Eastwood, Jayne and Francis. The opinion of the court was delivered by Francis, J.A.D. Jayne, J.A.D. (dissenting in part). I am authorized by Judge Eastwood to state that he unites with me in this dissent.
[30 NJSuper Page 295] Appellant sought an annulment of marriage to respondent, a partition of real estate which the
owned ostensibly as tenants by the entirety, discovery with respect to moneys entrusted to her, and an accounting. A dwelling house on the premises referred to was operated as a rooming house except for the first floor thereof which was used as the home of the parties. During the litigation a receiver was appointed to manage the property.
After a number of hearings respondent received a favorable judgment and this appeal followed.
The parties were married on May 30, 1942 in Newark, New Jersey, by a minister of the gospel. Thereafter they lived together as man and wife, except for three years when the husband was in the armed forces. Danes' army service began in November 1942 and he was discharged in November 1945. Upon the termination of his military career they resumed living together and continued to do so until December 1950, when he separated from respondent. He claimed that the separation took place because he discovered then for the first time that she was already married when she went through the ceremony with him. Some months later this annulment action was instituted.
It appears without dispute that on October 12, 1926 the wife went through a valid ceremonial marriage in North Carolina with one John Smith and that he was still alive at the time of the marriage under consideration.
The testimony is in conflict as to whether Danes was aware that respondent had a husband in North Carolina when he married her. She said he knew about it and in fact assisted her in the making of false statements about her marital history in the application for a marriage license at the bureau in Newark, New Jersey. He denied it.
Smith died on October 23, 1944, while Danes was overseas, and Mrs. Danes testified that she wrote advising him of the fact. Danes admitted receiving the letter which he said simply told him of the death of John Smith. He knew a number of John Smiths and was not aware that she was referring to another husband.
There is further conflict in the testimony as to whether there was conversation between them about the elimination
of the impediment to their marriage upon Danes' return to this country and after his discharge from service. In any event, as already indicated, they continued living as man and wife until December 1950 when according to her he left, saying he had another woman.
After considering the facts recited and all the circumstances in the case, the trial court concluded that Danes knew his wife had a living husband when he married her and was therefore estopped to question the validity of their marriage. Our examination of the record discloses no justifiable basis for interference with this conclusion. Capozzoli v. Capozolli , 1 N.J. 540 (1949); Sabia v. Sabia , 16 N.J. Super. 273 (App. Div. 1951).
Aside from the determination of the issue of credibility of the parties on the subject of knowledge of the previous marriage, the decision of the trial court was predicated primarily upon the legal principle appearing in Tonti v. Chadwick , 1 N.J. 531 (1949); Smith v. Hrzich , 1 N.J. 1 (1948); Keller v. Linsenmyer , 101 N.J. Eq. 664 (Ch. 1927); Dolan v. Wagner , 96 N.J. Eq. 298 (E. & A. 1924); Tyll v. Keller , 94 N.J. Eq. 426 (E. & A. 1923).
These cases demonstrate the law of New Jersey to be that where a person enters into a ceremonial marriage with another, knowing of the existence of an impediment to lawful wedlock and thereafter cohabits with the spouse thus acquired, he will be barred from questioning the legality of the union under the doctrine of estoppel or unclean hands. In our judgment the factual conclusion reached here amply justified the application of the doctrine so as to deny the claim for annulment.
The trial court decided additionally that even if Danes found out for the first time that his wife was under the disability of an existing marriage when he married her, his cohabitation with her in New Jersey after the removal of the impediment, matrimonially meant, made them man and wife. While this ruling was not necessary to the disposition of the case in view of the determination already alluded to, it was predicated upon Tegenborg v. Tegenborg , 26 N.J. Super. 467
(App. Div. 1953), and would appear to be a fair construction of the opinion in that case.
The broad language of the Tegenborg case apparently was taken to mean that if, at the present time, a ceremonial marriage is entered into while there is an existing impediment to its validity, and the parties continue to live together with matrimonial intent after the impediment is removed, they will be ...