Townsend v. Morgan

• Decision Date: 21 January 1949
• Docket Number: 66.
• Citation: 63 A.2d 743,192 Md. 168
• Parties: TOWNSEND v. MORGAN et al.
• Court: Maryland Court of Appeals

63 A.2d 743

192 Md. 168

TOWNSEND v. MORGAN et al.

No. 66.

Court of Appeals of Maryland

January 21, 1949

Appeal from Circuit Court of Baltimore City; W. Conwell Smith, Chief Judge.

Suit by Arthur James Townsend against Elsie Morgan, also known as Elsie Mae Townsend and another, to annul complainant's marriage with named defendant and to sell their jointly owned realty and divide the proceeds. From decree sustaining demurrer to bill of complaint and dismissing bill of complaint, complainant appeals.

Decree reversed and case remanded.

Sidney I. Fradkin, of Baltimore, Md. (Bernard M. Savage, of Baltimore, Md., on the brief), for appellant.

No appearance for appellees.

No appearance for appellees.

DELAPLAINE Judge.

Arthur James Townsend brought this suit in the Circuit Court of Baltimore City to annul his marriage with Elsie Morgan, also known as Elsie Mae Townsend, and to sell their jointly owned real property and divide the proceeds of sale according to their respective rights.

He alleges in the bill of complaint that he married Cleo Elberta Reed in Chicago, Illinois, on May 2, 1930, and they moved thereafter to Somerset County, Maryland; but in December 1930, they voluntarily separated, his wife departing from the State of Maryland. On March 1, 1940, not hearing anything of his wife for more than nine years, and believing he was free to marry again, he married Elsie Morgan, defendant, in Baltimore. In April, 1942, he and defendant purchased the leasehold property at 5205 Elmer Avenue and acquired the title as tenants by the entireties. Later in 1942, after being cautioned that his marriage to defendant might be invalid, as there was a possibliity that his first wife was still living and undivorced, he obtained a divorce from his first wife. In November, 1946, he and defendant acquired the ground rent of their property, and thereupon they gave a mortgage on the entire property to State Mutual Building Association, codefendant. But disputes which arose subsequently, resulted in their separation. In January, 1948, he learned that his first wife was alive and had never obtained a divorce from him. Defendant is still occupying the property.

Defendant filed a demurrer to the bill, asserting (1) that complainant was barred from relief in equity by the doctrine of clean hands, and (2) that the bill is multifarious. The chancellor sustained the demurrer and dismissed the bill. Complainant appealed here from that decree.

The Maryland bigamy statute contains a proviso that it shall not apply to 'any person whose husband or wife shall be continuously remaining beyond the seas seven years together or shall be absent himself or herself seven years together, in any part within the United States or elsewhere, the one of them not knowing the other to be living at that time'. Code 1939, art. 27, sec. 19. Although the proviso exempts from the operation of the statute a husband who marries another woman after his first wife has been absent and not heard of for the period of seven years, the second marriage in such a case is neverthelsee void if the first wife is still alive and undivorced. Fenton v. Reed, 4 Johns., N.Y., 52, 4 Am.Dec. 244; Cartwright v. McGown, 121 Ill. 388, 12 N.E. 737, 2 Am.St.Rep. 105. Common-law marriages are not valid in Maryland, and therefore when a party who has a spouse living marries another, cohabitation under the second marriage after the death or divorce of the first spouse does not give validity to the second marriage. Mitchell v. Frederick, 166 Md. 42, 46, 170 A. 733, 92 A.L.R. 1412. A second marriage contracted while a first marriage exists undissolved is a nullity without the passage of any judicial decree declaring it void. However, a decree of annulment is generally considered desirable.

Such an adjudication has the effect of permanently establishing the status of the parties. The English ecclesiastical courts as well as American courts have recognized that a judicial declaration of the nullity of a marriage is advantageous in preventing unfortunate consequences that might occur in the future on account of the death of witnesses or any other reasons that might make evidence difficult or impossible to obtain. Davis v. Green, 91 N.J.Eq. 17, 108 A. 772.

The inherent power of courts of equity to declare a marriage void when procured by frand or duress has long been recognized in Maryland. Le Brun v. Le Brun, 55 Md. 496, 503; Wimbrough v. Wimbrough, 125 Md. 619, 94 A. 168, Ann.Cas.1916E, 920. In 1886

the Legislature of Maryland amended the State Marriage Act by conferring express authority upon the Circuit Court for the several counties and the Superior Court of Baltimore City, upon petition of either of the parties, and upon the Circuit Court for the counties and the Criminal Court of Baltimore, on indictment, to determine the validity of any marriage and to declare any second marriage, the first subsisting, null and void. Laws of 1886, ch. 497, Code 1939, art. 62, sec. 16. In 1945 the Legislature transferred this authority from the Superior Court to the Circuit Courts of Baltimore City. Laws of 1945, ch. 664. In 1947 the Legislature provided that the jurisdiction which had theretofore been exercised under the provisions of the Marriage Act (Code 1939, art. 62, sec. 16) to declare a bigamous marriage null and void, shall hereafter be exercised under the provisions of the Chancery Act (Code Supp.1947, art. 16, sec. 38) governing annulment of marriage for any cause. In addition, the 1947 Act provides that whenever the Criminal Court of Baltimore, or a Circuit Court of one of the counties shall convict one or both of the spouses of bigamy, the judgment of conviction shall serve as an annulment of the marriage, provided that there shall be recorded on the records of the Circuit Court or Circuit Court No. 2 of Baltimore City, in case of a conviction in the Criminal Court of Baltimore, or, in case of a conviction in the Circuit Court of one of the counties, on the equity docket of the same Court, a complete transcript of the docket entries in the criminal proceedings leading to the judgment of conviction. Laws of 1947, ch. 849, Code Supp.1947, art. 62, sec. 16.

It is generally accepted that the equitable maxim that he who comes into equity must come with clean hands cannot be applied in any case where the result of the application sustains a relation which is denounced by statute or is contrary to public policy. Heflinger v. Heflinger, 136 Va. 289 118 S.E. 316, 32 A.L.R. 1088; Simmons v. Simmons, 57 App.D.C. 216, 19 F.2d 690, 54 A.L.R. 75. In proceedings to annul a bigamous marriage, the interest of the State is paramount to the grievances of the parties directly interested. The State sponsors the sanctity of the marriage relation and the welfare of society. In some cases the interests of unborn children may be affected. There is a difference between the ordinary case where the court refuses to aid the complainant in securing benefits from his own wrongdoing and the case where the complainant desires to have a judicial declaration that a marriage is null and void. When a party files a suit for annulment of his marriage, he is deemed as coming into court repenting of his wrongdoing and asking the court to correct his wrongful act as far as possible, in order to prevent any injurious consequences which might be cast thereby in the future upon innocent persons and upon the State. For these reasons the clean hands doctrine is not applicable in a suit to annul a bigamous marriage. The marriage status being on a different footing from contracts generally, a party may be relieved from a void marriage, although fully aware of its invalidity when contracted. Phelps, Juridical Equity, sec. 259; 1 Bishop, Marriage, Divorce and Separation, sec. 722; Davis v. Green, 91 N.J.Eq. 17, 108 A. 772; Arado v. Arado, 281 Ill. 123, 117 N.E. 816, 4 A.L.R. 28; Kiessenbeck v. Kiessenbeck, 145 Or. 82, 26...