Ysern v. Horter

• Court: New Jersey Court of Chancery
• Writing for the Court: STEVENSON, V. C.
• Citation: Ysern v. Horter, 91 N.J.Eq. 189, 110 A. 31 (N.J. Ch. 1920)
• Decision Date: 25 February 1920
• Docket Number: No. 45-626.,45-626.
• Parties: YSERN v. HORTER.

110 A. 31

YSERN

v. HORTER.

No. 45-626.

Court of Chancery of New Jersey.

Feb. 25, 1920.

Suit by Inez D. Ysern, an infant, by Agnes S. Ysern, her next friend, against George Horter, for annulment of a marriage. On report of a special master with depositions. Decree for petitioner.

William M. Rysdyk, of Jersey City, for petitioner.

STEVENSON, V. C. This is an ex parte suit for the annulment of a marriage, on the ground of fraud, brought under the general equity jurisdiction of the court; the procedure, however, being now the same as in suits brought under the statute. Laws of 1916, p. 102.

It was unnecessary that the petitioner should sue by a next friend, inasmuch as she was over 16 years of age. Laws of 1915, p. 539. The form of suit which was adopted, however, seems to be still permissible.

1. The master reports that the petitioner, at the time of the marriage, was an infant 18 years of age and was at that time still attending, or had only recently left, school; that she had known the defendant for only two or three weeks before the ceremony of marriage; that he had represented himself as being a person of good moral character; that after the ceremony the parties went to a hotel in New York City; that the defendant began drinking very heavily; and that in the privacy of their room in the hotel he told his young wife of his gross immoralities with women, stating that he had "seduced other girls"; that the petitioner thereupon refused to permit the defendant to have sexual intercourse with her, and that after two or three days of absence in New York with the defendant, during which time he exhibited himself to her as a most repulsively immoral man if not a degenerate, she returned to her mother's home in New Jersey, the marriage not having been consummated. The report of the master upon the facts is fully sustained by the depositions.

The learned master sums up his findings in the case by the enumeration of its essential elements as follows:

"(1) Fraud; (2) want of consummation of the marriage; (3) immaturity of mind of the petitioner; and (4) disaffirmance of the contract within a reasonable time."

The case comes before me for a review of the master's report upon a special order of reference made by the Chancellor.

The master bases his recommendation that a decree of nullity be granted to the petitioner upon the authority of the case of Cox v. Cox, a similar ex parte suit for annulment of marriage, decided by me in 1909, but not at the time reported or intended to be reported. Three years later, Mr. Biddle procured a memorandum of my decision, which I had dictated for my own use, and the same was published, inadvertently without revision, in an appendix to the second edition (1912) of his book on New Jersey Divorce Practice. This memorandum, while it contains some expressions which would have been eliminated if I had not neglected to revise it, sets forth principles of the divorce law of New Jersey which I think, after further study of the subject, are sound and controlling in this present case. So far as I am aware, the Cox Case and this present case are the only cases in New Jersey in which the wide distinction between a consummated marriage and an unconsummated marriage in a suit for annulment on the ground of fraud has been considered. In other jurisdictions where unconsummated marriages have been brought in question, the significance of this distinction seems to have been ignored or only partly recognized. Robertson v. Cole, 12 Tex. 356; Lyndon v. Lyndon, 69 Ill. 43. Mr. Bishop (1 M., D. & S., § 462) states that at the time when he was writing (1891) there were "perhaps no specific rulings of a bench of judges" upon the status of unconsummated marriages tainted with fraud, and he adds:

"There are cases in which the distinction between marriage consummated and not consummated would have been important, but it was not suggested by counsel and did not occur to the unaided thoughts of the judges.

"Thus, before the Iowa court there was a case of gross fraud such as would have annulled any other contract, wherein the woman took the alarm before copula, but the attention of the court was not directed to the element of non-consummation and the case went against her, on the ordinary reasoning as applied to marriage consummated. (Citing Weir v. Still, 31 Iowa, 107.) The books of reports as to other subjects are full of cases like this which are regarded no otherwise than as if the unthought of fact did not exist."

No doubt the distinction under, consideration owes its great importance to the fact that our law takes no cognizance of marriage "in respect to some mysterious religious effect produced by the benediction of a priest." 1 Bishop on M., D. & S. § 461. When we look at marriage from the legal point of view without regard to any religious doctrines, it seems plain that all those peculiar characteristics of divorce and nullity suits which should never be lost sight of—the establishment of the home, the interests of children which have been born or may be born, the protection of the morals of society, and the decencies of life—generally appear only after the marriage has been consummated. It may be conceded that after a man and woman have appeared before a magistrate or a priest in the presence of witnesses, and the ceremony of marriage between them has been solemnized in accordance with their mutual consent without the slightest taint of fraud, duress, or mistake in the transaction, public policy, the interests of society, will not permit the parties even before the consummation of the marriage to have the marriage annulled simply because they have changed their minds.

For the purpose of this present case I think that it is safe to reaffirm and apply the principle which I endeavored to formulate in the Cox Case, to the effect that—

"An unconsummated marriage which is infected by fraud of any kind whatsoever which would render a contract voidable, is voidable, at the option of the injured party, if promptly disaffirmed before any change of status has occurred."

It may seem to some minds that the fraud, inducing consent to marriage, should be defined with some limitations which do not apply to ordinary contracts. It may also be that, whatever more accurate definition of the rule may be made in the future, it will be extended to cases of consummated marriage, where the parties have separated and where there is no home or child to protect. However this may be, I do not think that any definition of the principle will be formulated which will not include within its beneficent application the gross and scandalous instance of fraud upon a girl 18 years of age, which is presented in this case.

2. The jurisdiction of the New Jersey Court of Chancery, independent of any statute, to annul a marriage on the ground of fraud, want of mutual consent, duress, etc., has been established beyond controversy, and it is unnecessary to discuss the logical basis, if there is one, of such jurisdiction. Carris v. Carris, 24 N. J. Eq. 516 (1873); Vanderbilt v. Mitchell, 72 N. J. Eq. 910, 918 (1907); Crane v. Crane, 62 N. J. Eq. 21, 49 Atl. 734' (Magie, Ch., 1901); Bolmer v. Edsall, 106 Atl. 646 (Walker, Ch., 1919); Davis v. Davis, 106 Atl. 644 (Lane, V. C, 1919).

The only question in a case like this is whether the fraud proved is "sufficient" to warrant the court in annulling the marriage. Before considering the definitions, so far as there are any, of the exact nature and extent of the fraud which must be found in order to warrant a decree of annulment of an unconsummated marriage, it may be well to examine and consider the English system of divorce and annulment, because the English cases have laid down propositions which have been repeated in American cases without the slightest recognition of the wide difference between the two systems of divorce and annulment law which obtain respectively in England and in the United States:

(1) The English Court of Chancery has no original jurisdiction over divorce or annulment of marriage, and no jurisdiction of those subjects has ever been vested in it by act of Parliament. Prior to 1857, when the "Court for Divorce and Matrimonial Causes" was established by act of Parliament, limited divorces and decrees for the annulment of marriage were within the exclusive jurisdiction of the ecclesiastical courts, while Parliament had power which it frequently exercised of granting divorces dissolving marriages by statute. Undoubtedly, Parliament also had the power, if it saw fit to exercise it, of annulling marriages, i. e., declaring them void ab initio.

When the English divorce court was established by Parliament in 1857, the entire jurisdiction of the ecclesiastical courts in divorce and nullity cases was vested in this new tribunal. In addition to exercising the functions of the ecclesiastical courts in divorce and nullity cases, the new court had vested in it by the statute which created it jurisdiction to grant absolute divorces in certain cases.

It will be observed that this English divorce court, which is now the "Probate and Divorce Division of the High Court of Justice," had no original equity jurisdiction, nor was any such jurisdiction vested in it by statute. The new court merely took the place of the ecclesiastical courts and, in addition, exercised a strictly statutory jurisdiction which was limited to certain special cases.

When we come to examine how the ecclesiastical courts and the new Probate and Divorce Court to which the jurisdiction of the ecclesiastical courts in matrimonial causes was transferred regarded fraud in its relation to marriage, we find it well established that the fact that the consent of the complaining party had been obtained by fraud and imposition or even gross fraud and gross imposition was entirely immaterial. Fraud in certain cases was held to establish a want of consent, as in the case of fraudulent impersonation; but the annulment of...