Hosmek, Ch. J.
The defendants insist, that the marriage, having been obtained by fraud, was void ab initio, and that by the act of the General Assembly, it was ipso facto avoided ; of consequence, that the paupers were not inhabitants of Oxford. On the other hand, the plaintiffs contend, that the paupers were inhabitants of O.iford, the marriage not being void ab initio, and the act of divorce not being retroactive.
The case presents three questions for decision. First, Was the marriage valid or void? Secondly, If valid, did the decree of divorce avoid it ab initio, or only in futuro ? And thirdly, If the divorce was not retroactive, where are the paupers settled ?
1. The position advanced by the defendants is this; that fraud in the procurement of the marriage, by the said Rhoda, rendered it ipso facto void. I am of a different opinion ; that is, that the marriage was alone avoided by the divorce.
In support of the proposition advanced by the defendants, no aid is derived from the English determinations. The civil disabilities created by law only render a person incapable of entering into the marriage contract; such as, a prior marriage; want of age or of consent of parents or guardians; or want of reason. But the canonical disabilities of precontract, consanguinity, affinity, and corporal imbecility only make the marriage voidable until sentence of nullity is obtained. 1 Bla. Comm. 434.
By the law of this state (Stat. p. 178.) all the causes of divorce are supervenient, and arise posterior to the marriage, except the one of fraudulent contract. Great efforts were [335]*335made, in the case of Benton v. Benton, 1 Day 111. to fix a construction on the above expression of fraudulent contract,. invalidating ab initio all marriages that were procured by the fraud of one of the parties. But in that case, it was decided, that the term f raudulent contract, in the statute concerning divorces, was confined to those causes only, which render a marriage unlawful from the beginning ; such as consanguinity, affinity, and the like. These the legislature, it was believed, considered to be in fraudem legis; and therefore, authorized a separation a vinculo matrimonii. To construe the term fraudulent contract in its large sense, it was declared by the court, would degrade the marriage contract, a main pillar on which society is founded, to a level with the most trifling bargains ; and would go far to subvert the ends of marriage, by giving occasion to a promiscuous intercourse of the sexes. I admit that two respectable men, formerly judges of this Court, have pointedly questioned the propriety of the above decision. “ If it be founded injustice,” says the late Ch. J. Reeve in his law of the Domestic Relations, (p. 206.) — and to the same effect is the Digest of Ch. J. Swift — “ that contracts which respect ordinary matters should be treated as void, when obtained by fraudulent practices, why then should a contract the most important that can be entered into, be deemed inviolable, when obtained by such fraudulent practices?” For the plain reason, that it is a contract the most important of any. Ordinary contracts, which respect property only, may, with pro-* priety and convenience, be tested, by the rule of private justice; but the marriage contract, on which so much depends for the protection, and maintenance, and education of children, and in which the public have so essential a stake, demands a higher principle. It is preeminently a case, to which is applicable the law maxim. Quod est inconveniens, non est lieu turn. There is no analogy between the cases. It has been supposed, that the rule of unlimited discretion, applied to the preceding subject, would be so tempered, by the exercise of a wise caution, as to prevent any pernicious effects that otherwise might result. I cannot admit the force of this reasoning; and should be very unwilling to see the most important interests of society placed on so precarious a foundation. It is the substitution of hope for that moral certainty, which the subject demands. Very different is the opinion of Lord Cam[336]*336den,in Doe d. Hindson v. Kersey, 1 Day 81. n. in which he chaj.aQtej.j2es unlimited discretion as being “ the law of tyrants* always unknown, different in different men, casual, dependent on constitution, temper and passion ; in the best, oftentimes caprice.; and in the worst, every vice, folly, and passion to which human nature is liable.”
Undoubtedly, there are cases of fraudulent contract fwhich divorces have been allowed. Vide 2 Kent's Comm. 76,Such are divorces causa impotentim and others of a similanature; and to such cases the term in the statute is in Benton v. Benton considered as extending. They are not the common law cases of allcgatio falsi vel suppressio veri; they are not this case; but they are cases which wholly defeat the great object of the contract, by shewing the fraud to consist in the parties being incapable of performing the duties omatrimony.
That the marriage, therefore, was valid, I think, there is no doubt.
2. Whether the decree of divorce rendered the marriage void ah initio, or only in futuro, is the next subject of consideration.
■ On this point the construction of the decree is obvious and of no difficulty. Before entering on it, I remark, that if the legislature had intended to render the marriage absolutely and ipsofacto void, clear and unequivocal expressions to this effect, would have been used.
The decree is couched in a very few words. It is resolved, that the marriage contract, between said Alanson Bryan and said Rhoda be, and the same hereby is, dissolved. By the term dissolved is meant, broken or annulled ; and in connection with the other part of the sentence, there is a declaratiun that the marriage no longer exists. The decree next contain-; this expression : “ and that said Alanson Bryan be, and hereby is, divorced from his present wife that is, the marriage contract is dissolved, and from his wife that now is, he is forever separated and disjoined.
Thus, we have the entire decree, which has nothing in it retroactive, but consists wholly in the immediate operation disuniting two persons from their then existing connection.
It is, therefore, unquestionable, that the divorce did not avoid the marriage ah initio, but only rendered it void infun - TO. ■
[337]*3373. Where, then, are the paupers settled ? This is the remaining inquiry.
Before the above marriage, the said Rhoda was a settled inhabitant of Guilford or Wallingford. By her marriage with Bryan, who was an inhabitant of Oxford, she became settled in that town. This settlement remains, notwithstanding a divorce ; it having no retroactive effect. The connection of /¿áo<¿a¡with her former settlement, by the preceding marriage, was annulled ; and she became an inhabitant of Oxford. It however has been argued for the defendants, on the foundation of decided cases, that the divorce, by its usual necessary effect, put the parties in statu quo, and remitted RItoda to her settlement existing at the marriage.
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Hosmek, Ch. J.
The defendants insist, that the marriage, having been obtained by fraud, was void ab initio, and that by the act of the General Assembly, it was ipso facto avoided ; of consequence, that the paupers were not inhabitants of Oxford. On the other hand, the plaintiffs contend, that the paupers were inhabitants of O.iford, the marriage not being void ab initio, and the act of divorce not being retroactive.
The case presents three questions for decision. First, Was the marriage valid or void? Secondly, If valid, did the decree of divorce avoid it ab initio, or only in futuro ? And thirdly, If the divorce was not retroactive, where are the paupers settled ?
1. The position advanced by the defendants is this; that fraud in the procurement of the marriage, by the said Rhoda, rendered it ipso facto void. I am of a different opinion ; that is, that the marriage was alone avoided by the divorce.
In support of the proposition advanced by the defendants, no aid is derived from the English determinations. The civil disabilities created by law only render a person incapable of entering into the marriage contract; such as, a prior marriage; want of age or of consent of parents or guardians; or want of reason. But the canonical disabilities of precontract, consanguinity, affinity, and corporal imbecility only make the marriage voidable until sentence of nullity is obtained. 1 Bla. Comm. 434.
By the law of this state (Stat. p. 178.) all the causes of divorce are supervenient, and arise posterior to the marriage, except the one of fraudulent contract. Great efforts were [335]*335made, in the case of Benton v. Benton, 1 Day 111. to fix a construction on the above expression of fraudulent contract,. invalidating ab initio all marriages that were procured by the fraud of one of the parties. But in that case, it was decided, that the term f raudulent contract, in the statute concerning divorces, was confined to those causes only, which render a marriage unlawful from the beginning ; such as consanguinity, affinity, and the like. These the legislature, it was believed, considered to be in fraudem legis; and therefore, authorized a separation a vinculo matrimonii. To construe the term fraudulent contract in its large sense, it was declared by the court, would degrade the marriage contract, a main pillar on which society is founded, to a level with the most trifling bargains ; and would go far to subvert the ends of marriage, by giving occasion to a promiscuous intercourse of the sexes. I admit that two respectable men, formerly judges of this Court, have pointedly questioned the propriety of the above decision. “ If it be founded injustice,” says the late Ch. J. Reeve in his law of the Domestic Relations, (p. 206.) — and to the same effect is the Digest of Ch. J. Swift — “ that contracts which respect ordinary matters should be treated as void, when obtained by fraudulent practices, why then should a contract the most important that can be entered into, be deemed inviolable, when obtained by such fraudulent practices?” For the plain reason, that it is a contract the most important of any. Ordinary contracts, which respect property only, may, with pro-* priety and convenience, be tested, by the rule of private justice; but the marriage contract, on which so much depends for the protection, and maintenance, and education of children, and in which the public have so essential a stake, demands a higher principle. It is preeminently a case, to which is applicable the law maxim. Quod est inconveniens, non est lieu turn. There is no analogy between the cases. It has been supposed, that the rule of unlimited discretion, applied to the preceding subject, would be so tempered, by the exercise of a wise caution, as to prevent any pernicious effects that otherwise might result. I cannot admit the force of this reasoning; and should be very unwilling to see the most important interests of society placed on so precarious a foundation. It is the substitution of hope for that moral certainty, which the subject demands. Very different is the opinion of Lord Cam[336]*336den,in Doe d. Hindson v. Kersey, 1 Day 81. n. in which he chaj.aQtej.j2es unlimited discretion as being “ the law of tyrants* always unknown, different in different men, casual, dependent on constitution, temper and passion ; in the best, oftentimes caprice.; and in the worst, every vice, folly, and passion to which human nature is liable.”
Undoubtedly, there are cases of fraudulent contract fwhich divorces have been allowed. Vide 2 Kent's Comm. 76,Such are divorces causa impotentim and others of a similanature; and to such cases the term in the statute is in Benton v. Benton considered as extending. They are not the common law cases of allcgatio falsi vel suppressio veri; they are not this case; but they are cases which wholly defeat the great object of the contract, by shewing the fraud to consist in the parties being incapable of performing the duties omatrimony.
That the marriage, therefore, was valid, I think, there is no doubt.
2. Whether the decree of divorce rendered the marriage void ah initio, or only in futuro, is the next subject of consideration.
■ On this point the construction of the decree is obvious and of no difficulty. Before entering on it, I remark, that if the legislature had intended to render the marriage absolutely and ipsofacto void, clear and unequivocal expressions to this effect, would have been used.
The decree is couched in a very few words. It is resolved, that the marriage contract, between said Alanson Bryan and said Rhoda be, and the same hereby is, dissolved. By the term dissolved is meant, broken or annulled ; and in connection with the other part of the sentence, there is a declaratiun that the marriage no longer exists. The decree next contain-; this expression : “ and that said Alanson Bryan be, and hereby is, divorced from his present wife that is, the marriage contract is dissolved, and from his wife that now is, he is forever separated and disjoined.
Thus, we have the entire decree, which has nothing in it retroactive, but consists wholly in the immediate operation disuniting two persons from their then existing connection.
It is, therefore, unquestionable, that the divorce did not avoid the marriage ah initio, but only rendered it void infun - TO. ■
[337]*3373. Where, then, are the paupers settled ? This is the remaining inquiry.
Before the above marriage, the said Rhoda was a settled inhabitant of Guilford or Wallingford. By her marriage with Bryan, who was an inhabitant of Oxford, she became settled in that town. This settlement remains, notwithstanding a divorce ; it having no retroactive effect. The connection of /¿áo<¿a¡with her former settlement, by the preceding marriage, was annulled ; and she became an inhabitant of Oxford. It however has been argued for the defendants, on the foundation of decided cases, that the divorce, by its usual necessary effect, put the parties in statu quo, and remitted RItoda to her settlement existing at the marriage. The decisions cited have been misconceived. The case of Legg v. Legg, 8 Mass. Rep. 99. merely adjudged, that on a divorce a, vinculo, choses iu action given to the wife, and not reduced into possession, remain her property; and that of Elizabeth Kriger v. John Day, 2 Pick. 316. decided, that a divorce a mensa et thoro, decreeing the restoration of the wife’s lands, pursuant to a statute law, restored to her such lands as had been alienated, by her husband. In Barber v. Root, 10 Mass. Rep. 260. and in Starr v. Pease & al. 8 Conn. Rep. 541. it was determined, that an execution against the husband, levied on lands of the wife during coverture, gave the creditor no interest in the lands, after a decree of divorce a vinculo matrimonii; and in the case of Middlebormgh v. Rochester, 12 Mass, Rep. 363. the court adjudged, that the marriage of a woman not having sufficient understanding to make a valid contract, did not change the place of her lawful settlement. None of these determinations have any bearing on the point of discussion ; and this is so obvious, that a remark or two is all that will be necessary. The cases of Legg v. Legg, of Barber v. Root and of Starr v. Pease & al. proceed on this obvious ground, that after a divorce, as after the husband’s death, the property of the wife not transferred by act of law to her husband, remains her own; that of Kriger v. Day is spent on the construction of a statute law of Massachusetts, and is wholly irrelevant; and that of Middleborough v. Rochester merely declares, that a person devoid of reason, cannot enter into the marriage contract, and by necessary consequence, that there can be none of the results of a legal marriage in her rights.
[338]*338The settlement, then, of Rhoda, one of the paupers, being in Oxford, where is her illegitimate child settled ?
It has been argued for the defendants, that inasmuch as the mother’s settlement in Oxford was not in her own right, but was derived from her marriage; this derivative settlement is not communicated to her child; and the case of Hebron v. Marlborough, 2 Com. Rep. 18. is supposed to warrant this position. But in that case, no such point was decided. It was merely adjudged, that the settlement of a bastard, born in this state, whose mother has no settlement here, is in the place of such bastard’s birth. The effect ofa derivative settlement, when the mother has none of any description, could not have been decided in that case. But in the case of Danbury v. New-Haven, 5 Conn. Rep. 534. the point was made and determined. It was said by the Court, “ that a woman who gains a settlement by marriage, retains it, notwithstanding the death of her husband, until she gains another ; and the settlement of her illegitimate children follows hers.” This is a direct determination that by our law, the derivative settlement of a mother, acquired by marriage, is communicated to her illegitimate children. In passing, I cannot but observe, that in the state of -Jfew-York, by a statute is enacted the same law, thus bearing •witness to the justice and convenience of the law, as established here. Vide Canajoharie v. Johnstown, 17 Johns. Rep. 41.
I would, therefore, advise the superior court, that Oxford is liable to the plaintiffs, the paupers being settled inhabitants of •that town.
The other Judges were of the same opinion.
Judgment for plaintiffs.