Gray v. . Lentz

91 S.E. 1024, 173 N.C. 346, 1917 N.C. LEXIS 302

Opinion

Walker, J.,

after stating tbe ease: There is no real controversy about tbe material facts in this case, and if they are considered in tbe view most favorably to tbe defendant, our opinion is tbat there was not reasonable inquiry by tbe defendant, so tbat it could appear to him tbat tbe parties were 18 years old or probable tbat there was no legal impediment to tbe marriage between them. Revisal, secs. 2088, 2090, which provides tbat a register of deeds “who shall knowingly or without reasonable inquiry, personally or by deputy, issue a license for tbe marriage of any two persons to which there is any lawful impediment, or where either of the persons is under the age of 18 years, without the consent required by law, shall forfeit and pay $200 to any parent, guardian, or person standing in loco parentis who* shall sue for the same.” Section 2090. It is provided by section 2088 that written consent of the parent to the marriage shall be filed with the register where either of the parties is under 18 years of age, but the two sections have generally been construed together, as they relate to the same subject. The statute is an exceedingly important one and was enacted to prevent hasty and improvident marriages. It is remedial in its nature, as it furnishes the means, and the remedy, for the forestalling of all evasions or violations of its provisions by the tricks and contrivances of the ardent and artful lover, and should be construed and enforced so as to suppress the mischief and advance the remedy. The duty of the register is to demand the production of the written permission of the parent, or to act with care and caution in ascertaining the age of the parties, by a reasonable and proper inquiry, such as a man of ordinary prudence would make in important affairs of his own. It has been held that when the facts are not disputed, what is a reasonable inquiry is a question of law. Joyner v. Roberts, 114 N. C., 389; Joyner v. Harris, 157 N. C., 295. Some rules have been formulated for our guidance in cases of this kind, and they will be found in the last cited case. They are founded upon prior decisions of this Court, and are deemed to to be sound and firmly settled. We need not restate them here, but simply refer to several cases where, as we think, the law has been stated directly contrary to the charge of the court upon the vital and decisive question involved in this appeal. Justice Merrimon said: “The license shall not be issued as of course to any person 'who shall apply for it. The .register is charged to be cautious and to scrutinize the application; it must appear probable to him, upon reasonable inquiry when he has not personal knowledge of the parties, that the license may and ought to be issued. The probability upon which the register should act is not such as arises from conjecture . . . but from inquiry of trustworthy persons known to the register who can and do give pertinent information called out by similar inquiry, presently or within a reasonable time; from the examination of pertinent records and entries; from inquiry as to like events, and from the like inquiries; and the evidence thus elicited should render it probable — more likely than the contrary — that the license should be issued in pursuance of the application for the same. ... To issue a license to marry ‘without reasonably inquiry,’ without care and scrutiny, and when it does not appear probable to the register that it may and ought to issue, as the law contemplates, is a perversion of the statute, disappoints its just purpose, and often-times brings distress and ruin upon individuals and families. To prevent such evils the statute provides heavy penalties. . . . Surely such inquiry in respect to such a matter was not reasonable nor, did the inquiries and the information, bo unsatisfactory, make it appear probable that the female was of the age of 18 years. The mere personal appearance of an entire stranger was not evidence to create such probability; it was scarcely ground for conjecture. That an entire stranger, not vouched for, should make such an application was rather ground of suspicion that it was not made in good faith, and this should have prompted further and satisfactory inquiry before issuing the license. Coley v. Lewis, 91 N. C., 21; Bowles v. Cochran, supra.” Williams v. Hodges, 101 N. C., 300.

The rule is well stated in Trolinger v. Boroughs, 133 N. C., 315, by Justice Connor, as follows: “While we may not prescribe any rule for the guidance pf the register’, it would seem that ‘reasonable inquiry’ involves at least an inquiry made of, or information furnished by, some person known to the register to be reliable, or, if unknown, identified and approved by some reliable person known to the.register. This is the rule upon which banks act in paying checks; .and surely in the matter of such grave importance as. issuing a marriage license the register should not be excused upon a less degree of care. It is said that if the register fails ot issue the license upon a proper application he is liable to the penalty. Certainly this statute would not be construed to impose such penalty unless it was made to appear that such information was furnished the register as would induce a man of ordinary prudence upon reasonable inquiry to issue it.”

The faets in this .case, which are claimed to show reasonable inquiry, are certainly no stronger than those in Trolinger v. Boroughs, and we do not think they are as strong. In Cole v. Laws, 104 N. C., 651, the rule is-thus stated in the syllabus: “When a register of deeds issues a license for the marriage of a woman under 18 years of age, without the assent of her parents, upon the application of one of whose general character for reliability he was ignorant, and who falsely stated the age of the woman, without making any further inquiry as to his sources of information: Held, that he had not made such reasonable inquiry into the facts as the law required, and he incurred the penalty for the neglect of his duty in that respect.” Likewise, in Morrison v. Teague, 143 N. C., 186, it was held that, “In an action against a register of deeds to recover the penalty under Revisal, sec. 2090, for issuing a marriage license contrary to its provisions, where the uncontradicted evidence showed that the register took the word of the prospective bridegroom and his friend, neither of whom he knew, as to the age of the young lady, and made no further inquiry of any one, the court should have given the plaintiff’s prayer for instruction, that as a matter of law defendant failed to make reasonable inquiry as to the age of the plaintiff’s daughter.” The present Chief Justice said in Laney v. Mackey, 144 N. C., at p. 634: “The application was made by a man whose name was hot known to the defendant, whom he does not show to have been trustworthy, and as to whom the only evidence is that his general character is bad. Such inquiry as the defendant made in this case was not reasonable. It was purely perfunctory and did not furnish the security against a violation of the law required by a xoroper observance of the requirements of thei statute.” The same rule was adopted by the Court in Agent v. Willis, 124 N. C., 29, where Justice Montgomery says, at p. S3: “The defendant seemed to think that an oath on the part of anybody was all that was necessary to authorize him to issue the license. But the character of the witness and accuracy of information are the things that the register of deeds should look to when he issues a license for marriage, in cases where there is doubt about the age of the parties.” The language of Justice Brown, in Morrison v. Teague, 143 N. C., 186, follows closely the facts of our case, and is very suggestive of the real principle and established rule which should control the decision of it: “The learned counsel for the defendant, Mr. Glwaltney, most earnestly contended in his argument that upon a fair interpretation of the words ‘reasonable inquiry,’ the charge of his Honor should be sustained. Notwithstanding we find ourselves unable to reconcile this view with very recent decisions of this Court, we agree with counsel that upon the evidence in the record the question was one of law, and that his Honor was correct in so holding. The uncontradicted evidence shows that the register took the word of the prospective brid,egroom and his friend as to the age of the young lady, and made no further inquiry of any one; that the register did not know either Kennedy or bis friend. The register’s suspicions seem to have been aroused, for be inquired wby tbey applied for license in Taylorsville, as tbe girl lived in Iredell; nevertheless, be made no further inquiry.” Chief Justice Smith said in Cole v. Laws, 104 N. C., 656, when referring' to facts not substantially dissimilar to those in this case: “In a matter involving such grave consequences and fixing her further life, did the deputy make any reasonable effort to inform himself of the fact, and act with a prudent regard to a parent’s right in granting and So soon following the license by consummating the marriage itself? The case cited for the defendant (Bowles v. Cochran, 93 N. C., 398) is not at variance with the view taken of the-facts of the present case. There a paper, without signature, however, was produced before the register, giving the age, by one known to him to be of good character and trustworthy, and the applicant stated that he knew her age to be that stated in the writing — 18 years. There was nothing calculated to awaken suspicion in the register’s mind' of 'the truthfulness of the representations, and it was held that the penalty had not been incurred '(in this case). No such favoring circumstances attend the action of the deputy to excuse his precipitate action. He manifests an inexcusable indifference to the results of his action, and risks the well-being of others upon representations, not themselves .suspicious, which have no .outside support. This case is not like Williams v. Hodges, 101 N. C., 300, in which more diligence was shown in finding out the facts and the true age of the infant feme; and yet it was held that the register had been remiss and culpably careless in issuing the license. In the opinion Merrimon, J., says: ‘To issue a license to marry, without reasonable inquiry, without care and scrutiny, and where it does not appear probable to the register that it may and ought to issue, as the law contemplates, is a perversion of the statute, disappoints its just purpose, and oftentimes brings distress and ruin upon individuals and families. To prevent such evils that statute provides heavy penalties.’ ” In Furr v. Johnson, 140 N. C., 157, Justice Connor repeated the rule in language which we take from the 4th headnote: “While the court may not prescribe any rule for the guidance of the register, it would seem that ‘reasonable inquiry’ involves at least an inquiry made of, or information furnished by, some person known to the register to be reliable, or, if unknown, identified and approved by some reliable person known to the register.” The case of Joyner v. Harris, 157 N. C., 295, while in some respects not like this one, is yet, in principle, not unlike it. It referred to the rule which, as we have said, had been settled for some time in several decisions of this Court, that the register should have some reliable information before he issues tbe license, and not act blindly or too confidingly upon the statements of mere strangers, and especially those who are directly interested and under a strong temptation to falsify, as here. We adopted and applied the familiar rule formulated in previous cases and held that sufficient inquiry had not been made. It is true that in Joyner v. Harris we treated the information given as to her age as practically a statement of the girl herself; but the case is otherwise decisive of this one. It was there said: "If we should hold that a register of deeds can satisfy himself as to the essential facts upon such an inadequate investigation as was made in this case, we would defeat the very object and purpose of the statute to throw safeguards about the young and inexperienced, who would by reason of their youthful impulses be liable to enter into so solemn and serious a relation lightly and unadvisedly and not soberly, discreetly, and reverently, as they should do and as the best interests of society require to be done.”

The fact that the register administered an oath to the applicant and his friend does not, of itself, exonerate him. He is permitted by the statute to do so, that he may the better elicit the facts> and his doing so or failing to dó so would be but a circumstance for the jury to consider. Furr v. Johnson, supra. The defendant relied upon Bowles v. Cochran, 93 N. C., 399; Walker v. Adams, 109 N. C., 481, and especially on Harcum v. Marsh, 130 N. C., 154. It appeared in Bowles v. Cochran that "the person who produced the paper (as to the age), was known by the register to be a man of good character and reliable, and he stated that he knew the statement in the paper to be true.” Not at all like this case, but comes directly within the correct rule. Walker v. Adams was a. case of the same kind. The party was well known to the register, and there was nothing against his character, and this was treated by the court as some evidence of his good character and reliability upon which the register might depend. The last case, Harcum v. Marsh, while not exactly like this case, there being at least a legal shade of difference, has been criticized and its weight and authority as a precedent greatly diminished and impaired, if the case has not been disapproved. Referring to that case in Trolinger v. Boroughs, 133 N. C. at p. 315, Justice Connor said: “It may not be easy to reconcile the opinion of the court, that the defendant in that case was not liable, with several cases in our reports defining the term 'reasonable inquiry.’ ” And again at p. 318: “Without reviewing the several cases, we think that they, certainly with the exception of Harcum v. Marsh, supra, lead to the conclusion that the defendant did not make reasonable inquiry.” Besides, Justice Merrimon said in Williams v. Hodges, supra, at p. 304: “The mere personal appearance of an entire stranger was not evidence to create such probability (as to there being no legal impediment) — it was scarcely ground for conjecture.” If those cases conflict with the ones we have cited as stating the correct rule, we would not regard them as controlling.

In this case the evidence shows that the defendant relied exclusively upon the statements of mere strangers, who proved to he men of bad characters. They either knew nothing of the girl’s age or, if they did know it, they swore falsely as to the fact, for she was just 14 years old at the time. John Hull had put the defendant on his guard by refusing to swear to her age, or even that it was about 18 years, though he had known her, he stated, all her life. Chris Edwards, who- turned out to be a perjurer, and appears to have been a bad man generally, was not calculated by his demeanor, even if not drunk, to inspire confidence in his statements. His manner was not altogether that of a trustworthy man. But when the evidence is sifted, we find nothing but the bare statements of entire strangers upon which the defendant based his action in issuing the license, and we hold that there was no “reasonable inquiry” within the meaning and intent of the law. If a register is justified in issuing a license for a marriage of two young persons under the circumstances disclosed in this record the statute would be of no practical value; its main-object would be defeated, and it had just as well be repealed, because there is no ordinary man who-could not make as good a showing, and sometimes with little effort, as we find in this evidence. The convenient and accommodating friend is not always hard to find. The statute was passed to prevent this kind of imposition upon the register. The trial court should have charged the jury, as requested by the plaintiff, that there was no reasonable inquiry, if the facts were as stated by the witnesses.

There was error in afiirming-the judgment of the county court, and it will be so certified, to the end that proper proceedings be taken to set aside the judgment and verdict, so that there may be a new trial.

Error.