Smith v. Smith

• Decision Date: 24 February 1890
• Citation: 11 S.E. 496,84 Ga. 440
• Parties: SMITH v. SMITH et al.
• Court: Georgia Supreme Court

11 S.E. 496

84 Ga. 440

SMITH v. SMITH et al.

Supreme Court of Georgia

February 24, 1890

Syllabus by the Court.

The marriage of a boy in his sixteenth year, although declared by the Code to be void in the sense of being absolutely void may nevertheless be ratified and comfirmed by continuing after arriving at the age of 17 years, to cohabit with his wife as such. The Code of 1863 required a license, or the publication of banns, as a condition to the validity of any marriage; but this provision of the Code was repealed by the act of December, 1863, by which repeal the common law as to informal marriages was restored. The power to make marriage by consent and cohabitation being thus reinstated, the power to complete and confirm by like means an inchoate and imperfect marriage was also revived.

Error from superior court, Muscogee county; SMITH, Judge.

C. J Thornton and A. A. Dozier, for plaintiff in error.

McNeil & Levy, for defendants in error.

BLECKLEY C.J.

The actual marriage took place in Alabama in 1880, and was celebrated by a magistrate. Nothing is suggested as to any defect in the magistrate's authority, whether from want of license or otherwise. The groom was between 15 and 16 years of age; the bride was older. Both parties resided in Georgia, in which state a license had been applied for, and refused, because of an objection interposed by the groom's mother, his father being dead. After the marriage ceremony, the parties returned immediately to Georgia, where they continued to reside. The evidence indicates that they cohabited as man and wife up to November, 1883, when the husband died, his age being then upwards of 18 years. The present suit is by the wife against the guardian of the husband and the sureties upon his bond to recover so much of the husband's estate as the guardian may be accountable for, the plaintiff claiming to be the sole heir at law of her deceased husband. The action was defended upon the ground, among others, that she was never his lawful wife, and therefore could not inherit. The statute law of Alabama as to the ages of consent is the same as our own, namely, 17 years in males and 14 in females. Tested by the law of that state, the marriage was not absolutely void, but voidable only, and until disaffirmed was a marriage in fact. Beggs v. State, 55 Ala. 108. Our Code, (section 1710,) however, declares that "all marriages solemnized in another state, by parties intending at the time to reside in this state, shall have the same legal consequences and effect as if solemnized in this state. Parties residing in this state cannot evade any of the provisions of its laws as to marriage by going into another state for the solemnization of the marriage ceremony." The rights of the plaintiff, therefore, resulting from the marriage, and what followed thereupon, are to be measured by the laws of this state. Prior to the Code of 1863, the common law prevailed here as to the validity of the marriage relation established by mere act of the parties without any ceremonial observances, civil or ecclesiastical. Askew v. Dupree, 30 Ga. 173. Provisions contained in penal statutes treated the marriage of idiots or lunatics as void, and expressly declared polygamous and inter-Levitical marriages void. Cobb, Dig. 814, 818, 819. By the Act of 1806 (Id. 225) the issue of divorced parents in all cases were declared legitimate. The grounds of divorce remained as at common law (Head v. Head, 2 Ga. 191) until 1850. By an act of that year (Cobb, Dig. 226) the antenuptial causes of total divorce recognized were the following: Intermarriages within the Levitical degrees of consanguinity or affinity; mental incapacity; impotency; force, menaces, or duress; pregnancy of the wife unknown to the husband. These same causes were recognized in the Code of 1863, with two changes, the first substituting "prohibited degrees" for "Levitical degrees," and the second introducing "fraud" as an additional ground. Code 1863, § 1670. By that Code, which went into effect on the 1st day of January, the following provisions on the subject of marriage (with others not material to this discussion) became part of our written law, viz.: "Sec. 1653. To constitute a valid marriage in this state, there must be (1) parties able to contract; (2) an actual contract; (3) consummation according to law. Sec. 1654. To be able to contract marriage, a person must be of sound mind; if a male at least 17 years of age, and if a female at least 14 years of age, and laboring under neither of the following disabilities, viz.: (1) Previous marriage undissolved; (2) nearness of relationship by blood or marriage, as hereinafter explained; (3) impotency. Sec. 1655. Persons related by consanguinity within the fourth degree of the civil law are prohibited from intermarrying. Marriages between persons related by affinity in the following manner are prohibited, viz.: A man shall not marry his step-mother, or mother-in-law, or widow of his uncle, or daughter-in-law, or step-daughter, or grand-daughter of his wife. A woman shall not marry her corresponding relatives. Marriages within the degrees prohibited by this section are incestuous. Sec. 1656. To constitute an actual contract of marriage, the parties must be consenting thereto voluntarily, and without any fraud practiced on either. Drunkenness at the time of marriage, brought about by art or contrivance to induce consent, shall be held a fraud. Sec. 1657. Marriages of persons unable to contract, or unwilling to contract, or fraudulently induced to contract, are void. The issue of such marriages, before they are annulled and declared void by a competent court, are legitimate. In the latter two cases, however, a subsequent consent and ratification of the marriage, freely and voluntarily made, accompanied by cohabitation as husband and wife, shall render valid the marriage. Sec. 1658. To render valid a marriage in this state, there must be either a license previously granted by the proper officer authorizing such marriage, or a publication of the banns of marriage in a neighboring church, in the presence of the congregation, for at least three Sabbath days prior to its solemnization."

The Code, by those provisions, innovated upon the common law in the following particulars: (1) It raised the age of consent for males from 14 to 17, and for females from 12 to 14; (2) it brought first cousins, etc., within the prohibited degrees of consanguinity; (3) it virtually obliterated the distinction between canonical and civil disabilities, and consequently between void and voidable marriages; and (4) it exacted license, or the publication of banns, as a condition to the validity of any marriage whatsoever, and thereby made marriage impossible without some preliminary from the state or the church. For there to be any marriage at all which the law would treat as valid, it had to take place under a license, or after the publication of banns. In the absence of both these preliminaries, no matrimonial connection could be formed, however competent the parties might be to assume the bonds of wedlock, or however free and voluntary might be their action in attempting to do so. By applying the one word "void" to all the enumerated instances of marriages, the intention, no doubt, was to use it in the same legal sense as to each and every instance enumerated. The safest and most probable construction is that the sense contemplated was the strict and comprehensive one of utter nullity. This construction is borne out in some degree by what is said in section 1682, as to the effect of divorce "A total divorce annuls the marriage from the time of its rendition, except it be for a cause rendering the marriage void originally, but in no case of divorce shall the issue be rendered bastards, except in case of pregnancy of the wife at the time of the marriage." This use of the words, "except it be for a cause rendering the marriage void originally," carries the implication that any such marriage would be so utterly void as to require no judgment to dissolve or annul it. Still there is some obstacle to this construction, for, though canonical impediments rendered marriages voidable only, yet, "if the cause existed previous to the marriage, and was such a one as rendered the marriage unlawful ab initio, as consanguinity, corporal imbecility, or the like, in this...