Woodward v. Blake

Christianson, T. On August 15,1904, an absolute decree of divorce was entered in the district court of Wells County, in an action then properly pending therein, divorcing Plinn H. Woodward from Kate Woodward. Thereafter on September 30, 1904 said Plinn H. Woodward was married to the petitioner, Blanche S. Woodward, at Minot, North Dakota. Prom the date of such marriage the said Plinn H. Woodward and the petitioner lived together as husband and wife-up to the death of said Plinn H. Woodward, which occurred on October 22, 1916. The petitioner thereupon applied to the county court of Wells county for letters of administration of the estate of said Plinn BE. Woodward. And the three respondents, who are the children of [43] Plinn H. Woodward by his first wife, filed an answer and cross petition, wherein they asserted that the marriage solemnized at Minot, North Dakota, on September 30, 1904, was and is wholly mill and void for the reason that such marriage was prohibited by chapter 70 of the Session Laws of 1901, which reads as follows: “Marriage is dissolved only, “1. By the death of one of the parties; or “2. By judgment of a court of competent jurisdiction decreeing a divorce of the parties. “The effect of a judgment decreeing a divorce is to restore the parties to the state of unmarried persons, except that neither party to a divorce may marry within three months after the time such decree is granted.” Under the laws of this state “marriage is a personal relation arising out of a civil contract to which the consent of the parties thereto is ■essential, but the marriage relation may be entered into, maintained, annulled or dissolved only as provided by law.” Comp. Laws 1913, § 4357. The common-law marriage has not been recognized as valid in this state since July 1, 1890. See Schumacher v. Great Northern R. Co. 23 N. D. 231, 136 N. W. 85. Section 4359, Compiled Laws, declares that marriages between certain near relations shall be absolutely void. And § 4360-, Compiled Laws, provides that “a marriage contracted by a person having a former husband or wife living, if the former marriage has not been annulled «or dissolved, is illegal and void from the beginning unless such former husband or wife was absent and believed by such person to be dead for a period of five years immediately preceding.” Section 4368, Compiled Laws 1913, provides: “A marriage may be annulled by an action in the district court to obtain a decree of nullity for any of the following causes existing at the time of the marriage: “1. When the party in whose behalf it is sought to have the marriage annulled was under the age of legal consent and such marriage was contracted without the consent of his or her parent or guardian, unless after attaining the age of consent such party freely cohabited with the other as husband or wife. “2. When the former husband or wife of either party was living and the marriage with such former husband or wife was then in force. [44] “3. When either party was of unsound mind, unless such party after coming to reason freely .cohabited with the other as husband or wife. “4. When the consent of either party was obtained by fraud, unless such party afterwards will full knowledge of the facts constituting the fraud freely cohabited with the other as husband or wife. “5. When the consent of either party was obtained by force, unless such party afterwards freely cohabited with the other as husband or wife. “6. When either party was at the time of the marriage physically incapable of entering into the marriage state and such incapacity continues and appears to be incurable.” Section 4369, Compiled Laws, provides that “an action to obtain a decree of nullity of marriage for causes mentioned in the preceding section, must be commenced within the periods and by the parties as follows: “1. For causes mentioned in subdivision one, by the party to the marriage who was married under the age of legal consent, within four years after arriving at the age of consent, or by his or her parent or guardian at any time before such party has arrived at the age of legal consent. “2. For causes mentioned in subdivision 2, by either party during the life of the other, or by such former husband or wife. “3. For causes mentioned in subdivision 3, by the party injured,, or a relative or guardian of the party of unsound mind at any time before the death of either party. “4. For causes mentioned in subdivision 4, by the party injured within four years after the discovery of the facts constituting the fraud. “5. For causes mentioned in subdivisions 5 and 6, by the injured party within four years after the marriage.” It will be observed that in the section last quoted the legislature recognized certain marriages to be void and others to be voidable only. See Mickels v. Fennell, 15 N. D. 188, 107 N. W. 53. The various statutory provisions above quoted were in force at the time chapter 70 of the Laws of 1901 was enacted, but the legislature did not see fit expressly to declare a marriage entered into within the prescribed three-month period to be either void or subject to annulment. Marriage existed before statutes were enacted with respect ' thereto. It is regarded with favor by the law, and statutes should not [45] be construed so as to make a marriage null unless the legislative intent is clear and unequivocal. See 1 Bishop, Marr. Div. & Sep. §§ 432, 708. Appellant has cited a number of cases wherein marriages between a •divorced person and a third party, during the time prohibited by statute, have been held void, but an examination of the various authorities cited, however, show that the statutes construed were entirely different from that involved in this case. Many of the decisions were based upon and construed statutes wherein divorced parties were prohibited ■from contracting marriage with a third person during the time in which an appeal from the judgment might be taken. Lanham v. Lanham, 136 Wis. 360, 17 L.R.A.(N.S.) 804, 128 Am. St. Rep. 1085, 117 N. W. 787, and Wilson v. Cook, 256 Ill. 460, 43 L.R.A.(N.S.) 365, 100 N. E. 222, were based upon statutes which expressly declared a marriage contracted by a divorced person within one year after the rendition of the degree of divorce to be null and void. Re Elliott, 165 Cal. 339, 132 Pac. 439, was based upon a statute which provided that the marriage of a divorced person within a year after the rendition of the decree of divorce is “illegal and void from the beginning.” McLennan v. McLennan, 31 Or. 480, 38 L.R.A. 863, 65 Am. St. Rep. $35, 50 Pac. 802; Hooper v. Hooper, 67 Or. 187, 135 Pac. 205, 525, and Wilhite v. Wilhite, 41 Kan. 154, 21 Pac. 173, were based upon a ■statute which provided that a divorced party shall not be “capable of •contracting marriage with a third person, and if he or she does so contract, shall be liable therefor as if such decree had not been given, until the suit has been heard and determined on appeal, and if no .appeal be taken, the expiration of the period allowed by this Code to take such appeal.” No decision has heen called to our attention based upon a statute similar to that before us. The principal purpose which actuated the different legislatures in the enactment of laws prohibiting divorced persons from remarrying with others during the time in which an appeal from the judgment might be taken was to prevent the complications which might arise from such marriage in event the decree of divorce was subsequently reversed on appeal. Obviously this purpose did not enter into or actuate the deliberations of the North Dakota legislature in the enactment •of chapter 70 of the Session Laws of 1901, because at the time of the ■enactment of this statute an appeal from a judgment of divorce might' [46] be taken at any time within one year after entry thereof by default, or after written notice of the entry thereof, in case the party against whom it was entered had appeared in the action (Eev. Codes 1905, § 7204, Comp. Laws 1913, § 7820), while the prohibition upon the-remarriage of divorced persons was fixed at three months following the-date of the rendition of the decree. Nor can we believe that the legislature intended that a marriage contracted in violation of the statute-should be null and void. If it had so intended it would doubtless have-so declared in express words. Whether a party who violated the statute by remarrying within the prohibited period would be subject to punishment is a matter upon which we express no opinion. See however 1 Bishop, Marr. Div. & Sep. § 708. Some of the statutes construed in the various cases declare in terms that a marriage by a divorced person within the time in which an appeal from the judgment may be taken shall be null and void. Other statutes declare divorced persons to be incapable of contracting marriage during the prohibited period. Manifestly, decisions based upon such statutes can furnish little or-no aid in construing the statute before us. If a statute declares a marriage to be void, it is void so far as it is within legislative power to so declare. If parties are declared incapable of contracting marriage,, then no valid contract can be made by them. It has been said that the rule as to the distinction between void and voidable marriages is that certain canonical impediments render the-marriage voidable, while the “civil disabilities” affecting the capacity of the parties to enter into the contract makes the contract void abinitio, not merely voidable; such disability does not absolve a contract, already made, but they render the parties incapable of contracting afr all; they do not sunder those that are joined together, but they previously hinder the junction. 44 Am. Dec. 54, note. The North Dakota legislature had no intent to prohibit remarriage-of divorced persons during the time in which an appeal from the judgment might be taken. It did not declare such parties incapable of contracting marriage, nor did it declare marriages by such parties, during the proscribed period to be void. The judgment appealed from must be affirmed. It is so ordered.