
    Henry Waymire, Guardian of David Wiles, v. Sarah A. Jetmore and Jesse Spencer.
    1. The marriage contract of one. affected with congenital imbecility of mind to a degree rendering him incapable of consent, is void ab initio.
    
    2. A court of chancery, in the exercise of its ordinary powers, will entertain jurisdiction, at the suit of the imbecile’s guardian, to declare such marriage a nullity.
    Error to Darke Common Pleas, reserved in the District Court.
    This action was commenced in December, 1866. The original petition avers the congenital imbecility of the plaintiff’s ward; his want of capacity to consent; his ownership of certain described lands; the appointment, in 1861, of the plaintiff' as his guardian ; his pretended marriage-in October, 1866, with the defendant, Jetmore, without the plaintiff’s knowledge, and the fraudulent conspiracy of the defendants in procuring said marriage ceremony to be performed, with a view to securing some interest in, or support from, sai d imbécil e’s estate. Prayer, that said marriage be declared a nullity, and that defendants be restrained from asserting such interest, or deriving such support.
    The- defendants severally interpose general demurrers. The defendant, Jetmore, at the same time moved that the-action be dismissed on the grounds :
    1. That the petition showed no cause of action.
    2. That the court had no jurisdiction to divorce the parties ; and,
    3. That the court had no jurisdiction over either of the-defendants.
    This motion was overruled; but the demurrers were sustained, and final judgment entered by the Common Pleas for the defendants.
    The plaintiff, by petition in error, removed the cause into-the District Court, wherein itwas reserved for decision here..
    
      Knox Sater, for plaintiff’ in error:
    I. The marriage was void ab initio, the said David being-non compos mentis.
    
    
      a. Marriage in Ohio is a civil contract merely, and to Lave any validity must be between parties able and competent to contract.
    
      b. A contract of marriage, entered into by a mental imbecile, may be declared and treated as void by him on being restored to reason, or by his proper guardian before that time.,
    II. A court of equity may declare the nullity of that which is already void.
    On the above points, we cite 1 Blackstone’s Com. 439; 2 Kent’s Com. 40, 41; 2 Parsons on Contracts, 81; Shelford on Mar. and Div. 183, 201; Wightman v. Wightman, 4 Johns. Ch. 343; Bishop on Mar. and Div., 1 ed., secs. 105-125, 176-190, 262-267. See also 20 Ohio, 1.
    
      Iu this last authority, it is true that Judge Ranuey says: “ Our law furnishes no method of obtaining a judicial sentence for annulling such a marriage; unless the parties have the means of escape in their own hands, none exist.” If, by this expression, the distinguished jurist meant anything else than that our statutes had made no provision, had prescribed no method for obtaining such sentence of nullity, we think that this dictum, and, with all due respect, we might say this obiter dictum, is not correct in point of fact.
    Courts of chancery repeatedly entertain jurisdiction for the purpose of declaring the most solemn deeds and covenants, as well as other contracts, void as being executed by infants, non compotes, married women, persons under duress, etc. And if they have such power over one contract, why not with a marriage contract? Were it regarded as a" religious sacrament, and were we controlled by the canonical law of the Catholic Church, this might not be the ease; but it is otherwise in Ohio.
    On the same principle, error lies to an inferior tribunal to reverse a void judgment.
    [The reporter failed to find either name or brief of counsel for defendant in error.]
   West, J.

Marriage is a contract relation founded in the mutual consent of the parties; on which account consenting capacity is essential to its consummation. Consequently the want of such capacity, in either party, renders the relation meretricious, not matrimonial. Such is the immemorial and universal judgment of civilized society. 1 Bl. Com. 439; 2 Rent’s Com. 40, 41. Hence, the marriage of parties, either of whom lacks the capacity to consent, is ineffectual and void ab initio. This disposes of the first and fundamental proposition suggested by the record.

Congenital, or other mental i-mbecility, is not among the statutory causes of divorce. These causes generally import a pre-existing valid contract, or a contract voidable only; which, when they or some of them supervene, will, for such cause, be judicially avoided. But this record does not present a case for judicial nullification and avoidance under the statute, the pretended marriage being a nullity and void already. Does there, then, exist any necessity for judicially declaring such nullity, and will a court of equity, in the exei’cise of its ordinary powers, entertain jurisdiction to do it?

Social order and public decency demand that the parties to a meretricious relation, in which the forms of marriage, apparently legal, seem to bind them, should be judicially relieved therefrom. This alone is sufficient cause for the interference of whatever tribunal possesses the adequate powers. But the succession of property and the legitimacy of inheritance, which the law regards with peculiar jealousy, furnish a no less controlling motive for such interference. The want of consenting capacity, resulting from causes other than infancy, which is generally declared and the period thereof fixed by statute, is determinable in every instance by the testimony of witnesses only. Therefore, while the parties are in esse, and the witnesses accessible, it is of the greatest importance that every cloud which might obscure the succession or involve the inheritance, should be removed, rather than remain to foster future and consuming litigation. To this end a court of equity, in the exercise of its ordinary powers, will entertain jurisdiction, at the suit of the imbecile’s guardian, to declare his marriage a nullity, as it does to order the surrender and cancellation of a forged or otherwise void instrument. The propriety of such jurisdiction . is fully recognized by Chancellor Kent in Wightman v. Wightman, 4 Johns. Ch. 343, and by the Supreme Court of North Carolina, in Crump v. Morgan, 3 Ired. Eq. 91.

As to the defendant Jetmore, the judgment of the Common Pleas on her demurrer will be reversed, and the cause remanded for further proceedings. But the defendant Spencer, not being a necessary or proper party, the ruling of the Common Pleas, as to him, will be affirmed.

The decree of nullity will fully determine the right of the guardian to the absolute and exclusive control of the imbecile’s person and estate. The extraordinary remedy, by injunction, is therefore unnecessary, and the prayer for it may be properly omitted or refused.  