IV. That the defendant is now perfectly recovered of his [her] lunacy aforesaid, and restored to his [her] right mind, memory, and understanding, and has been for about months last past, and that since his [her] restoration to a sound state of mind as aforesaid, the plaintiff has not cohabited with the said defendant. [DEMAND OF JUDGMENT.] § 2722. Return to reason. Where a person, insane at the time of her marriage, after return to reason refused to ratify or consummate it, and filed her bill to annul it, the court decreed the marriage null and void.173 § 2723. On the ground of physical incapacity. [TITLE.] Form No. 628. The plaintiff complains, and alleges: I. [Allege marriage as in form No. 615.] III. That immediately after said marriage took place, the plaintiff discovered that the said defendant A. B., at the time of her [his] marriage with the plaintiff, as aforesaid, was physically incapable of entering into the marriage state; that the [etc., stating the cause of such incapacity]. IV. That the physical incapacity of the said A. B., arising from her [his] diseased condition, as aforesaid, was well known to the defendant at the time of her [his] intermarriage with the plaintiff, as aforesaid, but was wholly unknown to the plaintiff. V. That the plaintiff has been informed and believes that the said physical incapacity of the said A. B. still exists, and is incurable, and so charges the fact to be. Wherefore the plaintiff demands judgment, that the marriage between him [her] and the said defendant may be dissolved and annulled, according to the statute in such case made and provided. 2724. Impotence medical examination. To authorize a sentence of nullity on the ground of impotence, the existence of incapacity at the time of marriage, its continuance, and that it 173 Wightman v. Wightman, 4 Johns. Ch. 343; see Castor v. Davis, 120 Ind. 231. is incurable, must be shown.174 The court has power to compel the defendant to submit to a medical examination, though the statute made no provision for it.175 Whether in such case the court has power to compel the defendant to answer interrogatories on oath, quaere.176 San Francisco, in this state, a marriage between the plaintiff and defendant was duly solemnized by A. B., who was then and there a justice of the peace, duly authorized by the laws of this state to solemnize marriages, and the certificate of such solemnization has been duly recorded as required by law. III. That plaintiff is a white person and the said defendant is a mulatto [or allege any cause which, under the statute, makes the marriage void]. Wherefore the plaintiff prays that said marriage may be, by the decree of this court, declared to be void for the reason aforesaid, and for other proper relief.177 1741 Chit. M. J. 375; Law of H. & W. 16; Brown v. Brown, 1 Hagg. Ecc. 523; 2 Lee's Ecc. Cas. 580; 1 Beck's M. J. 68; 4 Partida, tit. 8; Van Leeuw, 87; Davenbagh v. Davenbagh, 5 Paige, 554; 28 Am. Dec. 443; Bascomb v. Bascomb, 25 N. H. 267; Keith v. Keith, Wright, 518; Powell v. Powell, 18 Kan. 371; 29 Am. Rep. 774; Payne v. Payne, 46 Minn. 467; 24 Am. St. Rep. 240; but see Burtis v. Burtis, Hopk. 557. 175 Le Barron v. Le Barron, 35 Vt. 365. 176 Id. 177 Though a marriage be void ab initio, as for insanity, lineal consanguinity, etc., there ought to be a judicial decision to that effect. Wightman v. Wightman, 4 Johns. Ch. 343; see Rawdon v. Rawdon, 28 Ala. 565. "Either party to an incestuous or void marriage may proceed by action in the Superior Court to have the same so declared." Cal. Civil Code, § 80. CHAPTER IV. FRAUD § 2726. For rescission of contract, on the ground of fraud. plaintiff was the owner of a farm situated in the town of .... [describing it]. .., county of II. That the plaintiff then was and ever since has been old, infirm, and blind, and wholly incapacitated from attending to business, and the defendants on that day, fraudulently taking advantage of the plaintiff's said incapacity, procured him to sign a certain writing, without paying him any consideration therefor, and which writing they falsely and fraudulently represented to be a mere matter of form. III. That on the ........ day of 18.., the plaintiff demanded possession of said writing of the defendants, or information as to the contents thereof, but the defendants refused to surrender the same, or to give him any information concerning the same. IV. That the plaintiff is informed and believes that the said writing is under seal, and is a deed of said premises, and conveys the same or some interest therein to the defendants; and they intend to use the same for their own benefit, and to the prejudice of the plaintiff. Wherefore the plaintiff demands judgment: 1. That the said writing is void. 2. That the defendants produce the said writing, and deliver it up to be canceled. 3. For costs of this action.1 1 This form is in substance from Abbott's Forms. A party defrauded may rescind and restore within a reasonable time all the value which he has received under the contract, or he may affirm it and sue for damages. Vineyard Co. v. Tuohy, 107 Cal. § 2727. Act of agent. Fraud committed through an agent is well stated in pleading as that of the principal. If this were otherwise, and it appeared at the trial to be that of an agent without any participation of his principal, the variance is the subject of amendment, and will be disregarded upon appeal.2 Equity will relieve, where falsehood or fraud is practiced, whether it be the principal or the agent. Even when the false representations are made to a third person, and by him communicated to the purchaser, it is deemed as if made by the seller. In case of fraudulent representations by a stranger, the relief granted must be on the ground of mistake. It is a fraud for an agent to avail himself of his confidential relations to create an interest adverse to that of his principal in the transaction, and that fraud creates a trust even when the agency must be proved only by parol. In alleging fraud committed by an agent, it is the better practice to state the fact that the defendant acted by an agent.7 § 2728. Act of legislature — fraud. An act of the legislature is not subject to attack on the ground of fraud.8 Any attempts to deceive persons intrusted with the high functions of legislation, by secret combinations, or to create or bring into operation undue influences of any kind, have all the injurious effects of a direct fraud on the public. All persons interested in the passage of an act have an undoubted right, either in person or by counsel, to urge their claims and arguments before legislative committees, as well as in courts of justice; but a hired advocate or agent, assuming to act in a different character, is practicing deceit on the legislature. 10 2 Bennett v. Judson, 21 N. Y. 238. a Mason v. Crosby, 1 Woodb. & M. 342; Smith v. Babcock, 2 id. 246, 293. 4 Crocker v. Lewis, 3 Sumn. 1. 5 Fisher v. Boody, 1 Curtis C. C. 206. 6 Lees v. Nuttal, 1 Russ. & M. 53; Carter v. Palmer, 11 Bligh, 397, 418; Jenkins v. Eldridge, 3 Story C. C. 183; but see Bartlett v. Pickersgill, 1 Eden, 515; S. C., 1 Cox, 15; Leman v. Whitley, 4 Russ 423. 7 See, also, 2 Chit. Pl. 117; 1 Wentw. 345. 8 Sherman v. Story, 30 Cal. 266; Oroville & Virginia City R. R. Co. v. The Supervisors of Plumas County, 37 id. 354. • Marshall v. Baltimore & Ohio R. R. Co., 16 How. 334. 10 See Miles v. Thorne, 38 Cal. 335; 99 Am. Dec. 384. § 2729. Act of attorney. If a sale of lands under a power of attorney procured through fraud be set aside as fraudulent and void ab initio, the fraudulent vendee is not entitled to, a decree against the vendor for restitution of a part of the purchase money paid to the attorney who was a privy to the fraud."1 § 2730. Actual fraud. Actual fraud consists in any of the following acts, committed by a party to the contract, or with his connivance, with intent to deceive another party thereto, or to induce him to enter into the contract: 1. The suggestion, as a fact, of that which is not true, by one who does not believe it to be true; 2. The positive assertion, in a manner not warranted by the information of the person making it, of that which is not true, though he believes it to be true; 3. The suppression of that which is true, by one having knowledge or belief of the fact; 4. A promise made without any intention of performing it; 5. Any other act fitted to deceive.12 Actual fraud is always a question of fact.18 Where a bill charges actual and intentional fraud, and prays for relief on that ground, the complainant can not, under the prayer for general relief, rely on circumstances which may amount to a case for relief, under a distinct head of equity, although those circumstances substantially appear in the bill, but are charged in aid of the charge of actual fraud.14 This rule is applied to a purchase from a widow by her stepson. If a bill charges fraud as the ground of relief, fraud must be proved. The proof of other facts, though such as would be sufficient, under some circumstances, to constitute a claim for relief under another head of equity, will not prevent the bill from being dismissed.15 An agent can never have authority, either actual or ostensible, to do an act which is, and is known. or suspected by the person with whom he deals, to be a fraud upon the principal.16 An apparent consent (to a contract) is 11 Sanchez v. McMahon, 35 Cal. 218. 12 Cal. Civil Code, § 1572. It is actual fraud for a vendor to state as true that which he does not know to be true, intending that the purchaser should act upon it, and to enter into the contract, knowing that the purchaser did so in reliance upon his statements, he not having other means of knowledge. Groppengiesser v. Lake, 103 Cal. 37. 13 Cal. Civil Code, § 1574. 14 Eyre v. Potter, 15 How. 42. 15 Fisher v. Boody, 1 Curtis C. C. 206. 10 Cal. Civil Code, § 2306. |
