Littleton v. Harr

• Citation: 74 S.E. 12,158 N.C. 566
• Parties: LITTLETON v. HARR, Register of Deeds.
• Decision Date: 13 March 1912
• Court: North Carolina Supreme Court

74 S.E. 12

158 N.C. 566

LITTLETON v. HARR, Register of Deeds.

Supreme Court of North Carolina

March 13, 1912

Appeal from Superior Court, New Hanover County; Word, Judge.

Action by J. E. Littleton against John Harr. From a judgment for plaintiff, defendant appeals. No error.

A penal statute will not be strictly construed, where such construction would defeat its ends.

This case was heard in the superior court upon a case agreed which, is in substance, as follows: The defendant is register of deeds of New Hanover county, and on or about December 27 1910, issued a license for the marriage of Ednia Littleton daughter of plaintiff, and at the time under 18 years of age. Consent of the father to the marriage of his daughter was never given, but instead the written consent of her mother, Melia Littleton. At the time the mother's consent was given and the license was applied for and issued, the said Ednia Littleton was living in the home of her father and being supported by him. The court, being of opinion, upon the facts stated, that the plaintiff was entitled to recover the penalty given by Revisal, § 2090, adjudged that he recover of defendant the sum of $200 and costs. Defendant excepted and appealed.

A. G. Ricaud, for appellant.

Geo. F. Meares, for appellee.

WALKER J. (after stating the facts as above).

The Revisal, § 2088, provides that where either party to a proposed marriage is under 18 years of age and resides with the father, or mother, or uncle, or aunt, or brother, or elder sister, the register of deeds shall not issue a license for such marriage until the consent, in writing, of the relation with whom such infant resides, or, if he or she resides at a school, of the person by whom the minor was placed at school, "and under whose custody or control he or she is," shall be delivered to him, and the written consent shall be filed and preserved by the register. Section 2090 provides that a register of deeds who shall knowingly, or without reasonable inquiry, personally or by deputy, issue a license for the marriage of any two persons to which there is any legal impediment, or where either of the persons is under the age of 18 years, without the consent required by law, shall forfeit and pay $200 to any parent, guardian, or other person standing in loco parentis who shall sue for the same. These two sections are in pari materia, and must therefore be construed together. Bowles v. Cochran, 93 N.C. 398.

We do not understand that the question of reasonable inquiry by the register as to the age of the applicant for license, or other impediment to the marriage, is involved in this case. There is no suggestion in the record about it. The case agreed presents the single question whether, upon the admitted facts, the written consent of the mother was sufficient to justify the issuing of a license. There is no controversy as to the age of the applicant, and the written consent of the mother would indicate at once that she was under 18 years of age, as such consent is not required when the parties are over 18 years of age. Our opinion is that the issuing of the license upon the written consent of the mother alone, and without the written consent of the father, was not a compliance with the statute. The consent of the persons named in the statute, and in the order named, should be obtained. If a child is not residing with its father, but is residing with its mother, then the written consent of the latter is sufficient, and so on with the others named. The father is considered in law as the head of the household, and is entitled preferentially to the custody of his child; his right being superior to that of the mother. He is the child's natural guardian. 29 Cyc. 1588; Ely v Gammel, 52 Ala. 584; Donk v. Leavitt, 109 Ill.App. 385; Gates v. Renfroe, 7 La. Ann. 569; Bosworth v. Beiller, 2 La. Ann. 293. In the case last cited, the court said: "In case of differences between the parents as to the marriage of a minor child, the father's authority prevails." This, though, is but a general rule, and in its application, when a controversy arises between the father and mother as to the child's custody, the courts are governed by the interests of the child. We stated this principle in Newsome v. Bunch, 144 N.C. 15, 56 S.E. 509: "The father is, in the first instance, entitled to the custody of his child. But this rule of the common law has more recently been relaxed, and it has been said that, where the custody of children is the subject of dispute between different claimants, the legal rights of parents and guardians will be respected by the courts as being founded in nature and wisdom, and essential to the virtue and happiness of society; still the welfare of the infants themselves is the polar star by which the courts are to be guided to a right conclusion, and therefore they may, within certain limits, exercise a sound discretion for the benefit of the child, and in some cases will order it into the custody of a third person for good and sufficient reasons. ...