Opinion
No. 48/324.
05-09-1921
TURNEY v. AVERY.
William L. Brunyate, of Newark, for petitioner.
(Syllabus by the Court.)
Suit by Frederick W. Turney against Minnie M. Avery, otherwise Minnie M. Turney, for annulment of marriage. Decree nisi.
William L. Brunyate, of Newark, for petitioner.
WALKER, Ch. The petition is one for annulment of marriage on two grounds: (1) impotence, and (2) fraud in the contract. The impotence charge is that the defendant had had a surgical operation performed upon her whereby her ovaries had been removed. The sterility resulting from this the petitioner called impotence, but in law it is not. The doctors who were called testified that the defendant was capable of having sexual intercourse, and the husband testified that he had had such intercourse with her on several occasions. In Kirschbaum v. Kirschbaum, 111 Atl. 697, I decided that want of power for copulation is impotence, but that mere sterility is not. No relief can be accorded on this score.
As to fraud: The allegation is that the defendant failed to disclose to the petitioner the fact, which she knew, that she was sterile and could not conceive and bear children; and this was proved. It was discovered by the petitioner after marriage. This was a fraud in the contract of marriage affecting an essential of the marital relation. Bolmer v. Edsall, 90 N. J. Eq. 299, 106 Atl. 646.
Lord Penzance has observed that the procreation of children is one of the ends of marriage. See Bolmer v. Edsall, 90 N. J. Eq. 299, at page 303, 106 Atl. 646. I do not hesitate to say that it is the most important object of matrimony, for without it the human race itself would perish from the earth.
Some women are congenitally, and others traumatically, barren. The former may never discover the fact until after a fruitless marriage. But when a woman knows that she has been made barren by a surgical operation she is under a legal duty to disclose the fact to an intended husband, so that, if he then marries her, he will be consenting to the situation that will frustrate his natural hope of posterity, and he would not be heard to repudiate the marriage, which his conduct had rendered unavoidable, although if his knowledge had been acquired subsequent to the ceremony he could have avoided it.
False pretenses are of two kinds, suggestio falsi, or affirmative false representation, and suppressio veri, or withholding the truth when it should be uttered. In Nicholson v. Janeway, 16 N. J. Eq. 285, it was held that undue concealment of a fact to the prejudice of another, which one party is bound in conscience and duty to disclose to the other, and in respect to which he cannot innocently be silent, constitutes a fraud against which equity will relieve. See, also, Conover v. Wardell, 22 N. J. Eq. 492; Keen v. James' Ex'rs, 39 N. J. Eq. 527, 540, 51 Am. Rep. 29.
The fraud in the case at bar is of the latter sort, that is, suppressio veri; and, as it affectedan essential of the marital relation, the injured party is entitled to be relieved by annulment of the marriage in this court under its general equity jurisdiction dissociated from its statutory power to annul for specified cause. Bolmer v. Edsall, supra.
Annulment for fraudulent concealment will be accorded the petitioner. A final decree is no longer granted in the first instance. There must be a decree nisi. P. L. 1916, p. 109; Bolmer v. Edsall, supra, 90 N. J. Eq. at page 313, 106 Atl. 646; Ysern v. Horter, 91 N. J. Eq. 189, 110 Atl. 31.