Brown v. Scott

Offittt, J., delivered the opinion of the Court. The only question presented by tbe appeal in this case is whether the fact t-hat the marriage between the parties would not have been contracted by tbe appellant but for her belief, induced by false statements and fraudulent concealment on the part of the appellee, that he was a, respectable citizen, whereas actually he was a, convicted felon and had even then committed crimes for which he was afterwards sentenced to the federal penitentiary, was sufficient ground for the annulment of the marriage contract between them, when it also appeared that the appellant, as soon as she learned of the fraud, severed her relations with the appellee and repudiated the marriage. ²⁶⁰ The facts out of which that question arises are these: In November, 1918, Aurelia O. Brown, then eighteen years of age, lived with her parents at Germantown, a suburb of Philadelphia, where she attended the Walnut Lane School as a day student. On the 29th of that month she was introduced by the usual “girl friend” at the Adolphia Hotel to the appellee, who then went under the name and title of “Lieutenant Earl Wesley Scott.” His personal appearance, manners and conversation, as well as the air of romance that he becomingly wore as a wounded hero of the Great War, made a profound and pleasing impression not only upon Miss Brown but upon the members of her family, as indicated by the following extracts from their testimony: Mrs. Matilda Heath Brown, the grandmother of Miss Brown, said: “H'e was tall and handsome, light hair, blue eyes, pretty teeth, and very attractive manners; * * * He certainly had the power of attracting most any woman particularly as she became impressed with the various events of his career and the eloquent way he described them.” Mrs. Fanny O. Brown, her mother, said: “He was a very attractive looking boy; looked like a college athlete; blue eyesj wavy hair, beautiful teeth and remarkable conversational powers,” while the appellant herself added this to the symposium: “He was about five feet nine inches and weighed about 160 pounds, with very blond hair, blue eyes; he was very well dressed in a brown suit and overcoat, black shoes, he wore a wrist watch and was very good looking.” After their introduction on the occasion referred to, Scott and Miss Brown frequently met and in the course of these meetings he gave her this very spirited account of his life and experiences: “Enlisted in 1914 in the Royal Flying Corps among the first ones and had been four years in the seawice of the front; he said that he was a Harvard student and quarterback on the football team, he influenced seven of his chums to enlist ;• he told how all his chums were killed and he was the only one left, how one of his chums had been wrecked in a plane and had gone down behind the German line; he ²⁶¹ told how he felt responsible for these lads. He said sooner times, when he was alone, he would see their dying faces and hear their dying words, sometimes in the night he would wake up .and think he was over there and see the dying eyes of the Germans.

He spoke of how he suffered in the mud, the rain and the cold; he told how in the hospital, at the front it was just like a bloody death, with all the guns and the noises and sounds in the hospital. He told how he was sent from the hospital in the front to England and then to Canada and he was discharged from there and had a pension given to him by the English Government. He said he was in the hospital the day it was first reported the armistice was signed and he left the hospital that night, and came to the United States, and in Buffalo he tried to enlist in the American Army and due to his injuries he was put in the secret service of the United States, instead of in the army, at a salary of $5,000 a year. He also said that at the time I met him he was working for the Sun Shipping Company at Chester under orders from his chief and he received a, salary there which he was. allowed to- keep.

H’e was supposed to get information in regards to slackers and profiteering; he got his information there and stayed at the Walton Hotel awaiting orders from his chief. He was afraid his money would not hold out because several back checks had not been received from the Government. lie also said that he was in Harvard at the time the war broke out aud gave me various accounts of his different experiences and his interest in football. He spoke with a Bostonian accent and said he was horn in Malden, Massachusetts, and had lived for a while in Boston, that his family had spent summers in Atlantic City at the Haddon Hall Hotel.” Miss Brown was so much affected by the combined force of his personal charms and this stirring tale of varied adventure that, instead of going to school on November 19th, 1918, as her family thought she did, she eloped with the appellee. They first went to Media to be married, but could find no one to marry them there because the appellee was ²⁶² “too young,” and from there they went to Elkton, where they were married by the “Rev. McElmoyle.” After the marriage she returned home and to school “as usual.” This state of affairs continued until December 24th of the same year, when her father confronted her with proofs of the marriage, and on December 27th Scott was arrested at the Hotel Walton on a charge of impersonating a government officer.

On the 26th of December, at her father’s request, the appellant spoke to Scott over the telephone, and besought him to tell her more about himself and his family. He replied that all the things he had told them were “bunk and war whoop,” which indeed proved to be the case. Upon an investigation it was discovered that Scott was an ex-convict, who had under various names led a life of crime since his boyhood. He had been convicted in the Criminal Court of Cook County, Illinois, of larceny in 1914, and had been sentenced to the Illinois State Reformatory for the “maximum term fixed by the statute”; he had been convicted of a similar crime in Philadelphia in 1913, and had been sentenced to a term of from a year to' fifteen months in the Eastern Penitentiary of Pennsylvania, and there is evidence in the record of doubtful value that he had been convicted of other crimes prior to 1918, but because of the character of the evidence we will not refer particularly to them.

His photograph was filed in what was described as the “Rogues’ Gallery” of the Eastern Penitentiary of Pennsylvania, and he was known to the police of Philadelphia, Chicago, and other places, as a criminal. Scott was arrested at the Hotel Walton on the charge of impersonating a federal official, and was subsequently tried and convicted of that offence and sentenced to six months in the Mercer County Jail. Upon his release he was tried and convicted in the District Court of the United States for the Middle District of Pennsylvania on the charge of falsely pretending, on November 15th, 1918, to be an officer and employee of the Secret Service Division of the Treasury Department of the Federal Government, with intent to de ²⁶³ fraud Emma E. Flemming’, and on the 9th of December, 1919, was sentenced to- serve two years and one month in the.United States penitentiary at Atlanta, Georgia. When he first met Miss Brown, Scott pretended to he suffering severely from wounds received in France, and, to quote the record: “He was introduced as a. member of the Koval Flying Corps, who had been wounded in France several months before, and who just came from a hospital in Canada; he showed signs of wounds by a scar on his forehead and on his mouth, and his whole left side was affected; he walked with a slight limp and couldn’t use his left hand to any extent.

It would take him about five minutes to get up from a chair, and he would gasp with agony. On the street he would have to stop with apparent pain.” These appearances, however, were entirely misleading and false, and only adopted by Scott as a part of the pose which he had assumed, and were designed to g'i've an appearance of verity to the story which he told. The appellant stated in her testimony that she was induced to marry the defendant by his fraudulent representations and that had she known who he was she would not have married him. Helving upon these facts, the appellant- filed her bill of complaint in the Circuit Court for CeciL County, asking for the annulment of the marriage.

The defendant, who was then in the federal penitentiary at Atlanta, Georgia, although given actual and constructive notice of the suit, interposed no defence, and a decree pro confesso was taken against him. Testimony supporting the bill was filed, and the case submitted for final decree. The lower court, in a very careful opinion, reached' the conclusion that the facts referred to-by us were not sufficient to warrant an annulment of the marriage, -and accordingly dismissed the bill, the reason assigned for that conclusion being that no fraud, however gross its character, which merely induces consent to a marriage is material in a proceeding for annulment, and in sup ²⁶⁴ port of that position the case of Moss v. Moss (1897), Prob. Div. 268, was cited.

Briefly restated, the material and essential facts involved in a review of this decree are these: An unscrupulous and plausible swindler, prepossessing in appearance and with the easy manners and. the flowing speech of his kind, secured an introduction to a school girl, whose discretion in nowise exceeded her years. At that time not only was he an ex-convict with a long criminal record, but had even then committed other crimes for which he was afterwards imprisoned. This was his real character, but this character he concealed from the appellant, and to render the deception more secure he told her the false and ivholly fabricated story of his life, which he afterwards characterized as “bunk,” and at the same time artfully simulated the appearance and actions of a wounded soldier. By such means he secured her confidence, and induced her to go through a clandestine marriage ceremony with him, which she would not have done had she known the truth.

We cannot agree with the lower court that these facts are not sufficient to warrant the anntilment of the marriage. The record unquestionably shows that the marriage was induced by deliberate fraud. One line of cases, of which Moss v. Moss, supra, is illustrative, holds that such a fraud, one which merely induces consent to the marriage, is not ground for avoiding a marriage contract, and that rule is very clearly stated by Ste P. PI. Jetjne, President, in these words: “But when in English law fraud is spoken of as a ground for avoiding a marriage, this does not include such fraud as induces a consent, but is limited to such fraud as procures the appearance without the reality of consent * * * In all these, and I believe in every case where fraud has been held to be the ground for declaring a marriage null, it has been such fraud as has procured the form without the substance of agreement, and in which the marriage has been annulled, not because of the presence of fraud, but because of the absence of ²⁶⁵ consent. * * But wlien there is consent no fraud inducing that consent is material.” The over nice and tenuous refinements resorted to in this case to support the conclusion that, while fraud is ground for avoiding a marriage where the consent to it is apparent, hut not real, it is not a ground where the consent is real, but induced by fraud, are in our opinion unnecessary and contrary to legal principles long established and very generally recognized.

In the cases referred to by the court, in reaching that conclusion, fraud was not even a necessary element, but only an incident of the principal and essential fact upon which those cases turned, which was the want of consent. As, for instance, where one party to the marriage pretended to be another, or where one party was weak minded and did not understand the contract, or where the parties went through a real marriage ceremony, believing it to be only a mock ceremony. In such eases the real ground for relief is the want of consent, and if that be shown, it is immaterial whether it he accompanied by fraud or not, because there can be no contract unless the parties to it consent to its terms, and where it appears for any reason that the parties did not consent, there is no contract. The fault of the reasoning and the rule adopted in Moss v. Moss is that in effect it ignores the influence fraud may have in preventing the real consent or agreement of the parties to the contract.

Fraud may be as effectual in preventing actual consent as mistake or a want of capacity, and, where such is the fact, in dealing with ordinary contracts its effect is to vitiate and invalidate them, and there seems to be no good reason wliy it should not have the same effect upon a marriage contract. This view is very forcibly