Lea v. Lea

• Decision Date: 16 December 1889
• Citation: 10 S.E. 488,104 N.C. 603
• Parties: LEA v. LEA.
• Court: North Carolina Supreme Court

10 S.E. 488

104 N.C. 603

LEA v. LEA.

Supreme Court of North Carolina

December 16, 1889

Appeal from superior court, Randolph county; GEORGE H. BROWN, Jr. Judge.

Action by Sallie A. Lea against J. K. Lea, to have a marriage declared void. Plaintiff moved for alimony pendente lite, and served notice on the defendant on the 21st day of September 1888, to appear at Troy, Montgomery county, on the 3d day of October, 1888, to show cause why the motion should not be granted. By agreement of counsel the hearing was adjourned from Troy to Albemarle, in Stanly county, to be on the 17th day of October, 1888, on which day the defendant and his attorney were present, and resisted the motion upon the ground that it could not be heard, and no order could be made in the cause outside of Randolph county, where the cause was pending. Whereupon the court, upon his own motion, and without the consent of defendant, ordered the same to be transferred to be heard on March 18, 1889, at Asheboro, in Randolph county. Without any further notice to defendant plaintiff, in the absence of the defendant, on March 21 1889, called up the case, and moved his honor to proceed with the hearing of her motion to be allowed alimony pendente lite. Defendant's counsel being present, objected to the court's hearing or considering the motion, on the ground that no notice had been given to defendant, as required by law. The court proceeded to consider and hear the motion, and defendant excepted. A decree was rendered granting plaintiff alimony pendente lite, and defendant appeals.

Scott & Crocker, (L. M. Scott, of counsel,) for appellant.

M. S. Robins, for appellee.

SHEPHERD J.

The defendant denies his liability for alimony pendente lite, for the reason that this is not technically an action for divorce from the bonds of matrimony, but an action to declare a marriage void because of a prior existing marriage on the part of the defendant. At common law, suits for nullity were freely entertained in the ecclesiastical courts; and while they were unnecessary in cases like the present, so far as they affected the actual legal relations of the parties, it was deemed "expedient to procure a sentence to prevent the consequences which might in future take place from the death of witnesses, or other occurrences rendering proof of the invalidity of the marriage difficult or impossible. *** It is a matter of duty which the courts owe to the public to declare the situation of the parties. *** It may be necessary for the convenience and happiness of families, and of the public likewise, that the real character of these domestic connections should be ascertained and made known." Shelf. Mar. & Div. 332. Appreciating these reasons, our legislature has provided (Code, § 1283) that "the superior court, in term-time, on application made, as by law provided, by either party to a marriage contracted contrary to the prohibitions contained in chapter 42, [Code,] or declared void by said chapter, may declare such marriage void from the beginning." Chapter 42, § 1810, of the Code, provides that all marriages "between persons, either of whom has a husband or wife living at the time of such marriage, *** shall be void."

It was decided in Taylor v. Taylor, 1 Jones (N. C.) 528 that the courts of this state had no power to allow alimony pendente lite; but this relief was subsequently given by the legislature in 1852, and the existing law upon the subject is to be found in Code, § 1291 et seq., which provides that such alimony may be given where "any married woman shall apply to a court for a divorce from "the bonds of matrimony or from bed and board." It is insisted by the defendant that as the marriage was void there were no "bonds of matrimony" to dissolve, and therefore the plaintiff's case is not within the statute. We cannot accept this restricted interpretation. The words "from the bonds of matrimony," a vinculo matrimonii, have a well-known significance at common law, and it must be presumed that it was in this sense that they were used by the legislature. At common law, no divorce a vinculo could be granted, except for causes existing previous to the marriage, and which "rendered the marriage unlawful ab initio." "In such cases," says Blackstone, (Vol. 2, p. 94,) "the law looks upon the marriage to have been always null and void, *** and declares not only a separation from bed and board, but a vinculo matrimonii itself." In view of this high authority, the argument of the defendant, founded upon the strict and literal meaning of the words of the statute above-mentioned, must fall to the ground. Pre-contract of marriage is, in common legal parlance, considered as a cause for divorce. For example, we have the able and discriminating Mr. Irving Browne, in his work on Domestic Relations, (page 61,) using the following language: "The law recognizes three kinds of divorces: First, divorces on the ground of the nullity of the marriage contract. *** For this divorce there are generally five causes: Lack of legal age, former marriage," etc. We could, if necessary, add a great number of authorities in which the word "divorce" is used in this comprehensive sense, but it is unnecessary to do so, as we have a decision in our own reports which we think fully decides the question. It is the...