
    Althea Long, Plaintiff, v. Rose M. Baxter and Robert P. Baxter, Defendants.
    (Supreme Court, Steuben Special Term,
    September, 1912.)
    Marriage — action to annul — Code Civ. Pro. § 744.
    The right of a mother, under section 744 of the Code of Civil Procedure, to maintain an action to annul the marriage of her son as under the age of legal consent, is neither stayed nor abrogated because the defendant wife had theretofore brought a similar action.
    
      But where; in the action by the mother, it is undisputed that for about a month after her son had attained the age of eighteen years he and the other defendant freely lived and cohabited together as husband and wife, the defendant wife is entitled to judgment with costs.
    Action for the annulment of a marriage.
    Whiteman & Hill, for plaintiff.
    Harry L. Allen, for defendant Bose M. Baxter.
    James H. Clancy, guardian ad litem and attorney in person for defendant Bohert P. Baxter.
   Sawyer, J.

Plaintiff is the mother of defendant Bohert P. Baxter, and brings this action for an annulment of the marriage between the defendants under the provisions of sections 1743 and 1744 of the Code of Civil Procedure.

Both defendants were under the age of eighteen years at the time of their marriage; the defendant Bobert P. Baxter is now over, and the defendant Bose M. Baxter is still under, that age, and it is undisputed that after the defendant Bobert attained the age of eighteen years the defendants freely lived and cohabited together as husband and wife for a period of about twenty-seven days.

Prior to the beginning of this action a similar action was brought by the defendant Bose M. Baxter, as plaintiff, against the defendant Bobert P. Baxter, in which action, as I understand, issue was joined and which is still pending and undetermined. The pending action is here pleaded by the defendant Bose M. Baxter as a bar to this, but the contention in that regal’d cannot prevail, for the reason that, while the former action seeks the same relief, it is not pending between the same parties. The statute specifically gives this plaintiff the right to maintain her action and that right is not stayed or abrogated by reason of the fact that one of the defendants has theretofore seen fit to commence a similar action against the other.

It is provided in the Code sections, supra, that such an action may be maintained where one or both of the parties had not at the time of the marriage attained the age of legal consent, but that the marriage shall not be annulled at the suit of a party who was of the age of legal consent when it was contracted or where it appears that the parties for any time after they attained that age freely cohabited as husband and wife.

Plaintiff insists that she has an. absolute right of annulment of this marriage, because both parties were under the age of legal consent at the time it was contracted and they have not cohabited as husband and wife subsequently to the time when both had arrived at the full age of eighteen years. In other words, she claims that the exception being statutory must be strictly construed and that, by the use of the plural words “ parties ” and “ they in the latter part of section 1144, the legislature clearly evidenced its intent that the right of annulment should continue until after both parties were eighteen years of age.

So far as I am able to discover the question is entirely novel. It has been generally supposed in the profession that such an action would not lie by or in behalf of one who after reaching the age of consent had voluntarily continued the marital relations, and from the phraseology of the decision in Earle v. Earle, 79 App. Div. 631, 639, I take it that such has also been the impression of the courts, although 'the expression there used seems to be obiter.

If it be assumed for the purpose of argument (although I do not so hold) that the exception referred to is only applicable when the cohabitation has continued after the arrival of both parties at the age of consent, it does not follow that an annulment must be granted as of right upon the application of the one who has thereafter continued the cohabitation, simply because his spouse was not then of that age.

Marriage is a status, but is based in law upon a contract between the parties, and, except as modified to fit the peculiar conditions and necessities of matrimony, the parties are subject to the same rules and regulations which govern contracts generally. A marriage of minors is made voidable at the election of the infant for precisely the same reason as are their other contracts, viz., because in its solicitude to protect children from the consequences of their immature judgment and lack of experience, the state presumes that they are incapable of making a valid agreement until they have reached full age.

A marriage contract of infants differs from their other contracts only in that the state from motives of public policy has fixed the age when valid consent thereto may be given at eighteen years instead of twenty-one, as is ordinarily the case. In all other respects, aside from those based upon the peculiarly personal relations between the parties and the demands of morality and public policy, the rights and disabilities are the same as in ordinary contracts. Out of the necessities of orderly relations between man and man has grown the modification that, even though the contract of an infant be voidable, he must avail himself of his right to rescind it within a reasonable time after his majority, and after the facts have come to his knowledge; if he fails to do this, or if he with full knowledge of the facts then avails himself of the benefits of his contract, he is conclusively presumed to have ratified the same and is estopped from thereafter disavowing it.

To my mind this doctrine is applicable to the marriage as well as other contracts of an infant. The law has fixed the time when an infant may give valid consent to such contract as eighteen years instead of twenty-one as in other cases. Until then such a contract is voidable, but if after arriving at that age the infant continues in the marital relation he is conclusively presumed to have ratified his contract and his binding consent is thereafter in effect as of the date of the marriage. It is then too late for him to rescind it, and by his own act of ratification he is estopped from asking a court of equity to relieve him therefrom. It seems to me that this is not only the law, but that a different holding would be monstrous in doctrine and contrary to public policy.

The right of plaintiff to maintain this action is purely statutory and founded entirely upon the rights of her son, Robert P. Baxter, and it follows that she cannot successfully assert in his behalf a claim which he could not.

Judgment to the defendant Rose M. Baxter, with costs.  