is pregnant by him, when, at the time of such representation, she knows that she is pregnant by a stranger, and not by him. And it seems to me to be consonant with equity and justice. Each case is governed more of less by its own circumstances, and, in the cases holding the contrary doctrine, a belief seems to have pervaded the courts that the complainant had been guilty of such moral wrong or statutory crime, by his intercourse with the defendant before marriage, as to preclude him from equitable relief, or that he had not shown with sufficient certainty that the child could not be his, and that the defendant knew at the time of the representations that the child was the fruit of intercourse with another.

In the case before us, as it stands upon the record, the defendant was unchaste, and pregnant by another man, when the complainant had intercourse with her. Taking advantage of this intercourse to hide her coming shame, she sends for complainant, who is young and inexperienced in the ways of the world and women, and pretends to be sick and pregnant from the result of the connection with him. She insists upon marriage. He, believing the child to be his, and the girl to have been virtuous before he met her, with the laudable desire of repairing the wrong that he supposed he had done and to save her character and reputation, marries her. The law looks with favor upon such action, and prosecutions for bastardy and seduction are frequently settled by marriage. If the story of complainant is true, he followed the dictates of conscience, and entered into the marriage relation with defendant from worthy motives. The betrayer of the innocent cannot be condemned for marrying his...