I shall not undertake to restate the facts so clearly set out in the opinion of Chief Justice WILLSON, nor shall I rely upon any authorities other than those cited by him. There seems to be no substantial difference of opinion among the courts regarding the legal effect of an unnecessary contractual restriction on the right of marriage. A general restraint of marriage, as I understand it, is one which is unconditional, although it may be limited as to time — one which binds a person who is legally and physically qualified, to not marry any person, under any condition, for a definite or an indefinite period of time. A partial restraint is one which is coupled with some condition, as until a certain impediment is removed, or one which bars marriage to certain individuals, or class of persons, or one where marriage is conditioned upon the consent of some third person. These, I think, fall within the usual definitions laid down in the books. It is not necessary that the restriction be perpetual in time in order to be general; it is sufficient if it be unconditional and total or universal, even though it is to operate for only a limited time. (See the cases first cited by the CHIEF JUSTICE.) None of the others is in conflict with that view.
It remains, then, to determine whether or not the contract in this instance imposed a general restraint upon the right of the appellee to marry.
The material facts are undisputed. She was 16 years old at the time the contract was made. There was nothing tending to show that she was not physically fitted for marriage, or that by marriage her condition would not be improved, or that the other contracting party would gain any benefit by her remaining unmarried. She was then, presumptively, competent to contract the marriage relation with the consent of her father, who was then living. She was poor, and apparently without any means of support except her own labor and the voluntary assistance supplied by relatives other than her own father, who had married a second wife. She was, in all essential respects, a mere waif, without a home, and dependent upon charity. *Page 246
While in that condition she bound herself not to marry any one until she arrived at the age of 22, four years after she attained the age when she might legally have married without the consent of parent or guardian. If during that time she had met a man whom she wished to marry, and who wished to marry her, and who was able to provide her with a good home and all the comforts of life, she could not have married him without breaking her contract with Barnes, even if she had her father's consent, and though such a marriage at such a time might have vastly improved her social, financial, and physical condition in life.
The personal interest which Barnes had in the welfare of the appellee does not make the situation legally different, nor does it legalize what would otherwise be an invalid agreement. If it were against public policy for her to contract for a general restraint on her privilege of marrying, the fact that she did so because Barnes felt an interest in her welfare would not relieve the contract of its offensive feature. The only reason given by Barnes in the letter relied on as evidence of the contract is thus stated:
"There ain't anything in marrying young fellows that hasn't got anything. They will just drag you around and about just like they do before they marry."
It does not appear from the record that he had any particular individual in view as likely to marry his niece if she were not thus restrained. There is no evidence tending to show that this contract was made for the purpose of preventing her from contracting a hasty or an improper marriage. There is nothing to indicate that she even contemplated marrying any one at that time. For these reasons I conclude that this contract was void upon the ground that it was a general restraint of marriage.