This is an action of tresspass on the case instituted May 2, 1930, in the court of common pleas of Kanawha county, by Rose Cameron against her former husband, Earl Cameron, to recover damages for fraud practiced by him upon her in securing an annulment of their marriage, and in actively concealing the fact until his remarriage, which barred her subsequent suit to vacate the decree. To the ruling of the trial court, sustaining a demurrer to the declaration, she prosecutes error.
The controversy having been heretofore twice considered by this court a brief recital of its history is necessary to an understanding of the present action. Plaintiff married George Lumley, December 24, 1900. She entered into a second marriage with defendant, February 19, 1921, believing in good faith at the time that she had obtained a valid divorce from Lumley, April 29, 1910, in a divorce proceeding theretofore instituted by her against him in the circuit court of Boyd county, Kentucky. October 24, 1923, Cameron instituted suit against her in the court of common pleas of Kanawha county to annul her marriage with him on the ground that she was not divorced from Lumley at the time of its celebration. No appearance being made on her behalf, a decree of annulment was entered in the cause February 2, 1924. Plaintiff and defendant lived and cohabited together as husband and wife during the pendency of the suit and thereafter until about July 10, 1925, when he intermarried with Ruth Grigg. November 20, 1925, the Kentucky court entered a decree nunc pro tunc, dissolving the marriage between plaintiff and
Lumley as of April 29, 1910, after reciting that such judgment had been rendered in the cause on the latter date, which, through oversight, had not been previously entered. On March 29, 1926, Rose Cameron brought a chancery suit against Earl in the circuit court of Kanawha county to vacate the annulment decree on the ground that she had been induced by his fraudulent representations to forego defense to the annulment proceeding and because of his false representations to her after the decree that the suit had been abandoned and dismissed. He denied the fraud and charged her with laches in delaying the institution of suit.
The ruling of the circuit court, dismissing her bill, on the ground that no decree had been rendered in the Kentucky divorce proceeding, was reversed by this court, and the cause remanded for hearing upon the issues of fraud and laches raised by the bill, answer and proof. 105 W. Va. 621. Ruth Grigg Cameron then filed a petition in the cause stating that she was, at the time of marrying Cameron, wholly ignorant of any fraud or claim of fraud practiced by him upon Rose Cameron, and praying that her rights and status as his lawful wife be recognized and preserved. The circuit court then entered a decree, exonerating him of the charge of fraud in procuring the annulment decree, convicting plaintiff of laches in bringing the suit, and dismissing her bill. Upon the second appeal, a majority of this court, overruling the foregoing findings of the circuit court, held that the fraud had been established; that because of his deception and imposition upon plaintiff he was precluded from asserting laches against her, and that she was, therefore, entitled to costs against him. But, because of his marriage to Ruth Grigg, the court was unanimous, in refusing to cancel the decree of annulment. This action followed.
The grounds of demurrer to the declaration are (1) that plaintiff by electing to sue in equity for restoration of the marriage relations is estopped to maintain an action for damages against defendant for fraudulently procuring the decree of annulment; (2) that the fraud charged constitutes a tort committed by him against her during the coverture, and, under the common law, does not amount to a legal wrong;
and (3) that if the fraud was consummated only as the result of the annulment, the remedy has terminated under the statute of limitations.
Sufficient answer to the first ground of demurrer is that a party is not estopped to maintain a second suit unless the two suits have substantially the same aim and scope and the remedy sought is substantially the same in each. 9 R. C. L. 464. Moreover, the annulment proceeding was the appropriate remedy in the first instance. "A decree of divorce obtained by a husband by false testimony in a suit which the wife failed to defend, will be vacated on the wife's application, irrespective of the wife's excuse for her default, as the state was an interested party to the suit, and its interests had been imposed upon by the conduct of the husband, requiring that its rights be vindicated." Jones v. Jones, 91 A. 819. In the opinion of the court it is said: "There is another consideration which requires that this decree be vacated. The state is an interested party to the suit. Its interests have been imposed upon by the malevolent conduct of the petitioner, and public policy demands that its rights be vindicated."
Fraud practiced by one spouse against the other in securing a dissolution of the marriage is a legal wrong often serving as the basis of a suit to vacate the fraudulent decree. The fraud is not consummated and, therefore, does not exist until the entry of the decree dissolving the marriage. A right of action at law to recover damages for a fraud accures when the fraud is necessarily consummated, and not before; or, more briefly stated, fraud dates from its consummation and not from its origination or from the happening of circumstances or incidents in the course of its development. 27 Corpus Juris 20; 37 Corpus Juris 935; Phelps County v. Bishop, 68 Mo. 250. To further test the proposition: Suppose fraud committed by one spouse upon the other during coverture is actionable, could the plaintiff in this case have sued before the marriage was dissolved? What injury had she suffered before that time? "The ground of the action of deceit is fraud and damage, and when both concur the action will lie. Moreover, both must concur to constitute actionable
fraud, a common statement of the rule being that neither fraud without damage, nor damage without fraud, is sufficient to support an action." 12 R. C. L. 239. Plaintiff's injury did not precede but followed the entry of the annulment decree or dissolution of the marriage. How then can it be said that her marriage status was still existent at the time of sustaining the injury, complained of, which occurred after, and as a result of, the entry of the annulment decree?
We are of opinion that the statute of limitations was suspended from the entry of the annulment decree to the marriage of Cameron to Ruth Grigg in July, 1925. It appears from the allegations of the declaration that defendant's fraud in actively concealing the facts from the plaintiff continued until the date of said marriage. Although the plaintiff was guilty of laches as to Ruth Grigg (Cameron v. Cameron, 107 W. Va. 655;150 S.E. 225), Cameron's continued fraud operated to relieve the plaintiff of laches as to him. (It was only because of the intervening rights of Ruth Grigg Cameron that plaintiff was denied a decree in the chancery cause.) On the same general principle it must be said, in the light of the allegations of the declaration, that Cameron's persistent fraudulent conduct toward the plaintiff operated to toll the statute of limitations.
The remedy not having been terminated prior to the institution of the chancery suit to cancel the annulment decree, the pendency of that proceeding also tolled the statute.
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This is an action of tresspass on the case instituted May 2, 1930, in the court of common pleas of Kanawha county, by Rose Cameron against her former husband, Earl Cameron, to recover damages for fraud practiced by him upon her in securing an annulment of their marriage, and in actively concealing the fact until his remarriage, which barred her subsequent suit to vacate the decree. To the ruling of the trial court, sustaining a demurrer to the declaration, she prosecutes error.
The controversy having been heretofore twice considered by this court a brief recital of its history is necessary to an understanding of the present action. Plaintiff married George Lumley, December 24, 1900. She entered into a second marriage with defendant, February 19, 1921, believing in good faith at the time that she had obtained a valid divorce from Lumley, April 29, 1910, in a divorce proceeding theretofore instituted by her against him in the circuit court of Boyd county, Kentucky. October 24, 1923, Cameron instituted suit against her in the court of common pleas of Kanawha county to annul her marriage with him on the ground that she was not divorced from Lumley at the time of its celebration. No appearance being made on her behalf, a decree of annulment was entered in the cause February 2, 1924. Plaintiff and defendant lived and cohabited together as husband and wife during the pendency of the suit and thereafter until about July 10, 1925, when he intermarried with Ruth Grigg. November 20, 1925, the Kentucky court entered a decree nunc pro tunc, dissolving the marriage between plaintiff and
Lumley as of April 29, 1910, after reciting that such judgment had been rendered in the cause on the latter date, which, through oversight, had not been previously entered. On March 29, 1926, Rose Cameron brought a chancery suit against Earl in the circuit court of Kanawha county to vacate the annulment decree on the ground that she had been induced by his fraudulent representations to forego defense to the annulment proceeding and because of his false representations to her after the decree that the suit had been abandoned and dismissed. He denied the fraud and charged her with laches in delaying the institution of suit.
The ruling of the circuit court, dismissing her bill, on the ground that no decree had been rendered in the Kentucky divorce proceeding, was reversed by this court, and the cause remanded for hearing upon the issues of fraud and laches raised by the bill, answer and proof. 105 W. Va. 621. Ruth Grigg Cameron then filed a petition in the cause stating that she was, at the time of marrying Cameron, wholly ignorant of any fraud or claim of fraud practiced by him upon Rose Cameron, and praying that her rights and status as his lawful wife be recognized and preserved. The circuit court then entered a decree, exonerating him of the charge of fraud in procuring the annulment decree, convicting plaintiff of laches in bringing the suit, and dismissing her bill. Upon the second appeal, a majority of this court, overruling the foregoing findings of the circuit court, held that the fraud had been established; that because of his deception and imposition upon plaintiff he was precluded from asserting laches against her, and that she was, therefore, entitled to costs against him. But, because of his marriage to Ruth Grigg, the court was unanimous, in refusing to cancel the decree of annulment. This action followed.
The grounds of demurrer to the declaration are (1) that plaintiff by electing to sue in equity for restoration of the marriage relations is estopped to maintain an action for damages against defendant for fraudulently procuring the decree of annulment; (2) that the fraud charged constitutes a tort committed by him against her during the coverture, and, under the common law, does not amount to a legal wrong;
and (3) that if the fraud was consummated only as the result of the annulment, the remedy has terminated under the statute of limitations.
Sufficient answer to the first ground of demurrer is that a party is not estopped to maintain a second suit unless the two suits have substantially the same aim and scope and the remedy sought is substantially the same in each. 9 R. C. L. 464. Moreover, the annulment proceeding was the appropriate remedy in the first instance. "A decree of divorce obtained by a husband by false testimony in a suit which the wife failed to defend, will be vacated on the wife's application, irrespective of the wife's excuse for her default, as the state was an interested party to the suit, and its interests had been imposed upon by the conduct of the husband, requiring that its rights be vindicated." Jones v. Jones, 91 A. 819. In the opinion of the court it is said: "There is another consideration which requires that this decree be vacated. The state is an interested party to the suit. Its interests have been imposed upon by the malevolent conduct of the petitioner, and public policy demands that its rights be vindicated."
Fraud practiced by one spouse against the other in securing a dissolution of the marriage is a legal wrong often serving as the basis of a suit to vacate the fraudulent decree. The fraud is not consummated and, therefore, does not exist until the entry of the decree dissolving the marriage. A right of action at law to recover damages for a fraud accures when the fraud is necessarily consummated, and not before; or, more briefly stated, fraud dates from its consummation and not from its origination or from the happening of circumstances or incidents in the course of its development. 27 Corpus Juris 20; 37 Corpus Juris 935; Phelps County v. Bishop, 68 Mo. 250. To further test the proposition: Suppose fraud committed by one spouse upon the other during coverture is actionable, could the plaintiff in this case have sued before the marriage was dissolved? What injury had she suffered before that time? "The ground of the action of deceit is fraud and damage, and when both concur the action will lie. Moreover, both must concur to constitute actionable
fraud, a common statement of the rule being that neither fraud without damage, nor damage without fraud, is sufficient to support an action." 12 R. C. L. 239. Plaintiff's injury did not precede but followed the entry of the annulment decree or dissolution of the marriage. How then can it be said that her marriage status was still existent at the time of sustaining the injury, complained of, which occurred after, and as a result of, the entry of the annulment decree?
We are of opinion that the statute of limitations was suspended from the entry of the annulment decree to the marriage of Cameron to Ruth Grigg in July, 1925. It appears from the allegations of the declaration that defendant's fraud in actively concealing the facts from the plaintiff continued until the date of said marriage. Although the plaintiff was guilty of laches as to Ruth Grigg (Cameron v. Cameron, 107 W. Va. 655;150 S.E. 225), Cameron's continued fraud operated to relieve the plaintiff of laches as to him. (It was only because of the intervening rights of Ruth Grigg Cameron that plaintiff was denied a decree in the chancery cause.) On the same general principle it must be said, in the light of the allegations of the declaration, that Cameron's persistent fraudulent conduct toward the plaintiff operated to toll the statute of limitations.
The remedy not having been terminated prior to the institution of the chancery suit to cancel the annulment decree, the pendency of that proceeding also tolled the statute. Chapter 104, section 19, Code 1923 (55-2-18, Code 1931), provides: "If any action commenced within due time, in the name of or against one or more plaintiffs or defendants, abate as to one of them by the return of no inhabitant, or by his or her death or marriage, or if, in an action commenced within due time, judgment (or other and further proceedings) for the plaintiffs should be arrested or reversed, on a ground which does not preclude a new action for the same cause, or if there be occasion to bring a new suit by reason of the said cause having been dismissed for want of security for costs,or by reason of any other cause, which could not be plead inbar of an action, of the loss or destruction of any of the papers or records in a former suit which was in due
time; in every such case, notwithstanding the expiration of the time within which a new action or suit must otherwise have been brought, the same may be brought within one year after such abatement, dismissal or other cause, or after such arrest or reversal of judgment, or such loss or destruction but not after." The present action was brought within one year from the dismissal of the chancery cause.
Furthermore, defendant, by fraudulently concealing the entry of the annulment decree, prevented the plaintiff from securing its cancellation by institution of suit prior to his remarriage.
The declaration alleges that during the pendency of the annulment suit and the time intervening between the entry of the annulment decree and her discovery thereof, after his remarriage, plaintiff and defendant continued to live together as husband and wife, and that he at all times assured her the suit had been abandoned and dismissed. This allegation setting up his active concealment of the fraud, brings the case within the exception to the statute of limitations, wherein it provides that if a right of action "shall accrue against a person who had before resided in this state, if such person shall, by departing without the same, or by absconding concealing himself, or by any other indirect ways or means, obstruct the prosecution of such right, * * * the time that such obstruction may have continued shall not be computed as any part of the time within which the said right might or ought to have been prosecuted." Chapter 104, section 18, Code 1923 (55-2-17, Code 1931.) "When a person by any indirect ways or means obstructs the prosecution of a right, the time during which such obstruction continues shall not be computed in the limitation periods prescribed in Code c. 104." Reynold'sAdm'rs. v. Gawthrop's Heirs, 37 W. Va. 3, 16 S.E. 364. As the declaration charges a continuing fraud, the statute did not begin to run until the representations had ceased or their falsity was discovered. 37 C. J. 946. See Madole v. Miller, 119 A. 892; Shields v. Nathan, 108 P. 34;Connecticut etc. Ins. Co. v. Smith, 38 Am. St. Rep. 656; Dean
v. Dean, 214 S.W. 505. Furthermore, in cases, like this, where confidential relations exist between the
parties and the basis of the action is actual fraud, many courts hold that mere silence on the part of the guilty party will toll the running of the statute. "It has been stated many times that, if the basis of the action is actual fraud, mere silence is regarded as a continuation of the original fraud, and as constituting a fraudulent concealment; and this would seem to be especially applicable to cases where the parties bear to each other a trust or confidential relation." Case note, 21 L.R.A. (N.S.) 963.
We are of opinion, therefore, to reverse the judgment complained of, overrule the demurrer, and remand the case.
Reversed and remanded.