This case is here on a demurrer to the declaration, alone, and not on a demurrer to the declaration supplemented by the extraneous history of the conduct and the litigation between the parties, as the majority of the Court has treated it. I know of no authority for such treatment, and accordingly shall limit my consideration to the declaration. Its material allegations are that (1) plaintiff and defendant were legally married on February 19, 1921, and lived together as husband and wife until on or about June 28, 1925, when defendant wrongfully and permanently abandoned her; on October 24, 1923, defendant scheming to destroy fraudulently her marital rights, and without just cause, instituted a suit for the purpose of having their marriage annulled; *Page 382 (3) she did not hear of the suit "for a long time thereafter," and upon asking defendant about it, he wrongfully informed her that he was only bringing the suit "for the purpose of clearing up and clarifying" their marriage, promised that the suit would be dismissed, and she relied on his statements; (4) on February 2, 1924, a decree was entered annulling their marriage, but defendant continued to live with her as her husband and "at all times" assured her that the suit had been dismissed; (5) she first learned of the annulment decree in July, 1925, and on March 29, 1926, instituted a chancery proceeding for the purpose of setting aside the annulment decree; (6) the proceeding was tried in the circuit court (result not stated) and appealed to the Supreme Court, which rendered a decision sustaining the annulment decree "for the sole reason that the said defendant had remarried and the rights of his second wife had intervened" (this is the only reference in the declaration to a remarriage or to the second wife); and (7) by reason of defendant's fraud and deceit so practiced on plaintiff, he wrongfully violated his duty as a husband to her, destroyed her marital status and rights, and caused her great "humiliation and distress of mind and body," etc.
A summary of plaintiff's complaint is that through the willful deception of her by defendant (during coverture) he fraudulently procured the termination of their marriage. In other words, the wrong she charges is against her wifehood. There is no allegation of injury arising from representations or promises made to her after the entry of the annulment decree. There is no allegation that defendant's deception following the decree prevented a restoration of her marital rights before his remarriage. Consequently, the subsequent conduct charged is pictorial rather than material.
The common law relating to the wrongs against a wife by a husband is not repugnant to the constitution of West Virginia and is unaffected by statute. Consequently that law is still the law of the State. See Constitution, Article VIII, sec. 21. That law affords no redress to the wife for such wrongs either before or after divorce. 15 Am. Eng. Ency. Law, 857; 13 Rawle C. L. subject Husband and Wife, sec. 443; 30 C. J., *Page 383 subject Husband and Wife, secs. 317 and 319 and 675; Schouler, Marriage, Divorce, etc. (6th Ed.) secs. 627 and 630; Madden on Domestic Relations (1931), sec. 69. The leading case in England on this subject is Phillips v. Barnet, 45 Q. B. Div. 277, which held: "An action by divorced wife against her former husband for acts done during the coverture will not lie." The leading case in the states is Abbott v. Abbott, 67 Me. 304, 306, 24 Am.Rep. 27, 28 (decided in 1877), which held exactly with the English case, saying: "Divorce cannot make that a cause of action which was not a cause of action before divorce." Modern statutes "emancipating" the wife do not affect this part of the common law. Lillienkamp v. Rippetoe, 133 Tenn. 57, 59-60, L.R.A. 1916B 881; Strom v. Strom, 98 Minn, 427, 428, 6 L.R.A. (N.S.) 191; Bandfield v. Bandfield, (Mich.) 40 L.R.A. 757, 759; Peters v. Peters, (Cal.) 23 L.R.A. (N.S.) 699, 701;Decker v. Kedley, 79 C.C.A. 305; Thompson v.Thompson, 218 U.S. 611, 618; 30 C. J., p. 715, sec. 318; 13 Rawle C. L. 1395. The law on this subject, whether right or wrong, is definite.
The majority excepts the instant case from the common law rule on the theory that the fraud was not perpetrated during coverture. The opinion says: "The fraud is not consummated and therefore does not exist until the entry of the decree dissolving the marriage." The citations upon which this theory is based have reference strictly to actionable fraud. Since there is no actionable fraud at common law between man and wife, the statement and the citations are not apropos. Even were they apposite, the fraud was entirely consummated withincoverture because the marriage was in effect until the decree dissolved it, and the entry of the decree necessarily preceded the dissolution. This consideration is not changed because the termination of the marriage by the decree was immediate. It is suggested that this is a narrow construction. If being exact is narrow, then the suggestion is well made. But we are now in a court of law dealing with a common law matter, and the common law is admittedly rigid and exact. The common law even regards husband and wife as one person, which is the narrowest possible view of their relation. It was because of the rigor and strictness of *Page 384 the common law that courts of equity were established where liberal construction could prevail. As long as we retain the common law system, I see no way to escape exact construction. Besides, the theory of the majority is heedless of the declaration. It predicates plaintiff's right of recovery on false statements and broken promises, made to her by defend during the progress of the suit, and while the marriage relation still existed. No duty of defendant is charged; but the allegation of duty breached is that defendant "violated willfully and wrongfully every duty that he as a husband owed to this plaintiff." There is no charge of deceit practiced on the court. The purpose of defendant's deception was accomplished ("consummated") in fact when plaintiff relied upon the representations he made to her while he was still her husband. The annulment decree followed as a matter of routine. To say that defendant's deception did not exist until the moment the decree was entered is opposed to the facts alleged and is a sublimation of fancy which I cannot follow.
The majority proposes this test: "Suppose fraud committed by one spouse upon the other during coverture is actionable, could the plaintiff in this case have sued before marriage was dissolved?" Conjecture on an hypothesis of what is not the law, will not illuminate the discussion. This matter cannot be tested by if this and suppose that — it is foreclosed. It is a matter as definitely settled as the law of the Medes and Persians was said to be — that a wife has no common law right of action for the violation of a duty, "every duty" even — which her husband owed her, and divorce, or annulment, does not make a right where none before existed. (Equitable relief for such violation will be referred to later.) The majority is further influenced by the thought that plaintiff's injury did not precede but followed the entry of the decree. Concededly correct in the main — but consider this case: A husband viciously slandered his wife while a divorce suit was pending between them; shortly afterwards a decree of divorce was entered, and she suffered from the effects of that slander for many years. The part of her injury from the slander which preceded the entry of the decree is so small in comparison to the part which followed as to be inconsequential. *Page 385 Yet the common law admittedly gave her no right of action for the slander. I see no difference in principle between that case and the instant case.
The majority forecloses the discussion by demanding how it can be said that plaintiff's marriage status still existed after the entry of the annulment decree from which resulted her injuries. This is a set up of "the straw man." I have heard no one say, and I shall not say, that plaintiff's marriage status existed after the decree was entered. Another infirmity in this demand is the failure of the majority to recognize that injuries from wrongs inflicted during matrimony, usually (if not invariably) flow on after divorce. The wrong and its resultant injuries alleged in the instant case differ only in kind and degree from the wrong and injuries of many divorced women. If the common law allowed compensation for the injuries which follow a woman after divorce, "Instead of settling," said the court in Abbott v. Abbott, supra, "a divorce would very much unsettle all matters between married parties. The private matters of the whole period of married existence might be exposed by suits. The statute of limitations could not cut off actions, because during coverture the statute would not run. With divorces as common as they are now-a-days, there would be new harvests of litigation. If such a precedent was permitted, we do not see why any wife surviving the husband could not maintain a suit against his executors or administrators for defamation, or cruelty, or assault, or deprivations that she may have wrongfully suffered at the hands of the husband; and this would add a new method by which estates could be plundered. We believe the rule, which forbids all such opportunities for law suits and speculations, to be wise and salutary and to stand on the solid foundations of the law."
There is no occasion in such cases to ignore facts and indulge in mere theory, because of the rigor of the common law. Wrongs to a wife are not without redress. In Abbott v. Abbott,supra, her remedies are enumerated as follows: "The criminal courts are open to her. She has the privilege of the writ ofhabeas corpus, if unlawfully restrained. As a last resort, if need be, she can prosecute at her husband's *Page 386 expense a suit for divorce. If a divorce is decreed her, she has dower in all his estate, and all her needs and all her causes of complaint, including any cruelties suffered can be considered by the court and compensation in the nature of alimony allowed for them." A like statement appears inMain v. Main, 46 Ill. App. 106, 108. The remedy for fraud is in equity. "Broadly stated, with the single exception of fraud in obtaining a will, courts of equity have jurisdiction to relieve in all cases of fraud where the in jury is of a private nature." 21 C. J., subject Equity, sec. 82. Equity jurisdiction is not affected because the fraud is perpetrated by one spouse on the other. In equity the fiction of the unity of husband and wife is disregarded and the two are treated as distinct persons with separate and personal rights. 3 Story Eq. Juris. (14th Ed.), sec. 1793. In a suit in equity of a wife to vacate an annulment decree procured by fraud of the husband, the court would have indubitably the right to decree her whatever amount she was justly entitled to, as damages for the fraud, no matter how the suit terminated. Merely because the exigencies of the situation prevented a vacation of the decree would afford no ground for refusing her compensation. If the idea that equity should afford a remedy for a tort seems novel, consider that a divorce suit itself "is founded on a matrimonial wrong" and "is in essence an action of tort, though not technically known by this name." 2 Bishop on Marriage, Divorce and Separation, secs. 488 and 489.
I have heretofore regarded it as settled law that a judgment is conclusive not only of the matters actually decided but of all matters which properly might have been determined in the suit. See 34 C. J., subject Judgments, sec. 1322, and the many cases cited in the notes, including Fleming v. Ry. Co., 82 W. Va. 1,82 S.E. 819 and other West Virginia decisions. The plaintiff could have asked properly in her suit to vacate the annulment decree, for the very damages which she now seeks to recover in this action. She did not do that. Even the majority treats the present action as a part of "the controversy * * * twice considered by this court." It would therefore seem she is estopped to litigate the matter *Page 387 further. In passing, I will call attention to the fact that the citation in support of the majority view of this subject, to-wit, 9 Rawle C. L. 464, does not sustain its position.
The majority holds: "We are of opinion that the statute of limitations was suspended from the entry of the annulment decree to the marriage of Cameron to Ruth Gregg in July, 1925." The declaration makes no specific reference to the marriage of Cameron to Ruth Gregg. The declaration does say that plaintiff was ignorant of the annulment decree until in July, 1925. (Were it permissible to regard our decision in the former suit between these parties, I would remind the majority that we found as follows: "The evidence is conclusive that * * * within a month or so after the entry of the annulment decree she was told of its entry." See Cameron v. Cameron, 107 W. Va. 655,656, 150 S.E. 225. As the annulment decree as entered February 2, 1924, she first learned of its entry "within a month or so" instead of in July, 1925, as she now alleges and as the majority would find.) It may be the history of the parties discloses that Cameron and Miss Gregg were married in July, 1925. However that may be, it seems that as far as the majority should go, would be to say that under the allegations of thedeclaration the statute of limitations was suspended until July, 1925.
Judge Lively authorizes me to say that he joins with me in this dissent.
Upon rehearing.
In support of the petition for rehearing it is urged that the plaintiff cannot maintain this action because it is said that it is "an effort to recover damages for the fraudulent obtaining of a decree which stands unreversed at the time the action is brought," and "is in law a collateral attack upon that decree, and that this the policy of the law forbids." The principle contended for is thus stated in an excerpt from a North Dakota case, Tuttle v. Tuttle, 181 N.W. 898: "As long as the former adjudication remains in force, the losing party cannot maintain an action against the successful party *Page 388 for obtaining the judgment by fraudulent and wrongful practices."
The soundness of this proposition as a general principle must be recognized, but the principle cannot in reason be carried to the extent of protecting from liability for damages a defendant whose fraud in procuring a decree has been adjudicated, as in this case, (Cameron v. Cameron, 107 W. Va. 655, 150 S.E. 225), and the fraudulent decree remains in effect only because of the intervening rights of an innocent third party.
It having been already judicially determined that the annulment decree had been procured by fraud, that question is no longer an issue. The plaintiff is not attacking the annulment decree collaterally, but is relying on the subsequent adjudication of its fraudulent procurement. The adjudication by this Court that the annulment decree had been fraudulently procured, is as final and effective on that question as if a cancellation of the decree had also been ordered. This action does not depend upon a mere charge of fraud, but has as its basis a solemn judicial determination of fraud. As stated in 2 Freeman on Judgments, (15th Ed.), section 782, relied on by the defendant, the reason for the rule forbidding an action of damages for the fraudulent procurement of a judgment as long as it "remains in force" is that "the charges made in the second action are conclusively negatived by the former adjudication." The former adjudication, has been superseded by a subsequent decree holding that it had been fraudulently procured, and therefore does not negative "the charges made" in the action. Briefly stated, the right of the plaintiff to sue for damages results from the decree establishing the charge of fraud and denying her specific relief because of the intervention of the rights of an innocent third party.
To demonstrate the fallacy of the rule as applied to this case: Suppose A fraudulently procures a judgment in his favor for the land of B, and before B discovers the fraud, conveys the property to C, a purchaser for vaule without notice; in a suit by B against A to cancel the fraudulent decree the court would, in order to protect C, deny B specific *Page 389 relief, after holding that the decree complained of had been fraudulently procured. B could not (according to the contention of defendant) recover damages against A for the wrong because the fraudulent decree had been permitted to stand in order to protect the rights of an innocent third party.