The facts are sufficiently stated in the opinion of the Court by MR. JUSTICE CLARK. This is an action brought by the plaintiff in her maiden name for the annulment of her marriage to the defendant upon the ground that it was void because the defendant at the time of the ceremony had a living wife.
This is not technically an action for divorce, though in a general way it comes under that heading to the extent that alimony pendente lite may be allowed. Lea v. Lea, 104 N.C. 603. We must deny the motion made by the defendant to dismiss for failure to give the affidavit required by section 1563, for that applies strictly to divorces, for the requirement that the facts must "have existed to the plaintiff's knowledge at least six months prior to the filing of the complaint," and that on "failure to file a petition for divorce within ninety days after the expiration of that time" the plaintiff shall forfeit the right of action, is intended to prevent hasty action for divorce and to give the parties opportunity for reconciliation and to prevent bad faith and collusion. Holloman v.Holloman, 127 N.C. 15; Nichols v. Nichols, 128 N.C. 108. Those reasons do not apply to a void marriage.
It is true that such action for annulment and declaring a marriage (40) void ab initio under Revisal, 1560, comes under the general head of divorce in The Code, ch. 31, and is so styled in Johnsonv. Kincade, 37 N.C. 470; yet it has broad features of difference from the general action of divorce which, technically speaking, is based upon a valid marriage.
In this case, the ground for annulment is the allegation that the defendant at the date of his marriage to the plaintiff in December, 1910, was the husband of one Georgia A. White. The judgment roll of the Superior Court of Edgecombe County at September Term, 1911, was placed in evidence, showing that "in a properly constituted action *Page 34 between said N. D. White and his alleged former wife, Georgia A. White, upon issues submitted to the jury, it was found that said N. D. White had been compelled to marry the defendant Georgia A. White against his will; that said marriage was void, and that he had never lived with her as her husband after said alleged marriage," and thereupon judgment was entered that —
The marriage ceremony performed by which N. D. White and Georgia A. White were declared man and wife is, and was, absolutely void, and that said bonds of matrimony are hereby annulled and declared null and void abinitio.
G. W. WARD, Judge Presiding.
It is true that said decree was entered subsequently to the marriage of N. D. White to this plaintiff, but as the decree decides, and cannot be controverted, there was never any valid marriage between N. D. White and Georgia A. White, and he was a single man at the time of his marriage to this plaintiff. While this plaintiff was not a party to that action, the decree declaring the status of the parties to that action is conclusive unless impeached by a direct proceeding, for fraud or collusion.
"All marriages procured by force or fraud, or involving palpable error, are void, for here the element of mutual consent is wanting, so essential to every contract. The law treats a matrimonial union of this kind as absolutely void ab initio and permits its validity to be questioned in any court at the option, however, of the injured party." (41) Schouler Dom. Rel. (3 Ed.), 38. The marriage between the defendant and Georgia A. White being void, he was free to marry the plaintiff, for "a void marriage imposes no legal restraint upon the party imposed upon from contracting another." Patterson v. Gaines, 6 How. (U.S.), 591.
Though the decree of annulment of defendant's first marriage was rendered after his marriage to the plaintiff, he had always treated the first marriage as void, and the decree declared it void ab initio. Though it was voidable and not void, he did not ratify it, and it was therefore void ab. initio by the decree. "A marriage is voidable on the ground of fraud, duress, or error, and not absolutely void; but it is voidable by the acts of the party without the necessity of a decree of nullity." Tiffany Dom. Rel., 14, 35.
"A decree annulling a marriage is final and conclusive and not open to collateral impeachment, although it may be vacated or set aside for good cause on proper application. Its effect is to make the supposed or pretended marriage as if it had never existed, and hence it restores both *Page 35 parties to their former status and to all rights of property as before the marriage. Hence also, its effect is to make any children of the marriage illegitimate unless their legitimacy is saved by a statute, as is now the case in several States." 26 Cyc., 920. Such is the case in this State. Rev., 1569; Setzer v. Setzer, 97 N.C. 252; Sims v. Sims, 121 N.C. 297.
The position of the plaintiff is inconsistent. She asks to have her own marriage declared void ab initio, but wishes to deny that effect to a decree of the court declaring her husband's marriage to Georgia A. White also void ab initio. It is true that her ground is the allegation that her husband was incapacitated to marry by reason of an existing marriage, but the ground of the decree obtained by him is that he never entered into the marriage, having been forced into it by duress. In neither case was there a valid marriage, if the allegations were found to be true. The subsequent assent of the husband would have made his voidable marriage valid; but as that was not given, it was void ab initio, and imposed no obligation on him.
The alleged marriage of the defendant with Georgia A. White not being ratified by him, was never a de facto marriage, as (42) plaintiff's attorneys claim, while that of the plaintiff and defendant was a de facto marriage, if that term can be applied to a marriage at all.
There was no legal impediment on defendant at the time of his marriage to plaintiff, and their marriage is valid.
Error.
Cited: Watters v. Watters, 168 N.C. 414.