E. W. PECK,- C. J.
This case originated in the probate [65]*65court of the county of Jackson, by a petition, filed by Mrs. Sarah A. Gullatt, the appellee, to have dower assigned to her in the lands of James Campbell, deceased.
The petition states that she was lawfully married to said deceased, in said county of Jackson, in the month of June, in the year 1862, and that they lived together as husband and wife, until the death of said J ames Campbell, in the month of August, in the year 1863, in the same county; that after the death of said James Campbell, she was lawfully married to her present husband, Thomas J. Gullatt; that the said James Campbell departed this life intestate; that at his death he was a resident citizen of said county of Jackson, and seized and possessed of certain tracts or parcels of land lying and being in said county. The lands are then described by sectional divisions.
The petition states that William H. Robinson, one of the appellants, had been appointed, and had qualified as the administrator of the estate of said deceased, and also states who were his heirs at law, and makes the said administrator and heirs-at-law, as the parties adversely interested, parties to the proceeding.
The other matters, necessary to entitle her to dower in the lands of the deceased, are set out'in the petition.
The adverse parties, the present appellants, were regularly brought into court, and filed their answers, in which answers it is denied that petitioner, Sarah A. Gullatt, was ever the lawful wife of said J ames Campbell; that the pretended marriage, as they are advised, believe and state, between the said James Campbell, and the said Sarah A. Gullatt, was invalid and illegal.
After the answers were filed in the probate court, the case was several times continued, and, at a probate court held in said county, on the 9th day of April, 1867, was transferred to the register of the court of chancery for the 33d district, northern division of this State. Before the register, the case was continued to the 26th of October, 1867, the day on which the case was heard, and a final decree rendered. On this day, a motion and entry were made in the following words and figures : “ On motion, in open court, upon plaintiff’s application to amend the peti[66]*66tion so as to show the proper numbers of the land of which the intestate died seized in fee — the court allows the amendment, which is accordingly amended, October 26th, 1867.” On this day a trial was had before the register, who made a decree that the said Sarah A. Gullatt, as the widow of said James Campbell, deceased, was entitled to dower in the lands described in the decree. The decree commences as follows: “This being the day to which this cause was regularly continued, and set for hearing the application of Sarah A. Gullatt, wife of Thomas J. Gullatt, praying for an allowance and assignment to her of dower in the lands above described, as follows: — (then follows a description of the lands in which the dower of said Sarah A. Gullatt is decreed to be assigned.)
On the trial a bill of exceptions was signed and sealed, at the instance of the appellants, in which the evidence of the marriage of the said James Campbell, and the said Sarah A. Gullatt, is set out, as well as the evidence of the seizin of the lands, by the said James Campbell, in which it was sought to have dower assigned to the said Sarah A. Gullatt. It is not necessary to state this evidence, in this opinion, as it can be seen by reference to the bill of exceptions ; it is deemed sufficient to say it states that the parties were married by a justice of the peace of Jackson county, and that from the day of the marriage to the day of the death of the husband, the parties lived together as man and wife, and recognized themselves as such, and were so recognized as such by the community in which they lived, and were received and reputed to be husband and wife.
The register decreed that the appellee was entitled to dower in the lands described in the decree.
The appellants appealed, and assign two errors, to-wit: 1. The court erred in decreeing dower to the appellee in the lands described in the decree. 2. The court erred in decreeing that appellee was entitled to dower in the lands of James Campbell, deceased.
Under these assignments, the appellants have made and argued two points, to-wit: 1. That the marriage between the said James Campbell, and said Sarah A. Gullatt, was [67]*67void. 2. That the lands described in the decree are not the lands described in the petition.
1. Marriage is a divine institution, and, although in some respects it may partake of the nature and character of ordinary contracts, it has, with few exceptions, always been considered as standing upon higher and holier grounds than any secular contracts. By a large portion of the Christian world it is believed, and held, to be a sacrament, and is reverenced and treated as such. Our blessed Saviour says, “a man shall leave father and mother and cleave to his wife, and they twain shall be one flesh.”
There is, no doubt, much wisdom in the legislation that seeks to throw around the marriage relation safeguards to prevent its being entered into hastily, or unadvisedly, or without the consent of parents and guardians.
Our own legislation, (see Revised Code, pages 481,2 and 3,) has, we think, done all that prudence requires for this purpose. It forbids incestuous marriages; that is, marriages within certain prohibited degrees. It declares that a male under the age of seventeen, and a female under the age of fourteen years, are incapable of contracting marriage.
Section 2335 provides that marriages may be solemnized by any licensed minister of the gospel, in regular communion with the Christian church or society of which he is a member ; by a judge of the supreme or circuit court within the State; or by the judge of probate, or any justice of the peace within their respective counties.
Section 2336 says, the pastor of any religious society may also solemnize -marriage, according to the rules ordained, or custom established by such society; and the clerk or keeper of the minutes of such society, must keep a register, and enter thereon a particular account of all marriages solemnized by the society; which register, or a sworn copy thereof, is presumptive evidence of the fact.
Section 2337 provides, that the people called menonists, or quakers, or any other Christian society, having similar rules or regulations, may solemnize marriage according to their forms, by the consent of the parties published and declared before the congregation assembled for public worship. True, the next section, 2339, says no marriage [68]*68shall be solemnized without a license, to be issued by the judge of probate of the county in which the female reside ; which license, it declares, is an authority to any one qualified to solemnize marriage, to join together in matrimony the persons therein named. But, it is worthy of notice, that our legislation on the subject of marriage no where declares that marriages without such license, or solemnized by persons not qualified, are invalid ; nor are any of the punishments or penalties inflicted by our laws, for violating or neglecting any of its provisions, imposed on the parties themselves.
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E. W. PECK,- C. J.
This case originated in the probate [65]*65court of the county of Jackson, by a petition, filed by Mrs. Sarah A. Gullatt, the appellee, to have dower assigned to her in the lands of James Campbell, deceased.
The petition states that she was lawfully married to said deceased, in said county of Jackson, in the month of June, in the year 1862, and that they lived together as husband and wife, until the death of said J ames Campbell, in the month of August, in the year 1863, in the same county; that after the death of said James Campbell, she was lawfully married to her present husband, Thomas J. Gullatt; that the said James Campbell departed this life intestate; that at his death he was a resident citizen of said county of Jackson, and seized and possessed of certain tracts or parcels of land lying and being in said county. The lands are then described by sectional divisions.
The petition states that William H. Robinson, one of the appellants, had been appointed, and had qualified as the administrator of the estate of said deceased, and also states who were his heirs at law, and makes the said administrator and heirs-at-law, as the parties adversely interested, parties to the proceeding.
The other matters, necessary to entitle her to dower in the lands of the deceased, are set out'in the petition.
The adverse parties, the present appellants, were regularly brought into court, and filed their answers, in which answers it is denied that petitioner, Sarah A. Gullatt, was ever the lawful wife of said J ames Campbell; that the pretended marriage, as they are advised, believe and state, between the said James Campbell, and the said Sarah A. Gullatt, was invalid and illegal.
After the answers were filed in the probate court, the case was several times continued, and, at a probate court held in said county, on the 9th day of April, 1867, was transferred to the register of the court of chancery for the 33d district, northern division of this State. Before the register, the case was continued to the 26th of October, 1867, the day on which the case was heard, and a final decree rendered. On this day, a motion and entry were made in the following words and figures : “ On motion, in open court, upon plaintiff’s application to amend the peti[66]*66tion so as to show the proper numbers of the land of which the intestate died seized in fee — the court allows the amendment, which is accordingly amended, October 26th, 1867.” On this day a trial was had before the register, who made a decree that the said Sarah A. Gullatt, as the widow of said James Campbell, deceased, was entitled to dower in the lands described in the decree. The decree commences as follows: “This being the day to which this cause was regularly continued, and set for hearing the application of Sarah A. Gullatt, wife of Thomas J. Gullatt, praying for an allowance and assignment to her of dower in the lands above described, as follows: — (then follows a description of the lands in which the dower of said Sarah A. Gullatt is decreed to be assigned.)
On the trial a bill of exceptions was signed and sealed, at the instance of the appellants, in which the evidence of the marriage of the said James Campbell, and the said Sarah A. Gullatt, is set out, as well as the evidence of the seizin of the lands, by the said James Campbell, in which it was sought to have dower assigned to the said Sarah A. Gullatt. It is not necessary to state this evidence, in this opinion, as it can be seen by reference to the bill of exceptions ; it is deemed sufficient to say it states that the parties were married by a justice of the peace of Jackson county, and that from the day of the marriage to the day of the death of the husband, the parties lived together as man and wife, and recognized themselves as such, and were so recognized as such by the community in which they lived, and were received and reputed to be husband and wife.
The register decreed that the appellee was entitled to dower in the lands described in the decree.
The appellants appealed, and assign two errors, to-wit: 1. The court erred in decreeing dower to the appellee in the lands described in the decree. 2. The court erred in decreeing that appellee was entitled to dower in the lands of James Campbell, deceased.
Under these assignments, the appellants have made and argued two points, to-wit: 1. That the marriage between the said James Campbell, and said Sarah A. Gullatt, was [67]*67void. 2. That the lands described in the decree are not the lands described in the petition.
1. Marriage is a divine institution, and, although in some respects it may partake of the nature and character of ordinary contracts, it has, with few exceptions, always been considered as standing upon higher and holier grounds than any secular contracts. By a large portion of the Christian world it is believed, and held, to be a sacrament, and is reverenced and treated as such. Our blessed Saviour says, “a man shall leave father and mother and cleave to his wife, and they twain shall be one flesh.”
There is, no doubt, much wisdom in the legislation that seeks to throw around the marriage relation safeguards to prevent its being entered into hastily, or unadvisedly, or without the consent of parents and guardians.
Our own legislation, (see Revised Code, pages 481,2 and 3,) has, we think, done all that prudence requires for this purpose. It forbids incestuous marriages; that is, marriages within certain prohibited degrees. It declares that a male under the age of seventeen, and a female under the age of fourteen years, are incapable of contracting marriage.
Section 2335 provides that marriages may be solemnized by any licensed minister of the gospel, in regular communion with the Christian church or society of which he is a member ; by a judge of the supreme or circuit court within the State; or by the judge of probate, or any justice of the peace within their respective counties.
Section 2336 says, the pastor of any religious society may also solemnize -marriage, according to the rules ordained, or custom established by such society; and the clerk or keeper of the minutes of such society, must keep a register, and enter thereon a particular account of all marriages solemnized by the society; which register, or a sworn copy thereof, is presumptive evidence of the fact.
Section 2337 provides, that the people called menonists, or quakers, or any other Christian society, having similar rules or regulations, may solemnize marriage according to their forms, by the consent of the parties published and declared before the congregation assembled for public worship. True, the next section, 2339, says no marriage [68]*68shall be solemnized without a license, to be issued by the judge of probate of the county in which the female reside ; which license, it declares, is an authority to any one qualified to solemnize marriage, to join together in matrimony the persons therein named. But, it is worthy of notice, that our legislation on the subject of marriage no where declares that marriages without such license, or solemnized by persons not qualified, are invalid ; nor are any of the punishments or penalties inflicted by our laws, for violating or neglecting any of its provisions, imposed on the parties themselves.
The judge of probate, by section 2342, is declared guilty of a misdemeanor, and subjected to a penalty of $500, for issuing a license to marry contrary to the article in the Revised Code, on the subject of marriage; and by section 2343, he is guilty of a misdemeanor for failing to perform certain duties specified in said section.
Section 2344 declares any of the persons authorized by section 2335 to solemnize marriages, guilty of a misdemeanor, who joins persons in marriage without a license, as provided in said article ; and section 2345 enacts, that any person solemnizing the rights of matrimony with the knowledge that either party is under the age of consent, or within the prohibited degrees, is guilty of a misdemeanor, and, on conviction, must be fined not less than one thousand dollars.
Thus we see that all the punishments and penalties inflicted by our laws of marriage, are none of them inflicted upon the married parties themselves, but all of them are inflicted upon the persons charged with certain duties by said laws, for omitting, neglecting or performing such duties improperly. Nor do said laws declare marriages, not solemnized in accordance with their provisions, invalid.
We, therefore, do not feel authorized to do what the laws themselves have not done; but we are prepared to hold, and do hold, that, in this State, a marriage not celebrated in conformity with the said laws on marriages ; that is, celebrated without a. license issued by the judge of probate, or not by any one of the persons or religious societies named in said laws, or without complying with the [69]*69other provisions of. said laws, is not to be declared invalid, provided the requirements of the comfnon law have been substantially complied with, in the celebration of the marriage ; in ether'words, that a marriage good at the common law, is to be held a valid marriage in this State.
There is no necessity, in this case, to refer to authorities, to show that the evidence, to say the least of it, proves a .good marriage at the common law, and, therefore, according to this opinion, a valid marriage in this State.
2. It was admitted in the argument by the counsel for the appellees, that a portion of the lands described in the original petition, (the petition set out in the transcript,) are misdescribed; that some of the numbers were wrong; but it was insisted that the original petition had been amended, and the mistake corrected, and that the lands set out in the decree, correspond with the lands described in the petition, as amended.
The transcript shows that, in open court, on the day of the trial, a motion was made by the appellees to' amend the petition, so as to show the proper numbers of the land of which the intestate died seized, and the entry says, “ the court allows the amendment, which is accordingly amended,” dated October 26th, 1867 ; the same day the trial was had and the decree made. We think it reasonable to presume the misdescription in the original petition was discovered on the trial, or just as the parties were entering upon it, and the motion was then submitted to correct such mistake, and that the misdescription was then corrected, as the entry itself states the amendment was made accordingly. This presumption is strengthened by the phraseology of the decree ; it says, “this being the day to which the cause was regularly continued and set for hearing the application of Sarah A. Gullatt, wife of Thomas Gullatt, praying for an alloioance and assignment to her of dower in the lands described as follows(then follows a description of the lands in which dower is decreed to be assigned.) This, we think, clearly shows that the lands described in the decree are the same described in the petition as amended ; for it is in the petition only that she makes her prayer to have dower assigned to her,
[70]*70To sustain the decree we will make this presumption, and as the amendment does not appear in the transcript, we will also presume it -has, in some way, been separated from the files, and lost or mislaid; and hold the lands set out in the decree, and the lands described in the petition, as amended, are the same. From these views, it follows that there is no error in the decree of the court below, under either of the assignments, and it is therefore affirmed at the costs of the appellants.