
    CHARLESTON.
    Lucile Crouch v. Floyd M. Wartenberg.
    Submitted September 14, 1920.
    Decided September 21, 1920.
    1. Marriage — Equity May Annul Marriage of Doubtful Validity.
    
    A court of chancery, by virtue of its ordinary equity powers, possesses jurisdiction to entertain a suit for the purpose of annulling a marriage supposed to be void, or as to the validity of which some doubt may exist, (p. 666).
    2. Same — Validity of Marriage Depends Largely on Validity of Contract.
    
    The-status of marriage has its inception in contract, and its validity depends largely upon the validity of the contract upon which it is based, (p. 667).
    3. Same — Mutual Consent is Necessary to Validity of Marriage Contract.
    
    Mutual consent, which is of the essence of all ordinary contract's, is necessary to the validity of the marriage contract as well, and such consent implies not only willingness to go through the ceremony of marriage, but also an intention to enter into the marriage status and assume the obligations, duties, rights and privileges which characterize it. (p. 667)'.
    
      4. ' Same — By Legal Ceremony, but Entered into in Lest, May be Annulled.
    
    A marriage ceremony, though actually and legally performed, when entered into in jest, with no intention of entering into the actual' marriage status and all that it implies, and with the understanding that the parties are not to be bound thereby, or assume towards-each other the relation ordinarily implied in its- performance, including the duties, obligations, rights- and privileges incident thereto, and followed by no subsequent acts or conduct indicative of a purpose to enter into such relation, does not constitute a legal basis for the marriage status, and 'the pretended marriage may be annulled in equity at the suit of either party, (p. 668).
    Case Certified from Circuit Court, Cabell County.
    Suit by Lueile Crouch against Floyd M. Wartenberg. De,-murrer to bill, interposed by the divorce commissioner, sustained, and ruling certified.
    
      Demurrer overruled.
    
    
      Deegan, Boman & Taylor, for plaintiff.
   Lyktch, Judge:

The bill held by the circuit court insufficient on demurrer interposed by the divorce commissioner, the ruling thereon being certified for review by this court, prays for the annulment of a marriage ceremony performed between plaintiff and defendant in the manner authorized and permitted by the laws of this state, and also for an injunction against interference witl plaintiff or her molestation by defendant.

As appears from the, allegations of the bill, the ceremony had its inception in jest without serious wish, desire or intention to enter into a matrimonial contract valid and binding upon the parties thereto or either of them, and they did not intend or contemplate, consummation of such a contract or tbe assumption of the duties, obligations, rights, privileges and consequences usually pertaining to the marriage relation, and have not since the ceremony done or performed any act indicative of an intention to ratify or consummate the pretended marriage, and do not now desire its consummation or the exercise of such rights, obligations, duties and privileges. The bill further alleges that plaintiff was persuaded and induced to go through the marriage ceremony by the false and fraudulent representations of defendant, believed and relied on by plaintiff, without knowledge of their falsity, accompanied also by the assurance that the performance of the ceremony was to be treated a's ineffectual for any purpose, and the only purpose intended was to avoid detriment to defendant’s business and loss of the respect of his friends and associates, which would result from plaintiff’s refusal to go through the ceremony. The marriage license was obtained and the, ceremony performed without the knowledge or consent of the parents of the plaintiff, with whom and under whose guardianship she as a minor 'then resided and since has continued to reside, notwithstanding the pretended marriage to defendant.. Thes.e allegations and 'others of like-kind and character the hill amplifies with the perspicuity requisite to constitute good pleading and with sufficient certainty to warrant annulment of the marriage vows, if otherwise plaintiff is entitled to the relief prayed by her. Wherefore the only question is whether the marriage ceremony so performed with the apparent, though, according to the bill, without the actual, consent of the parties thereafter to be affected and bound thereby until dissolved in a divorce proceeding or otherwise, is legally valid under the circumstances presented.

There is no doubt of the right and power of a court of equity, at the request. of either party to the contract, to entertain a suit for the purpose of affirming or annulling a marriage supposed to be void, or as to the validity of which any doubt exists, and counsel do not question such right. McClurg v. Terry, 21 N. J. Eq. 225; Clark v. Field, 13 Vt. 460.

According to -the allegations of the bill, the responses made to the questions propounded as part of such ceremonies, as “understood, intended arid contemplated both by your complainant and the said defendant at the time the said ceremony was performed, * * * - were to impose no marital duties or obligations and confer no marital rights” upon either of them, and “the relation of husband and wife was not by virtue of such ceremony to be assumed, undertaken or contracted for.”

While no animadversion upon such frivolity probably could be too severe, such condemnation now would avail nothing and be utterly useless. Yet it is relevant to remark that vain, meaningless, false and fraudulent replies to inquiries made, to test the sincerity of the parties are especially important upon the question as to the assumption of marital rights, privileges, obligations and duties. The, object of the entire ceremony is to bind the parties by a sacred covenant, one thereafter not to be trifled with. Good faith, honest motives, frankness and candor are essential to the validity of any contract, whatever tbe object may be, and tbe boobs are replete with cases avoiding contracts of all binds where these elements are lacking. Happily, there are but few decisions annulling marriage vows on these grounds, not because courts have refused to grant-relief in appropriate eases, but because it is seldom that such frivolity occurs in a matter of such serious concern to the parties interested. .

As Bishop in his work on Marriage, Divorce & Separation, vol. 1, § 296 says: “The status of marriage is entered through the door of a contract not essentially differing from other contracts. It is that circumstance without which this status is never superimposed upon the parties.” And in section 298 he says: “The forms are not a substitute for it (mutual consent to enter into the status). They are but modes of declaring and substantiating it — matters of publicity or evidence,. If they are gone through with without the added consent, the marriage is a nullity, both as tq the parties and to third persons.’-’ To constitute a valid marriage, the parties must possess the legal qualifications, and e,nter into a mutual agreement or consent to the marriage relation as contemplated by law, “uninfluenced by fraud or error in any particular deemed fundamental, or by duress.” Spencer, Law of Domestic Relations, § 37.

According to these and othe,r authors and decisions dealing with the subject, mutual consent and bona fide agreement of the parties, freely given and with the intention of entering into a valid status of marriage, are, fundamental and essential elements, and without them the marriage is invalid (McClurg v. Terry, 21 N. J. Eq. 225; Clark v. Field, 13 Vt. 460; Dorgeloh v. Murtha, 92 Misc. 279, 156 N. Y. Supp. 181; Ford v. Stier, L. R. (1896) Probate 1; Hall v. Hall, 24 Times L. R. 756; 1 Bishop, Marriage, Divorce & Separation, §§ 337-338; Spencer, Law of Domestic Relations, § 82; 26 Cyc.. 832-833); unless consummated by cohabitation as husband and wife, or otherwise ratified or confirmed. Brooke v. Brooke, 60 Md. 524.

In McClurg v. Terry, supra, the New Jersey court considered facts and circumstances very similar to those alleged by plaintiff in this- cause, and as particularly appropriate here we quote as follows from page 227: “Mere words, without any intention corresponding to them, will not mabe a marriage or other civil contract. But the words are the evidence of such intention, and if once, exchanged, it must he clearly shown that both parties intended and understood that they were not to have effect. In this case the evidence is clear that no marriage was intended'by either party; that it was a mere jest got up in the exuberance of spirits to amuse the company and themselves. If this is so, there was no marriage.”

And in Dorgelok v. Murtha, cited, likewise involving simi- *> lar facts, the Hew York Court states the rule thus: “The law considers marriage in the light of a civil contract as to its inception. In the marriage contract, the same as in any other, consent is-a necessary element. Consent, which is of-the essence of all ordinary contracts, is necessary to the validity of the marriage contract. The minds of the parties must meet in one, common intention. Mere words, without the intention corresponding therewith, will not make a marriage or any other civil contract. * * * It is quite true that -there was a formal ceremony; but it' is also patent from the evidence that there was no intention whatever on the part of either plaintiff or the defendant that it should he considered as a valid and legal marriage. * * * It was a mere subterfuge, gotten up for the purpose of enabling the plaintiff to obtain á marriage certificate which would be of assistance to her in obtaining a theatrical engagement.”

•As neither plaintiff nor defendant, according to the allegations of the bill, gave their free and willing consent to he bound by the ceremony, or assume towards each othe,r the relation ordinarily implied in its performance, or exercise the duties, obligations, rights and privileges incident to the relation, and have not since done any act or performed any such duties or obligations, or exercised such rights and privileges, thereby or otherwise indicating a purpose so to be bound, there appears no reason for refusing to order the annulment of the, pretended marriage, and thereby remove any impediment that might othewise exist by way' of embarrassment of any kind or character as the legitimate consequences of the imprudent conduct of the parties, provided, of course, the facts so alleged are proved. Section 8, cb. 64, Oode.

As the fraudulent representations or conduct of either party, when proved, vitiate, a contract, whatever the subject of the-negotiations may be, so such representations and conduct have the same force and effect upon the validity of a contract of marriage; certainly so if not consummated, and perhaps also even after its consummation, unless the plaintiff has in some manner waived the fraud or done or performed some act operating as estopped against subsequent reliance upon it in a court of equity. The application of this doctrine is so general and universal as not to necessitate further discussion.

For these reasons we enter of record our disapproval of the, circuit court’s ruling upon the demurrer, and hold the bill legally sufficient, and direct certification of the result to that court, as required by statute.

Reversed. Demurrer overruled.  