dissenting.
The majority of the court are of. opinion, and to that extent I heartily concur, that “ 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.”
But I do not concur in the conclusion that because of the misfortune of Elizabeth Bodle, therefore laches should be imputed to appellant to defeat her right to relief, when no laches would otherwise be imputed. The chancellor, who heard the witnesses, and this court, agree that a gross and flagrant fraud was practiced by Maher in the procuring of the decree of divorce and in preventing appellant from defending and defeating the suit. The decree was procured upon a false charge and by perjured testimony. To permit it to remain upon the record of a court as a valid decree, seems to me to be dangerously near to a reproach upon the administration of justice. The ground, and the only ground, which is considered by the court as sufficient to warrant the sustaining of this fraudulent decree and the denial of relief to appellant, is that appellant delayed too long her attack upon the decree, and that in the meantime Maher had again married. The fact that Maher, through whose fraud the decree was obtained and through whose dominion over appellant a defense to the false charge was prevented, has involved appellee in the consequences of his wrong, should not be permitted to aid this imposition upon the court and make it succeed. Nor should that fact be given undue weight in determining if appellant is guilty of laches.
If, without considering the subsequent marriage of Maher to appellee, the court would, without hesitation, find that appellant was excusable for her delay, then the conclusion should not be changed by a consideration of the unfortunate position of appellee. The determination ought to be controlled by the rights of appellant and the necessity of preserving the integrity of judicial procedure, not by sympathy with the misfortunes of appellee. Otherwise, it would always be an easy method of forever securing the success of such a fraud and imposition upon a court, for the one procuring it and fearing its detection, to simply involve another by a marriage. If appellant has been guilty of no unexplained and inexcusable delay, then the mere fact of the marriage to appellee should not control. Caswell v. Caswell, 120 Ill. 377, wherein the Supreme Court said :
“ The facts of appellant’s remarriage, of there being children thereof — although we do not see in the record proof of such children — and of the hardship which will result to innocent persons from setting aside the decree of divorce, are dwelt upon as objections to the granting of such relief. Such ill consequences we can appreciate, and must regret; but yet they do not form reason sufficient for a denial of the exercise of the court’s power to vacate such a decree obtained by fraud, as has often been determined. Crouch v. Crouch, 30 Wis. 667; Rush v. Rush, 46 Ia. 648; Whitcomb v. Whitcomb, Id. 437; Edson v. Edson, supra; Bishop on Marr. and Div., Secs. 751, 753a; True v. True, 6 Minn. 458; Comstock v. Adams, 23 Kan. 513; Adams v. Adams, 51 N. H. 388.”
Other decisions in which it has been held that a subsequent marriage should not be allowed to operate as an affirmance of a decree of divorce fraudulently procured, may be found in Whitcomb v. Whitcomb, 46 Ia. 437; State v. Whitcomb, 52 Ia. 85; Adams v. Adams, 51 N. H. 388; Crouch v. Crouch, 30 Wis. 667; Everett v. Everett, 60 Wis. 200; True v. True, 6 Minn. 458; Bomsta v. Johnson, 38 Minn. 230; Edson v. Edson, 108 Mass. 590.
In Whitcomb v. Whitcomb, supra, the Iowa court said :
“ It is argued that the decree of the court below, vacating the decree of divorce, should be reversed because of the effect upon Rachel Patterson and her child. Courts find many cases of hardship, in which sympathy is invoked for the suffering of the innocent because of the wrongs of others; but it must be remembered in this case that whatever the suffering and disgrace the innocent child may in the future endure, it is not imposed by the law, but by the wrongful acts of the plaintiff. We must declare the law as we find it, regardless of the consequences to individuals. We have no authority to mould it in accordance with our sympathies.”
In Crouch v. Crouch, supra, the Wisconsin court said :
“ It is stated in the brief of her counsel that since the judgment of divorce was rendered, the plaintiff has married another husband, to whom she has borne a child. We sympathize with the parties who have placed themselves in this unfortunate position, and more especially do we regret that we are compelled to make a decision which will render the child of the last ill-advised union illegitimate; but we have no power to breathe life into these void proceedings. Let the consequences be ever so disastrous to individuals, we can only declare the law as we find it. We have no authority to modify it in cases of supposed hardship.”
And in the later case of Everett v. Everett, supra, the same court said:
“ In this case the interests and well being of society as well as the cause of justice require that the fraud and imposition should not be successful. It is of the highest importance that it should be distinctly understood that the use of such means to procure a divorce will meet with no favor from the courts of this State, whenever the fraud can be clearly shown. It may be true that the affirmance of the order of the County Court will involve an innocent third party in distress and disgrace and destroy rights acquired in reliance upon a judgment, but these consequences are unavoidable.”
In True v. True, supra, the Minnesota court, speaking of the power and duty of a court of chancery to vacate and set aside a decree of divorce fraudulently obtained, said:
“ I would be very reluctant to concede such incapacity in the courts of equity. It would be robbing them of a large share of the comprehensive and penetrating jurisdiction which they have so beneficially exercised over the affairs of men by detecting and preventing the most artfully designed schemes of fraud and punishing the perpetrators, and by protecting the'weak against the aggressions of the powerful; nor do I see anything in the peculiar nature of the decree that should make it in an ordinary case more conclusive than the other judgments and decrees of the courts. We are told that the parties may marry again and that the consequences would be disastrous to the inheritance of estates and the legitimacy of offspring. Yet it is the constant practice of the courts to refuse to recognize as binding the decrees of courts of other States dissolving marriage contracts when they are irregularly granted, letting the consequences of subsequent marriages take care of themselves. See Jackson v. Jackson, 1 Johns. 424; Pawling v. Bird, 13 Johns. 192; Borden v. Fitch, 15 Id. 121, and the numerous cases cited therein.”
And in the later case of Bomsta v. Johnson, the same court said:
“ Aside from a well justified reluctance to annul decrees in cases where second marriages have been contracted, the tribunals of this country have, with few exceptions, treated final decrees in divorces precisely as final judgments in ordinary civil actions. When fraudulently obtained they have been speedily set aside upon motion, and' wholly ignored in criminal prosecution without regard to consequences and the apparent wrong which might be perpetrated upon adults who had married the divorced parties, or upon innocent children, the issue of such marriages.”
Of the above noted decisions, those in the Crouch case, the Whitcomb case and the True case have been cited with approval by the Supreme Court of Illinois in the Caswell case, supra. Doubtless expressions of text writers and decisions of other jurisdictions may be found which justify the giving of greater consideration to one standing as does appellee, even to the impairing of the rights of the victims of the fraudulent decree. But from the decisions above cited and the approval of them by our own Supreme Court it would seem clear that the rule announced by those cases and approved in the Caswell case should govern here. And this doctrine has the support of the weight of authority.
It has ever been the rule that the judgment of a court which has been procured through fraud should be vacated and set aside when attacked in the proper manner, and when the fraud is clearly shown. An early announcement of the attitude of the courts in relation to judgments and decrees thus obtained through imposition upon the court, may be found in Fermor’s case, 3 Coke, 77.
In Bradstreet v. N. I. Co., 3 Sumn. 600, Story, J., said :
“ I know of no case where -fraud, if established by competent proofs, is not sufficient to overthrow any judgment or decree, however solemn may be its form and promulgation.”
And in Adams v. Adams, 51 N. H. 388, the Supreme Court of New Hampshire said :
“ This doctrine in regard to impeaching judgments and decrees for fraud has been applied in numerous cases to decrees in divorce suits and suits for nullity of marriage, and the weight of authority is greatly in favor of such application. Upon principle there is no solid ground for any distinction between decrees in divorce suits and other judgments, or, if there be any, it is to be found in the much greater danger of fraud and imposition in divorce cases as compared with others; thus adding largely to the necessity and importance of preserving the "power to correct or vacate decrees that have been obtained by fraud and imposition. Accordingly it is laid down in Bishop on Marriage and Divorce, section 699, that if a tribunal has been imposed upon and in consequence of the fraud a judgment of divorce has been wrongfully rendered, it may vacate this judgment when, upon a summary proceeding, it is made cognizant of the fraud. This is the doctrine of Allen v. McClellan, 12 Pa. St. 328, and of Dunn v. Dunn, 4 Paige, 425.”
There is, then, to be considered only the question of laches, as affected by the conduct of appellant, and not controlled by the misfortunes of appellee, and for the purpose only of determining if appellant’s delay was, under the circumstances of this case, excusable.
In this behalf it should be of controlling importance that appellant, in all that she did and in all that she failed todo as well, was under the dominion of Maher, her husband.
And this applies as well to her conduct during the time of her residence in Du Page county subsequent to the decree, as to her conduct in Chicago preceding the decree.
Appellant was precluded from testifying by the death of Maher. But other evidence amply establishes that throughout the whole fraudulent transaction she was under the power and compulsion of her husband. The chancellor so finds. The decree appealed from recites as a finding of fact:
“ Yet, in all the different steps in the original divorce proceedings Alzuma L. Maher was an unwilling party, and that she did whatever she did under the influence and threats that had been exerted over her by her husband, said Mark H. Maher, and those surrounding her.”
And also the following finding of fact:
“ The court further finds from the evidence, that shortly after the entry of said decree for divorce the said Mark H. Maher and Alzuma L. Maher continued to live and cohabit together as husband and wife at Downer’s Grove, twenty-five miles from the city of Chicago, for two days in the week for a period of nine months after said decree of divorce was granted.”
The evidence establishes without conflict that during the entire period of the residence at Downer’s Grove in Du Page county, appellant was continually there, and not in Chicago, and that Maher went to Downer’s Grove each week and remained with her for a part of the week. This residence in Du Page county continued up to the time when Maher informed appellant that he was to marry another woman, and thereby, for the first time, informed her that the decree of divorce was not void and ineffective. Within thirty-one days thereafter this suit was begun. During all the period of the residence in Du Page county, appellant had been repeatedly assured that the decree was invalid and inoperative. The finding of the court that appellee “ did whatever she did under the influence and threats that had been exerted over her by her husband,” has precisely the same support of evidence as to her conduct and actions after the decree as before it. In each it is the influence of the husband over the wife. If the finding is justified, as the court concludes that it is, as to the husband’s influence over appellant before and during the divorce proceedings, so, too, it must, by the same reasoning, be justified as to her conduct and failure to act after the decree, and while living as Maher’s wife. And the one statement of Maher, made in boast of his success in his fraudulent sóbeme, alone and of itself justifies the conclusion that appellant was at all times, when living with him as his wife, absolutely under his dominion. He said to Daniels, speaking of appellant’s acquiescence in the divorce proceedings:
“ I forced her to do it — that is, I told her she must do it.”
And Daniels testified:
“ I told him that I didn’t understand any such thing as that, and that if he had my wife I didn’t think he could force her to do anything of that kind, but he said he did.”
If further evidence were necessary to establish the fact of the husband’s dominion over appellant in Du Page county, after the decree, as well as in Chicago before the decree, it is found in the following testimony of Mrs. Daniels:
“If she (appellant) wanted to go away and go out anywhere, she would always ask him; he was very exacting with her. During my intimate acquaintance with them and the many times I visited her house, 1 do not know of any instance where she disobeyed or mistreated him or slighted his interest in any way. * * * He was very exacting and didn’t even want her to go to church.”
The close relationship between Mrs. Daniels and appellant existed while appellant was residing in Du Page county after the decree.
When the evidence thus discloses, and without contradiction, that appellant was under the dominion of Maher up to the rendering of the decree, and when the chancellor finds such to be the fact, to hold that there is no specific evidence that such dominion continued after appellant and Maher took up their residence in Du Page county, is a refinement of distinction which it is difficult to appreciate. Maher had removed appellant from Cook county, where her friends were to be found, where lawyers might be employed to examine the records, and still living with her as her husband, still assuring her that she was his lawful wife and that there was no valid decree of divorce, his dominion over her is as apparent from the evidence and as much to be presumed from all the facts after the decree as before it. There was no difference whatever in their relations. They were still to each other and to the people about them, husband and wife. What new element can be found which in any degree lessened or weakened the dominion of the strong-willed husband over the subservient wife ? When the testimony of Mrs. Daniels is considered, that, “ If she (appellant) wanted to go away or go out anywhere she would always ask him — he was very exacting with her, * * * he didn’t even want her to go to church,” it is difficult to see just how appellant could be reasonably expected to act in the way of attack upon this decree while the relationship of Maher as her husband continued. If appellant always obeyed him and always asked his permission to go out, and he did not even permit her to go to a church, the reasonable conclusion is that she could not go to Chicago to employ counsel to attack this decree as long as she lived with Maher as his wife.
In 2 Bishop on Law of Married Women, Sec. 478, the author says:
“ In the relation of marriage the husband is recognized bv the law as in a certain sense holding the wife in .subjection. On this principle it is that she is not ordinarily to be adjudged responsible for wrongs, whether civil or criminal, which she commits in his presence, his coercion being presumed.”
But it is said appellant herself regarded the decree as effective, and desired and prepared for another marriage to Maher. There is no evidence that this is so save the following testimony of Daniels:
“ He (Maher) said it (the divorce) was a fake and a fraud both. He spoke of the fraud often. He told me at that time that he didn’t have any divorce. * * * He most assuredly impressed on my mind that he was not divorced. 1 believed him, and therefore told him that he could come. * * * He shouldn’t have stayed at my house if I was not positive that he didn’t have a divorce. * * * He denied everything about the divorce, but then once in a while he would laugh and say that whenever it came to an issue he might fix it all up by remarrying. I asked him what was the necessity for that if he had not gotten a divorce, and he replied, 1 Well, I haven’t got a divorce.’. * * * He said that if there was any doubt about it in any way, shape, manner or form, he would marry her again.”
There is no evidence that this proposition to remarry was ever conveyed to appellant. Daniels testified “ she was not present ” when the talk about remarrying occurred. Mrs. Daniels testified as follows:
“ I heard him (Maher) laugh and joke about their alleged divorce as a big joke. We asked him if it was true, and he said no, and he thought we were geese to imagine such a thing to be true. He laughed at me for thinking that he had procured a decree or that they had been separated. Whenever the separation was referred. to' he said ‘ there was nothing in it; it wasn’t true; there was no separation.’ I heard him deny it many, many times. I have heard him say that the decree was a fraud and that money would do anything. He said that in the presence of my husband and in the presence of Mrs. Maher (appellant) when we four were in the library of our house. * * * The divorce was spoken of by him as a joke, and as far as I am concerned I never knew that a real divorce had been granted. When it was discussed it was looked upon as being a joke. As far as I know there was never any gossip about Do'wner’s Grove about there being a divorce between Mr. and Mrs. Maher. He said that there was no divorce, and he denied it many, many times. * * * When we were talking about the divorce I never heard anything said about their being remarried. I never heard anything to that effect and Mark never said anything about remarrying her that I heard; I didn’t know from any source that they were expecting to be remarried, and if she was preparing a trousseau to get married again, I would have known it. I never heard Mark say that rather than to have the trouble and exposure of a divorce case being set aside that it was better for them to marry over again, nor did I ever hear him say anything of the sort.”
Unfortunately, the appellant could not testify. It is also-urged that in her original bill of complaint appellant alleges that such a second marriage to Maher was proposed and contemplated. As to the allegations of the original bill appellant testified: .
11 The time it was drawn up was directly after Mr. Maher was married and went away, and it was drawn up hurriedly, and I did not look at it. Í do not know whether I read it myself or whether it was read to me, but there are a number of statements in this that I have no recollection of and they are mistakes absolutely. They are not true.”
And if the allegations stand unexplained, and if it were admitted by appellant that Maher did promise to marry her again, yet in view of the uncontroverted testimony of Daniels that such a marriage was proposed by Maher, in connection with the assurance that it was unnecessary and that the decree wag invalid and of no force, and that he merely offered to do it as a superfluous thing to satisfy any misgivings of appellant, the allegation and the fact would be of absolutely no importance. The rule as to what constitutes laches in such a case as this is yielding and determinable by the facts and equities of 'the particular case. Harris v. McIntyre, 118 Ill. 275.
In that case the Supreme Court of this State said, speaking of the doctrine of laches in equity:
“ It is, however, to be observed that mere lapse of time, however great, will not bar a recovery, if an excuse therefor be given which takes hold upon the conscience of the chancellor, and is such as renders it inequitable that the bar should be interposed.”
In 2 Kelson on Divorce and Separation, Sec. 1056, the author, in speaking of the application of the doctrine of laches to the setting aside of a decree of divorce, says:
“ Every case must be governed by its own circumstances. * * * 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.”
And the author cites cases in which it had been held that two years’ delay may be explained and excused by poverty of the party; that twenty years’ delay is not a bar when the fraud has been concealed; and that fourteen years after the decree it might yet be vacated, where the party had knowledge of it only for seven months before acting, and was excused for the delay during the seven months by her poverty.
In Everett v. Everett, supra, the defendant in the divorce suit first learned of the decree about two years after the entry, and then delayed attacking it for eighteen months longer, and the Supreme Court of Wisconsin held that inasmuch as she was excused for the delay by poverty, there was no laches to be imputed to her which would defeat relief.
In this case it can not be said that by fault of appellant appellee became involved in the transaction. Appellant first learned that the assurances of her husband that the decree was of no force or effect were false assurances, upon the 22d day of December, 1895, when she received the fol- • lowing letter:
“Chicago, Ill., Dec. 21st, 1895.
Alige : When you receive this I will be a married man, and on my bridal tour. If you will send me the address where you want your things delivered I will attend to it as soon as I get back.
Mark.”
It was then too late to prevent the marriage with appellee. Dp to the receipt of this letter appellant had lived with Maher as his wife, relying upon his false statement, repeatedly made, that there was no valid decree of divorce.
Dor can it with propriety be said that Elizabeth Bodle was entirely without fault in the matter of vigilance, for had she made ordinary or slight inquiry as to the manner of life and the domestic relations of the man whom she was about to marry, she would have learned that he ivas living ppenly with appellant and holding her out to the world as his lawful wife. It does not even appear that appellee Bodle ever inquired as to the existence of a decree of divorce.
Hor should the doctrine of estoppel apply to defeat appellant. The $1,500 received by her was, so far as the evidence discloses, used in defraying such expense of living and dress as Maher would furnish as her husband. Maher surely could claim no estoppel by reason of the receipt of this money, nor should appellee avail of it.
The very taking of the money was, under the findings of the chancellor, and in the undivided opinion of this court, an act done by appellant under the influence and compulsion of the husband.
Measured by the rules announced in the cases noted, what are the facts which here should “ take hold upon the conscience of the chancellor ? ” Never, until December 22, 1895, did appellant know that the decree of divorce, which was fraudulently procured, which Judge Brentano assured her that he would not enter, was in fact a valid decree, binding upon her and permitting her husband to marry another. Within thirty-one days thereafter, she had secured counsel, and he had prepared a bill of complaint and filed it in this cause. Ho one asserting rights acquired through M. H. Maher, and through this decree of divorce, ought to be heard in a court of conscience to say that in the period when Maher was constantly assuring appellant that no decree was in force, and that he was still her husband and that she was still his wife, a period in which they so lived as to even constitute presumption of a common law marriage, yet in spite of this the appellant ought to have known that her husband was lying to her and to have acted accordingly.
It may be. that as between the two women, each a sufferer through the wrong of Maher, there is slight difference in claim to sympathy. But it is nevertheless an all-important consideration that the interests and claims of one are grounded upon the fraud practiced by Maher upon the court, and the maintenance of those claims involves a support of the fraud and a permitting of it to succeed. It is, in my opinion, of much greater importance to the administration of law and the preservation of the integrity of judicial procedure, that the fraud be kept from a final success, than is the protection of appellee from injury resulting to her from Maher’s wrong.
The language of Mr. Justice Cole of the Supreme Court of Wisconsin, in Everett v. Everett, supra, is apt:
“ In this case the interests and well-being of society, as well as the cause of justice, requires that the fraud and imposition should not be successful. It is of the highest importance that it should be distinctly understood that the use of such means to procure a divorce will meet with no favor from the courts of this State, whenever the fraud can be clearly shown.”
Doubtless it would be matter of regret that appellee Elizabeth Bodle should be a sufferer from the wrongs of Maher; but it may well be regarded as matter of greater regret and of much more serious consequence, that dishonest litigants should be permitted to believe that a decree of divorce procured upon a false charge and by perjured testimony, can be made good by the continued deception of the victim of it, until another marriage, can be effected by the party who has thus imposed upon the court.
For the foregoing reasons I dissent.