Watters v. Watters

• Decision Date: 17 March 1915
• Docket Number: 209.
• Parties: WATTERS v. WATTERS.
• Court: North Carolina Supreme Court

84 S.E. 703

168 N.C. 411

WATTERS v. WATTERS.

No. 209.

Supreme Court of North Carolina

March 17, 1915

Appeal from Superior Court, Duplin County; Daniels, Judge.

Action by W. L. Watters against Lula Watters. Judgment for defendant, and plaintiff appeals. No error.

Stevens & Beasley, of Warsaw, for appellant.

Thad Jones, of Kenansville, for appellee.

CLARK C.J.

This action was instituted August, 1911, to declare void a marriage celebrated between the plaintiff and defendant on July 28, 1895, upon the ground that, at the time of the marriage, the defendant, Lula Watters, was incapable of making or entering into the contract of marriage, for the want of will or understanding. The plaintiff lived with the defendant from the date of the marriage till September, 1903 at which time she was declared a lunatic and placed in a hospital at Goldsboro, where she has remained since, demented and incurable. While the plaintiff lived with his wife she became the mother of five children. There was evidence on the part of the defendant that, at the date of the marriage, she had sufficient mental understanding to make and enter into a marriage contract. There was also evidence that on the date of the marriage she was weak-minded and that her condition grew worse until she was finally sent to the hospital. Upon the issue submitted to the jury, they found that the defendant, on the date of her marriage, had sufficient mental understanding to make and enter into a marriage contract.

There are two exceptions, both to the charge. There is, however only one point which is clearly presented by the second exception, which is because the court charged "If the jury shall find from the evidence that the defendant's mind was so weak at the time she was married to the plaintiff that she was not able to understand the marriage contract, and that she did not have sufficient mental capacity to understand the relations into which she was then entering, and that the plaintiff, at the time, was not aware of her mental condition, and that he afterwards discovered her mental condition, and that, after discovering the same, he continued to live with her, and to have children by her, then the plaintiff would be estopped to bring and maintain this suit, and the jury will answer the first issue 'No.' "

Rev. § 2083, "Who may not marry," specifies the instances in which parties are forbidden to marry, and that such marriages "shall be void," naming, among the instances, "between persons either of whom is at the time * * * incapable of contracting for want of will or understanding," but mentions also, among others, where the male person is under 16 or the female person is under 14 years of age; and there is this proviso to the whole section:

"No marriage followed by cohabitation and birth of issue shall be declared void after the death of either of the parties for any of the causes stated in this section, except for that one of the parties was a white person and the other a negro or an Indian or of negro or Indian descent to the third generation, inclusive, and for bigamy."

It will be seen from this that the only marriages that are absolutely void are those in the proviso. As to the others, they are not void, ipso facto, but must be declared so; that is, they are voidable. In Koonce v. Wallace, 52 N.C. 194, it is said that when at the time of the marriage the female was under 14 years of age, and the parties continued to live together as man and wife after that age, this amounted to a confirmation of the marriage.

In State v. Parker, 106 N.C. 713, 11 S.E. 517, it is declared that the only marriages which were absolutely void are those between a white person and a negro or an Indian and bigamous marriages; the others need to be declared void. If the parties, after arriving at the specified age of consent, continue to live together as man and wife, this is a ratification.

This view is clearly set out in Rev. § 1560, under authority of which this action is brought, and specifies "What marriages may be declared void." It provides that the superior court, on application of "either party to a marriage contracted contrary to the prohibitions contained in the chapter entitled "Marriage," or declared void by said chapter, may declare such marriage void from the beginning, subject, nevertheless, to the proviso contained in said chapter." This recognizes that the only absolutely void marriages are those named in the proviso to Rev. § 2083, and that the others need to be "declared void." Though the declaration may be, if granted, that the marriage was void ab initio, such marriage is valid until this declaration is made by the court after hearing and trial.

In Lea v. Lea, 104 N.C. 603, 10 S.E. 488, 17 Am. St. Rep. 692, it is held that an action to have a marriage declared void, because of pre-existing disqualifications to enter into marriage relations, is an action for divorce. It is only when the marriage comes within the proviso to Rev. § 2083, that the marriage is absolutely void. In other cases the marriage can be ratified by the conduct of the party who is entitled to make the application for such divorce. The ground for such application can be put forward only by the party who has been imposed on, and who has not subsequently ratified the contract and waived the disqualification.

One who was himself competent to contract the marriage, or who has afterwards ratified it, cannot be heard to ask for a divorce on the ground of his own misconduct or fraud in...