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    Marriage and Divorce - Annulment - Marriage in Jest

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    Nadzlah Bandila
    This document summarizes a 1930 North Carolina Law Review article about a case where an infant plaintiff sought to annul her marriage. The plaintiff married the defendant in jest while attending a dance, daring each other to get married. They falsified information to obtain a marriage license in Alabama. The plaintiff alleged she never lived with the defendant and sought annulment. The court sustained the defendant's demurrer, finding that even if it had jurisdiction to annul marriages, the facts did not constitute grounds for annulment as the parties had capacity to marry under Alabama law. The majority view is that consent, not just words, is needed to form a valid marriage.

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    © All Rights Reserved
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    Marriage and Divorce - Annulment - Marriage in Jest

    Uploaded by

    Nadzlah Bandila
    60 views4 pages
    This document summarizes a 1930 North Carolina Law Review article about a case where an infant plaintiff sought to annul her marriage. The plaintiff married the defendant in jest while attending a dance, daring each other to get married. They falsified information to obtain a marriage license in Alabama. The plaintiff alleged she never lived with the defendant and sought annulment. The court sustained the defendant's demurrer, finding that even if it had jurisdiction to annul marriages, the facts did not constitute grounds for annulment as the parties had capacity to marry under Alabama law. The majority view is that consent, not just words, is needed to form a valid marriage.

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    Marriage and Divorce -- Annulment -- Marriage in Jest

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    This document summarizes a 1930 North Carolina Law Review article about a case where an infant plaintiff sought to annul her marriage. The plaintiff married the defendant in jest while attending a dance, daring each other to get married. They falsified information to obtain a marriage license in Alabama. The plaintiff alleged she never lived with the defendant and sought annulment. The court sustained the defendant's demurrer, finding that even if it had jurisdiction to annul marriages, the facts did not constitute grounds for annulment as the parties had capacity to marry under Alabama law. The majority view is that consent, not just words, is needed to form a valid marriage.

    Copyright:

    © All Rights Reserved
    Download as PDF, TXT or read online from Scribd
    Download as pdf or txt
    60 views4 pages

    Marriage and Divorce - Annulment - Marriage in Jest

    Uploaded by

    Nadzlah Bandila
    This document summarizes a 1930 North Carolina Law Review article about a case where an infant plaintiff sought to annul her marriage. The plaintiff married the defendant in jest while attending a dance, daring each other to get married. They falsified information to obtain a marriage license in Alabama. The plaintiff alleged she never lived with the defendant and sought annulment. The court sustained the defendant's demurrer, finding that even if it had jurisdiction to annul marriages, the facts did not constitute grounds for annulment as the parties had capacity to marry under Alabama law. The majority view is that consent, not just words, is needed to form a valid marriage.

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    NORTH CAROLINA LAW REVIEW

    Volume 9 | Number 1 Article 26

    12-1-1930

    Marriage and Divorce -- Annulment -- Marriage in


    Jest
    C. E. Reitzel

    Follow this and additional works at: http://scholarship.law.unc.edu/nclr


    Part of the Law Commons

    Recommended Citation
    C. E. Reitzel, Marriage and Divorce -- Annulment -- Marriage in Jest, 9 N.C. L. Rev. 96 (1930).
    Available at: http://scholarship.law.unc.edu/nclr/vol9/iss1/26

    This Note is brought to you for free and open access by Carolina Law Scholarship Repository. It has been accepted for inclusion in North Carolina Law
    Review by an authorized editor of Carolina Law Scholarship Repository. For more information, please contact [email protected].
    96 THE NORTH CAROLINA LAW REVIEW

    awarded. 9 The facts of this case tend to show that some agent of
    the defendant acted with a fraudulent motive or else with such gross
    negligence as to display a reckless disregard for the plaintiff's rights.
    In view of the aggravated nature of the offense of altering the check
    and the fact that the altered instrument operated to charge plaintiff
    with the crime of issuing a check without funds, it is submitted that
    the jury verdict may be upheld, although the actual loss to the plain-
    tiff through loss of credit and damage to business reputation prob-
    ably was slight under the circumstances.' 0
    TRAVIS BROWN.

    Marriage and Divorce-Annulment-Marriage in Jest


    Infant plaintiff brought an equitable petition by her next friend
    for the purpose of annuling her marriage to the defendant. She
    alleged that she was fifteen years old and that the defendant was
    nineteen, and that both resided with and were dependent upon their
    respective parents. While attending a dinner dance, in a spirit of
    fun, braggadocio, and levity, the parties began to dare each other to
    get married. They drove across the state line into Alabama, procured
    a license from a probate judge by means of falsifications by the de-
    fendant as to their ages, and were married. Plaintiff alleged that
    she returned home and had never lived with the defendant. De-
    fendant entered a general demurrer for want of equity and on the
    ground that the court of equity "was without jurisdiction or power
    to annul a marriage under any circumstances." Held, demurrer
    sustained.'
    Two questions are presented in the case. The first, whether or
    not a court of equity has jurisdiction to annul a marriage, had never
    been adjudicated in Georgia and was left open by the court. There
    are many cases which have decided that equity has such jurisdiction.
    12 MORSE, BANKS AND BANKING (5th ed., 1917) §458. See Winkler v.
    Citizens' State Bank, 89 Kan. 279, 131 Pac. 597, 598 (1913); American Nat.
    Bank v. Morey, 113 Ky. 857, 24 Ky. Law Rep. 658, 69 S. W. 759, 760, 101 Am.
    ST. REP. 379, 58 L. R. A. 956 (1902) ; McCormick, Some Phasesof the Doctrine
    of Exemplary Damages (1930) 8 N. C. L. Rzv. 129.
    " The plaintiff was insolvent at the time of the alleged occurrences leading
    to the suit. It was not proved that the defendant's action contributed any sub-
    stantial part to the plaintiff's going into bankruptcy thereafter.
    'Hand v. Berry, 154 S. E. 239 (Ga. 1930).
    NOTES AND COMMENTS

    Some of them hold that the power is inherent, 2 others that it is con-
    ferred upon the courts by statute,3 and still others that it is a part
    4
    of the general power of a court of equity over contracts.
    The second question presented is whether or not on the facts the
    marriage could be set aside if jurisdiction existed. The law of the
    place of contracting governs with regard to matrimonial capacity of
    parties as well as with respect to the manner or form of solemniza-
    tion or annulment.5 It appears that the parties were capable of con-
    tracting a valid marriage in Alabama. 6 The fraud of defendant in
    falsifying their ages in order to secure a license without the written
    consent of their parents did not render the marriage voidable on
    that ground. 7 But, granting the capacity of the parties and assum-
    ing that the court had jurisdiction, it held that the facts did not con-
    stitute grounds for annulment. The basis for the decision is that the
    state has decreed that when capable parties consent to the pronounce-
    ment of a certain ceremony by the proper official that they are united
    as man and wife. A very strong majority opposes this view on the
    ground that it is real consent to assume the obligations and rights of
    that status which validates the contract.8 The words are the ex-
    ternal manifestation of intention, but mere words without any inten-
    tion corresponding to them cannot make a marriage or any other civil
    contract, unless they are justifiably and reasonably taken at their face
    value. 9 The legal forms are not a substitute for legal consent, they
    are but modes of declaring and substantiating it.10 Actual mutual
    consent and a bona fide agreement are fundamental and essential
    2Meredith v. Shakespeare, 96 W. Va. 229, 122 S. E. 520 (1924) ; Dorgelah
    v. Murtha, 92 Misc. Rep. 279, 156 N. Y. Supp. 181 (1915).
    'Johnson v. Kincade, 37 N. C. 470 (1843).
    'Corder v. Corder, 141 Md. 114, 117 Atl. 119 (1922) ; Clark v. Field, 13 Vt.
    460 (1841).
    'Powell v. Powell, 282 Ill. 357, 118 N. W. 786 (1918) ; Great Northern v.
    Johnson, 254 Fed. 683 (C. C. A. 8th, 1918).
    8
    Ala. Code (1923) §8999. But see: Quigg v. Quigg, 42 Misc. Rep. 48, 85
    N. Y. Supp. 550 (1903) ; Kellog v. Kellog, 122 Misc. Rep. 734, 203 N. Y. Supp.
    757 (1924); Swenson v. Swenson, 179 Wis. 536, 192 N. W. 70 (1923).
    'Smith v. Smith, 205 Ala. 503, 88 So. 577 (1921) ; Bays v. Bays, 105 Misc.
    Rep. 492, 174 N. Y. Supp. 212 (1918) ; Fodor v. Kunie, 92 N. J. Eq. 301, 112
    AtI. 598 (1920).
    "Crouch v. Wartenberg, 86 W. Va, 664, 104 S. E. 117 (1920) ; Note (1921)
    11 A. L. R. 215.
    'McClurg v. Terry, 21 N. J. Eq. 225 (1870) ; Regina v. Millis, 10 Clark &
    F. 534 (1844).
    "1 BISHOP, MARRIAGE, DIVORCE, AND SEPARATION (1921) §§296 and 337;
    SPENCER, DOMESTIC RErATIONS (1923) §§37 and 82.
    THE NORTH CAROLINA LAW REVIEW

    elements," without them the marriage is voidable, 12 unless it is rati-


    fied by consummation. 13
    The cases preponderate in favor of annulment of marriages con-
    tracted in jest.14 Social policy dictates that a contract of such im-
    portance to the race shall not be unintentionally assumed. Where it
    appears that the parties never had the intention of fulfilling the
    obligations of the contract, it would seem to be more just to both the
    state and to the parties to restore them to statu qua.
    C. E. REITZEL.
    Negligence-Automobiles--Duty of Guest
    Two actions (consolidated by consent) were brought against the
    owner of an automobile and his wife, who was driving, to recover
    damages for personal injuries sustained by a guest, and caused by
    the alleged negligence of the driver while operating the car. Judg-
    ment against the wife was sustained, the court holding that the
    owner was relieved of any liability by the finding of the jury that
    his wife was not operating the car as his agent. Testimony of cau-
    tion by the guest to the driver was held competent on the question
    of the driver's negligence.'
    The above statement of the owner's liability raises serious doubt
    in view of the court's previous adoption of the "family purpose"
    doctrine. 2 There is no indication that the court is overruling the
    previous holding of modifying the doctrine, although the language
    would seem to restore the owner's liability to an agency basis.3
    The testimony as to the warning is admissible either to show a
    compliance with the guest's duty to warn, if any, 4 or as evidence
    tending to show negligence on the part of the driver., Such a state-
    ' Crouch v. Wartenberg, supra note 9.
    " McClurg v. Terry, spra note 10; Hall v. Hail, 24 Times L. P, 756
    ( 8rook e v. Brooke, 60 Md. 524 (1883) ; Macri v. Macri, 164 N. Y. Supp.
    112, 177 App. Div. 292 (1917); Arado v.Arado, 281 Ill. 123, 117 N. E. 816,
    4 A. L. R. 28 (1917); Martin v. Otis, 233 Mass. 491, 124 N. E. 294 (1919);
    Americus Co. v. Coleman, 16 Ga. App. 17, 84 S. E. 493 (1915).
    14 Note (1921) 11 A. L. R. 215.
    'Teasley etal. v. Burwell et al., 199 N. C. 18, 153 S.E. 607 (1930).
    'Goss v. Williams, 196 N. C. 213, 145 S. E. 119 (1928); (1927) 5 N. C.
    L. Rav. 252; (1928) 6 N. C. L. IEv. 78; McCall, The Family Automobile
    (1930) 8 N. C. L. Rsv. 256.
    'Linville v. Nissen, 162 N. C. 96, 77 S. E. 1096 (1913) ; Tyree v Tudor,
    183 N. C. 340, 111 S. E. 714 (1922); Watts v. Lefler, 190 N. C. 722, 130 S. E.
    630 (1925).
    'McAdd v. Shea, 10 La. App. 733, 122 So. 879 (1929).
    'Hiller v. De Sautels, 169 N. E. 494 (Mass. 1929).

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