Varney v. Varney

• Decision Date: 19 April 1881
• Citation: 8 N.W. 739,52 Wis. 120
• Parties: VARNEY v. VARNEY.
• Court: Wisconsin Supreme Court

52 Wis. 120

8 N.W. 739

VARNEY

v.VARNEY.

Supreme Court of Wisconsin.

Filed April 19, 1881.

Appeal from circuit court, Winnebago county.

Coleman & Spence, for respondent.

D. W. C. Priest, for appellant.

TAYLOR, J.

This is an action brought by the respondent to obtain a divorce from the appellant on the ground of cruel and inhuman treatment, and failure to provide her with maintenance and support. The appellant denied the matters charged in respondent's complaint, and then, by way of counter claim, alleged that the respondent had been guilty of adultery since her marriage with him, and demanded a judgment of divorce from the respondent upon such counter claim. And, as a separate defence and counter claim, he alleged that his marriage with the respondent was procured through the fraudulent and false representations of the respondent as to her previous character for chastity, and asked the court to adjudge the nullity of the marriage on that account. Upon the trial of these several issues the circuit court refused a divorce on the complaint of the respondent for want of sufficientproof of the charges alleged against the appellant. The charge of adultery subsequent to the marriage, made by the appellant against the respondent, was abandoned by him upon the trial, he being wholly unable to establish the same by proofs. And upon the trial of his second counter claim. upon which the court was asked to declare the marriage void on account of fraud, the court found against the appellant, dismissed such counter claim, and ordered the appellant to pay T. W. Spence, one of the respondent's attorneys, the sum of $575 as a sum necessary to unable her to carry on this action during its pendency to defend against the counter claims set up in the appellant's answer.

The appellant appeals from the judgment of the court dismissing his counter claim setting up fraud as a ground for declaring the marriage void, and upon this appeal he also claims the court erred in awarding the said sum of $575 as suit money in favor of the respondent's attorneys. The allegations in the appellant's answer, setting up the alleged fraud on account of which he asks relief, are as follows: “That for the purpose of inducing this defendant to consent to the said marriage the plaintiff falsely and fraudulently represented that she was a chaste and virtuous woman, which representations the defendant believed and relied upon to be true.” “That the plaintiff was, in fact, unchaste and of lewd habits, and was the mother of an illegitimate child born out of wedlock, but which had died before such marriage with the defendant; which facts the plaintiff fraudulently concealed from this defendant, and which first became known to this defendant since this action was commenced and since the first answer was interposed herein, and that since the discovery of said facts, and that said representations were false, this defendant has not cohabited with the plaintiff.”

The first and most important question in the case is whether the concealment from her husband by the wife of her unchaste character previous to her marriage, or false representations made by her upon that subject previous to the marriage, in order to induce him to marry her, is such a fraud as renders the subsequent marriage void.

If a marriage can be avoided for the reasons above stated, it must be under the provisions of section 2350, Rev. St. 1878, which provides that “whenever either of the parties to a marriage, for want of age or understanding, shall be incapable of assenting thereto, or when the consent of either party shall have been obtained by force or fraud, and there shall have been no subsequent voluntary cohabitation of the parties, the marriage shall be void from such time as shall be fixed by the judgment of a court of competent authority declaring the nullity thereof.” It is clear that, under our statutes upon the subject of divorce, no fraud practiced by either party to the contract of marriage upon the other, previous to the marriage, is a ground for divorce. All divorces are granted for causes occurring after the marriage contract is entered into, except for impotency, and that is a cause which continues after marriage, though it exists before. But a judgment of nullity of the marriage contract proceeds upon matters occurring before or at the time the marriage contract is entered into. The appellant in this action, by his counter claim, invoked the aid of the court to relieve him from the marriage, not on account of any misconduct of his wife subsequent to her marriage, but for her misconduct before; and he insists that because she concealed her previous misconduct from him, and made false representations concerning it in order to induce him to marry her, she obtained his consent to such marriage by fraud, within the meaning of said section, and he is therefore entitled to the judgment of the court declaring his marriage with her void.

The question whether the concealment of, or false representations as to, the previous character of a female for chastity, made to the person who afterwards marries her, and for the purpose of inducing him to do so, and upon which he relies, is such a fraud as will render the subsequent marriage void, has been frequently before the courts, both in this country and England, and we are unable to find that any court has declared a marriage void for that reason. The furthest the courts have gone is to hold that when such previous unchaste conduct has resulted in pregnancy, which exists at the time of marriage and was unknown to the husband, the marriage will be declared void on account of the fraud. The question was very fully and ably discussed by the supreme court of Massachusetts, under a statute substantially like ours, in the case of Reynolds v. Reynolds, 3 Allen, 605. The argument in that case is so full and complete as to leave little room for adding to the conclusiveness thereof. I have therefore taken the liberty of quoting largely therefrom, as being the best method of stating the argument in the strongest and clearest manner. Chief Justice Bigelow, who delivered the opinion in that case, says: “It is quite obvious, from the terms in which the statute is expressed, that it was founded on the assumption that a marriage, into which one of the parties was induced to enter through the fraud and deception of the other, is null and void, and, like other contracts, may be annulled and set aside by the defrauded party. * * * Nor does it define or in any way prescribe the nature of the fraud, or the degree or amount of deception which shall be deemed to be sufficient to warrant the court in adjudging the contract to be void. This is left to be determined on general principles applicable to all contracts, subject only to such restrictions and modifications as necessarily arise and grow out of the peculiar nature of the contract of marriage.”

After making some general remarks upon the nature of the fraud which will in general vitiate ordinary contracts relating to business, and remarking that the only general rule which can be safely stated is that the misrepresentation or concealment must be of some material fact, the learned chief justice says: “While, however, marriage by our law is regarded as a purely civil contract, which may well be avoided and set aside on the ground of fraud, it is not to be supposed that every error or mistake into which a person may fall concerning the character or qualities of a wife or husband, although occasioned by disingenuous or even false statements or practices, will afford sufficient reason for annulling an executed contract of marriage. In the absence of force or duress, and where there is no mistake as to the identity of the person, any error or misapprehension as to personal traits or attributes, or concerning the position or circumstances in life of a party, is deemed wholly immaterial, and furnishes no good cause for divorce. Therefore no misconception as to the character, fortune, health, or temper, however brought about, will support an allegation of fraud on which a dissolution of the marriage contract, when once executed, can be obtained in a court of justice. These are accidental qualities, which do not constitute the essential and material elements on which the marriage relation rests. The law, in the exercise of a wise and sound policy, seeks to render the...