State ex rel. Scott v. Lowell

• Citation: 78 Minn. 166,80 N.W. 877
• Parties: STATE ex rel. SCOTT v. LOWELL et al.
• Decision Date: 27 November 1899
• Court: Supreme Court of Minnesota (US)

78 Minn. 166

80 N.W. 877

STATE ex rel. SCOTT

v.LOWELL et al.

Supreme Court of Minnesota.

Nov. 27, 1899.

Appeal from district court, Hennepin county; Frank C. Brooks, Judge.

Application by the state, on the relation of Alex. W. Scott, in behalf of Sadie Scott, for a writ of habeas corpus against Fred L. Lowell and Phil T. Megaarden. Judgment for respondents. On a trial de novo, judgment entered for relator.

Syllabus by the Court

1. Section 4769, Gen. St. 1894, relating to age of competency for contracting marriage, construed, and held, that the marriage of a person who has not reached the age of statutory competency, but is competent by the common law, is not void, but voidable only by a judicial decree of nullity at the election of the party under the age of consent, to be exercised at any time before reaching such age, or afterwards if the parties have not voluntarily cohabited after reaching such age.

2. Such a marriage being voidable, it is treated as valid for all civil purposes until so set aside.

3. Marriage emancipates a minor child from parental control. Accordingly it is held that, where a girl only 13 years and 11 months old marries, her father has no legal right to restrain her from living with her husband, if she so elects.

Chas. G. Laybourn, for relator.

Jas. N. Bearnes, for respondents.

START, C. J.

On October 18, 1899, the relator, Alexander W. Scott, a man 32 years of age, and Sadie Lowell, a girl then only 13 years and 11 months old, the daughter of the respondent Fred L. Lowell, were married, without the consent of her parents, in due form, by an ordained minister of the gospel. upon the presentation of a license in due form, issued by the clerk of the proper county. Cohabitation as husband and wife followed the marriage, but on the next day thereafter the father went to the house of the husband, and forcibly took his daughter away, against her will and wishes, and detained her. Thereupon a writ of habeas corpus in her behalf was sued out of the district court for the county of Hennepin, on the relation of her husband. Upon a hearing on the return of the writ the court discharged the writ, and remanded the wife to the custody and control of her father, from which order the relator appealed to this court. The cause was here heard de novo, pursuant to Laws 1895, c. 327. A referee was appointed to take and report the evidence, who did so. The evidence establishes the facts we have already stated, and, further, that the husband is an industrious man, who has a home, and is able to support a wife and family, and that his wife is ready and anxious to return to and live with him as her husband, if relieved from the restraint of her father. The wisdom of this marriage, or the propriety of the relator's conduct in inducing this young girl to marry him, are questions which it is not our province to discuss or characterize. Moralize as we may, the fact remains that the parties were married, and the marriage has been consummated; hence we are now simply to inquire dispassionately as to the legal status of the parties. The question presented by the record is, was this marriage void or voidable, and, if the latter, did it emancipate the wife from the custody of her father?

The common law established the age of consent to the marriage contract at 14 years for males and 12 years for females, but our statute (Gen. St. 1894, § 4769) provides ‘that every male person who has attained the full age of eighteen years and every female who has attained the full age of fifteen years, is capable in law of contracting marriage if otherwise competent.’ But the statute does not declare that, if a marriage is entered into when one or both of the parties are under the age limit prescribed, the marriage shall be void. It does,...