Hemphill, Ch. J.
The point for consideration is, whether, under the circumstances, the plaintiff was justified in her immediate repudiation of the marriage, and whether this act, in connection with other facts in the cause, will authorize the Court to pronounce the marriage null and void.
It may be observed, that the provisions of the statute, in relation to the celebration of marriages, are specific and minute in their detail. Certain officers are authorized to celebrate the rites of matrimony between persons legally authorized to marry, males under fourteen years of age, and females under twelve being excepted, who are prohibited to marry. Persons, desirous of marrying, are required to apply to the Clerk of the County Court for a license, to be directed to the persons authorized to officiate at the celebration of marriages, and this shall be authority under which they shall act at such celebrations, and imposing a penalty upon any of such persons as [362] shall act without such license. The Clerk is prohibited from, issuing a license without the consent of the parents or guardians of the parties applying, unless the parties shall be, in the case of the male, twenty-one, and of the female eighteen years of age; and the Clerk offending herein, is punishable by fine. The Clerk is also required to record all licenses issued by him, and the officer, who solemnizes the rites, is required to make return thereof, endorsed upon the license, which shall likewise be recorded. (Art. 2440, 41, 42, 43.)
It may, however, possibly be the law—at least, it may be admitted as a point not necessary to be controverted in this case—that these requisitions are but directory, and that the consent of parties over age would, of itself without any peculiar ceremonies or statutory formalities, be sufficient to give validity to marriages. The statute has not, in terms, declared that marriages, for the want of such formalities, shall be null and void. But, admitting that they are not nullities, it does not follow that persons, desirous of marrying, would voluntarily disregard or contemn the law, or desire to enter the marriage union in any other mode than that prescribed by law. It is not to be presumed, for instance, that a female of tender years would voluntarily enter into that most solemn ■and important engagement, under authority of a license which she knew to have been procured by fraud and by the perjury of her lover with whom she was about to connect her destinies for life, and especially when this false oath was taken, not in relation to himself, but in relation to her age and condition, and at a time and under circumstances when, in contemplation of law, he may be supposed to be representing her. and acting under her instructions and by her authority. It is, perhaps, rarely the case, that both parties apply for the license ; but the officer, if he discharges his duty, must be satisfied that both are desirous of marriage and of competent age, or, if not, that the assent of the parents or guardians, has been given. When one alone applies for the license, he is, in contemplation of law, acting not only for himself, but for the other and virtually under her instructions.
[363] His crime, then, if he swear falsely in relation to the age or condition of the female whom he represents and for whom he is acting, not only covers himself with infamy, but involves her, at least in her possible apprehensions, in moral though not legal guilt; and can any one doubt, if she were warned previous to the ceremony, of the commission of the crime, but that she would shrink from the marriage as she would from a gulf that had yawned for her destruction ?
Whether the marriage as in this case be valid at Common Law, by consent of parties or not, yet the plaintiff, and others in her situation, might very justly be unwilling and refuse to join in the rites, unless under the sanction of the statute; they might decline a marriage which not only could not appear from the proper offices, to have been legally consummated, but which those very offices would show to have been celebrated under licenses obtained, and which could not have been procured otherwise than, by perjury and fraud. The records of those offices, instead of being testimonials of the due, orderly and regular completion of the marriage, would, at least as one of their effects, be perpetual memorials of the shame and infamy in which the marriage originated, and of the malignant auspices under which it was perfected.
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Hemphill, Ch. J.
The point for consideration is, whether, under the circumstances, the plaintiff was justified in her immediate repudiation of the marriage, and whether this act, in connection with other facts in the cause, will authorize the Court to pronounce the marriage null and void.
It may be observed, that the provisions of the statute, in relation to the celebration of marriages, are specific and minute in their detail. Certain officers are authorized to celebrate the rites of matrimony between persons legally authorized to marry, males under fourteen years of age, and females under twelve being excepted, who are prohibited to marry. Persons, desirous of marrying, are required to apply to the Clerk of the County Court for a license, to be directed to the persons authorized to officiate at the celebration of marriages, and this shall be authority under which they shall act at such celebrations, and imposing a penalty upon any of such persons as [362] shall act without such license. The Clerk is prohibited from, issuing a license without the consent of the parents or guardians of the parties applying, unless the parties shall be, in the case of the male, twenty-one, and of the female eighteen years of age; and the Clerk offending herein, is punishable by fine. The Clerk is also required to record all licenses issued by him, and the officer, who solemnizes the rites, is required to make return thereof, endorsed upon the license, which shall likewise be recorded. (Art. 2440, 41, 42, 43.)
It may, however, possibly be the law—at least, it may be admitted as a point not necessary to be controverted in this case—that these requisitions are but directory, and that the consent of parties over age would, of itself without any peculiar ceremonies or statutory formalities, be sufficient to give validity to marriages. The statute has not, in terms, declared that marriages, for the want of such formalities, shall be null and void. But, admitting that they are not nullities, it does not follow that persons, desirous of marrying, would voluntarily disregard or contemn the law, or desire to enter the marriage union in any other mode than that prescribed by law. It is not to be presumed, for instance, that a female of tender years would voluntarily enter into that most solemn ■and important engagement, under authority of a license which she knew to have been procured by fraud and by the perjury of her lover with whom she was about to connect her destinies for life, and especially when this false oath was taken, not in relation to himself, but in relation to her age and condition, and at a time and under circumstances when, in contemplation of law, he may be supposed to be representing her. and acting under her instructions and by her authority. It is, perhaps, rarely the case, that both parties apply for the license ; but the officer, if he discharges his duty, must be satisfied that both are desirous of marriage and of competent age, or, if not, that the assent of the parents or guardians, has been given. When one alone applies for the license, he is, in contemplation of law, acting not only for himself, but for the other and virtually under her instructions.
[363] His crime, then, if he swear falsely in relation to the age or condition of the female whom he represents and for whom he is acting, not only covers himself with infamy, but involves her, at least in her possible apprehensions, in moral though not legal guilt; and can any one doubt, if she were warned previous to the ceremony, of the commission of the crime, but that she would shrink from the marriage as she would from a gulf that had yawned for her destruction ?
Whether the marriage as in this case be valid at Common Law, by consent of parties or not, yet the plaintiff, and others in her situation, might very justly be unwilling and refuse to join in the rites, unless under the sanction of the statute; they might decline a marriage which not only could not appear from the proper offices, to have been legally consummated, but which those very offices would show to have been celebrated under licenses obtained, and which could not have been procured otherwise than, by perjury and fraud. The records of those offices, instead of being testimonials of the due, orderly and regular completion of the marriage, would, at least as one of their effects, be perpetual memorials of the shame and infamy in which the marriage originated, and of the malignant auspices under which it was perfected.
If, then, it cannot be doubted, that a woman of virtue and purity would shrink from the marriage ties, if she knew they were about to be imposed on her under a license founded essentially in deceit and falsehood, the question arises whether if immediately after the marriage, she should discover the foul source from which this license was dragged out through the unholy means of which her vows and assent had been wrung from her, may she not, if she act promptly on the discovery, legally repudiate such marriage, as founded in violation of law, in fraud in effect against herself, and in perjury of the most base description, the infamy of which is not confined to the perpetrator, but would be regarded, at least by a woman oí acute sensibilities, as extending to herself—and if she do repudiate, immediately and before cohabitation, will the law [364] force her to return and yield to the embraces of a wretch who has committed perjury to obtain possession of her person and property ? Will it chain her down to an engagement corrupt and polluted in its origin, in the frauds, the evasions of law and the perjuries of which she has not participated, in which she has not acquiesced, and which, by every means in her power, she is endeavoring to reject and repel ? Certainly the law could not be so cruel and stern in its dictates. It is a well established principle, that a marriage, procured by force or fraud, is null and void. (2 Kent, 76.) Can there be a more flagrant fraud than the one perpetrated in this case ? This young woman, -without the aid, assistance or advice of her friends or parents, is seduced into a marriage, but on the condition as we may presume, especially from subsequent facts, that it should be consummated with the ceremonial requisites of the law. This was apparently done; but, in fact, the pérformance was, in its most essential. element, but a gross deception. The license under which the officer of the law was officiating, was not issued in good faith or on truthful statements, but on misrepresentations and false oaths. It was fair on its face and was imposed on the plaintiff as one based in truth,—and as carrying with it, all the sanctions of the statute,—and as one which, among the public records, would be an evidence that the marriage was consummated with legal formalities, when in fact, none of these things were true, and the appearance of the document among the public records would or might operate as an enduring stigma and reproach, and as furnishing evidence that the marriage must have been founded in falsehood and consummated in iniquity. Can the law condemn this victim of deception to a perpetual association with the criminal by whom she has been inveigled into what, as to her, should be regarded as a mere mockery of marriage ? If so, the boast of the law, that all its partialities expire in its antipathy to fraud, will be but mere idle, words, having no foundation in truth. A license, procured by fraud and perjury, will have the same sanction as one based in truth, [365] although immediately repudiated by the innocent party on whom it is attempted to be imposed. Whether she will or will not, she must be forced to become a virtual accomplice in the crime, and to receive to her embraces one who has polluted himself with perjury in the ver}' act under which he claims the victim as his own. Such, certainly, cannot be the conclusion of any law which has a due regard for its own authority, or for honesty, truth and conscience. The importance of the marriage institution to the welfare of individuals and the best interests of society, is duly estimated by this Court. When fully and fairly consummated, its durability should be an object of high regard, nor should its bonds be torn asunder, unless on clear, substantial, legal grounds. But these rules and principles, although very important, have their just limits. The stability of the marriage relation does not require that marriages, procured by force or fraud, should be held good, nor that it should be so held where the marriage was consummated through the instrumentality of an infamous crime, and ■ was immediately, on discovery and before cohabitation, repudiated by the party that was guiltless of such crime. We are of opinion, that under all the circumstances of this case, the marriage is void, and it is so declared and adjudged.
This decision will not affect cases in which the marriage may have been celebrated under similar circumstances and violations of law with the present, but under which the parties have lived together as man and wife. By such a course of conduct, the innocent party must be supposed to have acquiesced in the frauds and evasions of the law, and in what she might regard, if the false oath related to her capacity, as an insult and indignity offered to herself. The facts would show that she had fully and freely assented to the marriage, notwithstanding her knowledge of the misrepresentations on which it was founded. This assent would give validity to the marriage, and she could not, after acquiescence, attempt its repudiation.
It is hereby ordered, adjudged and decreed, that the judg[366] ment of the District Court be reversed, and that the judgment which that Court should have pronounced be here rendered.
Reversed and re-formed.