Parks Ex Rel. Parks v. Parks

ClakksoN, J.

At the close of plaintiff’s evidence, the defendant in the court below made a motion for judgment as in case of nonsuit. C. S., 567. The court below sustained the motion and in this we can see no error.

The plaintiff, Graham Hartwell Parks, was under 17 years of age and the defendant Bertha Marie Bowman Parks was 20 years of age when they were married in Hillsville, Virginia, on 20 May, 1939. The plaintiff alleged in his complaint that he was under 17 years of age at the time of the attempted marriage contract and “under the laws of the State of Virginia, was incapable of contracting a marriage, and plaintiff is informed and believes that said attempted marriage is voidable and subject to be annulled upon the application of the party aggrieved. That the said Graham Hartwell Parks desires to have the said attempted ceremony annulled, vacated and set aside and the marriage contract declared and adjudged invalid and of no effect.”

The plaintiff and defendant were both residents of North Carolina. N. C. Code (1939), Michie, sec. 2494, in part, is as follows: “All unmarried male persons of sixteen years, or upwards, of age, and all unmarried females of sixteen years, or upwards, of age, may lawfully marry, except as hereinafter forbidden,” etc.

Under the law of Virginia plaintiff was under the marriageable age and defendant was of marriageable age. They came back to North Carolina and lived as man and wife. Under the law of North Carolina, the plaintiff, who was a resident of North Carolina, was of marriageable age.

In Koonce v. Wallace, 52 N. C., 194, it is held: “"Where, at the time of a marriage, the female was under the age of fourteen, and the parties continued to live together as man and wife, after she reached that age, it was held that there is nothing in the statute, Rev. Code, ch. 69 (68), sec. 14 (N. C. Code, 1939 [Michie], sec. 2495), to abrogate the rule of common law, that such living together as man and wife, after the age of consent, amounted to a confirmation of the marriage.”

In 18 R. C. L., “Marriage,” sec. 69, p. 440, is the following: “While it is true that ordinary contracts entered into in violation of positive law are nullities and unenforceable, the rule has not, at least not by a uniform trend of decisions, been held applicable to marriage contracts, for the sacred nature of the relation, and obvious reasons of sound public policy, forbid that the person who enters into a marriage contract, though prohibited by law, may arbitrarily, and without a decree of dissolution, determine for himself the validity of the contract and reject or perform it at his pleasure. . . . (p. 441) The rule which generally prevails in jurisdictions where the marriage relation is regulated by statute is that a marriage where one of the parties is under the age of statutory consent but who is competent by the common law is not void, but merely voidable, in the absence of any provision expressly declaring that it shall be absolutely void, and it is valid for all civil purposes, until annulled by a judicial decree. . . . (Sec. 79, p. 448) Even where a marriage was at the time it was contracted absolutely void the courts are inclined to hold that it may be ratified and become a lawful and binding marriage as soon as the cause for its invalidity is removed.” See Pridgen v. Pridgen, 203 N. C., 533 (537), 104 A. L. R., 7.

In S. v. Kennedy, 76 N. C., 251, it is held: “A marriage, solemnized in a State whose laws permit such marriage, between a Negro and a white person domiciled in this State and who leave it for the purpose of evading its law and with intent to return, is not valid in this State.” Tbis decision is founded on the fact that the law of this State makes such a marriage void ab initio, not merely voidable, as was the instant case.

In Sawyer v. Slack, 196 N. C., 697 (700), we find: “It has been held by the court that a marriage which is not void, ab initio, but merely voidable, because one of the parties thereto was at its date under the age at which he or she might lawfully marry, may be ratified by the subsequent conduct of the parties in recognition of the marriage. S. v. Parker, 106 N. C., 711, 11 S. E., 517; Koonce v. Wallace, 52 N. C., 194.”

In Watters v. Watters, 168 N. C., 411, this Court in passing upon Rev. 2083 (now C. S., 2495), pointed out that the only void marriages in North Carolina are (1) interracial marriages (white-Negro, white-Indian), and (2) bigamous marriages; all other marriages are at most only voidable. Hence, it follows that the instant marriage, being voidable only, was subject to confirmation and ratification by the husband, and the evidence shows such confirmation and ratification resulting in a valid marriage. The plaintiff alleges that under the law of Virginia the “attempted marriage is voidable.” S. 5090, Va. Code of 1936 (Michie); Payne v. Payne, 295 Fed., 970, 972. The position here taken is supported in whole or in part by the following authorities: DeFur v. DeFur, 156 Tenn., 634, 4 S. W. (2d), 341; Portwood v. Portwood (Texas, 937), 109 S. W. (2d), 515; Jiminez v. Jiminez, 93 N. J. Eq., 257, 116 A., 788; Bays v. Bays, 174 N. Y. S., 212.

Plaintiff, being under 17 years of age, under the law of North Carolina, if he had married the defendant, who was 20 years of age, in North Carolina, the marriage would be valid. The laws of this State allowed him to marry at 16 years. The parties, after marrying in Virginia, came back to this State and cohabited as man and wife. The plaintiff by so doing ratified the voidable marriage which took place in Virginia, and thus became a valid marriage. Under the North Carolina statute plaintiff had the right and was of sufficient age to marry defendant in North Carolina and when he cohabited with defendant it was a ratification of his prior voidable marriage in Virginia. If a child had been born under the facts and circumstances of this case, it would have been a harsh decision to have declared the child illegitimate. From the view we take of this case, the exceptions and assignments of error as to cohabitation in this State cannot be sustained. For the reasons given, the judgment of the court below is

Affirmed.