Wallace v. Wallace

• Decision Date: 15 January 1908
• Citation: 114 N.W. 527,137 Iowa 37
• Parties: WALLACE v. WALLACE.
• Court: Iowa Supreme Court

137 Iowa 37

114 N.W. 527

WALLACE

v.WALLACE.

Supreme Court of Iowa.

Jan. 15, 1908.

Appeal from District Court, Ida County; F. M. Powers, Judge.

Action for divorce resulted in a decree as prayed. The defendant appeals. Reversed.Chas. S. Macomber, for appellant.

C. W. Piersol and Johnston Bros., for appellee.

LADD, C. J.

The parties hereto married December 12, 1905; he then being 20 years of age and she but 17 years. They had been attending the local high school, and living with their parents, who had been near neighbors for many years. They cohabited until January 25, 1906, and on February 1st following this suit was begun, praying for a divorce on the ground that at the time of their marriage defendant was pregnant by a person other than plaintiff, of which fact he was then ignorant. At the time of the marriage plaintiff knew of her pregnancy, but supposed this was by himself. She gave birth to a child April 2, 1906. The only evidence tending to support the contention that the child was begotten by another was an affidavit of the wife, procured by plaintiff's attorney, describing her relations in detail with another young man, culminating in pregnancy July 13, 1905, because of which she had induced plaintiff to attempt sexual intercourse with her about six weeks later, and again in September following, and still again a month thereafter; these attempts being ineffectual, owing to premature external emissions, but penetration after emission being accomplished in September, and stating that plaintiff was induced to believe himself the cause of her condition and to marry her. Counsel objected to the introduction of this affidavit “as incompetent, immaterial, and irrelevant, and for the reason that it is scandalous, indecent, and against public policy.” The objection was overruled, and, if rightly so, it may be conceded that the decree entered granting the divorce should be affirmed.

Our statute provides that “the husband may obtain a divorce from the wife * * * when the wife at the time of the marriage was pregnant by another than the husband of which he had no knowledge, unless such husband had an illegitimate child or children then living, which at the time of the marriage was unknown to the wife.” Section 3175, Code. Independent of statute, the decisions are to the effect that wherever the woman is enceinte by another at the time of marriage, and the husband is not aware of the fact, but supposes her chaste, he may have the marriage declared void. This is on the theory that a woman to be marriageable must be capable of bearing children to her husband, and, if with child by another, she is not in a condition to do so, and concealment of that fact or a misrepresentation thereof is such a fraud on the husband as will avoid the marriage if he was ignorant of her condition and believed her virtuous. Reynolds v. Reynolds, 3 Allen (Mass.) 605;Baker v. Baker, 13 Cal. 87, 102;Carris v. Carris, 24 N. J. Eq. 516; Ritter v. Ritter, 5 Blackf. (Ind.) 81. But most of the authorities are to the effect that, when the husband has had sexual intercourse with the wife before marriage and knew that she was pregnant, though falsely convinced that the child was begotten by himself, and its birth proves it not to be his, he must submit to the bonds of matrimony. Crehore v. Crehore, 97 Mass. 330, 93 Am. Dec. 98;Scroggins v. Scroggins, 14 N. C. 535;Seilheimer v. Seilheimer, 40 N. J. Eq. 412, 2 Atl. 376;Varney v. Varney, 52 Wis. 120, 8 N. W. 739, 38 Am. Rep. 726;Hoffman v. Hoffman, 30 Pa. 417. The theory on which this line of decisions proceeds is that, having participated in the wife's incontinence before marriage, the husband is apprised of her want of chastity, and therefore is not in a situation to complain of being deceived by her false assurances that he was the only participant in her illicit intercourse. The well-recognized exception to this rule is where birth is given to a mulatto; the parties to the marriage being white. Barden v. Barden, 14 N. C. 548;Scott v. Shufeldt, 5 Paige (N. Y.) 43. This exception is said to be “a concession to deep-rooted and virtuous prejudices of the community on the subject,” and to be grounded on the supposition that “the blood of the woman has been tainted by mingling with the first (mulatto) child, and she is incapable of bearing children that will not show the African blood.” See Bishop, Mar. & Div. § 191.

Aside from exception based on these grounds, we have discovered but one case awarding relief where there has been coition between the husband and wife prior to marriage, and that was by an equally divided court. Sissung v. Sissung, 65 Mich. 168, 31 N. W. 770. In that case Morse and Campbell, JJ., were of the opinion that where a young man, inexperienced in the ways of the world and women, had intercourse with a woman then pregnant by another man, and upon her demand married her under the belief that prior to meeting him she had been chaste, with the laudable purpose of repairing the wrong he had done her and to save her reputation, he was entitled to relief; the former saying: “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 victim. The seduction is a crime to be execrated, but marriage afterwards is to some extent a reparation of the wrong, at least, it is the best amendment he can make the injured one. The mere act of sexual intercourse between a single man and an unmarried woman is not a crime at common law, or under any statute of this state. The fault of the complainant in sinning against the moral law does not entitle him to be deceived and defrauded in this manner. Acting from the best of motives, as all must concede, to repair the wrong as best he could under the circumstances, he marries the defendant in the full belief that he has been the means of ruining an innocent and chaste woman, and that the child in her womb is his. This belief has been engendered by the false statements of the defendant, purposely made to procure such marriage. The birth of the child proves conclusively that the woman was unchaste before he met her, that he was unaware of her pregnancy by another, and that she led him to believe that he alone was the author of her shame for the express purpose of accomplishing her marriage with him.” On the other hand, Sherwood and Champlin, JJ., after reviewing the decisions referred to and others, were of the opinion that “when this girl yielded to the lascivious approaches of this complainant, and became defiled by him under the circumstances stated in the bill, she gave him evidence of her true character, and he was bound to take notice, at his peril, that others would be indulged by her under similar circumstances; and, when she engaged him in marriage, and told him she was pregnant by him, he had been sufficiently advised that the paternity of the child was liable to be in another, and if, without making any further investigation in the matter, he married her, he knew he did so at the peril of being made the dupe of misrepresentation without remedy, because their entire intercourse up to the time of marriage had been unlawful, and both parties were particeps criminis.” The section of the Code quoted contains no provision with reference to the prior relations of the parties to the marriage contract, and, if their attempted coition shall defeat the relief by divorce where the wife is pregnant by a stranger at the time, this must be read into the statute by construction, or must result from holding that, owing to the husband's participation in his wife's incontinency, he has been put on inquiry as to her relations with other men, and cannot complain. But this would leave the unsophisticated and unwary without protection and condemn him who, with the best of motives, undertakes reparation for his supposed victim and compels him to suffer the consequences and burden of her deception. If the proof be of that character exacted in such cases, there can be no objection on grounds of public policy to granting a decree of divorce whenever it is made to appear that the wife at the time of her marriage was pregnant by another than her husband, of which fact he was unaware. As said by Morse, J., in the Michigan case: “The essence of the marriage contract is wanting when the woman at the time of its consummation is bearing in her womb knowingly the fruit of her illicit intercourse with a stranger; and the result is the same whether the husband is ignorant of her pregnancy and believes her chaste, or is cognizant of her condition, but has been led to believe the child is his.”

In our opinion the illicit relations of the husband with his wife before marriage is not a bar to the remedy created by statute. There is no more reason for denying the husband relief in such a case than there would be to refuse to make inquiry concerning the paternity of a child begotten after marriage. In 2 Starkie on Ev. 196, in discussing the question as to the legitimacy of a child begotten before marriage, the author says: “It seems, however, that in such cases it is competent to prove that it was impossible that the husband could have been the father, for a stronger presumption cannot arise in such a case than is made in favor of a child conceived after wedlock.” The latter is not...