of opinion, therefore, appellees failed to establish title under section 4 of the Statute of Limitations.

It is also urged that the appellant received benefits from the proceeds of the sale of the real estate and is therefore estopped from attacking appellees' title and asserting title in himself. The proof shows that his mother, as his guardian, received $42.50 for him out of the proceeds of the sale. We do not agree to the correctness of this proposition, but as appellant has by an amendment to his bill tendered the money back to whomever the court should decide was entitled to it, we deem it unnecessary to discuss this question.

We are of opinion the court erred in dismissing the appellant's bill, and the decree is reversed and the cause remanded for further proceedings not inconsistent with the views herein expressed. Reversed and remanded.

JAMES A. LYON

V.

SUSANNE B. LYON.

Opinion filed October 23, 1907-Rehearing denied Dec. 10, 1907.

1. MARRIAGE—whether the consent to marriage was procured by fraud is to be determined by law of forum. In a proceeding to annul a marriage, which took place in a foreign State, upon the ground that the complainant's consent to the marriage was procured by fraud and that under the statute of such foreign State fraud in obtaining consent to a marriage is ground for its annulment, the court of the forum will determine whether the acts of the defendant constituted fraud.

2. SAME-fraudulent representation must be of something essential to marriage relation. Fraudulent representations for which a marriage may be annulled must be of something essential to the marriage relation which makes impossible the performance of the duties and obligations of that relation or renders its assumption or continuance dangerous to health or life.

3. SAME misrepresenting one's self to be cured of epilepsy is not fraud. In the absence of a statute of the foreign State where a marriage took place making misrepresentation as to health ground for annulling the marriage, or of a statute having special application, the courts of Illinois will not annul such marriage upon the ground that the wife, in obtaining consent to the marriage, falsely represented that she had been permanently cured of epilepsy and had not had an attack for many years.

APPEAL from the Appellate Court for the First District;heard in that court on appeal from the Superior Court of Cook county; the Hon. W. M. McEwEN, Judge, presiding.

Appellant filed his bill in the superior court of Cook county for the annulment of his marriage with appellee, alleging that on September 18, 1903, at Richford, Tioga county, New York, he agreed to marry her on June 15, 1904; that he had known her for sixteen years prior to their engagement of marriage and about fifteen years before had learned that she was subject to attacks of epilepsy; that at the time of their engagement, with the intention of causing him to enter into it and to marry her, she falsely and fraudulently represented to him that she had been entirely cured of her epilepsy and had had no attacks thereof for more than eight years; that, relying upon said representations and believing them to be true, by reason thereof he entered into said engagement, and on June 15, 1904, still relying upon the truth of said representations, he married her at Richford, Tioga county, New York; that they immediately came to Chicago to live and lived together as husband and wife until March 28, 1905; that on April 7, 1905, he learned for the first time that the representations made to him were false and that she had been an epileptic, subject to fits occurring at irregular though frequent intervals, for more than ten years immediately prior to their marriage, and from that time he has not cohabited with her as her husband; that about six weeks after their arrival in Chicago she had an attack of epilepsy and has since suffered

from several similar attacks, and that, still believing in the truth of her representation, he caused her to receive medical treatment, but she became worse, and on March 30, 1905, suffered from three attacks of epilepsy, and is incurable; that having learned of the falsity of her representations he ceased to live with her, and on April 9, 1905, took her to the home of her parents, in Richford, New York, where she now is; that had he known her true condition he would not have entered into said engagement or married her; that the statutes of New York in force at the time of the engagement and marriage, and now, provide that in case the consent of one of the parties to a marriage was obtained by fraud such marriage may be annulled, and an action for that purpose may be maintained at any time by the party whose consent was so obtained, unless the parties to said marriage have cohabited with full knowledge of such fraud upon the part of the innocent party to the contract; that appellant's consent to said marriage was obtained by the appellee's fraud in making said representations and in concealing from him the knowledge of her epileptic condition, and that by reason thereof said marriage is voidable. The prayer was that the marriage be decreed to be null and void from the beginning. Upon demurrer the bill was dismissed for want of equity. The decree was affirmed by the Appellate Court, and an appeal is now prosecuted to reverse the judgment of affirmance.

CLARK & CLARK, for appellant.

JAMES P. HARROLD, (THEODORE R. TUTHILL, of counsel,) for appellee.

Mr. JUSTICE DUNN delivered the opinion of the court:

Appellant's claim is that the rights of the parties are to

be determined by the law of New York, where the marriage was contracted, and that by such law this marriage

was subject to be annulled for fraud. Fraud in the State of New York is not different, we presume, from fraud elsewhere. If the bill does not charge conduct which we would hold fraudulent, we cannot assume that the courts of another State would do so. The bill alleges that the statutes of New York provide that the marriage may be annulled if appellant's consent was obtained by fraud. Our inquiry is therefore whether the bill shows that appellant's consent was obtained by fraud, and the allegation will be construed according to the law of Illinois. It is not alleged that any different definition of fraud has been established by statute or prevails in New York, or that the statute declares that a marriage may be annulled for a misrepresentation in regard to the health of one of the parties. The fraud charged is, that the appellee falsely represented that she was entirely cured of her epilepsy and had no attack of it in eight years. So far as her being entirely cured was concerned, that was essentially a matter of judgment and opinion. The false representation of fact was, that she had had no attack of the disease for eight years.

"As to fraud, in order to vitiate a marriage, it should go to the very essence of the contract. Fraudulent misrepresentations of one party as to birth, social position, fortune, good health and temperament cannot, therefore, vitiate the contract. Caveat emptor is the harsh but necessary maxim of the law." (Schouler on Domestic Relations, par. 23.)

"In that contract of marriage which forms the gateway to the status of marriage, the parties take each other for better, for worse, for richer, for poorer, to cherish each other in sickness and in health; consequently a mistake, whether resulting from accident, or, indeed, generally, from fraudulent practices in respect to the character, fortune, health, does not render void what is done. To this conclusion the authorities all conduct us, but different modes of stating the reason for it have been adopted. Thus, the qual

ities just mentioned are said to be accidental, not going to the essentials of the relation; and Lord Stowell, after remarking that error about the family or fortune of an individual, though produced by disingenuous representations, does not affect the validity of the marriage, adds: 'A man who means to act upon such representations should verify them by his own inquiry. The law presumes that he used due caution in a matter in which his happiness for life is so materially involved, and it makes no provision for relief of a blind credulity, however it may have been produced.' (1 Bishop on Marriage and Divorce, par. 167.)

"It is well understood that error, and even disingenuous representations, in respect to the qualities of one of the contracting parties, as to his condition, rank, fortune, manners and character, would be insufficient. The law makes no provision for the relief of a blind credulity, however it may have been produced." (2 Kent's Commentaries, 77.)

"The degree of fraud sufficient to vitiate an ordinary contract will not afford sufficient ground for the annulment of a marriage. It is not sufficient that the party relied upon the false representations and was deceived or that important and essential facts were concealed with intent to deceive. The marriage relation is a status controlled and regulated by considerations of public policy, which are paramount to the rights of the parties. * *The fortune, character and social standing of one of the parties are not essential elements of marriage, and it is contrary to public policy to annul marriages for fraud or misrepresentation as to such personal qualities." (19 Am. & Eng. Ency. of Law,— 2d ed.-1184.)

Concealment of the fact that the woman had previously been insane has been held insufficient to justify a decree of nullity of marriage. (Cummington v. Belchertown, 149 Mass. 223.) So has concealment of kleptomania. (Lewis v. Lewis, 44 Minn. 124.) Also concealment by a woman of unchastity prior to marriage. (Leavitt v. Leavitt, 13 Mich.