RODMAN, J., dissenting. The plaintiff alleged that he was married to the defendant on 22 January, 1874; on 8 March following he discovered that she was pregnant and had been so for more than four months; on 29 July following she was delivered of a child; on discovering her condition in March as aforesaid, he separated from the defendant; that the defendant practiced a fraud on him in contracting the marriage, he supposing her to be a virtuous woman, and that at the time of the marriage she was more than two months gone in pregnancy, and the plaintiff was informed thereof by the defendant's own confession. Wherefore the plaintiff demanded judgment that the marriage contract be declared null and void. The defendant filed no answer, and the jury found the facts in accordance *Page 227 with the allegations in the complaint. The plaintiff then moved for judgment, which was refused by his Honor, and the plaintiff appealed. There are but three causes assigned for divorce by our statutes:
"1. If either party shall separate from the other and live in adultery.
"2. If the wife shall commit adultery.
"3. If either party at the time of the marriage was and still is naturally impotent."
This is the declaration of the legislative will as late as 1871. The Legislature has not only restricted the causes for divorce, but it has also been careful as to the manner of ascertaining the causes. The declarations or admissions of the parties in court or out of court go for nothing. Every allegation is to be deemed as denied, whether it is denied or not, and nothing is to be allowed except what is found by the jury. Bat. Rev., ch. 37, sec. 7.
There are with us no such things as "divorces made easy," "divorces without publicity," and the like, as are said to prevail elsewhere; but our policy always has been, and is now, to regard marriage as indissoluble, except for such grave causes as are named above, and to hedge in the trial with such precautions as prevent collusion, surprise, or imposition.
If the findings of the jury are to govern, we must see what those findings were:
"1. Were the parties married on 22 January, 1874? Yes.
"2. Was the marriage, so far as the plaintiff was concerned, procured by the fraud of the defendant? Yes.
"3. Did the plaintiff separate himself from defendant immediately on discovering the fraud? Yes."
No one will pretend that there is anything whatever in the verdict to authorize a divorce under our statute. The marriage was procured by fraud. What fraud? Did she represent herself to be rich, when she was poor? Had she false teeth? Did she paint — or, what (306) else?
As a divorce cannot be granted upon such a verdict, it is not necessary and scarcely proper to look to the complaint to see what the verdict relates. We find that the fraud complained of was that the defendant was more than two months gone with child at the time of marriage, which fact she did not disclose. That fact may have been true and yet no fraud, for she may not have known it herself at that early stage. And if she knew, as she must have known, that the fact might be so, yet she may have known also that he knew as much about it as she did, for *Page 228 he does not deny that he was the father of it. It is true that he says he did not know that she was pregnant until she confessed it some two months after marriage; yet that is quite consistent with his being the father of it, especially as she did not say that anybody else was, and still more especially as he does not say that anybody else was, and does not deny that he was.
It is also true that he says that immediately on discovering her condition he sent her away and has not cohabited with her since; yet that is consistent with his fear that the birth of his own child, earlier than the laws of nature would allow within marriage, would disgrace him for having gotten it before.
It is also true that he says she held herself out to be virtuous, and he thought her to be so at the time of the marriage; yet that may be quite consistent with the fact that he knew her to be so, in regard to all others except himself, because he himself had seduced her and no one else had, and that he was enabled to do so only by a promise of marriage.
Now, all this may be hard measure to the plaintiff, but he has courted it by seeking the dissolution of marriage with one who he says was an "orphan girl," and whom he or some one else ruined, and to turn her and her child, wrecks upon the world without the courage on his part to deny in express terms that he is the author of their ruin, and (307) without daring to charge any other fault than that she did not disclose the fact that she was pregnant.
The fact that the complaint and the issues present a case so suspicious and so insufficient can find no excuse in the unskillfulness of counsel, for they are able and experienced, and it is our duty to assume that the fault is with the plaintiff. But consider the case in the best light for the plaintiff: He was a worthy man; married, as he supposed, a chaste woman, and found that he was deceived and had an impure woman with child by another. Is that a cause for divorce under our law? As long ago as 1832, inScroggins v. Scroggins, 14 N.C. 535, it was decided that it is not. Indeed, that was a stronger case than this. There the wife was pregnant at the time of the marriage and was subsequently delivered of "a mulatto child," whereas both she and her husband were white. So that it was certain that the husband was not the father, and it was equally certain that a negro was. The case was elaborately argued on both sides, and an elaborate opinion delivered by Judge Ruffin, the Court being then composed of those great names — Henderson, Ruffin, and Daniel, — and it was decided that a divorce could not be granted. In delivering the opinion,Judge Ruffin said: "The case now before us rests upon a matter existing at the time of the marriage. And it must be admitted to be as strong a case as can well be if the petitioner acted properly. . . . The petitioner puts the case upon the ground of fraud. *Page 229 . . . But the fraud here consists of the other party not having the qualities and character he supposed her to have. It would be dangerous to lay down a rule of that sort. It is impossible to say where it would stop. . . . Concealment is not a fraud in such case. Disclosure is not looked for. . . . I know not how far the principle contended for would extend. If it embrace a case of pregnancy, it will next claim that of incontinence; it will be said that the husband was (308) well acquainted with the female and never suspected her and has been deceived. . . . From uncleanliness it may descend to the minor faults of temper. . . . There is in general no safe rule but this: That persons who marry agree to take each other as they are . . . After the law has been settled upon this subject for ages, and when the Legislature has been unable to devise any alteration founded on a general principle worthy of their adoption, it would be too much to expect a court to pretend to have more wisdom than the Legislature and our forefathers united, and strike out new theories. And we cannot but say that nothing could be more dangerous than to allow those who have agreed to take each other in terms for better,for worse, to be permitted to say that one of the parties is worse than expected." And the judge concludes by calling the attention of the Legislature to the matter, in order that if the Court had erred, there might be such legislation as would prevent future error. And yet, although that has been nearly half a century, there has been no legislation enlarging the powers of the Court, but in 1871 they were actually restricted; for the act of 1827, under which Scroggins v. Scroggins was decided, did, after specifying impotency and adultery as causes for divorce, authorize the court to grant divorces when the "court should be satisfied of the justice of the application," which the court in that case thought might enlarge the powers of the court; but in the present statute of 1871 there is no such provision. And, therefore, we suppose that the court is restricted to the cause specified — impotency and adultery.
It is true that there have been always other grounds for declaring marriages void, but they do not fall properly under the head of divorce. They are such as idiocy, precontract, etc., in which cases there was no marriage at all. It was absolutely void for want of power to contract.
It is also true that in some of our sister States the courts have undertaken to grant divorces in cases where there was fraud in (309) procuring the marriage contract. That has been done in the very respectable courts of Massachusetts, New York, and California. But it is said that they have done so under statutes expressly authorizing it. And in New Jersey it has been done where there is no statute to authorize it so far as we are informed, but it is upon the broad ground of the power of a court of equity to relieve against fraud. Carriss v. Carriss, *Page 230 24 N. J., 517. But it was by a divided Court. So that we have to choose whether we will stand by our own decision and our own legislation until our own Legislature shall declare a different policy, or whether we shall forsake the old landmarks and go abroad after novelties.
At the same term when Scroggins v. Scroggins, was decided, there was another case before the Court, where a man had married a woman who had lately had a child which she induced him to believe was his, but which had found to be a mulatto, and, of course, not his. The court below had dismissed the case, and the Supreme Court sent the case back to be tried, and in doing so Judge Ruffin seems to have been somewhat in conflict with what he said in Scroggins v. Scroggins. We do not know what became of the case. It is Barden v. Barden, 14 N.C. 548.