Maggett v. . Roberts

Clark, J.: When the blank signed by the Register was handed to his agent it was not a marriage license. It was a valueless piece of paper. When filled out by such agent and handed to the party who was to use it, it was then “issued.” Should either party named in the license be under eighteen years of age, any inquiry in such respect made by such agent, however diligent and careful, would not absolve the Register, from liability by failure himself to make such inquiry, it being a trust personal to him under The Code, §§1814, 1816; Cole v. Laws, 108 N. C., 185. If at the time the license was issued, i. e., was filled up and given to the party who was to be married, or'to some one for him, the person who signed it had then ceased to be Register, the paper would not be a’ valid license, and whatever deception he might be guilty of, or whatever other liability he might thereby incur, he would not be liable under The Code, §§1818, 1819, for failure to record the substance of such paper. If the issue, i. e., the filling up *74 and handing the paper previousl}'" signed to the party proposing to be married, was done not by the Register but by , an agent and at that time the Register was functus officio, the paper would be equally invalid, because lacking the signature of one then a cle facto Register, and there could be no penalty for not recording it. The marriage under an invalid license, or with no license, as has been repeatedl}' held, would be good, if valid in other resjcects. The Code, §1812; State v. Robbins, 28 N. C., 23; State v. Parker, 106 N. C., 711. The only effect of marrying a couple without a legal license is to subject the officer or minister to the penalty of $200 prescribed by The Code, §1817. State v. Parker and State v. Robbins, supra. The presumption is, of course, that the license was issued during the term of office of the person signing it, when it is in evidence that he had been an incumbent of that office. The burden is on the party asserting the contrary. Applying these principles to our case, the evidence is uncontradicted that the defendant ceased to be Register of Deeds on the 20th of December, 1886, and that the license for the marriage of William Parker and Mary Sykes was on the 25th of February, 1887, filled out and handed to Parker by the minister to whom such blanks, together with others, all signed by the defendant, had been given by the defendant to be used when needed, and for any one desiring to be married. The marriage was, of course, valid. The minister was liable for the penalty prescribed for marrying without license.. The defendant, however, could not be held liable for not recording a paper which, though signed by him, was not a license because issued after he was functus officio. The marriage of John Plarris and Cintha Garner took place on' December 22, 1886, two days after the defendant went out of office. The presumption was that the license *75 was issued when the defendant was in office and, if so, lie ivas liable to the penalty sued for on account of his failure to record the substance of the license at the time of issue. The mere fact that the marriage was solemnized two days after the date when the defendant went out of office was not sufficient evidence of itself and unsupported to go to the jury to rebut the presumption that it was legally issued, i. e., during his term. It was error to refuse the plaintiff’s prayer to that effect. When this case was here on a former appeal, 108 N. C.,. 174, the Court held, citing Bowles v. Cochran, 93 N. C., 398, that the Court below should have sustained the demurrer to the third cause of action for failure to allege that the license to a person under eighteen years of age was issued “ knowingly or without reasonable inquiry.” When the ease subsequently came up for trial below, the Court excluded any evidence upon that cause of action upon the ground that it was res judicata. This was error. The Court below, in accordance with the opinion here, should have reversed the former action of that Court and have entered judgment sustaining the demurrer, and thereupon the plaintiff might have been permitted to amend by inserting those words. The Code, §§272 and 273. There wars no adjudication here beyond the ruling that there was error in not having sustained the demurrer below. Even had the Court below, either before or after the appeal, sustained the demurrer and dismissed the action, this judgment, being not upon the merits but merely for omission of a material allegation in the complaint, could not be pleaded as res judicata to a new action brought to enforce the same right. Gould on Pleading, 445. A fortiori there is not res judicata when the same action is pending and no judgment on the demurrer has yet been entered up. The omission of the material allegation that the license was issued for the mar *76 riage of a person under eighteen years of age, “ knowingly and without reasonable inquiry,” seems to have been due to the fact that the copy of the license appended to the 'complaint, as an exhibit, recites the age of the female at sixteen. This raises a very strong presumption that the license was issued “ knowingly,” but it is not conclusive, as it may be shown that such entry was inadvertent, or was a mere clerical error, or that the girl, in fact, was over eighteen. At any rate, it is not an allegation, as required, but a mere •inference to be drawn, and therefore demurrable on that ground as argumentative. As the case goes back, however, it is proper to say that an amendment now by the Court below to make the allegation direct, if asked for by the plaintiff, would be in accordance with the spirit of The Code, especially as the plaintiff, by taking a nonsuit as to that cause of action, could bring a new action for the same cause within a year with the omitted words supplied in the new complaint. Per Curiam. Error.