delivered the opinion of the court.
Counsel for appellees raise a preliminary question, viz.-, that a freehold is involved, and therefore that this court is without jurisdiction.
It is said that the necessary effect of the decree • in this case is that a freehold will be lost to the appellee Elizabeth B. Maher, if the decree of divorce of February 27, 1895, should be set aside, and appellant would gain one, and therefore that this court is without jurisdiction. If the facts in the record justify the claim, then the law is with appellees on this point. R. R. Co. v. Watson, 105 Ill. 217; Sanford v. Kane, 127 Ill. 591; Ryan v. Sanford, 133 Ill. 291; Parsons v. Millar, 189 Ill. 107.
It seems that the earlier decisions of the Supreme Court, among which are Chicago, etc., R. R. Co. v. Watson, 105 Ill. 217, have been modified by the later cases. In the Watson case it was. said : “ A freehold is never involved, within the meaning of the statute, except where the primary object of the suit is the recovery of a freehold estate, the title whereof is directly put in issue,” and where the decree will result in one gaining and the other losing such estate.
In the very recent case of Parsons v. Millar, supra, the court quotes from Sanford v. Kane, supra, as follows:
“ A freehold is * * * involved in all cases where the necessary result of the judgment or decree is that one party gains and the other loses a freehold estate; but it is equally clear that a freehold is involved, within the meaning of the constitution and statute, when the title to a freehold is so put in issue by the pleadings that the decision of the case necessarily involves a decision of such issue, although the judgment or decree does not result in one .party gaining and the other party losing the estate.”
The difficulty, however, with appellees’ claim is, that it does not appear by this record that a freehold estate will be either gained or lost as a result of this decree. No issue is made by the pleadings which directly involves a freehold estate, and the record only shows that Mark H. Maher died intestate without issue him surviving, seized of real estate in Cook county, Illinois. What his title thereto was, or whether his heirs at law had any real estate at the time the decree was entered, fails to appear. What real estate he had at the time of his death, for all that appears, may have been sold to pay debts or converted into money. We are therefore of opinion that appellees’ contention that a freehold is involved, is not sound.
As to the merits of this case, we will not attempt to follow counsel through the various contentions made by them in their arguments, but will endeavor to decide the different questions presented by the record, in view of the substance of their contentions as they seem to us.
From a careful consideration of the pleadings and evidence in the case, in the light of the arguments, we have reached the conclusion that the various matters of fact found by the decree of the chancellor are justified by the evidence; at least it can not be said that such findings are clearly and manifestly against the evidence. When this is so, it is the settled law of this State that a court of review should not disturb the findings of the chancellor. This leaves us, then, to consider only questions of law arising upon this record, and. we will not refer in detail to the evidence, except in so far as may be necessary to a'full understanding of the questions of law to be considered.
It is claimed for appellant that the decree of divorce rendered by the Superior Court is void, because the divorce case was heard and the decree therein entered before the Superior Court convened for the term for which summons in the cause was returnable. We think this claim is not tenable.
It appears from the findings of the decree in this case and from the evidence, Maher filed his bill against appellant on January 24, 1895; that two days thereafter Francis A Kiddle, an attorney of that court, entered in writing the appearance of appellant as defendant in that case, and filed with said appearance a paper signed by appellant and upon which the appearance was written as follows:
“ In the Superior Court or Cook County.
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I hereby authorize Francis A. Kiddle to enter my appearanee as defendant herein and consent that default may be entered against me in this cause.”
That the bill was addressed to the February term, 1895, of that court and that it convened on the 4th day of February following, which was the first day of the term; that said appearance was procured by Mark H. Maher through coercion, fraud and duress; that the default of appellant in the divorce case was entered by virtue of said written appearance; the evidence was thereafter heard and the decree entered on February 27, 1895, which was .during the February term of the court; that appellant knew of the divorce proceedings and knew that she had signed the entry of appearance; that suit had been brought and the case heard by Judge Brentano; knew that it was heard by Judge Payne; that she was notified of the hearing before Judge Payne, and knew of the decree of divorce having been entered, and when she received a copy thereof, took from the Illinois Trust and Savings Bank the sum of $1,500, for which she executed her receipt as follows :
“ Chicago, March 1, 1895.
Received from the Illinois Trust & Savings Bank the sum of fifteen hundred ($1500) dollars in full of any alimony which may be due me from. Mark H. Maher.
Alzuma L. Reeves Maher.”
That at the time she received said money, and before its receipt, upon being asked by the trust officer of the bank, where the money had been deposited by Maher for the purpose of making the payment, to her, whether she understood fully the purport of the signing of this receipt, and the acceptance of the $1,500, she said that she did, and that she thought that was the best way to fix it up, or words to that effect.
This being the state of facts shown by the record, the chancellor was clearly justified in finding that the Superior Court had “colorable jurisdiction” of the person of appellant by virtue of said written appearance. That appellant authorized the appearance, and that the attorney, pursuant to the authority, entered the appearance, is not and can not. be questioned. That she knew of the progress of the case ■ and the hearing, before the decree was entered, and of the entry of the decree on March 1, 1895, which was during the February, 1895, term of the court, is clearly established.
The decree was not void for lack of jurisdiction of appellant’s person, nor because of a want of power in the Superior Court to enter appellant’s default and proceed to a hearing and decree at the February, 1895, term of the court. The appearance of appellant served the same purpose as service of summons on her. The proceedings of the court in that regard were at most only erroneous. Town of Lyons v. Cooledge, 89 Ill. 529-34, and cases cited; Millard v. Marmon, 116 Ill. 649-53; Pyle v. Pyle, 158 Ill. 289-94; Van Matre v. Sankey, 148 Ill. 536-53; Fitzpatrick v. Rutter, 58 Ill. App. 532-9; Boston T. House v. Fisher, 59 Ill. App. 400-5; Freeman on Judgments (2d Ed.), Sec. 487.
Mr. Freeman, in the section cited supra, says that equity will never interfere with a judgment for mere errors in procedure or by reason of irregularities occurring in the exercise 'of lawful jurisdiction.
In the Coolidge case, supra, it was held that the service of process upon a defendant gave the court jurisdiction of the person, and subsequent proceedings of the court were not void, however erroneous. Judgment was taken, as it seems, without giving the defendant the time allowed by statute to plead to the action, and the court held that this fact did not vitiate the judgment, citing cases, among them Whitwell v. Barbier, 7 Calif. 63, in which judgment was taken against a defendant served with process before the day on which he was allowed by statute to appear and answer, and it was held that the court had jurisdiction of the person, and its judgment was not a nullity.
In the case of Pyle, supra, the Supreme Court held that service of summons upon defendants gave the court jurisdiction of their persons, and a decree rendered against them without default or answer was nota nullity — merely error.
In the Fitzpatrick case, supra, it was held that a judgment was not void, but simply erroneous, where it was rendered at a term, at which the court had no right to proceed, because the declaration had not been filed ten days, but only nine days, before the commencement of the term, the court having jurisdiction of the subject-matter of the suit and of the person of the defendant by service of process.
Ho doubt in this case it was error for the Superior Court to take appellant’s default and proceed to a hearing and decree at the February term, 1895, unless it can be said that by virtue of her authority to Mr. Biddle she consented that her default be taken. As we construe the authority, it was one which authorized Mr. Biddle to enter her appearance and consent to her default. He did not do all he was authorized to do, but merely entered her appearance and waived service of process on her behalf. This placed her in the same position as if she had been served with process on the 26th day of January, 1895, which was too late to justify her default and a decree at the February term following. The proceeding, however, by the court at the February term, was, in our opinion, simply erroneous and not without jurisdiction, because the entry of the appearance of appellant conferred jurisdiction. Ho doubt upon appeal or writ of error, the decree might have been reversed for the irregularity in the proceeding, but not because the decree was a nullity.
All of the cases cited by appellant on this point, except that of Windsor v. McVeagh, 93 U. S. 274, are cases where the point was considered upon appeal or writ of error in the particular case, and are not applicable here. The Windsor case is an extreme one in its facts, and apparently turns upon the point that the defendant’s answer was stricken from the files and the decree of the court was entered against him without giving him an opportunity to be heard. The case does not present, as here, a mere irregularity in procedure, but a denial of any right to a hearing before the court.
It is contended that the chancellor erred in refusing to permit the appellant to testify in her own behalf, and especially by way of rebuttal as to conversations and transactions testified to by agents of Mark H. Maher during his lifetime.
The Trust Company defends as administrator, and the appellee Bodle as the widow and heir of Mark H. Maher, deceased, as against the bill of appellant, who claims to be the widow and heir of said Maher, deceased. In the case of Laurence v. Laurence, 164 Ill. 367-72, which was a bill by one claiming to be the lawful widow of an intestate, as against the heirs at law of such intestate, it was held, reviewing numerous previous decisions of the Supreme Court, that the complainant was an incompetent witness under section 2 of our statute as to evidence and depositions. The court, after holding that where the contest is between persons conceded to be heirs, and the controversy is only as to the distribution of the estate among them, and does not tend to impair or reduce the estate among them, they may testify, but say, “ Appellee was not an heir until she established the marriage which she alleged, and xvhich was denied by the heirs; and until such marriage xvas established by proof or conceded, she was a stranger to the estate and incompetent to testify, and the court erred in permitting her to do so over appellants’ (the heirs) objection.” This case is conclusive as to the first part of appellant’s contention.
The second part of the contention is not tenable, for the reason that appellant’s evidence as to any conversations and transactions testified to by agents of deceased was not excluded in so far as her testimony is made competent by the second- exception in section 2 of the statute above referred to, relating to conversations or transactions between an agent and a party in interest. She xvas permitted to testify in reference to transactions and conversations related by the witnesses Miss Stewart and Mr. Biddle, and her exddence was excluded only in so far as it would rebut the evidence of the witness Mr. Gemmill, xvhich was as to matters that took place in the presence of deceased. As to such matters, Gemmill can not be said to have been an agent of deceased, for he was then not acting for deceased and had not acted for him except as a mere scrivener. (Spencer v. Boardman, 118 Ill. 553-7.) We think that the second exception' of the statute refers to conversations or transactions between an agent and the party in interest, and not to transactions and conversations between the deceased and the party in interest in the presence of an agent. What Gemmill testified to was as to conversations and transactions not between him and appellant, but between appellant, her then husband, and his attorney and others, all in the presence of the deceased. These were the conversations as to which appellant’s evidence was excluded, and we think, properly. As we construe the case of Ruckman v. Alwood, 71 Ill. 155, relied upon by appellant, it does not hold that she was competent in this respect.
It is claimed by counsel for appellees, in effect, that the evidence in the record is not of that clear and satisfactory nature that it justified the chancellor in finding, as was done, that the divorce was obtained upon false and perjured testimony. We deem it unnecessary to refer in detail to the testimony in this regard. We have examined it carefully and are of opinion that if it did not clearly justify the conclusion of the chancellor, we can not say that his finding in that regard is clearly and manifestly against the evidence.
We will now proceed to consider the principal and remaining question in- the case, viz., as to whether the decree dismissing the bill for the reason that appellant is estopped by her conduct, and has been guilty of such laches in bringing her suit as precludes her from any relief. -
Numerous cases and authorities bearing upon this question have been cited and relied upon in the arguments by the respective counsel, which are unnecessary to be reviewed in view of the conclusion we have reached.
When judgments or decrees have been obtained by fraud, they may, as a general rule," be attacked in a court of equity and vacated in such a proceeding as the one at bar. This is settled by all the authorities, and the weight of authority is that this rule applies to decrees of divorce, though the courts are very reluctant to disturb them and proceed with greater caution, especially where there has been a second marriage and the rights of innocent' persons have intervened. The fact that one of the divorced parties has, in the meantime, married an innocent third person, will not deprive the court of the power to render justice and vacate the decree; but if there has been unreasonable delay in seeking its vacation, that is sufficient to bar relief however fraudulent the decree was. 1 Black on Judgments, See. 320; 2 Bishop, Mar., Div. & Sep., Sec. 1533-35; 2 Nelson, Div. & Sep., Secs. 1050, 1053, 1056; 2 Freeman on Jdgs., p. 860, Sec. 489; Caswell v. Caswell, 120 Ill. 377-84; Adams v. Adams, 51 N. H. 388-96; Nicholson v. Nicholson, 113 Ind. 131-4, and cases cited.
In the section of Freeman cited, supra, the author says:
“ Decrees of divorce may, when obtained by fraud, be vacated in the same manner and under the same circumstances which would- warrant the vacation of any other decree, although the party who obtained the fraudulent judgment has" contracted another marriage.”
Mr. Black in the section cited, supra, says :
“ Aside from legislation, the courts will generally hear motions to vacate divorce judgments on the same grounds and conditions as any other judgments, except, perhaps, that they proceed with greater caution, and with more anxious care of the intervening rights of strangers.”
Nelson, in Sec. 1050, supra, says:
“ A judgment which affects but two parties may be set aside without serious consequences to any one "but the plaintiff; but if a decree of divorce is vacated, innocent parties may be wronged, and the marriage relation, as a public institution, will be disturbed. * * * Public policy requires that, as a general rule, the courts may protect themselves by vacating decrees obtained by fraud, although the rights of innocent parties may sometimes be sacrificed. is, however, a power which must be exercised with great discretion, and only upon thorough investigation of the facts.”
In the Caswell case, supra, the Supreme Court affirmed a decree vacating a decree of divorce obtained by fraud, although fourteen years had elapsed after its entry before proceedings to annul it were commenced, and long after a second marriage had intervened and children been born thereof. Although a court of equity has ample power in this regard, it is said by Mr. Bishop, in Sec. 1533, supra, in speaking of the stability that divorce decrees should have:
“ The matrimonial status of the parties draws with and after it so many collateral rights and interests of third persons, that uncertainty and fluctuation in it would be greatly detrimental to the public. And particularly to an innocent person who has contracted a marriage on faith of the decree of the court, the calamity of having it reversed and the marriage made void is past estimation. These considerations have great weight with the courts.”
In section 1534 the same author says:
“ There has always been a manifest reluctance to disturb a final judgment of divorce, especially after a second marriage involving the interests of third persons.”
In section 1535, it is also said:
“ The court will, to the extent of its power, protect innocent third persons from injury by the reversal.”
In section 1553, this author says:
“Delay in the application, by one having notice of the fraud, will, unless satisfactorily explained, operate to the prejudice of the applicant, and if unreasonably continued, it will bar his right.”
Mr. Nelson, in section 1050, supra, in speaking of cases of a second marriage to an innocent party, says:
“ In no case should the court grant relief when the applicant has accepted the benefits of the decree in any way, by receiving alimony or by treating the decree as valid, and marrying another. The rule that unreasonable delay will bar the vacation of a decree for fraud, should be rigidly enforced. The application to vacate a decree will be denied where the applicant is guilty of an)7 conduct creating an estoppel.”
In section 1053, supra, the same author says, in speaking of the rules which control the court where the rights of innocent third persons have intervened:
“ The State is interested in the preservation of a marriage, after a lapse of time, in the security of titles and property rights, and in the legitimacy of children, and where the defrauded party has delayed in asserting his rights for an unreasonable time, the decree should not be disturbed. If the defrauded party could have prevented the second marriage, the application comes too late. Every principle of estoppel and laches should be applied to defeat the party complaining of fraud where a second marriage has taken place. * * * As against the rights of the second wife, the rule of equity that where one of two innocent parties must suffer from fraud, the party who placed it in the power of the third party to commit the fraud must suffer, should be applied.”
Mr. Nelson further says, in section 1056, supra:
“It is a familiar principle of law that the party who seeks relief from fraud must proceed promptly upon the discovery of the fraud, and an unexplained acquiescence or delay after he has knowledge of the facts will deprive him of his rights. This rule is especially applicable to a party seeking to vacate a decree of divorce on the ground of fraud; for an innocent person, relying upon the decree, may marry the divorced party, and to vacate the decree will deprive the second wife and her children of property rights and legal status. The defrauded party, after discovering the fraud, can not wait until a second marriage takes place and assert her rights, to the injury of others. If a second marriage takes place after an unreasonable delay of the defrauded party, she has lost her rights by laches and can not disturb the decree upon which others had relied. Public policy forbids the review of decrees of divorce under such circumstances. * * * Every case must be governed by its own circumstances. The court is not governed by the statute (of limitations) in all cases, but may apply the inherent principles peculiar to courts of equity, and refuse all relief for a delay of a shorter period than is permitted by the statute. * * * What will explain and excuse delay can not be stated in advance by any rule of law, but is to be determined by the circumstances of each case. * * Where a party obtains a decree by fraud, it is clear that if the defrauded party relies upon the decree, or in any way accepts its benefits, he is estopped from asserting its invalidity.”
The foregoing quoted statements of the text writers are, in principle, sustained by the decided cases, which we deem it unnecessary to review, inasmuch as each case must be determined by its own peculiar facts and circumstances. Among others, we note the following: Caswell v. Caswell, 120 Ill. 377-84, and cases cited; Wood v. Calland, 86 Ill. App. 42-7; Edson v. Edson, 108 Mass. 590-6; Adams v. Adams, 51 N. H. 388-96; Nicholson v. Nicholson, 113 Ind. 131-5; True v. True, 6 Minn. 458; Everett v. Everett, 60 Wis. 200-4; Daniels v. Benedict, 50 Fed. Rep. 347-52; Hubbard v. Hubbard, 19 Colo. 13; Wisdom v. Wisdom, 24 Neb. 551-5; Bomsta v. Johnson, 38 Minn. 230; Olmstead v. Olmstead, 41 Minn. 297; Yorston v. Yorston, 32 N. J. Eq. 495-502; Redding v. Redding, 15 N. Y. Sup. 600; Marvin v. Foster, 63 N. W. Rep. (Minn.) 484; R. R. Co. v. Holbrook, 92 Ill. 297-300; Seale v. McLaughlin, 28 Calif. 668-72; Newman v. Kiser, 128 Ind. 258.
Many of these cases are cited and relied upon by the appellant’s counsel, while the others, though not all, are cited and relied upon by appellees’ counsel. None of them present facts or circumstances closely similar to the case at bar. Several of the cases do not involve the vacation of the decrees for divorce, but relate rather to the doctrine of laches as applied by courts of equity, and the-binding effect upon a party to a decree of his being represented in the case by an attorney, having knowledge thereof, and failing to repudiate the attorney’s acts promptly. Some of the cases also relate to the binding effect of a party’s having accepted the benefits of a decree knowing its fraudulent nature.
The case most nearly in point, and the one on which especial reliance is placed by appellant’s learned counsel, is the Caswell case, supra, in which, as we have seen, the court granted relief as against a fraudulent decree of divorce after a lapse of fourteen years. That case, however, is clearly distinguishable from the case at bar. The defense of laches was there interposed, but did not prevail, because the injured party filed her bill within seven months and seven days after she obtained knowledge of the fraudulent decree, and that delay was excused by the court because “ she was a poor person, of delicate constitution, sick much of the time, dependent on her own labor,- with some assistance from her father, for the support of herself and child, and had expended considerablé in search of the appellant.” The second marriage and birth of children under it had taken place long before the injured party discovered that the fraudulent decree had been entered. She had no opportunity to defend the suit. Also at the time she discovered the decree had been entered, she was in the State of Tennessee, returned to her home in Brooklyn, Hew York, and then came to Illinois in order to file her bill. As to laches tin? case presents a very different situation from the one at bar, as will be seen later.
In the Holbrook case, supra, the Supreme Court say:
it "Where a party has been served with process and neglects to appear and defend, but suffers judgment to be rendered by default, it has long been settled that a court of equity will not relieve the negligent from such a judgment.” And further say (quoting Owens v. Ranstead, 22 Ill. 162):
“ It must appear to the court that the party complaining has been guilty of no laches on his part; that he has been deprived of the opportunity of asserting his rights or making his defense through some accident, fraud or mistake not of his own procurement, and to which he was not a willing party; for a party has no claim to come into a court of equity to ask to be saved from his own culpable misconduct.”
The court also, after quotations from other of its previous decisions, say: „
“ The doctrine has been uniformly held, that where a party has been served with process and neglects to make his defense, he can not invoke the aid of a court of equity to grant him relief.”
In the Redding case, supra, where it was sought to set aside a divorce claimed to have been obtained by fraud, and where it appeared that the parties lived and cohabited together after the decree had been obtained and the husband told the wife that the service had been obtained in the case against his orders, that they were of no importance, and he would proceed no further in the case, it was held that the application should be denied, it appearing from the wife’s letters that she knew of the decree immediately on its being made.
In the light of the foregoing authorities, we will now consider the substance of the facts in this record, in so far as they bear upon the questions of estoppel and laches. Appellant knew that Mark H. Maher, her then husband, before the bill for divorce was filed, was going to apply for a divorce, and of the grounds he would allege. She preferred to have him make the charge of cruelty, rather than that of a more serious one which reflected upon her character and of which she insisted she was innocent. She signed the paper authorizing Mr. Riddle to appear for her in the case, and consent to her default. She signed this consent in Biddle’s office, away from the presence of her husband, and left it with him, Biddle, without informing him that she had a defense, though she says that she told Biddle that she did not want a divorce. Thereafter it does not appear that she made any attempt whatever to defend the case or notify Judge Brentano, who first heard the evidence and declined to enter a decree upon it, but permitted Maher’s counsel to present the case to another chancellor, Judge Payne, without making known to either of said judges the fraudulent nature of the proceeding, or that she was coerced in any way by her husband into signing the appearance and into refraining from making a defense.
Judge Brentano was called" as a witness for appellant and testified, among other things, of an interview between him and her at his residence, after the hearing before him and presumably before the case was reheard by Judge Payne. He says that appellant asked him if he had entered or would enter a decree of divorce in that case, and he told her that he would not, that the evidence was insufficient. He further says that she seemed very much pleased that no decree would be entered and felt satisfied.
The preponderance of the evidence is that appellant knew of the hearing before Judge Payne and of the subsequent entry of the decree by him about the time of its entry, and in any event she knew of it on the 1st day of March, 1895, when she was handed a certified copy of the decree and went with Mark H. Maher and his solicitor, Bisbee, to the bank, where she received $1,500 from the bank. In the receipt taken at the time and signed by her, she says it is in full for any alimony which may be due her from Mark B. Maher. Before signing this receipt she stated to the trust officer of the bank, Mr. Henkel, in substance, that she fully understood the effect of signing the receipt and the acceptance of the money. Henkel, on cross-examination, it is true, said he was not sure but that appellant cried at the time, and that there was “some measure of emotion " awakened ” in her at the time; that the transaction was in the presence of Maher and Bisbee, his attorney, but that he did not notice anything apparently indicating coercion.
Soon after she received this money, appellant, by an arrangement with Maher, went into the country and remained during five days of the week at the town of Wheaton,1 Du Page county, where she attended Wheaton College to study French and music, and the remaining two days of the week she stopped at Downer’s Grove, Du Page county, with Mr. and Mrs. Daniels, who resided at the latter place, and who were and had been for several years intimate friends of appellant and Mark H. Maher. It appears that Maher had paid all appellant’s expenses at Wheaton and at Downer’s Grove, and as a rule occupied the same room with appellant as man and wife from early in the month of March, 1895, until after the middle of the following December. Also it appears that before Maher and appellant went to the Daniels home, Maher asked Mr. Daniels to permit him and appellant to come to his house, but Daniels replied, “No; you are divorced;” and Maher said in response, in substance, that he was not divorced, and further, replying to inquiries by Daniels, the details of which are shown by the evidence, made statements to the effect, in substance, that there had been no divotce and that it was a fraud. After this explanation appellant and Maher were allowed to/come-to the Daniels residence and there to remain as above stated, as man and wife. While Maher- and appellant were at the Daniels home it appears that they were upon the best of terms, that there was no friction whatever between them, that they were kind, loving and affectionate one to the other, and that during this time there were frequent allusions made to the divorce, on which occasions Maher laughed and joked about it, and declared that it was a fraud, that money would do anything. Even the details of the evidence on which the divorce was obtained were discussed between Daniels and Maher, in the presence of Mrs. Daniels and sometimes in the presence of appellant. Daniels sa3Ts that he twitted Maher about the evidence in the divorce case on a great many occasions, and Maher said : “ Of course I had to say something to get the divorce; that is about the only thing we could say and make it go ” (referring apparently to a charge in the bill that appellant had hit him with a flax-seed poultice on one occasion, and on another with a dish of peas).
During all the relations of appellant and Mark H. Maher from March 1,1895, up to the time of his marriage to Elizabeth Boclle on December 21st of the same year, there is nothing whatever in the evidence to show but that the most cordial, friendly and affectionate relations -existed between them. Appellant was constantly, during all this' time, associated with Mr. and Mrs. Daniels, her long time friends, who were intelligent and well informed people. Mr. Daniels is a man apparently of wide experience in business affairs, was the manager of large business interests not only in Chicago, but in Hew York and Boston, had studied law, though he says he was “ not guilty of having been admitted to the bar.” Mr. and Mrs. Daniels both testify that Maher repeatedly denied that he had been divorced from appellant, but Mr. Daniels admits, on his cross examination, when the divorce was being discussed that Maher once in a while “ would laugh and say that whenever it came to an issue he might fix it all up by remarrying. * * * He said that if there was any doubt about it in any way, shape, manner or form, he would marry her again.” From all the evidence of Mr. and Mrs. Daniels, and the allegations in the original bill, we think it is not improper to conclude that they knew that Maher had procured a divorce from appellant, but that he had impressed them by his repeated conversations in regard to it, that it was fraudulent.
From the original bill of appellant to set aside the decree of divorce, which was signed and sworn to by her before a notary public on January 10,1896, it is perfectly apparent that she not only knew of the filing of the bill for divorce at the time it was filed, but knew of the whole progress of the case before Judges Brentano and Payne, and of the entry of the decree at the time it was entered, or within a day or two thereafter. She says in this bill that a copy of the decree was handed to her, that she asked Maher what it meant, and he told her that it was a decree of divorce which he had obtained from her, but that she “ need not fear, as the whole thing amounted to nothing and was a fraud.” She, however, says that she protested against such action, and told Maher she could not understand what he was trying to do; that Maher insisted, in the presence of their mutual friends, that they were just the same as ever, and they continued to cohabit the same as ever, but that she “ protested that she did not believe that it was right, and demanded that said divorce proceedings ought to be vacated, or, for her protection, that they should be remarried;” whereupon he stated to her and her friends “ that they would again have a marriage ceremony performed on or about January 1, 1896; that he did not want to start up the court proceedings any further or have any more newspaper notoriety in connection therewith; ” that he insisted that she should “ proceed to have new clothes made and prepare for such ceremony, which she consented to do.”
If the Daniels did not know of the divorce, why so much discussion of it, and why so many denials of it by Maher 1 Why the talk about his marrying appellant again ? Why appellant’s protest that it should be vacated, and why his promise to marry, her, again, as in her original bill she alleged and verified by her óath ?
The only excuse made by appellant for not acting and making a defense to the suit for divorce, is because of the influence, threats and coercion exerted over her by Mark H. Maher. The same claim is made as to the receipt of the $1,500 by her after the divorce was granted, and as to her failure to act thereafter up to the 22d day of December, 1895, and in addition, that she relied upon his repeated assurances that they were the same as ever and that the divorce decree was a fraud and amounted to nothing.
Were the question one between appellant and Maher alone, and no rights of an innocent third party had intervened, we would have no hesitancy in holding that, under all the circumstances shown in this record, appellant might be entitled to relief, notwithstanding her failure to make a defense to the divorce suit and her delay in filing her bill.
It appears from the evidence that the appellee, Elizabeth Bodle, was introduced to Mark H. Maher in August, 1895, by his own brother and the latter’s wife; that from that time Maher made occasional visits to Miss Bodle until some time in September following; that he called upon her thereafter very frequently, and they were quite often together, almost daily, with the exception of two weeks in October, up to their marriage, which occurred December 21, 1895. They became engaged to be married about September 19th. The mother of Miss Bodle learned that Mark H. Maher had obtained a divorce from appellant, and spoke to-him about it after her daughter was engaged to him, and he assured her that the divorce was absolute — told her, “ I have the papers and the alimony signed by her own hand in my strong box, and you are at liberty to look at the papers if you wish to.” We think it safe to assume that this information was made known by her mother to Elizabeth Bodle, though she did not testify, and there is no direct evidence that she knew of the divorce. Had the information that Maher gave to her mother been, followed up, or had she caused the records to be searched, the result would have been to show her an absolute divorce in favor of Maher 'from the appellant. There is no claim, nor is there any. evidence whatever in the record, that Elizabeth Bodle ever had any information that there was any fraud in the divorce, and we think she should be considered as an innocent party, without any blame for her unfortunate situation.
In view of the foregoing facts, and in the light of the authorities cited, we are of opinion that the conclusion of the learned chancellor that appellant is barred by her laches from any relief in this case, is correct. It.is unnecessary to pass upon the question of estoppel, though there are reasons why appellant may be said to be estopped because of her failure to make known to the court the fact that she was. being defrauded and that she had a good defense to the divorce suit; also because she took from Maher the sum of $1,500, which, although not strictly alimony under the decree, was a benefit to her which she took apparently as the price of her failure to defend, and her silence during the progress of the cause and subsequently, Elizabeth Bodle having in the meantime acted upon the belief that Maher was a divorced man.
As we have seen, while courts of equity have the power to vacate a fraudulent divorce, though in so doing the rights of innocent third parties will be sacrificed, they will proceed with great caution, especially where there has been a second marriage on the faith of the fraudulent decree, and it is the duty of the court, to the extent of its power, to protect such an innocent person. Delay alone, unless satisfactorily explained, if unreasonably continued, will bar the right of a defrauded party. As Mr. Nelson says, in such cases “ the rule that unreasonable delay will bar the vacation of a decree for fraud should be rigidly enforced.” Also the same author says, “ If the defrauded party could have prevented the second marriage, the application comes too late.”
We think appellant has not satisfactorily explained her delay in this case. At Wheaton and at Downer’s Grove she was associated for nearly ten months with long time and well informed friends, who could advise her; at least five days in each week was free from any domination or control of Mark H. Maher, and during all this time she knew of the fraudulent divorce, and we think her two friends also knew it. That she relied upon Maher’s assurance that it was a fraud, that he would have it canceled, and that he would remarry her, does not, in .our opinion, ,excuse her for this long delajq when, in the meantime, the rights of an innocent woman, relying upon the fact that Maher was a divorced man, have intervened. Had she made known to the court the fraud which had been practiced upon her, or had she insisted upon prompt action by Maher in vacating the fraudulent decree, or in remarrying her, she could have prevented his second marriage. Having failed to do any of these things, it is proper that she be denied relief as against the wife of the second marriage.
The case is essentially different from the Caswell case, supra, in which the situation after the delay was in no way different from what it was when the injured party first discovered the fraudulent decree had been entered. In that case no act by the injured party could have prevented the second marriage. Here, action by appellant might, and in all human probability would, have prevented the second marriage.
Aside from the question of laches, we think the decree of the chancellor may be sustained upon that most salutary and equitable rule of'chancery, that where one of two innocent parties must suffer from fraud, the one who placed it in the power of the defrauding person to commit the fraud must suffer; that is, the equity of the more innocent one must prevail over that of the party through whose fault the fraud became possible. Appellant was at fault, although she was dominated and controlled by her husband, in not declaring to Judge Brentano, when alone with him at his private residence, the fraud which was being perpetrated uptm the court with her knowledge and implied consent. Had she then spoken, there can be no doubt but that the judge would have acted promptly, dismissed the fraudulent bill, and saved all the distress, annoyance and suffering which have subsequently resulted to appellant, as well as to Elizabeth Bodle.
Appellant was at fault in remaining quiet for ten months in the home of her friends, the Daniels, who, no doub.t, would have advised, assisted and protected her, in not insisting upon the prompt vacation of the fraudulent decree by Maher, or on his remarrying her without delay. By her failure to act in these respects, she is to be blamed for the distressing results which have come to her and Elizabeth Bodle. The latter is blameless.
That appellant, in entering her appearance, consenting to default, in failing to defend the divorce suit, and in taking the $1,500 from Mark. H. Maher by way of benefit under the decree, acted under coercion from him, can not excuse her for remaining quiet and delaying action for ten months thereafter. Mor can she be excused for this delay by her reliance upon the promise of Maher to vacate the decree or to remarry her. She knew him for years to be a gambler and knew that he was base and mean enough, through a most despicable fraud and downright perjury, to impose upon a court of justice, and even by threats of an attack upon her virtue, when he knew she was innocent, to compel her silence while on other false charges he proceeded to procure a divorce from her. She had no reason to trust him for a single day, much less for ten months. That justice is outraged and its temple desecrated by Mark H. Maher, is not enough to move a court of equity to wrong an innocent and blameless woman in order to award relief to another innocent woman, through whose weakness largely the outrage was accomplished. The decree of a court of conscience, which shields the former and leaves the latter to reap the fruits of her own folly, is righteous altogether.
It is needless to say that we deeply sympathize with appellant for the wrongs done to and the frauds practiced upon her, as shown by this record, but when her rights and equities are contrasted with those of Elizabeth Bodle, they must yield to the superior claims of the latter, because, although appellant must suffer, she herself, and not Elizabeth Bodle, is to blame.
The decree of the Superior Court is affirmed.