Hunt v. Hunt

• Decision Date: 15 April 1935
• Docket Number: 31625
• Court: Mississippi Supreme Court
• Parties: HUNT v. HUNT

161 So. 119

172 Miss. 732

HUNT v. HUNT

No. 31625

Supreme Court of Mississippi

April 15, 1935

Division A

Suggestion Of Error Overruled May 13, 1935.

APPEAL from the chancery court of Lauderdale county, HON. A. B AMIS, SR., Chancellor.

Suit by Rosalie Lovette Hunt, a minor, by next friend, against W. A Hunt, Jr., a minor, by guardian ad litem for annulment of marriage. From a decree for defendant, complainant appeals. Affirmed.

Affirmed.

Gabe Jacobson and J. B. Truly, both of Meridian, for appellant.

The marriage was utterly void, both as a ceremonial marriage and as a common law marriage, and should be annulled as a matter of public policy.

Sections 2362, 2363 and 2367, Code of 1930.

The clerk of the circuit court of Clarke county had no authority to issue the marriage license, and the license issued by him was void.

Bates v. Stokes, 40 Miss. 56; Section 2367, Code of 1930; Ashley v. State, 190 Ala. 48, 19 So. 917; Hawkins v. Hawkins, 142 Ala. 571, 38 So. 640; Herd v. Herd, 194 Ala. 613, 69 So. 885.

The lower court in its opinion strongly hints that the court will not permit an inquiry into whether or not sexual intercourse occurred in such a case. But we cannot agree that such is the law.

Herring, Guardian v. Goodson, 43 Miss. 392; Teter v. Teter, 51 Am. Rep. 742.

In construing contract for common-law marriage, regard must be had to intent of parties. In the case at bar the parties never consented to a marriage in the present and expressly stated that no marriage would be consummated until blessed by the priest, which never occurred.

38 C. J. 1339, sec. 111; Sims v. Sims, 122 Miss. 745, 85 So. 73; Hargroves v. Thompson, 31 Miss. 211; Floyd v. Calvert, 53 Miss. 37; Rundle v. Pegram, 49 Miss. 751.

Our statute law has changed the common law age of consent from twelve years in females to eighteen years, and from fourteen years in males to twenty-one years, as provided in sections 2362 and 2363, Code of 1930, and any marriage entered into by one beneath the statutory age is annullable at the option of the infant before the statutory age is attained.

Section 2362, Code of 1930; Koonce v. Wallace, 52 N.C. 194, 3 Am. Rul. Cas. 57; State ex rel. Scott v. Lowell et al., 78 Minn. 166, 80 N.W. 877, 3 Am. Rul. Cas. 64; Eliot v. Eliot, 46 N.W. 806; Swenson v. Swenson, 192 N.W. 71; Palmer v. Palmer, 80 A. 486; Matthes v. Matthes, 198 Ill.App. 95; Hunt v. Hunt, 100 P. 541, 22 L.R.A. (N.S.) 1202; Perkey v. Perkey, 106 S.E. 40; Section 2367, Code of 1930.

Russell Wright, of Meridian, for appellee.

Mississippi is a common law state. Not only do the courts recognize the validity of marriages good at common law, but the very marriage statutes themselves do. Nor does section 2363 render invalid a marriage duly solemnized, followed by cohabitation; nor a common law marriage as heretofore recognized in this state.

Grigsby v. Reib, L.R.A. 1915E; Reg. v. Millis, 10 Clark & F. 534, 8 Jur. 717, 17 Eng. Rul. Cas. 66; Dalrymple v. Dalrymple, 2 Hagg. Consist. Rep. 54, 17 Eng. Rul. Cas. 11; 2 Kent's Commentaries, page 86.

The learned chancellor proceeded on the theory that if the clerk had no authority to issue the license, then the marriage was void as a ceremonial marriage, and cites in his opinion the case of Hargroves v. Thompson, 31 Miss. 211; Bates v. Stokes, 40 Miss. 56; Ashley v. State, 190 Ala. 48, 19 So. 916; Hawkins v. Hawkins, 142 Ala. 571, 38 So. 640; Herd v. Herd, 194 Ala. 613, 69 So. 885.

It seems to me that the learned chancellor, and the learned counsel on the other side of this controversy, are straining at a gnat, as the saying goes, at this distinction. And while the learned chancellor correctly held that the marriage was good as a common law marriage, it occurs to me that it was unnecessary to go into such an extended distinction between ceremonial marriages and common law marriages.

Sections 2363 and 2365, Code of 1930.

I submit that the cause should be affirmed--both on the proposition that the statutes do not invalidate a marriage good at common law (and this marriage was certainly good at common law), nor do the statutes change the age of consent. And I submit that the court should go further than the learned chancellor did, and lay down the rule that a ceremonial marriage, solemnized under a license issued without authority, is good and valid, because it presents all the requisites of a marriage at common law, and that words of agreement to be married, coupled with a present intention, as was evident in this case, are sufficient, whether there be cohabitation or not.

Argued orally by J. B. Truly and Gabe Jacobson, for appellant, and by Russell Wright, for appellee.

OPINION

Smith, C. J.

The appellant, by next friend, sued the appellee for an annulment of a marriage between them, alleged to be void. The case was heard on bill, answer, and proof, resulting in the dismissal of the bill of complaint. The marriage was a ceremonial one, but the license under which it was solemnized was irregularly issued; consequently, the validity of the marriage depends upon the curative provisions of chapter 237, Laws 1930, which appears as section 2363, Code 1930.

The case presented by the record is, in substance, as follows: The appellant is a member of the Roman Catholic Church, and, at the time the marriage ceremony was performed, was thirteen years and ten months old. The appellee is a Protestant, and at the time of the ceremony, was nineteen years old. They both lived in Lauderdale county. On the night of October 30, 1933, they went into Clarke county, obtained a marriage license from the clerk of the circuit court thereof, and on the same night a marriage was solemnized between them by a justice of the peace. They returned to the home of the appellant's mother, with whom she lived, about five o'clock the next morning and advised her of their marriage. She was very much disturbed thereby, and reminded her daughter that the marriage was without the sanction of her church. Their local priest, Father Burns, was then called, and on being requested to sanction the marriage, stated that he would have to consult the bishop, but that he would probably sanction it when, but not until, the appellant reached the age of fourteen. The appellee then left the residence of the appellant's mother and went to the home of his parents with whom he lived. The appellant remained with her mother for about three weeks, and then went to the home of the appellee, where she remained for three weeks, at the expiration of which time she returned to her mother for the reason that Father Burns had indicated that he would not sanction their marriage. During the three weeks that she was in the home of the appellee, she and the appellee slept together in a room apart from others, and otherwise publicly acted as if they were man and wife. Both of them, however, say that, pursuant to an agreement with the appellant's mother, and between themselves, they refrained from any act of coition. Although against nature, we may, for the present purpose, accept this statement as true.

Counsel for the appellant say, in substance, that this marriage is void: (a) Under the statute, for the reason that the marriage license having been issued by a clerk of the circuit court of a county in which the appellant did not reside is void, and therefore the curative provisions of the statute do not apply thereto; (b) at common law, for the reason that the ceremonial marriage was void, the parties thereto before cohabitation thereunder disregarded it, and entered into a new agreement for a marriage in futuro (i. e., they would marry when, but not until, Father Burns would sanction it), and that cohabitation under such an agreement does not consummate a marriage. They say further that if the marriage was not void, it was voidable at the appellant's election before becoming eighteen years of age for the reason that section 3245, Code 1906, now section 2362, Code 1930, has raised the common-law age of capacity for marriage of females from twelve years to fourteen.

1. Was the clerk of the circuit court of Clarke county authorized by the statute to issue the license? Section 3245, Code 1906, which now appears as section 2362, Code 1930, provides that: "Marriage licenses shall be granted and issued by the clerk of the circuit court of the county in which the female usually resides, under the following regulations and restrictions," etc. Section 2363 of the printed Code of 1930 provides that: "It shall be unlawful for the circuit court clerk to issue a marriage license until the following conditions precedent shall have been complied with: a. Parties desiring marriage license shall make application therefor in writing to the clerk of the circuit court of any county in the state of Mississippi and forthwith file the same with the clerk," etc. Sections of the Code dealing with the same subject-matter should be read together and apparent conflicts thereunder harmonized, if possible. When this is here done, counsel for the appellant say that it will appear that the Legislature did not by section 2363, Code 1930, intend to confer the power to issue a marriage license on the clerk of the circuit court of a county other than that in which the female usually resides. In other words, section 2363, Code 1930, when read in connection with section 2362, Code 1930, should be construed as if it read: "Parties desiring a marriage license shall make application therefor in writing to the clerk of the circuit court of any county in the State of Mississippi in which the female usually resides."

If section 2363 were in fact a part of the Code of 1930, it might be difficult to answer this argument; but the difficulty disappears when we remember that section 2363 is...