Kibler v. Kibler

• Decision Date: 17 February 1930
• Docket Number: 147
• Citation: 24 S.W.2d 867,180 Ark. 1152
• Parties: KIBLER v. KIBLER
• Court: Arkansas Supreme Court

24 S.W.2d 867

180 Ark. 1152

KIBLER v. KIBLER

No. 147

Supreme Court of Arkansas

February 17, 1930

Appeal from Crawford Chancery Court; J. V. Bourland, Chancellor reversed.

Decree reversed, and cause remanded.

C M. Wofford, for appellant.

C R. Starbird, for appellee.

SMITH J. HART, C. J., dissents.

OPINION

SMITH, J.

Mrs. Georgia Kibler brought this suit as the natural guardian and next friend of her infant son, Burl Kibler, to annul his marriage to Harriett Harned Kibler, who was also an infant, and for whom a guardian ad litem defended. There is no substantial conflict in the testimony, and it was to the following effect.

Burl Kibler is a minor, and became sixteen years of age on June 5, 1928, and on the 29th of August, 1928, was married to Harriett Harned, a girl of about his own age. Friends and relatives of the girl met the boy in the absence of his mother, or other friends or relatives, and accused him of having seduced the girl, who was about to become a mother, and he was threatened with prosecution if he did not marry her. He did not deny the charge, and consented to marry, and a marriage license was procured, and the ceremony performed.

The cancellation of the marriage is prayed on account of the alleged duress, and the non-age of the boy, and he has confirmed the action of his mother in bringing this suit, as is evidenced by the testimony which he gave. He testified that he did not want to marry, and only consented to do so because of the threats of prosecution. But this plea is unavailing, as was said in the case of Jacobs v. Jacobs, 146 Ark. 45, 225 S.W. 22: "This court has held that, if a man seduces a woman, and marries her through fear of the consequences of his crime, the marriage nevertheless will be valid, and the child will be legitimate. Honnett v. Honnett, 33 Ark. 156; Marvin v. Marvin, 52 Ark. 425 [12 S.W. 875, 20 Am. St. 191]."

This suit was filed January 11, 1929, at which time a child had been born, but its father was even then under the age of seventeen years, and the court, after finding that there had been no duress, further found that the right of action, if any existed, is personal to the plaintiff, and cannot be maintained by a guardian or next friend.

Section 1111, C. & M. Digest, reads as follows: "The action of an infant must be brought by his guardian or next friend; any person may bring the action of an infant as his next friend; but the court has power to dismiss it if it is not for the benefit of the infant, or to substitute the guardian of the infant, or another person, as the next friend."

This suit was therefore properly brought by the mother of the boy as his natural guardian and next friend, but it is, of course, his suit, and, as we have said, his testimony in the case shows that it was brought with his consent and for his benefit.

Did he have the right to maintain this suit, and must he wait until he has attained full age before doing so?

Answering the last question first, it may be said that there are many cases holding that an infant cannot annul and have his marriage canceled on account of his non-age until he has attained his majority; but we think the better considered cases hold to the contrary. Indeed, we think the correct rule is that he may, after attaining the statutory age at which he may be lawfully married, yet while still a minor, ratify his marriage, and be thereafter estopped to question its validity on account of his minority, but he may, through his guardian or next friend, so long as he is of non-age, require the court having jurisdiction to annul it.

Section 7037, C. & M. Digest, reads as follows: Every male who shall have arrived at the full age of seventeen years, and every female who shall have arrived at the age of fourteen years, shall be capable in law of contracting marriage; if under those ages their marriages are void."

There are States having similar statutes, in which it is held that a marriage by an infant below the age fixed by the statute at which an infant may be married is void; and, that no sentence or decree of a court is necessary to cancel it; but this is not the case under our statute which we have quoted, because it must be construed in connection with § 7041, C. & M. Digest, which reads as follows: "When either of the parties to a marriage shall be incapable, from want of age or understanding, of consenting to any marriage, or shall be incapable from physical causes of entering into the marriage state, or where the consent of either party shall have been obtained by force or fraud, the marriage shall be void from the time its nullity shall be declared by a court of competent jurisdiction."

When these statutes are read and construed together, as they must be, the word "void," appearing in §§ 7037, C. & M. Digest, must be held to mean "voidable," and the marriage of an infant of non-age creates the relation and imposes the obligations of a husband or a wife until its nullity shall be decreed by a court of competent jurisdiction.

In the case of Walls v. State, 32 Ark. 565, the facts were that the defendant Walls married at the age of fifteen, and, without being divorced, was married a second time, and was indicted for bigamy on account of this second marriage, and was in his twenty-first year at the time of his trial. He defended upon the ground that his first marriage was void, and that his second marriage was therefore not bigamous; but the court held that the fact that he was within the age of legal consent when his first marriage was contracted was no defense when it was not also shown that it had been annulled by a court of competent jurisdiction.

At § 33 of the chapter on Divorce and Separation in 9 R. C L., page 273, it is said: "Continued cohabitation of the parties after reaching the age of consent validates the marriage, and it cannot thereafter be annulled. But the fact that the parties cohabited together before the complaining party reached the statutory age is not generally ground for denying a decree of annulment. It is usually recognized that an infant is not concluded by false representations of his age so as to bind him by a contract with him entered into on the faith of such representations. And, according to the better view, an infant incapable for want of age of entering into a valid marriage is incapable also of estopping himself by a fraudulent declaration of his age from asserting its invalidity in an action to annul it brought under a statute with the sole proviso that there must have been no voluntary cohabitation after the attainment of the age of consent. On the question as to when a suit may be brought to...