Opinion by
LOGSDON, C.
All of the numerous assignments of error made in the petition in error are presented -and argued in the brief of plaintiffs in error under the single proposition that:
“The court erred -in rendering judgment in favor of the defendant in error ’ and against the .plaintiff in error.”
This brings under review, the entire record of the trial, and this toeing an equitable action, -this court is authorised to consider and weigh the evidence -and to affirm or reverse the decree, or to reu(der ia decree here- in conformity with equitable principles and the rights of the parties.
Reliance for reversal is placed upon the provisions of Comp. Stat. 1921, secs. 4981, 4982, 4983, decisions of this and other courts construing these -or similar statutes, and. upon an adjudication of incompetency entered against Clyde Nichols by the coud
,ty court of Garter county on February 20, 10u9, resulting ip. tbe appointment and ■qualification of a guardian, and that tbe adjudication of inlcompetency was never vacated. Section 4988 is tbe only one of tbe three sections above cited Which it is material to ctousider in (tbe determination of this cause. Said section reads:
‘‘After bis incapacity bus been judicially determined a person of unsound mind can make no conveyance or other contract, nor designate any power, nor waive any right, until bis restoration to capacity is judicially determined. But if actually restored to capacity, be may make a will, though bis restoration i,s not thus determined.”
It is urged in the argument that tbe common-law rule, which rendered the contracts of one non compos voidable merely and not void, is abrogated in all jurisdictions having statutory provisions such as those above cited, and that the adjudication of incompetency is binding upon tbe world until vacated. This is considered to be a correct statement of tbe legal effect of such adjudication and is supported by authorities cited in tbe brief of defendants as follows: Elliott on. Contracts, vol. 1, sec. 37#* Hughes v. Jones (N. Y.) 15 Am. St. Rep. 886; Redden v. Baker, 86 Ind. 191; Kiehne v. Wessell, 53 Mo. App. 667; Mainzer v. Avrid, 177 N. Y. Supp. 596; Flach v. Gottschalk Co. (Md.) 71 Am. St. Rep. 412; L’Amoureux v. Crosby (N. Y.) 22 Am. Dec. 655: Devin v. Scott, 34 Ind. 67; Fitzhugh v. Wilcox, 12 Barb. 235; Wadsworth v. Sherman, 14 Barb. 169.
However, like most general rules announced t.o meat general conditions, this rule has its well defined and generally recognized exception. In tbe case of Thorpe v. Hanscom (Minn.) 66 N. W. 1, the court, after stating tbe general rule as here contended for by defendants, states tbe reason for the rule thus:
‘This rule is based upon convenience and necessity for tbe protection of the guardian, and ito enable him to properly discharge bis duties as such- Without this rule it would be difficult, if not impossible, for tbe guardian) to execute Ms trust, for in every action concerning tbe property of libe ward be might be obliged to gb before the jury upon the question of tbe ward’s sanity, and one jury might find one way and another the other way.”
The court Itihen stated tbe exception to the rule in this language:
“Noiw, when! the reason for the rule does not exist, this rule does not apply. Hence, if there is in fact no actual and subsisting guardianship, blit tbe same has been practically abandoned, and tbe person who has been under guardianship, after such abandonment, makes a deed at a time when be is in fact of soun|d mind, and tbe contract is fair, tbe deed will be enforced though tbe guardian has not been discharged by any judicial action.”
Tbe facts in) the Hanscom Case are very similar to those in tbe instant case, except that the guardian in that ease was not dead when tbe mortgage assailed was executed. The statutes of Minnesota of 1888, which were in force toben the case arose, are very similar in their provisions relating to the disabilities of adjudged incompetents to our olttml statutes above cited.
This exception to tbe general rule is recognized alike by text-writers and courts. Elliott on Contracts, vol. 1, sec. 378; Thompson on Real property, vol. 3, sec. 2835; Willworth v. Leonard (Mass.) 31 N. E. 299; Miller v. Rutledge’s Committee (Va.) 1 S. E. 202; Elston v. Jasper, 45 Tex. 409; Mohr v. Tulip, 40 Wis. 66.
It appears in this case that in 1917 tbe defendant Clyde Nichols was married by license duly issued ini Carter county and that be was then 31 years of age. Comp. Stat. 1921, see. 7488, provides:
“Marriage is a personal relation arising out of a civil contract to which tbe consent of parties legally competent of contracting and of entering into -if is necessary. * * *”
Section 7492, Id., provides:
“The judge or clerk of the county doruirt of any county in this state, upon) application in writing signed and sworn to in person before him by a person legally competent to mako and fake oath', * * * ®nld being satisfied/ of the truth and sufficiency of such application, and, that there is no legal impediment to such marriage. * * *”
Section 7497, Id., provides: “If the judge ■of the domity count before whom application for a marriage license is made shall be in doubt of tbe legal capacity of tbe parties for whose marriage such license is sought,” he may require evidence ini addition to that clontained i¡n the appillicaftiion, and unless satisfied as to legal capacity the license shall be refused. The county judge in whose court the guardianship of this alleged incompetent was then pending permitted a marriage license to issue. The legal capacity of the parties to the contract thus authorized to he entered into is supported by the strongest presumption known to the law. Plaintiff had a right to safely rely on this legal presumption in loaning money to these intermarried defendants on their promise to repay, the contract being ad-
mi.ttedly a fair one. The marriage contract, de facto vacancy in the guardianship, an(d the legal presumption of competency fftoom the issuance of the marriage license, are snflicicnt 'to overcome the absolute verity of the adjudication of incompeteney entered in February, 1919, in the absence of satisfactory proof of actual incompeteney at the time the contract here involved.was entered into.
Section 4983, supra, and sections 7488, 7492, and 7497, supra, relate ¡to the same subject-matter, viz., the legal capacity of parties to contract. Seqtd'on 4983 was in force prior to statehood, while the other section® were enacted daring .the first legislative session after statehood. In Lewis, Sutherland, Statutory Construction, sec. 443, it is said:
“All consistente statutes (which can stand together, though enacted at different dates, relating tea the Same subject, anld hence briefly called statutes in pari materia, are treated prospectively, and construed together as though they constituted one act. This is itlrue, whether the 'acts relutinlg to the same subject were passed at different dates, separated by long or short intervals, at the Same session or on the same day.
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Opinion by
LOGSDON, C.
All of the numerous assignments of error made in the petition in error are presented -and argued in the brief of plaintiffs in error under the single proposition that:
“The court erred -in rendering judgment in favor of the defendant in error ’ and against the .plaintiff in error.”
This brings under review, the entire record of the trial, and this toeing an equitable action, -this court is authorised to consider and weigh the evidence -and to affirm or reverse the decree, or to reu(der ia decree here- in conformity with equitable principles and the rights of the parties.
Reliance for reversal is placed upon the provisions of Comp. Stat. 1921, secs. 4981, 4982, 4983, decisions of this and other courts construing these -or similar statutes, and. upon an adjudication of incompetency entered against Clyde Nichols by the coud
,ty court of Garter county on February 20, 10u9, resulting ip. tbe appointment and ■qualification of a guardian, and that tbe adjudication of inlcompetency was never vacated. Section 4988 is tbe only one of tbe three sections above cited Which it is material to ctousider in (tbe determination of this cause. Said section reads:
‘‘After bis incapacity bus been judicially determined a person of unsound mind can make no conveyance or other contract, nor designate any power, nor waive any right, until bis restoration to capacity is judicially determined. But if actually restored to capacity, be may make a will, though bis restoration i,s not thus determined.”
It is urged in the argument that tbe common-law rule, which rendered the contracts of one non compos voidable merely and not void, is abrogated in all jurisdictions having statutory provisions such as those above cited, and that the adjudication of incompetency is binding upon tbe world until vacated. This is considered to be a correct statement of tbe legal effect of such adjudication and is supported by authorities cited in tbe brief of defendants as follows: Elliott on. Contracts, vol. 1, sec. 37#* Hughes v. Jones (N. Y.) 15 Am. St. Rep. 886; Redden v. Baker, 86 Ind. 191; Kiehne v. Wessell, 53 Mo. App. 667; Mainzer v. Avrid, 177 N. Y. Supp. 596; Flach v. Gottschalk Co. (Md.) 71 Am. St. Rep. 412; L’Amoureux v. Crosby (N. Y.) 22 Am. Dec. 655: Devin v. Scott, 34 Ind. 67; Fitzhugh v. Wilcox, 12 Barb. 235; Wadsworth v. Sherman, 14 Barb. 169.
However, like most general rules announced t.o meat general conditions, this rule has its well defined and generally recognized exception. In tbe case of Thorpe v. Hanscom (Minn.) 66 N. W. 1, the court, after stating tbe general rule as here contended for by defendants, states tbe reason for the rule thus:
‘This rule is based upon convenience and necessity for tbe protection of the guardian, and ito enable him to properly discharge bis duties as such- Without this rule it would be difficult, if not impossible, for tbe guardian) to execute Ms trust, for in every action concerning tbe property of libe ward be might be obliged to gb before the jury upon the question of tbe ward’s sanity, and one jury might find one way and another the other way.”
The court Itihen stated tbe exception to the rule in this language:
“Noiw, when! the reason for the rule does not exist, this rule does not apply. Hence, if there is in fact no actual and subsisting guardianship, blit tbe same has been practically abandoned, and tbe person who has been under guardianship, after such abandonment, makes a deed at a time when be is in fact of soun|d mind, and tbe contract is fair, tbe deed will be enforced though tbe guardian has not been discharged by any judicial action.”
Tbe facts in) the Hanscom Case are very similar to those in tbe instant case, except that the guardian in that ease was not dead when tbe mortgage assailed was executed. The statutes of Minnesota of 1888, which were in force toben the case arose, are very similar in their provisions relating to the disabilities of adjudged incompetents to our olttml statutes above cited.
This exception to tbe general rule is recognized alike by text-writers and courts. Elliott on Contracts, vol. 1, sec. 378; Thompson on Real property, vol. 3, sec. 2835; Willworth v. Leonard (Mass.) 31 N. E. 299; Miller v. Rutledge’s Committee (Va.) 1 S. E. 202; Elston v. Jasper, 45 Tex. 409; Mohr v. Tulip, 40 Wis. 66.
It appears in this case that in 1917 tbe defendant Clyde Nichols was married by license duly issued ini Carter county and that be was then 31 years of age. Comp. Stat. 1921, see. 7488, provides:
“Marriage is a personal relation arising out of a civil contract to which tbe consent of parties legally competent of contracting and of entering into -if is necessary. * * *”
Section 7492, Id., provides:
“The judge or clerk of the county doruirt of any county in this state, upon) application in writing signed and sworn to in person before him by a person legally competent to mako and fake oath', * * * ®nld being satisfied/ of the truth and sufficiency of such application, and, that there is no legal impediment to such marriage. * * *”
Section 7497, Id., provides: “If the judge ■of the domity count before whom application for a marriage license is made shall be in doubt of tbe legal capacity of tbe parties for whose marriage such license is sought,” he may require evidence ini addition to that clontained i¡n the appillicaftiion, and unless satisfied as to legal capacity the license shall be refused. The county judge in whose court the guardianship of this alleged incompetent was then pending permitted a marriage license to issue. The legal capacity of the parties to the contract thus authorized to he entered into is supported by the strongest presumption known to the law. Plaintiff had a right to safely rely on this legal presumption in loaning money to these intermarried defendants on their promise to repay, the contract being ad-
mi.ttedly a fair one. The marriage contract, de facto vacancy in the guardianship, an(d the legal presumption of competency fftoom the issuance of the marriage license, are snflicicnt 'to overcome the absolute verity of the adjudication of incompeteney entered in February, 1919, in the absence of satisfactory proof of actual incompeteney at the time the contract here involved.was entered into.
Section 4983, supra, and sections 7488, 7492, and 7497, supra, relate ¡to the same subject-matter, viz., the legal capacity of parties to contract. Seqtd'on 4983 was in force prior to statehood, while the other section® were enacted daring .the first legislative session after statehood. In Lewis, Sutherland, Statutory Construction, sec. 443, it is said:
“All consistente statutes (which can stand together, though enacted at different dates, relating tea the Same subject, anld hence briefly called statutes in pari materia, are treated prospectively, and construed together as though they constituted one act. This is itlrue, whether the 'acts relutinlg to the same subject were passed at different dates, separated by long or short intervals, at the Same session or on the same day. They are all to be compared, harmonized if possible, and if not susceptible of al construction Which will make all of the provisions harmonize, they are made to operate together so far as possible consistently with the evident intent of the latest enactment.”
It is apparent that a strict construction of the language of section 4983, supra, in this case, would render it in conflict with sections 7488, 7492, and 7497, and would call in, question the validity 'of the marriage contract entered into between 'the principal defendants. By giving to thalt language a liberal interpretation, as authorized by Oomp. Stait. 1921, sec. 3563, in the light of the well-established exception to the general rule of incompeteney, 'all of 'these sections may be harmonized and their language bo given full force and effect. It is therefore concluded that it was the legislative intention by section 4983, supra, to render void the contracts of any person adjudged' incompetent as, long as he should remain under actual guardianship, necessity and convenience alike demanding that the authority of the guardian should he free from conflicting acts of the adjudged incompetent.
Plaintiff having relied upon the presumption of competency inherent in the marriage contract between the defendants, having no actual notice of the pendency of the guardianship proceedings, and having loaned its money fairly and in good faith, relying ort the promise of defendants to repay, the trial court properly held the contract valid. While there was a conflict in the testimony as to the competency of Olyde Nichols at the time the mortgage was executed, the .finding of the trial court that he was then competent is not clearly against the weight of the evidence.
For the reasons herein stated, the decree of the trial court foreclosing plaintiff’s mortgage should be in all things affirmed.
By the Count: It is so ordered.