Plaintiff and defendant were married in 1908. By a separation agreement made in 1923, the defendant, the husband, promised to pay to his wife, the plaintiff, for her support and maintenance $400 monthly from April, 1923, to June, 1924, and $350 monthly thereafter. In case of divorce, he consented that allowance for alimony at the same rate be incorporated in the decree, "to continue so long as she remains unmarried." A court of competent jurisdiction in Nevada gave judgment for divorce in October of the same year. By the judgment "all demands for alimony, maintenance and support" were declared to be "fixed and prescribed" by the separation agreement, which was made part of the decree as if incorporated therein.
Plaintiff contracted a second marriage with one Hannum on August 16, 1924, and thereafter brought suit in this State to annul it on the ground of fraud. Judgment of annulment was granted on August 17, 1927, the basis of the decree being the fraud of the husband "in fraudulently concealing from the plaintiff the fact that prior to, up to and including the time of said marriage, he was insane." Alimony payments ceased upon the second marriage, and have never been resumed. This action, begun in February, 1928, is brought to recover the unpaid installments. The plaintiff claims that the right to alimony revived when the second marriage was annulled for fraud avoiding it from the beginning, and that the effect of the revivor was not merely to charge the defendant with a prospective liability for installments falling due from the time of the annulment, but to charge him retrospectively with installments lawfully withheld while *Page 369 the second marriage was in force. We think the liability should be adjudged as to the future, but denied as to the past.
A marriage procured by fraud is voidable, not void. Even so, annulment when decreed, puts an end to it from the beginning (Matter of Moncrief, 235 N.Y. 390; American Surety Co. v.Conner, 251 N.Y. 1). It is not dissolved as upon divorce. It is effaced as if it had never been. From then on, payments to either spouse may be demanded and must be made on the footing of its nullity. This is true, according to the holding of some courts, where bequests of income are to be paid until remarriage (Matterof Wombwell's Settlement, L.R. [1922] 2 Ch. 298; Matter ofGarnett, [1905] 74 L.J. [Ch.] 570). It is true and for like reasons where installments of alimony are to be paid under a judgment. A marriage is unreal if procured by force or fraud.
The retroactive effect of rescission from the beginning is not, however, without limits, prescribed by policy and justice. These limits are not unknown even in controversies between parties or privies to the rescinded act (American Surety Co. v. Conner,supra), but they have their typical application to the rights and duties of a stranger. For the stranger, rescission from the beginning is a watchword to be heeded when an act to be thereafter done with reference to one or other of the parties may be governed or affected by the time or quality of the severance. It does not express a rule that reaches back into the past and lays upon innocence the opprobrium of guilt. The defendant, the first husband, must now comply with the mandate of the judgment of divorce and provide for his former wife as for one who has not remarried. This does not mean, as we view it, that he must provide for her during the years when the voidable remarriage was in force and unavoided.
"The doctrine of relation is a fiction of law adopted by the courts solely for the purposes of justice" (Gibson v. *Page 370 Chouteau, 13 Wall. [U.S.] 92, 101; Lynch v. Bernal, 9 id. 315, 325). It becomes an instrument of injustice when used to change the quality of intervening acts or omissions by strangers to the controversy. The courts have shaped and restrained it in adaptation to its purpose (Cook v. Tullis, 18 Wall. [U.S.] 332; Taylor v. Robinson, 14 Cal. 396; Bird v. Brown, 4 Exch. 786, 799; Galle v. Tode, 148 N.Y. 270, 280). The defendant was not at fault when he failed to make his monthly payments of alimony from August 16, 1924, the date of the second marriage, to August 17, 1927, the date of the annulment. If the plaintiff had been unwilling to take advantage of the fraud, the second marriage might have continued while the parties to it were alive. The defendant could not know that it would ever be annulled, still less the time or cause. During all the years that it continued, or at least till action was begun, the second husband was chargeable with a duty of suitable support. There is a presumption, if nothing more, that the duty was fulfilled (Cohen v. Cohen, 150 Cal. 99; Phy v. Phy, 116 Or. 31;Nelson v. Nelson, 282 Mo. 412). To say that the judgment of annulment has put the defendant in default through the fiction of relation is to say that the plaintiff shall have support or an equivalent from each of two men during the same period of time, and this by force of a fiction subservient to justice. Analogies of legal doctrine all point the other way (Civ. Prac. Act, § 1159; Krauss v. Krauss, 127 App. Div. 740; Nelson v.Nelson, supra; Cohen v. Cohen, supra; Phy v. Phy, supra;Albee v. Wyman, 10 Gray, 222; Sistare v. Sistare,218 U.S. 1, 22).
The question in its last analysis is one as to the construction and effect of the judgment of the Nevada court. The defendant's duty is what that judgment made it and no more. The judgment, following the agreement, charged him with a duty which arose month by month, if it ever arose at all. Default there was none unless also default that was immediate. The meaning, as we *Page 371 view it, is not uncertain, but uncertainty, if any, must be so resolved that form shall be adapted and made subordinate to purpose. The purpose of an award of alimony is support for a divorced wife not otherwise supported. This purpose is perverted by imputing a dual obligation. In the case at hand, the wife might have waited to annul the marriage to her second husband till the first was in his grave. If that had been her choice, we cannot bring ourselves to believe that she could have recovered from his estate the installments accruing during life on the theory that by the fiction of relation he had been in default from the beginning. The test must be the same, however, whether the suit for installments overdue is brought during life or postponed till after death (Van Ness v. Ransom, 215 N.Y. 557). We think a fair construction of the decree, in the light of the words to be interpreted and the purpose to be served, fits the duty month by month to the situation then existing, and declines to aggravate it later for defaults innocent when suffered. The duty is personal, and personal, not vicarious, is the wrong to be redressed.
We find no basis for a ruling that the decree of annulment is void for defect of jurisdiction. True, when it was rendered a marriage voidable for insanity was not subject to annulment at the suit of the sane spouse (Hoadley v. Hoadley, 244 N.Y. 424), a rule now changed by statute (Civ. Prac. Act, § 1137, as amd. by L. 1928, ch. 83). This does not mean, however, that a false representation as to sanity could never in any circumstances give ground for such a suit, though made in a lucid interval and with fraudulent intent. Fraud is an accepted basis for the annulment of a marriage. The phases of fraud are manifold. We are not concerned at the moment to enumerate or limit them. There may or may not be error in a decree of annulment built on such a basis. There is no defect of jurisdiction appearing on its face. The decree must prevail against collateral attack. *Page 372
The judgment of the Appellate Division should be reversed and the order of the Special Term affirmed with costs in the Appellate Division and in this court.