Summary
In Ellis v. Ellis, 152 Miss. 836, 119 So. 304, the surviving brother filed a bill to have adjudged as void, a marriage contracted by the deceased with one Miss Simmons, on the ground that the decedent was insane at the time, and that there was no ceremonial marriage.
Summary of this case from Case v. CaseOpinion
No. 27448.
December 17, 1928. Suggestion of Error Overruled January 21, 1929.
1. MARRIAGE. State may, under proper legislation, declare what marriages between its citizens shall be void and those that are merely voidable.
Marriage is fully under public regulation, and the state, under proper legislation, may declare what marriages between its own citizens shall be void and those that are merely voidable.
2. MARRIAGE. Voidable marriage can be attacked only in direct proceeding during lifetime of parties.
A voidable marriage is valid for all purposes until avoided or annulled, and cannot be attacked collaterally, but only in a direct proceeding during the lifetime of the parties.
3. MARRIAGE. Brother of decedent was without right after death of decedent to attack marriage on ground of insanity ( Hemingway's Code 1927, sections 2725-2727).
Brother of a decedent was without right after death of decedent to attack marriage on the ground of insanity, since such a marriage was merely voidable as not coming within classification of void, marriages under Hemingway's Code 1927, sections 2725-2727 (Code 1906, sections 3242-3244).
4. MARRIAGE. Bill to annul marriage of deceased brother, alleging no marriage ceremony was ever in fact performed, stated cause of action against demurrer.
Bill for the purpose of annulling marriage of complainant's brother after his death, allegation that no marriage ceremony was ever in fact performed between deceased and one claiming as his wife, but that another person was substituted in lieu of deceased, held to state a cause of action as against demurrer.
APPEAL from chancery court of Hinds county, HON. V.J. STRICKER, Chancellor.
Powell, Harper Jiggitts, for appellant.
What this appellant seeks to do by his amended bill is to have the courts of Mississippi officially go on record to the effect that no marriage between George B. Ellis and Lottie Simmons Ellis ever took place in the eyes of the law. It was not an attempt to have something set aside that had been done, but it was designated to have the attempted effort of Lottie Simmons declared absolutely void, just as though no such effort had ever been made. In other words, this appellant was not attempting to have a marriage set aside but to have it determined that there was never any marriage at all.
The appellee in her demurrers set up that because at the time this amended bill was filed George B. Ellis was dead that this appellant could not have a judicial determination of the fact that no marriage was ever contracted. We say that this attack is a direct attack and that he had the right to so attack this marriage.
We say that irrespective of the fact that George B. Ellis was dead, that this appellant, who acquired property rights through the death of said George B. Ellis, could ask the court to judicially determine that the said George B. Ellis was never married to Lottie Simmons. The death of a party cannot breathe life into an absolutely void thing. We hardly think that appellee will dispute the fact that if the said George B. Ellis was now alive that he could show through a judicial proceeding that the said Lottie Simmons was an imposter and not his wife, but appellee does not contend that because George B. Ellis is dead that no one else can show the said Lottie Simmons in her true light. 26 Cyc. 900.
When a marriage is void ab initio no civil rights can be secured thereby, and it may be inquired of in any court where rights asserted under it, although the parties are dead. 18 R.C.L. 446; Medlock v. Merritt, 102 Ga. 2121, 29 S.E. 185; Orchardson v. Cofield, 171 Ill. 14, 49 N.E. 197; Fister v. Means, 1 Spears Equity 569, 42 Am. Dec. 332; Williams v. McKeane, 193 Ill. App. 615; Guthery v. Ball (Mo.), 2285 S.W. 887; Wiley v. Wiley (Ind.), 125 N.E. 252; Fearnon v. Jones (Okla.), 126 P. 1015 at 1018; Newlin's estate, 231 P. 315, 80 A. 225; Crawford v. Crawford (Ga.), 77 S.E. 826; Henderson v. Resser, 265 Mo. 718, 178 S.W. 175; Jenkins v. Jenkins Heirs, 2 Dana, 102, 26 Am. Dec. 437; Bell v. Bennett, 73 Ga. 784; Cartwright v. McGown, 121 Ill. 388 at 395; Waymire, Gdn. of Niles v. Jetmore, 22 Ohio St. 271; Southern v. U.S. (Dist. Court Ark.), 12 F.2d 936.
The marriage of one mentally incompetent is void and according to the weight of authority where for want of the requisite mental capacity on the part of one of the parties there has been no consent to the marriage contract, the purported marriage is an absolute nullity and will be so decreed in any court and in any proceeding where the question may arise, whether during the lifetime of both of the parties or after the death of either of them. 2 Schouler, Marriage, Divorce, Separation Domestic Relations (6 Ed.), p. 1374, sec. 1107.
We have found no cases in Mississippi directly in point with this case. However the case of Ward v. Duleny, 23 Miss. 410, we think is in point on the proposition now under discussion, although it was decided prior to our present statute on divorce. See, also, Ladner v. Pigford, 138 Miss. 461; Rice v. Building Loan Association, 145 Miss. 1; McCallum v. Sphinx, 129 Miss. 237; Colored K. of P. v. Tucker, 92 Miss. 501; Sullivan v. Grand Lodge K. of P., 97 Miss. 218; Thomas v. Clay, 120 Miss. 190; Spears v. Barton, 31 Miss. 547; Wilkie v. Collins, 48 Miss. 496; Clarkes v. Clark, 115 Miss. 726; Howard v. Kelly, 111 Miss. 285.
Teat Cox, for appellee.
Our supreme court is now confronted, for the first time, with a legal proposition of whether or not a collateral attack may be made upon the marriage after the death of one of the spouses in order to determine the property rights with the surviving spouse. This brings before the court at once the very important question as to whether or not upon the death of a spouse the collateral relatives may in a chancery court proceeding attach the validity of the marriage of the deceased spouse and involve the question of the sanity of the deceased, the moral character, the good name, the legitimacy of children, and other sacred considerations, in order that such collateral relative may participate in the estate of the deceased spouse. Upon this question we have undertaken to gather the controlling authorities, and from our investigation the authorities seem to be uniform and unbroken, that marriage is a personal relation and the rights are between the parties alone, and no right of action exists in a third person to collaterally attack the marriage. 2 Schoular, Marriage and Divorce, secs. 1147-48; 18 R.C.L. 440, 446; L.R.A. 1916C, 691, 693, 702, 752; 38 C.J. 1348, 1353; Keezer on Marriage and Divorce, 332; Farley v. Farley, 94 Ga. 501; Ex parte Nolte, 269 S.W. 906; Langdon v. Hadley, 150 N.E. 783; Niland v. Niland, 126 At. 530; Hastings v. Douglass, 249 Fed. 378; Guthery v. Wetzel, 226 S.W. 626; Glenn Wife v. Grover Hollopeter, 21 L.R.A. 847; Rigley v. Rigley, 25 L.R.A. 800; Gould v. Gould, 2 L.R.A. 531.
At common law an insane person could not contract marriage and such was void ab initio and might be attacked directly or collaterally in any proceeding.
Many of the states in the Union have modified the common law by statutes. This is true in the state of Mississippi. See Wilson v. Wilson, 104 Miss. 347, 61 So. 453; Smith v. Smith, 47 Miss. 211; Lyannes v. Lyannes, 177 N.W. 683; Reed v. Reed, 175 N.Y. 264 (1919); Kuehne v. Kuehne, 201 N.W. 506; Hempel v. Hempel, 174 Wis. 332, 181 N.W. 749, 183 N.W. 258; Brainen v. Brainen (1912), 79 N.J. Eq. 270, 82 A. 327; Buffum v. Buffum (1916), 86 N.J. Eq. 119, 97 A. 256; Daniels v. Margulies (1923), 95 N.J. Ed. 9, 121 A. 772.
Argued orally by A.Y. Harper, for appellant, and J.A. Teat, for appellee.
Appellant filed a bill in the chancery court, alleging, substantially, that he is the surviving brother of George B. Ellis, deceased, who, in his lifetime, is alleged to have intermarried with Miss Lottie Simmons, appellee, here; that said marriage was void ab initio, for the reason that the said decedent was insane at the date of said marriage, and that but for said alleged marriage of decedent with appellee this appellant would have inherited the property of decedent.
The bill further alleges that no valid marriage was ever consummated between the said George B. Ellis and appellee, but that another man, representing himself to be the said George B. Ellis, was substituted and went through the form of a marriage ceremony with appellee, so that appellee might thereafter claim to be the wife of decedent and inherit his property, and that decedent never lived with, or held appellee out as, his wife. The prayer of the bill was to annul the marriage.
Appellee answered the bill, and, under the new Chancery Practice Act, challenged the sufficiency of the bill by demurrer. The principal points raised by the demurrer are: First, whether a relative can make a collateral attack upon the marriage after the death of one of the spouses; and second, whether the bill states sufficient facts to warrant the court in rendering any relief whatever.
The chancellor sustained the demurrer, and dismissed the bill.
This record presents a novel case. The surviving brother seeks to annul a marriage entered into by his brother, now deceased, because of insanity of the deceased brother at the time of the marriage. It is contended by appellant that George B. Ellis, being insane at the time of the alleged marriage, was incapable of consenting to a valid marriage, and, because of such mental incapacity, the purported marriage was a nullity, and, being void, the same may be attacked any time, whether during the life of the parties or after the death of either of them. In the absence of any statute to the contrary, the weight of authority seems to uphold this contention. Marriage, however, is fully under public regulation, and the state, under proper legislation, may declare what marriages between its own citizens shall be void and those that are merely voidable. In L.R.A. 1916C, p. 702, there is a full annotation of authorities. It is there stated that: "In some jurisdictions the marriage of a person of unsound mind is declared void by express statutory provision. But the majority of statutes which deal with marriages of mental incompetents, either expressly or in effect render such marriages voidable only, and not void ab initio. Thus, where the statutes expressly declare some marriages absolutely void, and then enumerate others, including that of an insane person, which may be annulled, marriages falling within the latter class are voidable only." See, also, Mackey v. Peters, 22 App. D.C. 341; Wiser v. Lockwood, 42 Vt. 720.
We think it may be stated, as the general rule, that "a voidable marriage is valid for all purposes until avoided or annulled, and it cannot be attacked collaterally, but only in a direct proceeding during the lifetime of the parties. Hence, on the death of either, the marriage cannot be impeached, and is made good ab initio." 18 R.C.L. 447, section 77; 2 Schoula on Marriage and Divorce (6 Ed.), p. 1372.
A case similar to the case at bar was In re Gregorson, decided by the supreme court of California, 160 Cal. 21, 116 P. 60, L.R.A. 1916C, 697, Ann. Cas. 1912d 1124, in which the court held, in part, that:
"If the parties who are alone recognized by the statutes as entitled to have the marriage annulled do not, during its existence, see fit to avoid it, a stranger to the marriage should not be permitted to question its validity in a collateral proceeding." Guthery v. Wetzel, 205 Mo. App. 664, 226 S.W. 626.
Looking to the statutes and decisions of our own state, we find that, prior to the Code of 1857, the subject of insanity as a ground for divorce was dealt with as at common law. At common law the rule was that a marriage with an insane person was wholly void, because of inability to assent. It was under this rule that Ward v. Dulaney, 23 Miss. 414, was decided. Since the adoption of the Code of 1857 neither insanity nor idiocy, at the time of the marriage, has been a ground for divorce in this state, unless the party complaining did not know of such infirmity. Smith v. Smith, 47 Miss. 211; Wilson v. Wilson, 104 Miss. 347, 61 So. 453. Chapter 50 Hemingway's 1927 Code, designates what shall be considered void marriages. Section 2725, Hemingway's 1927 Code (section 3242, Code of 1906), provides that marriage within certain degrees of kinship shall be incestuous and void. Likewise, section 2726, Code of 1927 (section 3243, Code of 1906), declares that certain marriages within prohibited degrees of kinship shall be void. Section 2727, Hemingway's 1927 Code (section 3244, Code of 1906), prohibits marriages between the white and negro races, and between the white and Mongolian races. All such marriages as designated in these three sections of the Code are declared to be void. The marriage in the instant case, not falling in the said statutory classification of void marriages, would be classed as a voidable marriage, and covered by the eighth paragraph of our divorce statute providing that a divorce may be granted on the ground of "insanity or idiocy at the time of the marriage if the party complaining did not know of such infirmity." During the life of the parties no such suit was filed, and, applying the general rule as heretofore set out in this opinion, no suit can be filed to nullify said marriage after the death of the parties, on the ground of insanity, as is attempted to be done in this suit, and the chancellor was not in error in so holding.
As to the second proposition advanced by the bill and challenged by the demurrer — that no marriage ceremony was ever, in fact, performed between the deceased and appellee, but that another person was substituted in lieu of George B. Ellis — we do not agree with the chancellor. We might have to go into the realm of fiction to actually find a parallel case, but, nevertheless, there is a positive charge of fact that no such marriage ever took place with the real George B. Ellis as the groom, and that deceased in his lifetime never held appellee out as his wife. The bill, as amended, further alleges "that the said ceremony did not in fact unite the said Lottie Simmons and the said George B. Ellis in the bonds of holy matrimony for the reason that said George B. Ellis was not the man whom the said W.G. Dorroh united in marriage on said date, but that some other person, the name of whom is to your complainant unknown, but should be known by the defendant, representing himself to be George B. Ellis at the time of the said alleged ceremony, and that the said George B. Ellis was consequently never married to the said Lottie Simmons, but that the said alleged marriage was a pretended one and null and void." Great as the burden will be on appellant to support this allegation, we think it charges enough to require answer and proof.
For this error alone, the judgment of the court below is reversed, and the cause remanded to be proceeded with in accordance with this opinion.
Reversed and remanded.