The facts of the case are as follows: In February, 1858, James G. Wallace, being then under 21 years of age, but over 16, was married to Caroline Tilghman, then under 14 years of age. She (195) became 14 in June, 1858, and lived with Wallace as his wife until 23 September, 1858, when he died, being still under 21. The parties lived together as man and wife, and strictly recognized each other as such, from the marriage in February, 1858, until the death of the husband in September of the same year. At December term of Onslow County Court, Caroline Wallace, widow of James Wallace, applied for letters of administration on his estate, when the defendant *Page 152 in this case, the mother of the intestate, and also his highest creditor, opposed the motion, alleging that no marriage had taken place between her son and the applicant, inasmuch as the applicant was under 14 years of age when married. The county court granted the letters of administration to the applicant, and from this judgment there was an appeal to the Superior Court, when the applicant, Caroline, relinquished to Francis D. Koonce her right to administer, and that court accordingly granted him letters of administration; and from this judgment defendant appealed to this Court. It is enacted, Rev. Code, ch. 69, sec. 14: "Females under the age of 14 and males under the age of 16 years shall be incapable of contractingmarriage."
A marriage is duly solemnized in all respects, save that the female is a few months under the age of 14; the parties lived together as man and wife until she arrives at that age, and afterwards continue so to live together until the death of the other party.
The question is, upon the construction of this statute, Was the marriagevoid, i. e., a mere nullity, or was it voidable, i. e., imperfect, but capable of being confirmed and made perfect by subsequent consent and cohabitation as man and wife?
(196) At common law, 14 in males and 12 in females was the age of consent, and if one or both of the parties, at the date of the celebration of the marriage, were under the requisite age, such marriage was imperfect, by reason of the fact that the parties were incapable of contracting marriage, but it became perfect and was confirmed if the parties, after attaining the requisite age, assented to it by continuing to cohabit together as man and wife. In other words, the marriage was not void, but was only imperfect or voidable from the want of capacity, but could be made perfect or be confirmed by the consent of the parties, implied from subsequent cohabitation as man and wife, on the same principle by which it was held that the contract of one under the age of 21, in respect of property, except for necessaries, although imperfect and voidable because of a supposed want of capacity, may be confirmed and made perfect by assent after attaining the age of 21. Indeed, the application of this principle is especially called for in regard to the contract of marriage, from its peculiar nature and consequences. Coke Lit., 33a; ibid., 79a, note 43; 1 Bl. Com., 436. Such was the settled rule of law in regard to incapacity to contract for the want of age *Page 153 previous to the statutory enactment above recited; and, in the opinion of this Court, the only effect of the statute was to make 16 instead of 14 years in respect to males, and 14 instead of 12 years in respect to females, the ages at which the parties, respectively, were capable of making a perfect marriage, leaving the rule of the common law unaltered in all other respects; for, as is said by Bishop in his treatise on "Marriage and Divorce," sec. 192: "The common-law rule of 14 in males and 12 in females, as the age of consent, was derived from the civil and canon law. It originated in the warm climate of Italy, and it has been thought not entirely suited to more northern latitudes. In some of the United States it has been altered by statute, and the age of consent fixed at later periods of life."
This construction of the statute is supported by "the reason (197) of the thing," for no ground of public policy can be conceived of making it expedient to deprive the parties of the common-law right to confirm, by subsequent consent and cohabitation as man and wife, a marriage solemnized in due form of law, although imperfect because both or one of the parties were incapable, for want of age, of making a perfect marriage, whereby, notwithstanding such confirmation by assent and cohabitation, they should be subjected to indictment for living together in fornication, and their issue should be deemed bastards. And, as we conceive, the correctness of this construction is put beyond reach of doubt or question by a comparison with other sections of the same statute, to wit, section 9: "All marriages contracted after," etc., "between persons nearer of kin than first cousins shall be void." Section 7: "All marriages since," etc., "between a white person and a freed negro, or free person of color, to the third generation, shall bevoid." Section 8: "No minister of the gospel or justice of the peace shall marry a white person with an Indian, negro, or free person of color to the third generation, knowing them to be so, upon pain of forfeiting," etc. Thus in the statute some marriages are made void, and, in respect to others, it is enacted that the parties shall be incapable of contracting marriages. Why this change of expression, if the same idea was intended to be expressed? Taking into consideration the law as it was before settled, there is no rule of construction which would justify the Court in giving the same meaning and effect to modes of expression so different, and such a construction would shock common sense.
On the argument, Gathings v. Williams, 27 N.C. 487, was cited, and the counsel relied on this passage in the opinion: "Where the marriage is between persons, one of whom has no capacity to contract marriage at all, as where there is a want of age or understanding, or *Page 154 a prior marriage still subsisting, the marriage is void absolutely, and from the beginning." In that case there was a prior marriage still subsisting, and the point presented was the effect of a second marriage, so what dropped from the Court in regard to a want of age or (198) understanding, was an obiter dictum. There is a marked distinction. It may well be that a second marriage, while the first is still subsisting, is void and incapable of confirmation, because it is so utterly denounced by the law as to subject the party marrying a second time to capital punishment as a felon; but a mere want of age or understanding rests on a different footing entirely.
Crump v. Morgan, 38 N.C. 91, was also cited. That was a case where the marriage was duly solemnized, but the woman was a lunatic at the time, and at no time afterwards was in the possession of her faculties "so as to be capable of judging of her rights and interests, or of making or confirming a contract." So the very learned disquisition on the question whether, if she had been restored to sound mind, the marriage was such an one as could have been confirmed by her subsequent assent and cohabitation, was extrajudicial, and in regard to it "the doctors differ," for Bishop Marriage and Divorce, secs. 188, 189, 190, inclines to the opinion in his comments on that case that such a marriage could be confirmed, and calls attention to the fact that the passage in Paynter on Marriage, relied on in Crump v. Morgan, was misapprehended, for the author had reference to marriages void for want of due solemnity, as where the party officiating was not a minister of the gospel, or where there was the impediment of a former preexisting marriage, and he establishes by the authorities cited, sections 122 and 123, that marriages under fraud, terror or duress, though generally spoken of in the books as void, are in effect only voidable, and may be confirmed by subsequent assent and voluntary cohabitation as man and wife. However this may be, we think it clear that the statute under consideration does not abrogate the principle of the common law in respect to marriages where both of the parties, or one of them, are under the age of consent; and although the marriage is imperfect for the want of capacity, it may be confirmed, and the effect of the (199) statute is only to change the age of consent, so as to make it conform to our more northern latitude. There is no error.
PER CURIAM. Affirmed.
Cited: S. v. Parker, 106 N.C. 713; Sims v. Sims, 121 N.C. 300;Walters v. Walters, 168 N.C. 412. *Page 155