Opinion
14834
March 8, 1939.
Before GASTON, J., York, November, 1937. Affirmed.
Action by I.J. Campbell, Jr., against Elizabeth Moore to annul a contract of marriage, wherein the defendant filed a counterclaim. From the judgment, the plaintiff appeals.
The report of C.W.F. Spencer, Special Referee, and the order of the Circuit Court referred to in the opinion follow:
REPORT OF SPECIAL REFEREEThe above-entitled action was commenced by the service of the summons and verified complaint bearing date May 1, 1935, followed by the verified answer of the defendant bearing date July 24, 1935. The plaintiff was only nineteen years of age at the time of the commencement of the action, and so he appeared by and through his mother, Mrs. Lillie B. Campbell, duly appointed guardian ad litem, by order of T. E. McMakin, Clerk of the aforesaid Court; and the defendant, Elizabeth B. Moore, being likewise a minor, appeared in the action through her duly appointed guardian ad litem, H.E. Moore.
The complaint alleges that on the 7th day of September, 1934, the plaintiff and defendant, both of whom were residents of Clover, county and State aforesaid, went through the form of a marriage ceremony performed by E. Gettys Nunn, Esquire, Probate Judge of York County, South Carolina, and that immediately after said ceremony the said plaintiff and defendant separated and have never at any time been in company with each other since said ceremony; and the plaintiff says that the alleged marriage contract was never consummated by cohabitation of the parties. The plaintiff further says that he entered into the marriage ceremony against his consent and only under duress and upon certain threats made against him and representations made by the defendant and her parents, in consequence of all of which it is averred that the marriage contract was void for want of consent and because of duress and representations made; and furthermore, that the supposed marriage contract was not in truth and fact a contract of marriage, never having been consummated by cohabitation; and in existing circumstances the said alleged contract of marriage was and is utterly void.
The defendant comes into Court through her answer, admits the residence and age of the plaintiff; and goes on to say that the parties to the action entered into a marriage contract on the 7th day of September, 1934, at which time they were duly and legally married before the Probate Judge of York County in accordance with and in strict compliance with the laws of this State. Furthermore, she denies the allegations that the parties have never at any time since the marriage ceremony been in company with each other. She denies that the marriage ceremony was entered into against plaintiff's consent and that duress or representations made by her and her parents affected the plaintiff in any measure; and she further denies that the marriage contract is void for want of consent of the plaintiff, and she avers on the contrary that no threats were made against the plaintiff, no duress was exercised over him by the defendant or anyone in her behalf; and she says that the plaintiff was ready and willing to enter into the marriage and did enter into it freely and voluntarily.
Further answering the complaint, the defendant says long-lived citizens and residents of Clover, South Carolina, that she is the daughter of Mr. and Mrs. H.E. Moore, where she was born and reared, and that defendant and her family are people of highest reputation and standing; that she is now eighteen, and that she and plaintiff have been life-long friends and sweethearts; that the plaintiff for several years prior to the marriage ceremony had showed the defendant a great deal of attention, calling upon her at her home frequently; that he gave her many presents, wrote to her when he was in college, expressing in those communications professions of love and affection for her; that the plaintiff through said professions of love and attentions won the affection, love and confidence of the defendant, who trusted him implicitly. On many occasions prior to the marriage ceremony plaintiff and defendant had discussed matters, that the plaintiff had expressed his desire to marry the defendant and proposed marriage to her; that in fact they were engaged to be married for some time prior to the date of the ceremony; and that thereafter there was born in lawful wedlock a child of the plaintiff and defendant, to wit, Lillian Johnson Campbell, a girl baby, born in February, 1935. The defendant further says that the plaintiff married her freely, voluntarily, and of his own will and accord, and that the members of his family came between the defendant and her husband and persuaded her husband to leave, desert and refuse to live with her; and she asks that the marriage contract be declared legal and valid, for a decree of separation from bed and board; that the custody of the infant child of the plaintiff and the defendant be awarded to the defendant; that a reasonable provision be made out of the property and income of the plaintiff for the support and maintenance of this defendant and that provision also be made for a reasonable attorneys' fee in order that the defendant's interest in this action may be properly represented; and for other appropriate relief.
A number of references were held in the case and full minutes thereof made, which said minutes have been carefully identified and are filed in this proceeding along with this report. In addition to the written evidence will be found five letters written by the plaintiff to the defendant contained in original envelopes which show that the letters were posted from Clemson College during the months of September, October and November, 1933, and January, 1934. In seeking the annulment of the marriage, the plaintiff contends that when the defendant's unfortunate condition was made public her brother, Robert Moore, went to Dr. Sam P. Brison, the uncle of plaintiff, and reported to him the defendant's condition and accused plaintiff of being responsible for it, and asked Dr. Brison to talk with the plaintiff about the matter. Mrs. I.J. Campbell, Sr., the plaintiff's mother, was not at home at the time. Upon her return a short while later, Dr. Brison talked with Mrs. Campbell and with the plaintiff, and shortly thereafter reported to Robert Moore that "the plaintiff would not marry Elizabeth." When Robert Moore was asked by Dr. Brison what he expected to do about the matter, Moore's reply was "he could not say at that time, but that they (the Moores) would take care of him and handle the matter." Dr. Brison then called on the magistrate of Clover and asked him to see Mr. Moore and see if the matter could be settled without any trouble. The Moores told the magistrate that they wished to talk to the plaintiff personally. W.B. Moore, another brother of the defendant, had also talked with the magistrate. Dr. Brison said that after the morning conference with Robert Moore he felt it would be unwise for him to allow the plaintiff to meet the Moores, as he anticipated violence in the event the plaintiff refused to marry the defendant, forming this opinion, he said, "from the tone and manner in which Robert Moore had spoken and acted." These so-called threats were communicated to the plaintiff and his mother.
At this stage it might be well to relate that two contracts were entered into between the plaintiff and defendant, both offered in evidence, one dated September 7, 1934, and the other on the following day. The substance of the first contract relates that the parties to the action agree "that they would this day have a marriage ceremony performed by E. Gettys Nunn, Esquire, Judge of Probate"; that immediately after said ceremony plaintiff and defendant would separate and no effort would be made to require either to live with the other as husband or wife; that on the following day the plaintiff would pay to the defendant $300.00, and thereupon the defendant and her father, Ellie Moore, would enter into a formal instrument whereby the defendant would release and acquit the plaintiff from any liability or responsibility for the support and maintenance of any child "that may be born within the year to the said Elizabeth Moore"; that at the same time the defendant would execute a formal instrument in writing releasing the said I.J. Campbell, Jr., from any claim of dower or any dower rights in any property that he may now have or acquire in the future, from any distributive interest in his estate, and from any and all claim of any and every nature arising now or in the future by way of dower, interest in the estate or otherwise; that at the proper time and at an early date should either party bring an action for the annulment of said marriage ceremony as entered into, neither would object directly or otherwise to the marriage ceremony being annulled and the marriage being declared null and void; and that the defendant, in consideration of $300.00, released and acquitted the plaintiff from any charge or claim for her support or maintenance in any suit money, alimony or any other charge or claim of any nature.
On the following day, September 8, 1934, the defendant signed an instrument acknowledging the payment of the $300.00, which stipuated that she would live separate and apart from the plaintiff and make no demands or requirements of him that he live with her as husband. By said instrument she further renounced, released and acquitted the plaintiff from any and all liability for support and maintenance of herself or any child born to the parties, specifically assuming all the expenses of rearing, caring for and educaing the child; and she further released, renounced and acquitted the plaintiff and all other persons from any right, title or claim of dower or distributive interest in any lands or property of any nature owned or afterwards acquired by plaintiff; by said agreement she further covenanted that she would consent and agree for the plaintiff to apply for an annulment of the marriage or for divorce, as he may elect, and that she would not resist his application for such annulment or divorce; but on the other hand that she would consent that the marriage be annulled or a divorce granted, thereby affording to either party the right to re-marry, and specifically providing that the custody of any child should be given over to the defendant freed from any control of the plaintiff; and providing further that such application for annulment and divorce would not be made within nine months from September 8, 1934; and that the intent, tenor and purport of the instrument on the part of the defendant was to renounce all claim and to relieve the plaintiff of all responsibility, alimony, suit money or other claim.
The correspondence referred to on page 4 above, as already related, consisted of certain letters written by the plaintiff to the defendant. In a certain letter marked Exhibit F, pages 1 and 2, dated September 24, 1933, the plaintiff, amongst other things, wrote and said: "Still love me? I sure hope so, because I love you more every day. I really mean that, too. I did not think I would ever love anybody like I love you. Please take care and be a little Sunday School girl, because I can't help but think of you all the time."
In another letter under date October 3, 1933, he said: "Be sure and let me know how you are getting along, because you know I am interested if anybody is, because I think you are the nicest girl in the world."
On October 25, 1933, in another letter he said: "I would rather be with you and show you how much I really do love" (the following appears at the top of the next page in large printed letters: "I Love You! I Love You!") "you than to be over here and think about how much I love you."
In a letter dated October 28, 1933, the plaintiff wrote the defendant as follows: "You said that you first turned red when you mother said something about something and you also asked me if I would do you dirt. What do you think? I sure wouldn't."
At the first hearing on June 29, 1936, counsel for the plaintiff, pursuant to notice, moved to strike out all of Paragraphs 5 and 6 of the answer, where allegations were made that through professions of love and attention the plaintiff had won the affection of the defendant and that the plaintiff and defendant were engaged to be married and were duly and legally married on the 7th day of September, 1934; and as a result of such lawful wedlock a child was born; and in the sixth paragraph allegations were made as to the wealth of the defendant. I shall pass upon the motion at a later stage in this report.
FINDING OF FACTSI am satisfied from the evidence that the plaintiff and the defendant were sweethearts and that the plaintiff had her love, confidence and affection, and as a result of their attitude, one towards the other, they had improper relations; and later they agreed to go through a marriage ceremony which was performed by the Court of Probate of York County, South Carolina, and that the ceremony was entered into freely and voluntarily by both the plaintiff and defendant; that later a child was born to the parties, which under the statutory laws of this State was their legitimate heir. I further find that both of the parties agreed that they would not live together as man and wife and would not cohabit after the ceremony, and I find they did not do so. Very clear and expressive agreements were made in writing by the parties carrying out the declared purposes not to live together as man and wife and not to cohabit; and furthermore, specifically providing that either could sue the other for an annulment or go into a state where the Court had acquired jurisdiction and obtain a divorce without opposition.
I further find that both of the parties were minors when they entered into the prenuptial and postnuptial agreements, and that they were, of course, minors when they were married.
The defendant first informed her mother of her unfortunate condition, and her brother, Robert Moore, went to Dr. Sam P. Brison, plaintiff's uncle, and reported to him the condition, accusing the plaintiff of being responsible. Dr. Brison was asked to talk with the plaintiff. Mrs. I.J. Campbell, the mother of the plaintiff, was not at home when the first reports reached the family. On her return, Dr. Brison talked with her and on the following Sunday reported to Robert Moore "that the plaintiff would not marry Elizabeth." Being asked whether the plaintiff or Mrs. Campbell said "no", Dr. Brison replied that it was the plaintiff. Robert Moore expressed sorrow, saying that he hated to do anything on account of Mrs. Campbell. When asked what he expected to do, his reply was that "he could not say at that time, but that the Moores would handle the matter". Following that incident, Dr. Brison called on the magistrate, Mr. Quinn, a friend and neighbor, and asked him to see Mr. Robert Moore and endeavor to get the matter settled without trouble. The Moores told the magistrate they wished to talk with the plaintiff personally. W.B. Moore, another brother of the defendant, had also talked with the magistrate. Dr. Brison testified that after the morning conference with Robert Moore he (Dr. Brison) felt it would be unwise to allow the plaintiff to meet the Moores, as he anticipated violence in the event plaintiff refused to marry defendant. The witness says he formed this opinion from the tone and manner in which Robert Moore talked and acted. I have previously related some of the facts and I am restating them again for the sake of clarity.
Mr. R.B. Hildebrand was acting for the Moores in the preparation of the contracts about which the testimony has been given, and Mr. John R. Hart was attorney for the Campbells. Mr. Hildebrand said both he and Mr. Hart were doing all that they could to bring about a marriage ceremony prior to the birth of Elizabeth Moore's expected child. Dr. Brison had been advisor of Mrs. Campbell and her children since the death of Senator I.J. Campbell. Dr. Brison testified that an hour before the marriage ceremony plaintiff refused to go through the marriage ceremony until assured by Dr. Brison that the contract was binding and an annulment would immediately be entered; and he also testified to the so-called threats by the Moores and that the plaintiff was kept in his home until after the marriage ceremony. Dr. Brison further said that Robert Moore refused to tell him what the Moores would do, saying that he added significantly, "we can handle it." Magistrate Quinn testified that the Moores had come to him and asked what sort of a warrant could be obtained against the plaintiff, and the Moores also asked that the plaintiff come to the magistrate's office to meet them. Mrs. Campbell, the plaintiff's mother, testified that after she was notified of the claim of the Moores, Dr. Brison had informed her in substance that the plaintiff had refused to marry Elizabeth and that "he was sorry on my account, because they (the Moores) would have to handle it their own way." She said she feared from this that violence would be used by the Moores, and she kept her son at home, refusing to allow him to go on the streets at all. She denied that she in any way discouraged the marriage, saying that she asked her son to both marry and live with the defendant, but she said he refused; and she further said that the only reason she consented to go through the marriage ceremony was because she felt it would be the only safe course to protect her son from violence. Subsequently, she said, after the antenuptial contract was drawn, believing the contract to be valid and that it would be carried out, she said she persuaded and forced the plaintiff to marry the defendant. That is to say, from her standpoint, going through the marriage ceremony. Even then, she said he refused to go through the ceremony until a half hour before they came from Clover to York, a distance of ten miles. Both Mrs. Edward H. Smith and Mrs. M.J. Smith, sisters of the plaintiff, corroborated the testimony in large measure given by their mother to the effect that the plaintiff absolutely refused to marry until assured that the two contracts were valid and binding; they further said they were positive the plaintiff would never have gone through the ceremony but for the persuasive powers which they, their mother and uncle, Dr. Brison, brought to bear upon him.
The uncontradicted evidence of the defendant in this case is that she and plaintiff had been sweethearts and going together since she was fifteen years of age, and that their relationship as sweethearts continued until the marriage took place. She further testified that the plaintiff gave her every reason in the world to consider that they were engaged and would be married, and that relying upon his promises of love and protestations of affection and considering themselves engaged, she allowed him to take undue privileges in October, 1933. The plaintiff was present during the entire trial of this case, he heard all of the testimony, and he did not contradict anything stated by the defendant.
The magistrate, Mr. H.A. Quinn, testified that the Moores, after he had informed them that the plaintiff would not attend a conference, asked him what the law was in such cases, and he explained to them the law of seduction and bastardy; and that thereafter Mr. Moore asked him what sort of a warrant could be taken out in those cases, and was informed to consult his attorneys before he took out any papers. Testifying further, Mr. Quinn said: "Q. When he (H.E. Moore) talked to you, did H.E. Moore make any threats of violence of any kind against Mr. Campbell? A. No, sir.
"Q. When his two sons came and talked to you, what was their attitude? A. they did not make any threats.
"Q. How did they talk? A. They were very quiet. There were no threats or anything.
"Q. State whether or not, Mr. Quinn, these two boys were calm, collected and peaceful when they talked with you? A. Very calm.
"Q. Dispassionate? A. Yes, sir."
The testimony is clear that the alleged threats, coercion, family persuasion and other arguments did not apparently affect the plaintiff, as he refused to go through the marriage ceremony until he understood that the agreements to be made would be binding in all respects.
I find from the testimony that the plaintiff made love to the defendant for several years, and I find that the defendant believed that the plaintiff loved her and intended to marry her; and in such circumstances they had improper relations. The testimony failed to convince me that the plaintiff married the defendant through threats and fear inspired by the plaintiff or his relatives. I am convinced that the plaintiff married the defendant because he believed the antenuptial and postnuptial agreements would legitimatize any child born to the plaintiff and defendant, and that in the event of the birth of such child that the marriage could and would be annulled. The testimony is clear that the plaintiff never intended to live with the defendant as her husband; and furthermore, that his intention was to have a marriage ceremony performed, and notwithstanding the same, that he and the defendant would not live together as man and wife.
CONCLUSIONS OF LAWIn pointing out that free consent of parties is essential to a valid marriage, the following is said in 18 R.C.L., 402-404: "The free consent of the parties given directly or indirectly is essential to a valid marriage contract, and a marriage contract is void where either party refuses to give his or her consent and does not acquiesce in the marriage. This is true although a ceremony is gone through with by the officiating minister or magistrate. * * * The fact that a man contracts marriage with the declared intention not to assume or continue the marital relation is not ground for an annulment of the marriage at his instance. The State being an interested party, its consent is essential to every marriage."
See the voluminous note to the case of State v. Lowell, 79 Am. St. Rep., 372: "Antenuptial pregnancy by another man is, if concealed from the husband, such a fraud upon him as will justify an annulment of the marriage. Sinclair v. Sinclair, 57 N.J. Eq. 222, 40 A. 679, and other cases; * * * but if he himself has had improper relations with the wife before marriage he cannot have the marriage annuled on account of his wife's false representation that she was pregnant by himself. Tait v. Tait, 3 Misc., 218, 23 N. Y.S., 597."
"As has been stated, consent is necessary to a valid marriage; without such consent the proposed marriage is a mere nullity; but once there is a meeting of minds the marriage is complete and the status of the parties becomes fixed by the law, although they immediately repudiate the agreement, or although they act in total disregard of their marital rights and duties.
"Antecedent or collateral agreements will not affect validity of a marriage to which there was consent." 38 C.J., 1298.
De Vries v. De Vries, 195 Ill. App., 4 (quoted from 38 C.J., 1298, under Note 73: "A marriage solemnized in good faith is not invalid because the contracting parties had entered into an agreement that they would not consummate the marriage, nor live together as husband and wife.")
The case of Hulett v. Carey, 66 Minn., 327, 69 N.W., 31, 34 L.R.A., 384, 61 Am. St. Rep., 419, is informing. In that case Nehemiah Hulett supposedly died a bachelor. Proceedings were commenced in the Court in which Lucy A. Hulett presented her petition alleging she was the widow; that she had married him. She presented the following contract in evidence of the relationship: "Contract of marriage between N. Hulett and Mrs. L.A. Pomeroy. Believing a marriage by contract to be perfectly lawful, we do hereby agree to be husband and wife, and to hereafter live together as such. In witness whereof we have hereunto set our hands the day and year first above written. (Signed) N. Hulett. L.A. Pomeroy."
The Supreme Court of Minnesota decided that the contract constituted Hulett and Mrs. Pomeroy husband and wife and that Mrs. Pomeroy was entitled to inherit as wife.
The Court had the following to say upon the subject: "The law views marriage as being merely a civil contract, not differing from any other contract, except that it is not revocable or dissoluble at the will of the parties. The essence of the contract of marriage is the consent of the parties, as in the case of any other contract; and, whenever there is a present, perfect consent to be husband and wife, the contract of marriage is completed. The authorities are practically unanimous to this effect. Marriage is a civil contract jure gentium, to the validity of which the consent of parties able to contract is all that is required by natural or public law. If the contract is made per verba de prasenti, and remains without cohabitation, or if made per verba de futuro, and be followed by consummation, it amounts to a valid marriage, in the absence of any civil regulations to the contrary. 2 Kent's Comm. p. 87; 2 Greenl. Ev. § 460; 1 Bish. Mar. Div. §§ 218, 227-229. The maxim of the civil law was, `Consensus non concubitus facit matrimonium.' The whole law on the subject is that, to render competent parties husband and wife, they must and need only agree in the present tense to be such, no time being contemplated to elapse before the assumption of the status. If cohabitation follows, it adds nothing in law, although it may be evidence of marriage. It is mutual, present consent, lawfully expressed, which makes the marriage. 1 Bish. Mar. Div. Sep. §§ 239, 313, 315, 317. See also, the leading case of Dalrymple v. Dalrymple, 2 Hagg. Consist., 54, which is the foundation of much of the law on the subject."
At this point I quote Section 8567, Vol. 3, of the 1932 Code, which provides: " Validity of Marriage — How Determined and Declared. — The court of Common Pleas shall have authority to hear and determine any issue affecting the validity of contracts of marriage, and to declare said contracts void for want of consent of either of the contracting parties, or for any other cause going to show that, at the time the said supposed contract was made, it was not a contract: Provided, That such contract has not been consummated by the cohabitation of the parties thereto."
Upon the question of consent counsel for the defendant cite the following authorities: "The only consent necessary is the consent to become man and wife. The consequences of this consent are attached by law. The statement of the man at the time of the marriage that he will not live with the woman is not a refusal of consent to the marriage, but an attempt to qualify its effect." Madison on Persons and Domestic Relations, page 8; Wimbrough v. Wimbrough, 125 Md., 619, 94 A., 168, Ann Cas., 1916-E, 920; see also 38 C.J., 1298, Paragraph 52.
On the other hand, plaintiff's counsel quote from Spencer Law of Domestic Relations, Section 37, as follows:
"To constitute a valid marriage, the parties must possess the legal qualifications, and enter into a mutual agreement or consent to the marriage relation as contemplated by law, `uninfluenced by fraud or error in any particular deed fundamental, or by duress.'
"According to these and other authors and decisions dealing with the subject, mutual consent and bona fide agreement of the parties, freely given and with the intention of entering into a valid status of marriage, are fundamental and essential elements, and without them the marriage is invalid ( McClurg v. Terry, 21 N.J., Eq., 225; Clark v. Field, 13 Vt., 460; Dorgeloh v. Murtha, 92 Misc., 279, 156 N.Y.S., 181; Ford v. Stier, L.R. (1896) Probate, 1; Hall v. Hall, 24 Times L.R., 756; 1 Bishop, Marriage, Divorce, and Separation, Sec 337, 338; Spencer, Law of Domestic Relations, Sec. 82; 26 Cyc., 832-833), unless consummated by cohabitation as husband and wife, or otherwise ratified or confirmed ( Brooke v. Brooke, 60 Md., 524)."
In McClurg v. Terry, supra, the New Jersey Court considered the facts and circumstances very similar to those alleged by plaintiff in this cause, and as particularly appropriate here we quote as follows from 21 N.J. Eq., 227: "Mere words, without any intention corresponding to them, will not make a marriage or any other civil contract. But the words are the evidence of such intention, and if once exchanged, it must be clearly shown that both parties intended and understood that they were not to have effect. In this case the evidence is clear that no marriage was intended by either party; that it was a mere jest got up in the exuberance of spirits to amuse the company and themselves. If this is so, there was no marriage."
And in Dorgeloh v. Murtha, cited, likewise involved similar facts, the New York Court states the rule thus:
"The law considers marriage in the light of a civil contract as to its inception. In the marriage contract, the same as in any other, consent is a necessary element. Consent, which is of the essence of all ordinary contracts, is necessary to the validity of the marriage contract. The minds of the parties must meet in one common intention. Mere words without the intention corresponding therewith, will not make a marriage or any other civil contract. * * * It is quite true that there was a formal ceremony; but it is also patent from the evidence that there was no intention whatever on the part of either the plaintiff or the defendant that it should be considered as a valid and legal marriage. * * * It was a mere subterfuge." ( 92 Misc., 279, 156 N.Y.S., 185.)
As neither plaintiff nor defendant, according to the allegation of the bill, gave their free and willing consent to be bound by the ceremony, or assume toward each other the relations ordinarily implied in its performance, or exercised the duties, obligations, rights and privileges incident to the relation, and have not since done any act or performed any such duties or obligations, or exercised such rights and privileges, thereby or otherwise indicating a purpose so to be bound, there appears no reason for refusing to order the annulment of the pretended marriage, and thereby removing any impediment that might otherwise exist.
A complicated legal phase in this case is what effect, if any, is to be given to the antenuptial and postnuptial contracts which have been offered in evidence. The contracts were entered into by minors, and the question of public policy must also be considered. The defendant's counsel cite the following authorities in relation to these two points.
"An agreement having in view a separation in the future is altogether void as against public policy, and it is immaterial whether it is made before or after marriage, because such agreement gives inducements to the parties not to perform `duties in the fulfillment of which society has an interest.'" Madden on Domestic Relations, page 333.
"Conceding for the sake of argument the legality of such a contract, the contract in question was executed by the defendant, who was an infant at the time, and the law is that an infant who transfers personal property or releases rights of action may disaffirm either during infancy or after majority." Madden on Domestic Relations, page 574.
"Separation agreement void as against public policy where principal provision was waiver of support of wife." Madden on Domestic Relations, page 334.
"Duty of husband to support wife does not rest on contract but springs from the matrimonial relationship. It is based on considerations of public policy and cannot be evaded by contract." Madden on Domestic Relations, page 180.
The law contemplates that duress must clearly have dominated throughout the transaction to such an extent that the person influenced could not and did not act as a free agent. The violence or threats must have been of such a nature as to inspire a great fear of bodily harm in a minor of ordinary firmness. Threats of force which do not coerce are not duress. 18 R.C.L., 415, Paragraph 38; Bryant v. Bryant, 171 N.C. 746, 88 S.E., 147, L.R.A., 1916-E, 648; Wimbrough v. Wimbrough, 125 Md., 619, 94 A., 168, Ann. Cas., 1916-E, 920.
The duress must clearly have dominated throughout the transaction so as to disable the one influenced from acting as a free agent. Madden on Domestic Relations, page 11 and 12. See also, Thorne v. Farrar, 57 Wn., 441, 107 P., 347, 27 L.R.A. (N.S.), 385, 135 Am. St. Rep., 995; Collins v. Ryan, 49 La. Ann., 1710, 22 So., 920, 43 L.R.A., 814, 38 C.J., 1304.
To constitute such duress as will vitiate the marriage, the influences must have been brought to bear by the other contracting party or with his procurement or connivance. 38 C.J., 1304, Paragraph 70; Shepherd v. Shepherd, 174 Ky., 615, 192 S.W. 658; Fratello v. Fratello, 118 Misc., 584, 193 N.Y.S., 865.
Under the facts as found and the law stated. I shall undertake to recommend to the Court the equitable relief to which I think the parties to this action are entitled.
It is a fundamental principle that the plaintiff and defendant must have consented to become husband and wife as a condition precedent to the creation of a marriage status between them. As already related, I am satisfied there was not sufficient duress exercised upon the plaintiff to interfere with his free agency in any respect. The plaintiff entered into the marriage ceremony because he believed the contracts would enable him upon the birth of issue to have the marriage annulled. The contracts were clearly against public policy and, accordingly, they have no legal force and effect whatsoever.
I find as a matter of fact that there has been no consummation of the marriage, and the plaintiff and defendant did not intend to establish a marital status, because they only agreed to have a marriage ceremony performed, for the reason, I conclude from the evidence, of making certain the legitimacy of their child.
I am constrained to hold that the plaintiff and defendant colluded to solemnly marry, legitimatize their child, and then accomplish a dissolution of the marriage — an arrangement of the decisions of the Supreme Court of this State hold should not be sustained by a presiding Judge.
As a result of improper relations had between the plaintiff and defendant there exists a child which was made legitimate through the marriage ceremony performed in a solemn Court of justice: and it would be grossly inequitable to fail to protect the rights of that child entitled to support from her father.
The defendant has come into Court and asked for a decree of separation from the bed and board of the plaintiff; she has asked for the custody of the infant child; and she has asked for reasonable provision to be made for the support and maintenance of the defendant, for the costs of this action, and for such other proper relief as to the Court seems just and proper; and as I conceive it, that other relief looks to the requirement that the plaintiff shall care for and support the child, which was legitimatized by the marriage ceremony entered into between the plaintiff and defendant.
In many cases, both old and recent, the Supreme Court of this State has clearly and forcefully declared that the law of South Carolina was unalterably opposed to the dissolution of a marriage contract by collusion, default or coercive pressure exerted upon either or both of the parties. These observations have been repeatedly laid down. 38 C. J., 1273, 1346; Davis v. Whitlock, 90 S.C. 233, 73 S.E., 171, Ann. Cas., 1913-D, 538; Jakar v. Jakar, 113 S.C. 295, 102 S.E., 337.
Mr. Chief Justice Stabler in the case of Fogel v. McDonald, 159 S.C. 506, 512, 157 S.E., 830, 833, had the following to say: "It is elementary that in proceedings of this character the State is a silent but not by any means an inactive third party. The marriage status being a matter of the deepest public interest and concern, the trial Judge has the power, and it is his duty, to see that such a status is not disturbed except under circumstances and for causes fully sanctioned by law. In this class of cases, probably more than all others, the State exercises a jealous and exclusive dominion. These fundamental considerations are, or should be, scrupulously regarded and enforced, and it is of great importance that the presiding Judge shall, when necessary, prevent, to the utmost exercise of his judicial power, the dissolution of a marriage contract by collusion, default, or coercive pressure exerted upon either or both of the parties."
I cannot conceive of more harrowing circumstances, greater misrepresentation or higher deceit than that practiced by the defendant as set forth in the case of Jakar v. Jakar, 113 S.C. 295, 300, 102 S.E., 337. Because of the gross fraud perpetrated on an innocent woman by a villain of the deepest dye, an accomplished liar who did not think the truth, "much less speak it." the referee recommended that the marriage be set aside. On review of the report, Judge Townsend did not agree with the recommendation of the Referee, asserting that the circumstances satisfied him that there had been consummation by cohabitation. The late Chief Justice Watts, who wrote many strong opinions upholding the sanctity of the marriage vow, holding that the contract of marriage was most sacred, disagreed with Judge Townsend and held that the marriage in the Jakar case should be declared a nullity. But the majority of the Supreme Court did not agree with Judge Watts, and as result Judge Townsend's finding was affirmed.
This case is by statute made cognizable by the equity side of the Court of Common Pleas. Such an affair under the old law of England would have come within the jurisdiction of the ecclesiastical Courts; but the illuminating opinion of Judge Woods in the case of Davis v. Whitlock, 90 S.C. 233, 240, 73 S.E., 171, Ann. Cas., 1913-D, 538, clarified the law on that subject; and it is clear that the decision in the case must be guided by and rest upon equitable principles.
I can conceive of a presiding Judge, sitting as chancellor, reaching the conclusion under the facts and law that the absence of the meeting of the minds of plaintiff and defendant, the fact that they never intended to establish a mutual status, and the further fact they never consummated the marriage ceremony or contract by cohabitation, rendered the marriage void; but upon the entry of such a decree what would be the legal status of the child now living as the legitimate offspring of plaintiff and defendant, her father and mother; what would become of the right of Lillian Johnson Campbell to support by the plaintiff during childhood and minority? First, the child's legitimacy would have to be assured and full provision would have to be made for her care and support during minority by the plaintiff. The child is not before the Court. She should be made a party to the end that her rights should be safeguarded during life and minority. If the marriage could be annulled nisi, so to speak, conditioned upon the assurance and preservation of the child's legitimacy, the payment by the plaintiff for her full and adequate support, and payment of all costs of this action, including reasonable fees to defendant's counsel, the condition of the parties to this action might be improved; but I am unaware of the right or power of the Court to render such decree, so I am unable to recommend that measure of relief.
Upon full and careful consideration of the evidence and the law, as I understand it, I recommend that the marriage between the plaintiff and defendant should not be annulled; I recommend that the custody of the child remain with her mother; I recommend that the plaintiff should not be required to provide support for the defendant: I recommend that the child, Lillian Johnson Campbell, should be made a party to this action and that a full inquiry be had as to the amount of proper, adequate and full support for the child during minority; and that provision should be made requiring the plaintiff to forthwith pay to the defendant a lump sum for the child's care and support from birth up to the present time (reaching this conclusion because it seems to me that the $300.00 paid under the agreement would be more than absorbed in the ordinary expenses incident to the birth of the child and the necessary medical and nursing care incident thereto); and that hereafter the plaintiff should be required to pay monthly for the support of the child; and lastly, I recommend that the plaintiff be required to pay all of the costs of this action, including reasonable fees to the defendant's counsel, the amount of which should be ascertained by the taking of evidence thereabout.
ORDER OF JUDGE GASTONThis case comes before me on appeal from the report of the Referee, filed July 8, 1937, upon exceptions thereto served by the plaintiff. The matter was argued by counsel for the parties before me on September 7, 1937, and by request of the counsel I delayed further consideration of the case until both sides could file additional written arguments, which has now been done.
The marriage sought to be annulled was entered into on September 7, 1934, exactly three years before this case came before me.
I deem it unnecessary to recite the facts in regard to this unhappy event, because the Report of the Referee fully disclosed in detail every feature of this occurrence. The welfare of the infant child and the interest of society are at stake. The Court cannot lend its aid to disrupt the rights of innocent parties nor to uphold the violation of solemn vows entered into between the plaintiff and the defendant to the laws of the land.
I have carefully considered the evidence, the arguments of counsel, the exceptions, and the entire record. The conclusion reached by the Referee is correct and must be sustained. It is, therefore, ordered, adjudged and decreed, that the Report of the Referee be, and hereby is, confirmed, and that all exceptions thereto be, and hereby are, overruled, and the recommendations and conclusions of the Referee are hereby made the judgment of the Court.
Messrs. Hart Moss, for appellant, cite: Duress: 9 R. C.L., 711. Marriage under duress: 159 S.C. 506; 90 S.C. 233; 73 S.E., 171; 100 S.C. 293; 43 S.C. 306; 44 S.C. 195. Fraud: 38 C.J., 1300; 67 N.E., 63; 63 L.R.A., 92; 18 R.C.L., 415; 26 Cyc., 832; 104 S.E., 117. Legitimacy of child: 125 S.C. 182; 18 S.C. 69; 101 S.C. 293; 140 S.C. 66; 144 S.C. 88; 3 R.C.L., 723; 7 A.J., 629; 40 Am. Rep., 505; 13 L.R.A. (N.S.), 1180; 85 Am. Dec., 658. Counterclaim: 142 S.C. 531.
Messrs. Finley Spratt, for respondent, cite: Duress: 101 S.C. 304; 85 S.E., 721; 79 N.C. 603; 47 La., 295; 21 S.E., 241; 38 C.J., 1305; 192 S.W. 658; 193 N Y S., 865; 27 L.R.A. (N.S.), 385; 43 L.R.A., 814; 18 R.C.L., 415; 9 L.R.A., 505; 88 S.E., 147; 94 A., 168; 21 C.J., 186. Consent to marriage necessary: 125 Md., 619; 38 C.J., 1298.
March 8, 1939. The opinion of the Court was delivered by
The facts underlying this unfortunate affair are fully set out in the report of the Special Referee, which was confirmed by the Circuit Court, and which will be reported herewith. It will be necessary only to restate such of them as are necessary to an understanding and determination of the issues made by this appeal.
When the appellant was nineteen years of age and respondent seventeen, both being unmarried, they had sexual intercourse with each other, in consequence of which Elizabeth Moore became pregnant. When her condition became known, her brother, Robert Moore, had an interview with appellant's uncle and guardian, Dr. Brison. From this initial action on the part of Robert Moore, and the consequent action of Dr. Brison and the mother of appellant, the attorneys for appellant and respondent for a period of ten days conferred together with the laudable purpose of bringing about a settlement of this unhappy situation, and with the primary purpose of making legitimate the unborn child, prepared a written agreement to be signed by I.J. Campbell, Jr., and Elizabeth Moore whereby they agreed that they would that day go through with a ceremony of marriage to be performed by the Judge of Probate; that immediately after the performance of such ceremony the parties to it would separate and no effort would be made to require either of them to live with the other as husband and wife. That on the day after the signing of this contract, the appellant should pay to the respondent the sum of $300.00 and, upon such payment, Elizabeth Moore and her father, Ellie Moore, would enter into a formal instrument whereby the respondent should release and acquit the appellant from any liability or responsibility for the support and maintenance of any child that should be born within the year to her; and that respondent should then execute a formal instrument in writing releasing appellant from any claim of dower and from any distributive interest in his estate. That if either party should bring any action for the annulment of the marriage ceremony, neither of them will object thereto, either directly or indirectly. That the respondent, in consideration of the payment to her by the appellant of the sum of $300.00, shall release him from any charge or claim for the support and maintenance in any suit, money or alimony of any nature.
This written agreement was signed on the 7th day of September, 1934, by I.J. Campbell, Jr., and Elizabeth Moore in the presence of Robert Moore and Samuel P. Brison. The marriage ceremony was performed the same day by Honorable E. Gettys Nunn, Judge of Probate.
The next day, September 8, 1934, the respondent, Elizabeth Moore Campbell, entered into a written agreement which recites that she and appellant have never lived together as man and wife, and have agreed that they will never do so; and that in consideration of the payment to her by I.J. Campbell, Jr., of the sum of $300.00, the receipt of which is acknowledged, she did covenant and agree to live separate and apart from the said I.J. Campbell, Jr., and to make no demands on him to live with her as her husband. That in consideration of the payment to her of such sum, she renounced, released and acquitted him from any and all liability for the support of herself or any child born to her and him, and she assumed all the expenses of the rearing, care and education of such child, and she released and renounced any right or claim of dower, or distributive interest in any lands or property of any kind, now owned or hereafter acquired by I.J. Campbell, Jr. She further convenanted and agreed that she would consent and agree for I.J. Campbell, Jr., to apply for an annulment of the marriage or for divorce therefrom, and that she would not resist the application for annulment or divorce; that if divorce is asked it shall be complete and absolute with the right to either party to remarry; and she made the condition that any child born to them should be given to her, and that no application for divorce should be made within the space of nine months from the date of the written agreement, and that I.J. Campbell, Jr., should not be required to pay suit money or support money.
This written agreement was signed by Elizabeth Moore Campbell on September 8, 1934, in the presence of Anne Roth and George Williams.
The child of Elizabeth Moore Campbell was born in February, 1935. This action was begun in May, 1935.
When the issues were joined by the pleadings, the matter was referred to C.W.F. Spencer, Esq., as Special Referee, to hear and determine the issues of law and fact. He took a great deal of testimony which, along with the exhibits, is set out in the Transcript of Record. In due time, the Special Referee filed his report, the summary of which is in these words: "Upon full and careful consideration of the evidence and the law, as I understand it, I recommend that the marriage between the plaintiff and defendant should not be annulled; I recommend that the custody of the child remain with her mother; I recommend that the plaintiff should not be required to provide support for the defendant; I recommend that the child, Lillian Johnson Campbell, should be made a party to this action and that a full inquiry be had as to the amount of proper, adequate and full support for the child during minority; and that provision should be made requiring the plaintiff to forthwith pay to the defendant a lump sum for the child's care and support from birth up to the present time (reaching this conclusion because it seems to me that the $300.00 paid under the agreement would be more than absorbed in the ordinary expenses incident to the birth of the child and the necessary medical and nursing care incident thereto); and that hereafter the plaintiff should be required to pay monthly for the support of the child; and lastly, I recommend that the plaintiff be required to pay all of the costs of this action, including reasonable fees to the defendant's counsel, the amount of which should be ascertained by the taking of evidence thereabout."
The report was heard by Judge Gaston, on exceptions thereto, and was by him confirmed in an order of date November 30, 1937.
The appeal is from this order, upon exceptions which allege error in not granting plaintiff's motion to strike from the answer Paragraphs 5 and 6; error in permitting the infant child to be made a party defendant to the action; error in permitting the defendant to change the action from one for annulment of a marriage to one for alimony, support, maintenance of the child and for counsel fees; error in not holding that plaintiff was forced to, and did enter into the said marriage ceremony through duress and coercion. Error in not finding and holding that plaintiff was induced to, and did enter into the said marriage through fraud and misrepresentations of defendant and her relatives. Error in not finding and holding upon all the testimony that said marriage ceremony never in truth and fact constituted a valid marriage, as neither of the parties at the time of the said ceremony intended or contemplated becoming and living together as man and wife. Error in holding that the antenuptial and postnuptial contracts were void as being against public policy.
We shall pass upon only those exceptions which charge error in not striking out Paragraphs 5 and 6 of the answer, and those which charge error in recommending that the infant child be made a party to the action, and error in considering the issues of alimony, support, maintenance for the child and counsel fees.
The other issues made by the exceptions are, in our judgment, correctly disposed of by the report of the Special Referee, and the Circuit decree, both of which are directed to be reported along with this opinion.
The first exception complains of error in refusing to grant plaintiff's motion to strike from the answer Paragraphs 5 and 6, which motion was based on the ground that the complaint states an action for the annulment of a marriage, and the matters set up in those paragraphs are not a specific denial of the allegations of the complaint, nor do they set out matters which constitute a defense or a counterclaim of the cause of action contained in the complaint.
Subsection 2 of Section 467, Code of Civil Procedure, 1932, is that an answer should contain: "A statement of any new matter constituting a defense or counterclaim, in ordinary and concise language, without repitition."
Plaintiff alleges in his complaint that he did not enter into the marriage with defendant freely and voluntarily, but was induced to do so by duress and coercion, and by the fraud and misrepresentations of defendant and her relatives. In Paragraph 5 she goes into a minute history of her lifelong friendship and association with plaintiff. She states that they were schoolmates and sweethearts; that he made love to her; assured her of his love in person and by letter; offered marriage to her; won her affection and confidence, and she became engaged to him.
Why is this not competent to show that plaintiff did enter into the marriage with defendant freely and voluntarily, and not because of duress and coercion, or through fraud and misrepresentations?
Section 468, Code of Civil Procedure, 1932, Subsection 1, provides that a counterclaim is: "A cause of action arising out of the contract or transaction set forth in the complaint as the foundation of the plaintiff's claim or connected with the subject of the action." (Italics ours.)
Here the cause of action is the claim to annul the contract of marriage between the parties, and the repudiation of the maintenance of the child begotten before and born after the ceremony of marriage. Defendant demands that plaintiff provide for the child; this is the gist of the counterclaim. It seems to us that the counterclaim grows out of the cause of action set up in the complaint. Certainly it is connected with it.
This is a suit in equity. Section 468, supra, further provides (see annotations at foot of the above Section), "* * * yet it has been declared that all rights, legal or equitable, must alike be enforced or protected by the same form of action. Fidelity Fire Ins. Co. v. Windham, 134 S.C. 373, 133 S.E., 35, 38."
"* * * A counterclaim relates to matter that might be the subject of an action and give rise to a judgment independently of the matters set forth in the complaint to which it is interposed. It is rather in the nature of a cross action than of a defense, * * *." Mobley v. Cureton, 6 S.C. 49.
The sixth paragraph of the answer, which plaintiff moved to strike out; is designed to show that the appellant, the father of her child, is a man of means, has property and is amply able to provide for the maintenance of the child.
We have seen that she has the right to set up a counterclaim for the recovery of such claim. We think it will not be denied that she may show by evidence that the father of her child is able to maintain it.
There was no error in refusing to strike Paragraphs 5 and 6 from the answer.
The plaintiff alleges that it was error to allow defendant to set up and make a new party-defendant in her answer without the leave of the Court. We do not find from the answer that respondent made the child a party-defendant to the suit, nor did she ask that it be done. The Special Referee recommended that the Court make the child a party to the action. Section 494, Code of Civil Procedure, 1932, provides that the Court may, before or after judgment, and on such terms as may be proper, amend any pleading, process, or proceeding by adding or striking out the name of any party.
Plaintiff further charges that defendant was allowed to change the entire nature of the action from one for the annulment of a marriage to an action for alimony, support, maintenance of the child and counsel fees. The disposition we have made of Exceptions 1 and 2 also disposes of this exception. Moreover, the judgment of the lower Court does not allow alimony or support to the defendant. Since the child will be made a party to the action and steps taken to ascertain what will be a proper allowance for her maintenance, it would seem to be equitable that the counsel whose efforts brought about these results should be compensated.
The exceptions are overruled and the judgment is affirmed.
MR. CHIEF JUSTICE STABLER and MESSRS. JUSTICES BAKER and FISHBURNE concur.
MR. JUSTICE CARTER did not participate on account of illness.