Taylor v. White

• Decision Date: 03 October 1912
• Court: North Carolina Supreme Court
• Parties: TAYLOR . v. WHITE.

75 S.E. 941

(160 N.C. 38)

TAYLOR .

v.WHITE.

Supreme Court of North Carolina.

Oct. 3, 1912.

1. Marriage (§ 60^*) —Annulment — Prior Existing Marriage—Nature of Action.

An action to annul a marriage on account of defendant's prior existing marriage is not technically an action for divorce, though alimony pendente lite may be allowed; and hence Revisal 1905, § 1563, which limits the time within which a complaint for divorce may be filed, is inapplicable.

[Ed. Note.—For other cases, see Marriage, Cent. Dig. §§ 125-135; Dec. Dig. § 60.*]

2. Marriage (§ 58*)—Validity—Effect o.n Subsequent Marriage.

A former marriage, which has been decreed to have been void because induced under duress, was void ab initio, and hence does not afford ground for annulment of a later marriage between one of the parties and a third person, though such decree was rendered after the second marriage.

[Ed. Note.—For other cases, see Marriage, Cent. Dig. §§ 115-123; Dec. Dig. § 58.*]

3. Marriage (§ 67*)— Annulment—Decree— Conclusiveness.

A decree annulling a marriage on the ground that it was entered into under duress is conclusive upon the parties, unless impeached in a direct proceeding for fraud or collusion.

[Ed. Note.—For other cases, see Marriage, Cent. Dig. § 140; Dec. Dig. § 67.*]

Appeal from Superior Court, Sampson County; Allen, Judge.

Action by Lucy Taylor against N. D. White. Judgment for plaintiff, and defendant appeals. Reversed.

George E. Butler, of Clinton, and N. D. White, for appellant.

Fowler & Crumpler, of Clinton, for appellee.

CLARK, C. J. This is an action brought by the plaintiff in her maiden name for the annulment of her marriage to the defend ant, upon the ground that it was void because the defendant at the time of the ceremony had a living wife.

This is not technically an action for divorce, though in a general way it comes under that heading to the extent that alimony pendente lite may be allowed. Lea v. Lea, 104 N. C. 603, 10 S. E. 488, 17 Am. St. Rep. 692. We must deny the motion made by the defendant to dismiss for failure to give the affidavit required by section 1563, Revisal 1905, for that applies strictly to divorces; for the requirement that the facts must ''have existed to the plaintiff's knowledge at least six months prior to the filing of the complaint, " and that on "failure to file a petition for divorce within ninety days after the expiration of that time" the plaintiff shall forfeit the right of action, is intended to prevent hasty action for divorce, and to give the parties opportunity for reconciliation, and to prevent bad faith and collusion. Holloman v. Holloman, 127 N. C. 15, 37 S. E. 68; Nichols v. Nichols, 128 N. C. 108, 38 S. E. 296. Those reasons do not apply to a void marriage. It is true that such action for annulment and declaring a marriage void ab initio under Revisal, § 1560, comes under the general head of "Divorce" in the Code (chapter 31), and is so styled in Johnson v. Kincade, 37 N. C. 470, yet it has broad features of difference from the general action of divorce, which, technically speaking, is based upon a valid marriage.

In this case the ground for annulment is the allegation that the defendant, at the date of his marriage to the plaintiff in December, 1910, was the husband of one Georgia A. White. The judgment roll of the superior court of Edgecombe county at September term, 1911, was placed in evidence, showing that in a properly constituted action between said N. D. White and his alleged former wife, Georgia A. White, upon issues submitted to the jury, it was found that said N. D. White had been "compelled to marry the defendant, Georgia A. White, against his will, that said marriage was void, and that he had never lived with her as her husband after said alleged marriage, " and thereupon judgment was entered that "the marriage ceremony performed by which N. D. White and Georgia A. White were declared man and wife is and was absolutely void, and that said bonds of matrimony are hereby annulled, and declared null and void ab initio. G. W. Ward, Judge presiding."

It is true that said decree was entered subsequently to the marriage of N. D. White to this plaintiff; but, as the decree decides and cannot be controverted, there was never any valid marriage between N. D. White and Georgia A. White, and he was a single man at the time of his marriage to this plaintiff. While this plaintiff was not a party to that action, the decree declaring thestatus of the parties to that action is conclusive, unless impeached by a direct proceeding for fraud or collusion. "All marriages procured by force or fraud, or involving palpable error, are void; for here the element of mutual consent is wanting so essential to...