Sims Ex Rel. Sprinkle v. Sims

Clark, J.: On November 11, 1893, Nancy E. Sims, under appropriate proceedings begun sometime previous, was duly found by tlie jury to be mentally imbecile. The jury in the present case find that the alleged marriage with the defendant took place on the 14th of November, 1893. Such marriage is absolutely void ab initio and can be at any time so declared by the Courts. Crump v. Morgan, 38 N. C., 91, which has been often cited and approved (Wo-mack’s Digest No. 2005) and of late years in Webber v. Webber, 79 N. C., at p. 576 and Baity v. Oranfill, 91 N. C., at p. 298. The power of the Courts to declare marriages a nullity for incapacity of one of the parties, though not an adjudged lunatic at the time of the marriage, is also held in Johnson v. Kincade, 37 N. C., 470; Setzer v. Setzer, 97 N. C., 252; Lea v. Lea, 104 N. C., 603. This might be' done even after the death of parties (Gathings v. Williams, 27 N. C., 487, though issue could not be bastardised) but it must be done in a direct proceeding, as in this case, and not incidentally. Williamson v. Williams, 56 N. C., 446. Such action is for a divorce (Lea v. Lea, supra) and all actions for a lunatic can be brought either in the name of the guardian or in the name of the lunatic by the guardian. Cnmp v. Morgan, supra; Shaw, Guardian v. Burney, 36 N. C., 148. W. L. Sprinkle, son of Nancy E. Sims, was duly appointed her guardian after the aforesaid inquisition of lunacy, and such proceedings and orders are “valid until reversed or superseded.” Bethea v. M’Lennon, 23 N. C., 523. The *300 ex parte proceedings brought by the husband in 1895 to have the wife declared sane 'were without any notice or service upon the guardian to whom the law had confided the protection of her rights, and hence were a nullity, Code, Section 217 (3), as was also the subsequent order, founded thereon, removing him without notice. Indeed, the marriage at the time of a legally declared lunacy, being a nullity, could only have been remedied by proceedings to set aside the inquisition of lunacy for fraud or other good ground, or by a new marriage if the lunatic is since found to be restored. The void marriage on account of lunacy could not be cured merely by cohabitation after restoration. Marriages entered into by parties under the legal age however, being not void but voidable, can be validated by cohabitation after arrival at the marriageable age. State v. Parker, 106 N. C., 711; Koonce v. Wallace, 52 N. C., 194. His Plonor correctly adjudged that W. R. Sprinkle was authorized to bring this action. There is no other exception. As to the argument that the record does not affirmatively show that the report of the jury had been “received and confirmed” it is not required. The Code, Section 1670 only requires the Clerk to “file and record” it. But if it had been a case in which the Court was empowered to confirm the report, as the Clerk acted on it by appointing the guardian, the confirmation would have been presumed in the absence of evidence to the contrary, on the maxim omnia presumuntur rite acta. The jury found, further, that Nancy E. Sims did not have mental capacity to enter into the marriage with the defendant on the 14th of November, 1893, but this was unnecessary, as the marriage with a declared lunatic was ipso facto void. Crump v. Morgan, supra. Affirmed.