Defendant has appealed to this court from a judgment declaring the nullity of a pretended marriage theretofore existing between herself and plaintiff, and awarding to plaintiff the custody of the child which resulted from the union. The case is here for trial de novo.
It is conceded that the marriage was bigamous, and void for that reason. The only controversy is as to the custody of the child. Plaintiff claims that he was induced to enter into the pretended marriage by reason of defendant’s fraudulent representation that her former husband was dead. This contention was sustained by
The appellant contends, first, .that the finding of fraud is not warranted by the evidence; and, second, that if a deceit was practiced upon plaintiff he is barred from relief on that ground because he continued to freely cohabit with defendant after knowledge of the deceit. We are fully convinced from a careful examination of the evidence, that appellant’s contention must be sustained for reasons which will appear in subsequent portions of this opinion. Discussion of that subject would, in the view we take of the case, be unnecessary were it not because the facts relative to the alleged fraud have a bearing on the question of the comparative fitness of the two opposing parents to be intrusted with the custody of the child. In our opinion, section 2734 does not govern the disposition of the child in this case, even if the plaintiff had been the innocent victim of defendant’s deceit. The allegations of the complaint as well as the findings and the undisputed facts show that this pro forma marriage was not one which could be annulled for fraud within the meaning of the statutes of this state on that subject.
Plaintiff and defendant were married on November 27, 1901, and the child in controversy was born October 24, 1902. At the time of this marriage the defendant was and still is the wife of one George Fennell, to whom she was duly married in 1890, and with whom she lived as his wife until February, 1901. She and Fennell separated at that time, but there has never been any divorce. “A marriage contracted by a person having a former husband or wife living, if the former marriage has not been annulled or dissolved, is illegal and void from the beginning unless such former husband or wife was absent, and believed by such person to be dead for a period of five years immediately preceding.” Section 2723, Rev. Codes 1899. In this case only about nine months had elapsed since
Although the marriage was a nullity, the child is in law legitimate. Section 2733, Rev. Codes 1899, declares: “When a marriage is annulled children begotten before the judgment are legitimate and succeed to the estate of both parents.” The effect of this humane provision is to protect the offspring of an annulled marriage from the stain and disability of bastardy. It places both parents of such child in the same position with respect to the child and the latter in the same relation to each of them as if it had been born in lawful wedlock. Watts v. Owens, 62 Wis. 512, 22 N. W. 720; Harris v. Harris, 85 Ky. 49, 2 S. W. 549; Graham v. Bennett, 2 Cal. 503. The general rules, therefore, which should govern in awarding the custody of this child are those found in section 2817, Rev. Codes 1899: “In awarding the custody of a minor or in appointing a general guardian the court or judge is to be guided by the following considerations: (1) By what appears to be for the best interests of the child in respect to its temporal and its mental and moral welfare; and if the child is of sufficient age to form an intelligent preference, the court or judge may consider that preference in determining the question. (2) As between parents adversely claiming the custody or guardianship, neither parent is entitled to it as of right, but, other things being equal, if the child is of tender years, it should be given to the mother; if it is of an age to require education and preparation for labor or business, then to the father.’ The child is a girl, and she was about nine months old at the time of the trial of this action. Respondent asserts that this harsh proceeding, if not required by section 2734, was imperatively necessary for the welfare of the child, by reason of the depravity and poverty of the mother. This charge of depravity is based wholly on the inferences, to be drawn
The defendant’s explanation of the circumstances under which she parted with Fennell in the spring of 1900 is in all material particulars undisputed, although Fennell was present at the trial and testified as a witness. She was obliged to do cooking and washing for the coal miners, among whom she and her husband lived, in order to support herself and a boy then less than five years old, the issue of her marriage to Fennell. She finally parted from Fennell because, as she claims, he did not try to support her. Fie seems to have acquiesced in this decision and went away without disclosing to her his destination. Shortly afterwards she also left and came to this state where she sought employment as a domestic servant and thereby supported herself and son until she met and married this plaintiff. There is not a scintilla of evidence that she was anything but a virtuous, hard working woman up to this time. Whether her parting with Fennell was in law a desertion on her part or his is immaterial. There was clearly much to justify her abandonment of that worthless husband, and there is nothing therein that indicates immorality. The plaintiff met her while she was working for one of his neighbors about five or six weeks before he married her. He was a widower and engaged her as housekeeper. He proposed marriage and she accepted. She testified that when plaintiff proposed marriage she told him fully and fairly all the evidence upon which she based her belief that her former husband had died since the separation. Her testimony on this point is clear, full and specific. The plaintiff admits that she told him of her former marriage to and separation from Fennell, but claims that he accepted, without inquiry as to the circumstances, her statement that her former husband was dead. The following quotation from his direct examination will sufficiently disclose how unsatisfactory and improbable was his testimony on this subject: “A. The first time I met the defendant
His testimony on this subject is well-nigh unbelievable, even if uncontradicted. His improbable version of the transaction is contradicted, and the defendant’s version corroborated, by an oral admission made in the presence of a disinterested witness, and by a written admission in a document which he freely executed. That his desire for the defendant’s companionship, regardless of consequences, exerted a more powerful influence upon his conduct than any scruples he may have had as to the legitimacy of his relations with the defendant, is demonstrated by the fact that he freely cohabited with the defendant after he knew that her former husband was still alive. He confesses that after he learned that fact he not only continued his cohabitation with defendant but also that after she had been forced by his brutality to leave the shelter of his house, he went in search of her, and by means of fair promises persuaded her to return. If the defendant had been guilty of fraud the plaintiff waived and condoned it in the most unequivocal manner. The evidence proves beyond doubt that the defendant fully informed the plaintiff of the facts and circumstances upon which she founded her belief that her former husband was dead. It is true that she manifested undue credulity; and that her failure
The fact that the defendant cohabited with the plaintiff after her former husband was known to be alive does not prove her character worse than his. He confessedly persuaded and induced her to do so by holding out to her'the glittering promise-of protection, and a home for herself and children. She was led to hope that the marriage to Fennell would be dissolved by means of a suit for divorce, to be followed by a lawful marriage to plaintiff. In this manner the illegality of her relations with plaintiff would be cured and disgrace to herself and children to a great extent at least, avoided. Is a woman to be condemned for yielding to such a temptation? Her needy, homeless and friendless condition are powerful pleas in her favor, which at least mitigate, if they do not justify her misconduct. What shall be said of the plaintiff’s conduct ' in whose behalf no such plea is possible? The most shameful of all his many disgraceful acts disclosed by this record is that he did not fulfill the promises by which he induced the defendant to return to his home. We shall not pursue the subject further. Suffice it to say that the defendant is no worse than the plaintiff, and if she has lost her good name it is due to her unfortunate association with this plaintiff. No other wrongdoing is proven against her. It appears to us that she is a woman more sinned against than sinning.
The shameful and brutal conduct of this plaintiff disclosed by the testimony in this case, and which he does not attempt to deny
The judgment appealed from will be modified, so as to award the custody of the child to the defendant. The appellant will recover the taxable costs in both courts.