STEVENSON, V. C.

Suit by Edna B. Cox, by her next friend, against William Lester Cox. Decree for complainant.

STEVENSON, V. C. Suit to have marriage annulled on the ground of fraud, there having been no consummation.

The case which I decide in favor of the complainant is exhibited in the bill and proved by the testimony, but is not exactly the case which the pleader had in mind in drawing the bill, or the master had in mind in making his report. The bill and the master's report seem to go upon the idea of duress effected by "irresistible mental pressure." No duress or hypnotic influence is proved in this case.

I grant the complainant a decree annulling her marriage with the defendant on the ground that the consent to such marriage was obtained by undue influence practiced upon her by the mother of the defendant with his knowledge when she (the defendant's mother) stood in loco parentis to the complainant—had the complainant practically in her custody.

The complainant at the time of the marriage was one day short of being 17 years of age. She lived with her parents in Newark. The defendant lived with his mother and sister in Elizabeth. The two families formerly had lived in the same house in Newark. The complainant and the defendant's sister were intimate friends. The complainant's mother intrusted her with the defendant's mother for a visit of a few days. The relations of the two families were intimate and friendly. There can be no doubt in my mind that the defendant's mother stood in loco parentis to the complainant and was bound to exercise the same care and vigilance over the complainant that the complainant's mother would have exercised.

The complainant was beset by the mother of the defendant, the defendant himself, and his sister to forthwith marry the defendant without communicating with her parents. The complainant was persuaded to go through a marriage ceremony with the defendant before a clergyman at his residence.

The mother of the defendant in my judgment was guilty of a treacherous and immoral act in procuring the complainant to marry the defendant without communicating with her parents. The important point, however, is that the mother took advantage of the fiduciary relation existing between herself and the complainant, and that the defendant participated in this wrongful conduct. The defendant, I should have stated, was at the time of the marriage just past 21 years of age.

The general principle controlling this case, I think, is a sound one, viz., 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 is perhaps somewhat misleading to make the test of fraud in a case like this the same as the test of fraud in a contract case. The infancy of the complainant, that is to say, not legal incapacity but actual immaturity of mind on account of youth, is a very important factor in this case. In dealing with this factor it must be borne in mind that the reason why minors are allowed to contract marriage does not in the slightest degree sustain the validity of the unconsummated marriage against the charge of fraud. The agreement of an infant of mature mind over 20 years of age to marry is not enforceable against the infant at law. There is no virtue, as the best authorities indicate, in a mere ceremony or form of language employed to evidence a present intention to establish the marriage state, if in Tact the marriage state is not established.

In the present case the important elements which together make the marriage voidable, especially when promptly disaffirmed by the complainant, are as follows:

(1) Youth and immaturity of mind of complainant.

(2) Complainant placed by her mother in the custody of the defendant's mother under circumstances which established fiduciary relations between the defendant's mother and the complainant as well as the complainant's mother.

(3) Separation of the complainant from her parents and others who could give her "independent and impartial advice."

(4) Abuse of fiduciary relation by defendant's mother in persuading complainant not to communicate with her parents but to forthwith marry the defendant.

(5) Knowledge on the part of defendant of the foregoing facts and complicity by him in his mother's wrongful conduct.

The complainant went back to her parents' home the day after the marriage, and suit was promptly brought to annul the same.

It is admitted law that false representations as to property, station in life, etc., although they may have induced a marriage, cannot be invoked to have the marriage declared void. I think, however, that all cases where this principle has been applied, or where its soundness is recognized, are cases where the marriage has been consummated. Suppose a woman is induced to marry a man by his representations that he is of noble family and great wealth. It turns out that the man is poor and of lowly origin, or even a criminal. My study of this case has brought me to the firm conclusion that, if the woman discovers the fraud before the marriage is consummated and promptly repudiates it, she has a right to a judicial decree of annulment.

The following are the authorities which sustain the general principle above set forth: 2 Nelson on Div. and Sep. § 602; 1 Bish. on M., D. & S. § 456 et seq; Smith v. Smith, 171 Mass. 404, 409, 50 N. E. 933, 41 L. B, A. 800, 68 Am. St. Rep. 440 (1898); Vondal v. Vondal, 175 Mass. 383, 56 N. E. 586, 78 Am. St. Rep. 502; DI Lorenzo v. Di Lorenzo, 174 N. Y. 467, 472, 67 N. E. 63, 63 L. R. A. 92, 95 Am. St. Rep. 609 (1903); Svenson v. Svenson, 178 N. Y. 54, 70 N. E. 120 (1904). In this case there is a full discussion of many authorities. 19 Eng. & Am. Encl. (2d Ed) p. 1184. * * * "The marriage is then so inchoate and incomplete that the status of the parties is similar to that of parties to an executory contract," citing Lyndon v. Lyndon, 69 Ill. 43. Robertson v. Coe, 12 Tex. 356.

The leading case of Carris v. Carris, 24 N. J. Eq. 516 (1873), establishes the jurisdiction of the Court of Chancery of New Jersey to decree a marriage null on the ground of fraud, after the marriage has been consummated, where the fraud relates to an "essential" of the marriage contract. My recollection is that the Court of Errors and Appeals in this case by Judge Bedle, who wrote the majority opinion, do not undertake to clearly define the character of the fraud which renders a consummated marriage voidable at the option of the injured party. It is conceded that fraudulent representations as to the wealth and station, etc., of the party are not sufficient. A fraud must strike at the very essentials of the marriage contract, or the marriage estate, whatever that may mean.

The jurisdiction of the court to decree a marriage void on the ground of fraud which the complainant has seen fit to repudiate having been thus established, I see no reason why as broad a definition of fraud should not be adopted for these cases where the marriage has not been consummated, as that which is applied in ordinary contract or property cases.

If a criminal conceals his past life and induces some one to marry him believing that he is a reputable and honest citizen, we have in my opinion substantially the same case as the one at bar. If the marriage state has not been in fact established, if the interests of society in the maintenance of the home and the interests of children have not intervened, I see no reason why the general doctrine that fraud vitiates all transactions and makes them voidable should not be applied.

The latter portion of the foregoing notes contains a great deal which is altogether beyond what is necessary to sustain the decree for the complainant in this case.

Decree of nullity was in the ordinary form but contained the following recitation:

It now appears satisfactorily to the Chancellor that a certain pretended ceremony or a contract of marriage between the complainant, Edna B. Cox, and the defendant, William Lester Cox, was solemnized or entered into in the state of New Jersey, on the 21st day of March, 1907, and that the ceremony or pretended contract of marriage was the product of fraud and was violative of relations of trust and confidence, in that the consent thereto of the complainant, who was under 17 years of age, was obtained by undue influence exercised upon her by the mother of the defendant who stood in loco parentis to the complainant, and at whose residence the complainant was visiting, while the complainant was separated from her parents and all other independent and impartial advisors, of which fraud and wrongful conduct of the defendant's mother he (the defendant) had full knowledge and in which he participated; and it further appearing that the said marriage has never been consummated by the parties to said pretended contract, but that the same was promptly disaffirmed by the said complainant before the status of the defendant had in any way been changed or affected by reason thereof.