Barnes v. Barnes

McFarland, J. A demurrer to the amended complaint was sustained; and plaintiff declining to further amend, judgment was rendered for defendant. Plaintiff appeals from the judgment.

The demurrer was properly sustained, and the judgment must be affirmed, because the complaint does not state facts sufficient to constitute a cause of action.

There are two counts in the complaint. In the first-it is, averred that on July 18, 1885, plaintiff conveyed and transferred to defendant certain real and personal property in consideration that defendant “ should and would marry plaintiff and live with him during the remainder of their joint lives”; that in pursuance of said promise defendant did the next day, July 19th, intermarry with plaintiff, and thenceforward lived with plaintiff as his wife continuously until some time in August, 1892, when she left plaintiff without his con[421]sent and, as he alleges, without just cause, and has since refused to live with him.

In the second count, after a restatement of the facts stated in the first count, it is also averred that at and immediately preceding the time of said marriage plaintiff was desirous of marrying “ some virtuous, worthy, chaste, and moral woman who would live with him during his life”; that the defendant personally, and by her friends and' agents, represented and stated to him that she was such a woman; that relying upon and believing such representations and statements, and in consideration thereof, he made the said conveyance and transfer of said property; that said representations were false, and defendant was “ a woman of unchaste, unworthy, and immoral character”; and that he did not discover that said representations were false until within three years next before the commencement of this action.

The prayer is for a reconveyance of the property and twenty thousand dollars damages.

The consideration for the transfer was the promise of the respondent to marry the plaintiff, which promise she kept. The averment that she promised to live with him during their joint lives is of no consequence; it was included in the marriage contract itself, and its separate averment has no significance. Nor is there any legal value to the averments that respondent represented at the time of the marriage that she was a worthy and chaste woman, and that said representation was not true. Previous unchaste conduct, although concealed, -does not invalidate a marriage. “ Public policy pronounces otherwise and opens marriage as the gateway to repentance and virtue.” Caveat emptor governs. (Schouler’s Domestic Relations, sec. 23, and cases cited.) An executed contract of marriage, accompanied by full consummation, differs in many respects from ordinary contracts. It creates a status which society is interested in maintaining. “ In that contract of marriage which forms the gateway to the status of marriage the parties take each other for better, for worse, for richer, for