Opinion
7 Div. 105.
April 14, 1921.
Appeal from Circuit Court, Etowah County; Woodson J. Martin, Judge.
Joe F. Duke and Hugh White, both of Gadsden, for appellant.
Court erred in sustaining the demurrers to the bill, as the age of consent is placed at 16 years. Acts 1915, p. 137. The fraud alleged was sufficient. 26 Cyc. 901; 102 Ala. 430, 15 So. 247; 84 Ala. 262, 4 So. 137; 80 Ala. 148.
W. J. Boykin, of Gadsden, for appellee.
The age of consent is 14 years. Section 4879, Code 1907. Written consent, as prescribed by section 4885, Code 1907, is for the protection of the probate judge. Fraud alleged is not available as a ground for divorce. 141 Ala. 590, 37 So. 638; 127 Ala. 580, 30 So. 524.
This bill was filed by appellant seeking the annulment of her marriage with appellee, and from the decree sustaining demurrers thereto she prosecutes this appeal.
The bill as last amended alleges the age of complainant as 15 years and that of respondent at 25, and that on March 1, 1920, a marriage license was issued, and the marriage ceremony duly performed, but that very soon thereafter the complainant's father learned of the marriage, and after talking with complainant she abandoned the respondent and returned to her father's home. The bill further shows that complainant forged her father's name to an instrument in writing purporting to be the consent of the father to the marriage of complainant with respondent, and it is alleged in a very general way that she did this on account of respondent's power of persuasion and constraint, complainant being of immature years and judgment.
Under the laws of this state (section 4879, Code 1907), the parties were of sufficient age to enter into the marriage contract, but under the provisions of section 4885 of the Code of 1907 the consent of the parent was required as a condition to the issuance of the license, and section 4888 prescribes a penalty for the issuance of a license without compliance with the provisions of this chapter of the Code.
It is recognized as a general rule that, unless a statute expressly declares a marriage contracted without the necessary consent of the parents, or other statutory requirements, to be a nullity, the statute is to be construed as directory only in this respect, so that the marriage will be held valid notwithstanding the disobedience of the statute may entail penalties on the officiating authorities. 18 R. C. L. § 24, p. 404; Browning v. Browning, 89 Kan. 98, 130 P. 852, L.R.A. 1916C, 737, Ann. Cas. 1914C, 1288; Reifschneider v. Reifschneider, 241 Ill. 92, 89 N.E. 255; Matter of Hollopeter, 52 Wn. 41, 100 P. 159, 21 L.R.A. (N.S.) 847, 132 Am. St. Rep. 952, 17 Ann. Cas. 91; Hunt v. Hunt, 23 Okl. 490, 100 P. 541, 22 L.R.A. (N.S.) 1202.
Though the question was not directly involved, yet the same principle was recognized by this court in Beggs v. State, 55 Ala. 108. See, also, in this connection, Owen v. Coffey, 201 Ala. 531, 78 So. 885.
There is nothing in the statute invalidating such a marriage, but penalties are prescribed to be fastened upon the officials for the issuing of licenses without compliance with these statutory provisions, and therefore the general rule above stated is applicable in this state. The marriage was not invalid because of the issuance of the license without the written consent of the parent.
It is manifest that the general language of the bill as to fraud is entirely insufficient for the annulment of the marriage upon this ground (26 Cyc. 901, 905, 906); and, indeed, it would appear from its averments that the fraud is rested largely upon the overpersuasion by respondent upon complainant to forge her father's name to the written consent, and not to the marriage contract itself. We are persuaded that the bill fails to set up sufficient facts upon which the charge of fraud could be rested for the annulment of the marriage, and that the demurrers taking this point were properly sustained.
The decree will accordingly be affirmed.
Affirmed.
ANDERSON, C. J., and SAYRE and MILLER, JJ., concur.