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his first wife was alive continued to cohabit with the second wife, could not maintain an action for the annulment of the second marriage, even though by statute it was provided that an action for annulment could be maintained where the former husband or wife of one of the parties to the marriage was living, and the marriage of the former husband or wife was in force at the time of the second marriage; for, while the jurisdiction of the appellate division acting as a court of chancery in matrimonial matters is conferred and regulated by statute, yet, in the exercise of that jurisdiction, unless controlled by positive enactment, it proceeds as a court of equity, and the maxim, "the plaintiff must come into court with clean hands," applies to prevent the maintenance of the action. It was further held that the statute providing that the action under such circumstances could be maintained by either of the parties during the lifetime of the other, or by the former husband or wife, did not operate in favor of “a guilty husband, who has knowingly and wickedly contracted a bigamous marriage, and subsequently grown tired of the new wife," but the court, under the general principles of equity jurisprudence, will give him no aid, but leave him in the condition in which he has placed himself.

The New York courts have apparently made a distinction between the case of the one under disability seeking relief, and that of the one not under disability seeking relief, as shown hereafter by the quotation from Brown v. Brown (1912) 153 App. Div. 645, 138 N. Y. Supp. 602, infra, II. b.

In Jones v. Jones (1895) 4 Pa. Dist. R. 223, it was held that a woman who abandoned her lawful husband in another country, and after coming to this country married another, though such marriage was void, was not an injured or innocent party, and not within the state statute authorizing the maintenance of a suit for nullity on that ground.

b. Where party seeking relief was not the person disqualified.

In the reported case (SIMMONS V. SIMMONS, ante, 75) it was held that the fact that one who, when he married another, knew that the latter's divorce had been fraudulently obtained and was therefore void, rendering their marriage void under the District of Columbia Code, will not preclude him from setting up the nullity of their marriage in a divorce proceeding against him, the rule of pari delicto and the equitable principle of "clean hands" being inapplicable, since the state is an interested third party.

And in Monnie v. Contejean (1893) 45 La. Ann. 419, 12 So. 623, it was held that where, at the date of a marriage, one of the parties was lawfully married to another, the other party is entitled to a decree of nullity, even though she had full knowledge, at and before the marriage, of the previous marriage.

In Taylor v. Taylor (1903) 173 N. Y. 266, 65 N. E. 1098, the court refused to dismiss a complaint for a divorce notwithstanding that the plaintiff's reply disclosed that at the time of her second marriage her former husband was living, the circumstances being such that the second marriage was voidable, but not void.

In McCarron v. McCarron (1899) 26 Misc. 158, 56 N. Y. Supp. 745, it was said that if a man contracted marriage with a woman, knowing that she had a husband living and undivorced, the court of equity would leave him where he had placed himself and refused its decree formally declaring such marriage void.

In Stokes v. Stokes (1908) 128 App. Div. 838, 113 N. Y.. Supp. 142, the appellate division of the second department denied relief to one seeking to annul a marriage on the ground that at the time it was contracted his wife had a husband living and undivorced, saying that the plaintiff did not come into court with "clean hands," because, after learning that his wife's former husband was alive, he continued to cohabit with her.

However, on appeal, the decision was reversed, the court of appeals in (1910) 198 N. Y. 301, 91 N. E. 793, saying: "While it may well be that there are extreme cases where the position of the party seeking relief of the kind here sought is so inequitable that a court of equity will refuse to interfere, no such defense was pleaded or sufficiently proved in the case before us."

And in Brown v. Brown (1912) 153 App. Div. 645, 138 N. Y. Supp. 602, in an action by a woman to annul her marriage upon the ground that her husband had a wife living and undivorced at the time it was contracted, it was held that the relief asked would be granted, although she knew of the former marriage, and that the wife by that marriage was still alive.

The New York courts have apparently made a distinction between the case of one under disability as to the relief and that of one not under disability as to the relief, for the court said, in Brown v. Brown (N. Y.) supra, with reference to Stokes v. Stokes (N. Y.) supra, and Berry v. Berry (1909) 130 App. Div. 53, 114 N. Y. Supp. 497, supra, II. a: "While the equitable principle made the basis of our decision in Berry v. Berry seems to be recognized in the opinion of Judge Vann in the Stokes Case (N. Y.) supra, yet, although the appellate division in the second department deemed the facts required it, he declined to apply it to the case then before the court. In view of that decision of the court of last resort, we feel bound to limit the Berry Case to the exact facts there before the court, to wit, where a guilty party sought to aid the court to relieve himself of the consequences of his own wrongdoing."

And in Pain v. Pain (1889) 37 Mo. App. 110, it was held that the law of condonation had no application to the acts of a man who continued to live with a woman after learning that her former husband was still alive, so as to preclude him from obtaining the annulment of the marriage celebrated between the woman and himself, upon

being sued for divorce by her; but the court, in the interest of society and good morals, should not hesitate to annul such a contract, whenever the facts were made known.

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And in Seacord v. Seacord (1927)

Del. --, 139 Atl. 80, it was held that the rule of pari delicto or the equitable maxim of "clean hands" did not apply so as to preclude the obtaining of a decree of annulment by a husband, because he, after learning that his wife had a former husband living and undivorced, cohabited with her.

In Miles v. Chilton (1849) 1 Rob. Eccl. Rep. 687, 163 Eng. Reprint, 1179, in a libel for the annulment of a marriage by a husband on the ground that his wife had a husband living at the time, the ecclesiastical court held that an allegation by the wife that at the time of the second marriage the libellant was fully cognizant of her former marriage, and that she was not divorced, was not admissible, and that the libellant was not precluded from maintaining the libel because of his knowledge.

But in Tyll v. Keller (1923) 94 N. J. Eq. 426, 120 Atl. 6, in an action by a husband to annul a marriage on the ground that at the time it was contracted his wife was married to another man, it was held that in order to obtain the annulment it was necessary for him to show by a preponderance of the evidence that when he married his wife he was ignorant of the fact that she had a husband living from whom she had not been divorced. The court said: "If he had this knowledge, and, notwithstanding it, went through the marriage ceremony with the respondent, and cohabited with her for more than a year, the fact that he afterward tired of his bargain did not entitle him to the relief that he now seeks from a court of equity."


And in White v. Kessler (1927) N. J. Eq. —, 139 Atl. 241, it was held that a husband could not obtain the annulment of his marriage on the ground that his wife had a husband living and undivorced at the time the marriage was contracted, where he

had knowledge of the first marriage, and lived with his wife secretly during the pendency of divorce proceedings to dissolve the first marriage, even though he thought it was void because of the failure of his wife and her former husband to engage in sexual intercourse. The court said: "The claim of innocence on the part of petitioner herein is wholly based on his alleged mistaken notion of the law, to the effect that, if no sexual intercourse had occurred between defendant and Kessler, their marriage was void. Petitioner herein must be assumed to have known to the contrary, and to have known that, until the marriage of defendant to Kessler should have been dissolved by death or divorce, his marriage to her was unlawful. For present purposes it is here assumed that petitioner did not know that to be the law, although the secrecy of his marriage to defendant strongly indicates to the contrary. In marrying defendant with a full knowledge of all the facts relating to her marital status, petitioner herein must be assumed to have known that his marriage to her was bigamous and unlawful, and that his secret cohabitation with her during the pendency of her divorce suit was criminal, and that the concealment of these things from the master before whom the divorce case was pending was a fraud on this court. In these circumstances this court, should not now aid him. The ancient maxim, 'ignorantia juris non excusat,' is everywhere recognized and uniformly enforced, when applied to mistakes of the general rules of law; and the paramount necessity of basing personal responsibility for human conduct upon that maxim, when so applied, appears to be everywhere recognized."

And in Keller v. Linsenmyer (1927) N. J. Eq., 139 Atl. 33, it was held that, in order to entitle a husband to a decree of nullification on the ground that his wife had a husband living and undivorced at the time of the marriage, he was bound to prove, by a preponderance of the evidence, not only the prior lawful marriage of his wife, and that it had not been dissolved or

annulled, but also that when he married his wife he was in ignorance of such prior marriage, and had the honest belief that she was free to marry him.

And see also Dolan v. Wagner (1923) 95 N. J. Eq. 1, 125 Atl. 2, supra, II. a.

However, in Freda v. Bergman (1910) 77 N. J. Eq. 46, 76 Atl. 460, in an action to have a marriage declared null and void because of a prior marriage of defendant, it was held that the fact that complainant was guilty of negligence in relying wholly on the statement of defendant that she had been divorced from her husband, and in refraining from making inquiries as to the time when, or the circumstances under which, a divorce had been obtained, will not preclude the granting of an annulment, since the complainant may without a decree of annulment immediately remarry, as also may the defendant when her disability is removed by the death or divorce of her spouse, as the interest of not only the state, but also of innocent unborn children, would be involved, should such a decree be denied.

In Tefft v. Tefft (1871) 35 Ind. 44, it was held that a petition for a divorce on the ground that at the time of the marriage defendant was the wife of another man could not be sustained, where the petitioner did not allege that that fact was unknown to him, or that he did not enter into the marriage contract with her with full knowledge that she was the wife of another man, since the court cannot undertake to extricate parties from relations in which they place themselves with full knowledge of the facts, and with no one to blame but themselves.

And in Thompson v. Thompson (1874) 10 Phila. (Pa.) 131, 31 Phila. Leg. Int. 124, it was held that the courts of Pennsylvania do not permit every party to a void marriage to maintain a suit for the nullity thereof on the ground that his spouse had a husband living at the time of the marriage, but he must show, prima facie at least, that he is an innocent and

injured party, and where, therefore, a man knew that his wife had been previously married, and failed to inform himself whether she had been divorced, he was not an innocent and injured party.

And in Baker v. Baker (1925) 84 Pa. Super. Ct. 544, it was held that a person who marries another, knowing that the latter has a husband or wife living, is not an "innocent or injured party" within the meaning of the act authorizing the courts of common pleas to decree the supposed or alleged marriage to be null and void. The court said: "While the law does not in such circumstances legalize the void marriage, . . . it refuses its aid to one who, having knowingly contracted such a marriage, later seeks a formal decree of nullification. In such case, it leaves the parties as it finds them."

III. Prohibition of remarriage after di


a. Where party seeking relief was the person disqualified.

The rule of pari delicto will not operate to prevent a divorced person from having relief in a suit to annul and set aside a marriage contracted by such person within the time prohibited by statute and made void by such statute, that being a matter in which the state is an interested party. Szlauzis v. Szlauzis (1912) 255 Ill. 314, L.R.A.1916C, 741, 99 N. E. 640, Ann. Cas. 1913D, 454.

See also Heflinger v. Heflinger (1923) 136 Va. 289, 32 A.L.R. 1088, 118 S. E. 316, referred to, and quoted from, in the reported case (SIMMONS V. SIMMONS, ante, 75), wherein the court said that the equitable doctrine of "clean hands" did not prevent either party to a marriage contracted before a certain period after the divorce of one of the parties had elapsed, in violation of a state statute, and rendered void thereby, from maintaining an action to have the void marriage declared a nullity.

b. Where party seeking relief was not the person disqualified. Where parties married in another state before the expiration of the six

months after the rendition of a divorce between one of the parties and her former husband, the other party to the second marriage may have a decree of annulment, such marriage being declared void by such statute, even though the husband knew of the divorce and went into the other state to avoid the statute. Hahn v. Hahn (1918) 104 Wash. 227, 176 Pac. 3. The court said: "However undeserving the parties may be, the court should in such a case immediately, and at the first opportunity, recognize the public policy of the state, as declared by the statute, and enter its decree annulling such a marriage, to the end that the public be protected, so far as possible, from the evils which follow such unlawful unions, and to prevent the innocent from suffering therefrom. This seems to be the undoubted policy of the state, as our statute (Rem. & Bal. Code, § 983), without reference to the guilt or innocence of either party, provides: 'When there is any doubt as to the facts rendering a marriage void, either party may apply for, and on proof obtain, a decree of nullity of marriage.'"

And in Snell v. Snell (1915) 191 Ill. App. 239, in an action by a wife to annul the marriage on the ground that it was contracted within two months after the husband's divorce from a former wife, in violation of statute, and which marriage was made absolutely void thereby, it was held that it was unnecessary for the complainant to allege that she did not know of the prior marriage and divorce.

And in Heflinger V. Heflinger (1923) 136 Va. 289, 32 A.L.R. 1088, 118 S. E. 316, referred to and quoted from in the reported case (SIMMONS V. SIMMONS, ante, 75), it was held that a party to a marriage could maintain an action for annulment on the ground that it was contracted in violation of a state statute within six months of the date of decree of divorce of the other party, even though the parties were in pari delicto.

And in Pettit v. Pettit (1905) 105 App. Div. 312, 93 N. Y. Supp. 1001, where the marriage in question between plaintiff and defendant in the

suit for annulment was void, because celebrated before a decree of divorce against defendant became final, the court, after holding that the marriage, being void, was not subject to ratification by cohabitation, exercised its discretion by granting a decree of annulment to the plaintiff, a young woman of eighteen, notwithstanding that she knew about the divorce de


But in Mallon v. Mallon (1925) 87 Pa. Super. Ct. 43, it was held that where, after an interlocutory decree of divorce was entered in California, the wife in that proceeding married another in Arizona, the latter was not entitled to a decree of annulment from the courts of Pennsylvania, on the ground that his wife had a husband living at the time, as he was not an "innocent or injured party," since he

knew the history of his wife, and was aware of every fact which affected her status as a married woman, or a woman free to marry.

And in Kerrison v. Kerrison (1880) 8 Abb. N. C. (N. Y.) 444, it was held that where parties went into another state and procured a marriage to be performed between them with the object and intention, and for the purpose, of avoiding and evading a prohibition against remarriage contained in a decree rendered in divorce proceedings brought against one of the parties by his former wife, on the ground of adultery, the other party cannot have the marriage annulled on the ground that it was illegal, as being contracted in violation of the prohibition, she being in pari delicto, and the court will leave the parties where it finds them. W. S. C.

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(220 Ky. 566, 295 S. W. 855.)

Insurance, § 785-party wall — prorating loss.

1. The owner of adjoining storerooms, who obtains from different companies a separate fire insurance policy on each room, is not entitled, on the complete destruction by fire of one of the rooms, together with the party wall, for which loss he has recovered judgment against the insurer, to duplicate his recovery for the damage to the wall from the other insurer, whose policy contains a provision for prorating insurance on the property, but his recovery should be limited to that proportion of the cost of replacing the wall which the amount of the policy bears to the whole insurance. [See annotation on this question beginning on page 88.] Insurance, § 785-provision for prorating validity.


2. A fire insurance company may validly stipulate that its liability shall

be limited to such proportion of any loss as the amount of its policy bears to the whole insurance on the property.

[See 14 R. C. L. 1310.]

APPEAL by defendant from a judgment of the Circuit Court for Webster County in favor of plaintiff in an action on a fire insurance policy. Reversed,

The facts are stated in the opinion Mr. W. T. Harris, for appellant: Under a clause in policy of fire insurance providing that the company

of the court.

insuring shall be liable only in the proportion which its policy bears to the whole amount of insurance, the in

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