Steerman v. Snow

• Decision Date: 18 October 1922
• Docket Number: No. 50/715.,50/715.
• Citation: 118 A. 696
• Parties: STEERMAN v. SNOW.
• Court: New Jersey Court of Chancery

118 A. 696

STEERMAN

v. SNOW.

No. 50/715.

Court of Chancery of New Jersey.

Oct. 18, 1922.

(Syllabus by the Court.)

Petition by Bertha T. Steerman, otherwise known as Bertha Snow, against Isaac Snow, for nullity of marriage. On final hearing on master's report and depositions ex parte. Decree nisi.

Joseph B. Perksie, of Atlantic City, for petitioner.

WALKER, Ch. The petition in this case is one for nullity of marriage on the ground of impotence. It contains two separate causes for action, which are labeled "first count" and "second count," as in common-law actions. They should be "first cause of action" and "second cause of action." See chancery rule 59 (100 Atl. xi). The first separate cause alleges marriage on March 28, 1920; that at that time the defendant was physically and incurably impotent to consummate the marriage by reason of the frigidity of his parts of generation or some other physical cause; that petitioner was ignorant of defendant's impotence at the time of the marriage, and has not subsequently ratified It; that petitioner and defendant cohabited together from their marriage until January 21, 1921, occupying the same room and bed, but. that the marriage was never consummated. After an allegation of residence the petitioner prays that the pretended marriage may be decreed to be null and void for the cause aforesaid, pursuant to the statute, and that the petitioner may have further and other relief. There is in this cause of action an averment that prior to the performance of the ceremony of marriage the defendant falsely represented to the petitioner that he was in perfect physical health and condition, and that he was able and willing to consummate the marriage, upon which representations the petitioner relied, but that defendant was then and there impotent to consummate the marriage, which was fully known to him. This latter is a cause for annulment for fraud inducing the marriage, and this allegation may be stricken out or will be disregarded, leaving the first count to stand as a petition for annulment under the statute. The second separate cause of action is founded entirely upon fraudulent representations as to virility, which were believed by the petitioner, and in reliance upon which she entered in the contract of marriage. The prayer is for a decree of nullity and for further and other relief.

Marriage, residence, and the impotence of the husband at the time of the marriage are sufficiently proved. It is also proved that he falsely represented himself to be virile and capable of consummating the marriage. This is somewhat extraordinary, and arose in this way: The wife had been married before, and had two children by her first husband. From her testimony it is clearly to be inferred, although she does not state it in terms, that her first husband became impotent some time after their marriage, and she apparently was fearful that she might encounter the same situation again, and therefore made bold to ask the defendant if he were capable, to which he untruthfully replied that he was.

In the case Anonymous, 24 N. J. Eq. 19, Chancellor Runyon held that this court will annul a contract of marriage outside of its statutory Jurisdiction only where the contract is void; and he refused to annul the marriage for impotence on the part of the husband which existed at the time of marriage, had continued ever since, and was incurable; and this for the reason stated by Bishop, whom he quotes, that is, because impotence is a canonical defect which only makes the marriage voidable and not void until sentence of nullity is pronounced, and he stated that, whether the application before him be considered as one for divorce according to the special prayer of the bill, or for a decree of nullity under the general prayer, it must be denied; and he concluded as follows:

"If, in the opinion of the Legislature, sound public policy demands that the jurisdiction of this court be extended to such causes as this, it will so enact."

And it did, for the next Legislature, that of 1874, incorporated into the revision of the Divorce Act of that year (Rev. St. 1874, p. 254) section 4, which provides:

"Divorces from the bond of matrimony may be decreed in case the parties, or either of them, were, at the time of such marriage, physically and incurably impotent; and all marriages in such case shall be invalid from the beginning and absolutely void."

See Revision of 1877, p. 315. On the margin is a note, "P. L. 1857, p. 399." This is a mistake. In that year the Legislature passed a supplement to the Divorce Act dealing only with the time of desertion. This mistake is also in the marginal note in the Divorce Act to be found In 2 Gen. Stat. p. 1267, § 4. The same mistake has been carried into the note under section 1, subd. 3 of the Divorce and Nullity Act of 1907 (2 Comp. Stat p. 2022).

Now, in Carris v. Carris, 24 N. J. Eq. 517, the Court of Errors and Appeals held, at page 522, reversing Chancellor Zabriskie, that the jurisdiction...