
    Moser v. Long.
    
      Public policy — Contract of marriage—-Entered into by a girl while a minor—Without consideration or parental consent — And immediately repudiated—Action for annulment lies, when.
    
    Where a young girl seventeen years of age, without the knowledge or consent of her parents or either of thém, has her mental poise disturbed and her will overcome by the persistent solicitation and urging of a strong and forceful man, with .whom she had previously had only ordinary friendly relations, and consents to a marriage authorized by a license obtained by the perjured evidence of the man, and where no cohabitation follows the marriage, and there is an immediate and continued separation thereafter, and there is no other act that would operate as a recognition of the marriage relation, and there is a prompt repudiation of the marriage contract, an action lies by her for a decree annulling the marriage contract.
    (Decided May 6, 1916.)
    Appeal: Court of Appeals for Wood county.
    
      Messrs. Harrington & Dunn, for plaintiff.
   Chittenden, J.

This is an action in equity to have declared null and void a marriage contract between the plaintiff, Lila Marie Moser, and the defendant, Ananias Long. The evidence shows that the plaintiff at the time of the solemnizing of the marriage was of the age of seventeen years. She resided with her parents on a farm near the village of Perrysburg. In February, 1915, the defendant, a young man about twenty-one years of age, came to the home of the plaintiff, seeking employment as a farm hand. He was a stranger in the vicinity, and stated that he had come from Virginia where his home was. He entered into the employment of the plaintiff’s father, John Moser, and continued in such employment until the following May, when he left the home of Moser and took employment with some neighbor. During all the time he lived with John Moser, and afterward, no evidence of any intimacy or unusual friendship or attachment between the plaintiff and the defendant was observed by either the father or the mother, or anyone else, so far as the testimony discloses. The evidence of the plaintiff does not disclose anything other than a relation of friendship existing between the plaintiff and the defendant.

On the 8th day of June, 1915, the plaintiff desired to go to the city of Toledo to do some shopping, and in pursuance of a conversation between the plaintiff and the defendant over the telephone, and at his suggestion, they met on that date at the interurban station in Toledo. The plaintiff’s purpose in meeting him at that place was to accompany him to a moving-picture show in Toledo. They did go to a show, and while together he began begging her to go with him to Monroe, Michigan, and be married. In this connection it is proper to state that the evidence shows that the plaintiff is a slight, delicate girl, and that the defendant is a large, vigorous man. As a result of his persistent urging the plaintiff did at last consent, and directly thereafter did go to Monroe with the defendant on an electric interurban car. The city of Monroe is about an hour’s ride by trolley car from Toledo. At Monroe, the defendant procured from the clerk of the court a marriage license. In order to obtain the license the defendant made affidavit that the plaintiff was eighteen years of age. They at once proceeded to a parsonage and were married by a minister of the gospel. Immediately after the marriage they boarded a trolley car and returned to the city of Toledo, and upon arriving in the city they at once separated, the plaintiff taking a Bowling Green car to her home and the defendant taking a Perrysburg belt car to the village of Perrysburg. The fact of the solemnizing of this marriage having been published in the newspapers, the parents of the plaintiff obtained knowledge of the marriage for the first time on the following day.

The evidence shows that the plaintiff, immediately after the marriage ceremony, repented her folly, and upon the fact of the marriage being made known to her parents expressed to them her regret and her desire and intention to repudiate the same. In explanation of her act she says that “He kept teasing me and pressing me and I simply lost my head, and as soon as I began to think it over I repented what I had done.”

Shortly thereafter she wrote a note to the defendant advising him that she did not want anything more to do with him, and she has at all times since declined to have anything to do with the defendant or to recognize him in any way as her husband. The evidence clearly discloses that the plaintiff and the defendant have never cohabited, or in any way sustained towards each other the relation of husband and wife.

From what has been said it will of course appear that the parents of the plaintiff at no time gave their consent to this marriage. Shortly after the marriage the defendant returned to Virginia, and has remained there ever since. He has entered his appearance in the case, but interposes no defense to this action.

The statute of Ohio, Section 11181, General Code, which differs in no essential respect from the statute of Michigan upon the subject of marriage, provides:

“Male persons of the age of eighteen years, and female persons of the age of sixteen years, * * * may be joined in marriage. Male persons under the age of twenty-one years, and female persons under the age of eighteen years must first obtain the consent of - their fathers, respectively, or in case .of the death or incapacity of their fathers, then of their mothers or guardians.”

It will thus be seen that the legislature of the state of Ohio has to a very great extent modified the common-law rules upon this subject. The steady trend of legislation has been to prevent the marriage of young and immature persons. The age at which marriage may take place has been raised from the common-law rule of twelve years for a female and fourteen for a male. But a further protection has been afforded them by requiring that if marriage be desired under the age of majority, eighteen years for the female, and twenty-one for the male, the consent of the father or other proper guardian shall first be obtained.

We are not called upon in this case to determine the exact limitations that are placed upon the entering into a marriage contract by the requiring of this consent between the ages named. In the case under consideration we have these essential and material facts — a young girl of the age of seventeen years, without the knowledge or consent of her parents or either of them, having her mental poise disturbed and her will overcome by the persistent solicitation and urging of a vigorous young man with whom she had previously had only ordinary friendly relations, consenting to a marriage authorized by a license obtained by the defendant upon perjured evidence given by him; no cohabitation, following the marriage, or 'any other act that would operate as a recognition of the marriage relation; a prompt repudiation of the marriage by the plaintiff as soon as she was away from the domination and control of the defendant; and a continued separation of the plaintiff and the defendant ever since, followed by an application to the court to have the contract annulled.

There have been various adjudications in which courts have held, under the facts disclosed in the cases under consideration, that marriage between parties under the age of consent were valid; but only one case that has been called to our attention presents facts essentially like those found in the case at bar. That is a case decided by the supreme court of Nevada, Fitzpatrick v. Fitzpatrick, 6 Nev., 63. The supreme court of Nevada in that case held that the marriage was binding, and refused to grant a decree annulling the same. We think it unnecessary to undertake a review.of other cases upon this subject, but content ourselves with a statement that the facts in those cases were so different from the facts in the case at bar that we do not consider them as controlling authority in this case.

A majority of the court are of the opinion that a decree should be entered in this case annulling the marriage contract. We are unable to find any grounds of public policy or public morals which require any different decree. The plaintiff would have the undoubted right to repudiate, upon the ground of her minority, any other contract that she might have undertaken to enter into, except for necessaries, and we see no reason why she should be precluded, under the facts shown in this record, from repudiating the most important contract that she could possibly have undertaken 'to enter into. To permit a young and inexperienced girl to be permanently bound by a contract entered into in a moment of weakness and folly, under the circumstances attending this case, it seems to us, would be to deprive her of thát parental protection that was intended to be vouchsafed her by the statute, and which she has, and should have, by every natural law. We think that to insist upon her being bound by this contract would not be to promote public morals, but, on the contrary, it would be a most potent influence in the opposite direction. In reaching this conclusion we are in no way indicating what our decision might be under a different state of facts.

A decree may be drawn declaring the marriage to be null and void.

Judgment for plaintiff.

Kinkade, J., concurs.

Richards, J.,

dissenting. I regret my inability to concur with the majority of the court, and were it not for the importance of the question involved I would be content with a simple statement of dissent; but I think the decision of the majority of the court is so contrary to all the authorities on the question involved that some further statement is required.

The section of the General Code cited makes females of the age of sixteen years competent to enter into a valid marriage. So far-as my investigation has gone, no authority holds that the absence of parental consent invalidates the marriage, and no authority so holding has been called to our attention by counsel for plaintiff. On the contrary, the universal holding on that subject is that the provision mentioned has to do simply with the punishment of officials who proceed without such consent. Such is the statement in 26 Cyc., 835, and authorities from many states are cited on the proposition. The authorities on the question are also collected in a note in 22 L. R. A., N. S., 1206. .

In Parton v. Hervey, 1 Gray (Mass.), 119, where the age of consent to enter into a valid marriage is twelve in females and fourteen in males, it is held that a marriage between two infants above those ages is valid without the consent of their parents or guardians, notwithstanding the statute which prohibits magistrates or ministers, under a penalty, from solemnizing the marriage without the consent of parent or guardian.

The case cited has been followed and approved not only in Massachusetts but in various other states; the only difference between the Massachusetts statute and the Ohio statute being in the ages named in the statute.

The case from Nevada cited in the majority, opinion discusses the question extensively and cites numerous authorities. In the course of the opinion of the court this is said at page 66:

“It is admitted by counsel for appellant that it is commonly held under similar statutes, that the lack of the consent of parent or guardian does not invalidate the marriage.”

The question is discussed also in The People v. Slack, 15 Mich., 193, and the same conclusion reached. See also Hunter v. Milam, 41 Pac. Rep., 332, syllabus 3, and Lacoste v. Guidroz, 47 La. Ann., 295, 16 So. Rep., 836, syllabus 4. In the latter case the parties separated at the altar without speaking to each other thereafter. In our own state something has been said on this question. The case of Shafher v. State of Ohio, 20 Ohio, 1, was a criminal case, and the question involved not precisely the same; yet in the opinion Ranney, J., gives the reasons for the validity of marriages consummated below the age of majority, but above the age of consent, and discusses the doctrine of public policy, commending the wisdom of the statute.

In the case of Holtz v. Dick, 42 Ohio St., 23, it was held that the absence of parental consent is unimportant so far as the validity of marriage is concerned.

The common pleas court in this case entered a decree for the defendant, based on the ground that the service was defective, and also on the ground that the facts stated in the petition did not entitle the plaintiff to the relief sought; and I think this decree was right, under the authorities.

It is a case where the sympathy of the court would naturally be, and is, with the plaintiff, and if it were possible for me to agree with the majority opinion I should be glad to do so; but in view of the holdings of the courts I am not able to bring my mind to the conclusion reached by the majority.

Kinkade, J.

In view of the statements in the dissenting opinion, and the authorities there cited, I desire to say, with respect to one ground that is mentioned as the ground of the decision of the court of common pleas, to-wit, a lack of sufficient service in the case, that, so far as this court is informed on that subject, it is to the effect that the court of common pleas considered this, in effect at least, an action for divorce, and that consequently the provisions of the statute with respect to service must be distinctly followed and that an entry of appearance was not a sufficient substitute therefor. It certainly needs no authority or discussion to establish the fact that in an action of this-character, to annul a contract, the defendant may enter his appearance in court in the way provided by statute, regardless of the nature of the contract.

It is said by some courts that the marriage of a female over sixteen and under eighteen is quite as valid without the consent of the parents as with it, and it is remarked in opinions following that line that the sole and only purpose of consent is to lay the foundation for the criminal prosecution of the person who issues the license or solemnizes the marriage of a female under eighteen without the parental consent provided for in the statute.

If that is true, it seems singular indeed that the legislature did not provide, in the same section requiring this consent, for the punishment of the officer. In fact, if the procuring of the consent had no purpose at all except to furnish the ground for a criminal prosecution, the provision might better have been in a section of the criminal code by itself, providing that one who issues a license for, or officiates in the solemnizing of, the marriage of a female under age, as stated, should be guilty and punished as therein stated.

It seems to me that this provision of the statute was intended for a very much more wholesome purpose than the one mentioned, although very useful along that line as well. I think the legislature distinctly intended by this provision to throw this additional safeguard around the young, and that in a case like the present, where the parties have never lived together as husband and wife, where there has been no cohabitation between them at any time shown, where they separated immediately after the ceremony was performed, and the contract, if it was a contract, was forthwith repudiated and renounced by the female, who desired not to go as wife with the other party to the contract, but to remain with her parents and act in accord with their desires, this express provision of the statute with respect to the necessity of having the consent of the parents is a provision of substance and importance to be kept in mind in passing upon the question of the right of the female to renounce the contract under the circumstances stated.

It is said that cohabitation on the part of a female past sixteen years of age is not necessary to complete the contract, of marriage. Even if this be conceded, the fact of cohabitation will be found in all cases, with a single exception, in which the subject is discussed, as having an important bearing upon the question of public policy in determining the rights of the parties. It would be very difficult indeed to state or to even imagine a case calling louder for relief than the case at bar.

The cases cited in the 20th Ohio and the 42d Ohio State are not decisive of the question here. It seems very easy to me to account for many of the decisions cited, by facts presented therein quite clearly distinguishable from the facts in the case at bar. As has been stated by my associates, the principle involved is one of great importance. No one will dispute for a moment that the plaintiff in this case, while under eighteen years of age, had she been possessed of a very large fortune, might have made a contract with the defendant, who was of full age, to transfer her entire property to him upon any stated sufficient consideration, and that that would have been a contract which the defendant could not repudiate, without the consent of the plaintiff, but which the plaintiff could promptly have repudiated upon arriving at her majority. In fact any contract, aside from necessaries and a marriage contract, that the plaintiff might have entered into at the age at which it is said she entered into this marriage contract, might have been repudiated by her when she arrived at the age of eighteen.

But it is said that there is something peculiar about the contract of marriage of an infant that makes the repudiation of it, upon arriving at majority, an act contrary to public policy, notwithstanding the fact that the parties to the contract have never cohabited and never recognized each other as husband and wife from the time the ceremony was performed; and that, therefore, although the contract be the most important contract known to humankind, and the most far-reaching in its consequences, and particularly so with respect to the female, it may not be repudiated on arriving at majority, although it has never been recognized or acted upon by the parties since the time it was entered into.

Confining what I have stated to the case at bar, and not intending what I have stated to apply to other cases presenting different facts, it seems entirely clear to me that if the decree were other than as directed in the opinion of Judge Chittenden it would not be in furtherance of public policy, but would be squarely in the face of, and against, public policy.

For the reasons stated, I concur in the decree annulling the marriage contract entered into between the parties.  