Wemple v. Wemple , 170 Minn. 305 ( 1927 )

I dissent. In this state fraud which justifies annulment of a marriage has been definitely determined in Lewis v. Lewis,44 Minn. 124, 46 N.W. 323, 9 L.R.A. 505, 20 Am. St. 559; Behsman v. Behsman, 144 Minn. 95, 174 N.W. 611, 7 A.L.R. 1501, and Robertson v. Roth, 163 Minn. 501, 204 N.W. 329, 39 A.L.R. 1342. Under the well-established rule a man cannot annul his marriage even though the woman conceals defects of morality or chastity. Yet in the instant case, where, I believe, the representations would be less productive of domestic grief than false representations leading an ordinary man into marriage with a woman whose life had been sexually impure, an annulment is allowed. Plaintiff's complaint is not based upon the fact that defendant lived with the other man, which was known, but upon the subsequent disclosure that such cohabitation was illegal. This disclosed only the status of the woman's morality which is not a ground for annulment. It was a restricted immorality. It had no more tendency to destroy domestic happiness or disclose a situation intolerable to society than other acts of immorality or acts concealing personal qualities or character.

This state has definitely aligned itself with the firm Massachusetts rule. Reynolds v. Reynolds, 85 Mass. 605; Smith v. Smith, 171 Mass. 404, 50 N.E. 933, 41 L.R.A. 800, 68 Am. St. 440; Chipman v. Johnston, 237 Mass. 502, 130 N.E. 65, 14 A.L.R. 119. It is the prevailing rule as indicated by the authorities cited in Robertson v. Roth, supra. See also Wells v. Talham,180 Wis. 654, 194 N.W. 36, 33 A.L.R. 827. New York has adopted a less rigorous rule. There is a reason for this as expressed in Wells v. Talham, supra.

"Of course it is well known that in New York there is only one ground for divorce. Owing partly to this fact, cases for the annulment of marriage have often presented to the New York courts instances of extreme hardship, and it is possible that the courts of that state have insensibly been affected by such situations."

I cannot recognize the conclusion reached as being in harmony with the general rule. It seems to me that it is a complete change from our former holdings and puts us with the New York group where we do not belong. The New York rule gives great weight to the claim that the complaining party would not have entered into the contract if the real facts had been known. This is neither the test nor the true rule. It is fundamentally wrong. Fraud as used in the annulment statute is not fraud as usually understood in its application to contracts generally. The marriage contract as embraced in this statute must be regarded as an institution of society. Story, Conflict of Laws, § 108; Wells v. Talham, supra. The field of operation of the annulment statute should not be thus broadened. I regret that my associates have concluded in substance that each case of this character must stand upon its own facts. The result tends to increase annulment actions. I think it much better to have a well-defined general rule, as I supposed we had, so that the bar may advise with some certainty the propriety of instituting such an action. In my judgment the fraud in this case did not go to the essentials and material elements on which the marriage relation rests. Robertson v. Roth, supra; Davis v. Whitlock, 90 S.C. 233, 73 S.E. 171, Ann. Cas. 1913d 538; 26 Cyc. 905.