(dissenting):
I am of opinion that the interlocutory judgméht' sustaining the demurrer to the reply should be affirmed. Assuming • that the
plaintiff was competent to contract a second marriage without first having her former marriage to Stein annulled, I. think it was incumbent upon her to allege all .facts essential to show that lier former marriage was void. The Legislature of the State has undertaken to prescribe by statute what constitutes a void and what constitutes avoidable marriage, and, therefore, the statutory law on this subr ject Supersedes the common law. It has not been declared by statute that every, marriage by a party who has a former husband or wife living shall be void. The Legislature has merely declared that such a marriage shall be void unless one of three facts existed. If the former marriage was annulled or the parties were legally divorced, or the former wife of Stein was duly sentenced to- imprisonmént for life, or absented herself for a period of five- years.tlién ■ last past, without being known to be living during that time, then . the former marriage was not void. (Dom. Bel. Law, §"■ 3.)- -In my opinion, the reply, in - order to meet ¿the - defense of the plaintiff’s *9former marriage set up in the answer, should have negatived the existence of all of those facts, in order to show that, the former marriage was void because the burden of proving its invalidity rests on her. (Gaines v. Hennen, 65 U. S. [24 How.] 553, 576; 1 Bish. Mar. & Div. [6th ed.] § 299.) It is alleged in the reply that Stein’s former marriage had not been dissolved and that it was in full force and effect. Whether it was in full force and effect or not, depended ■ not only upon the fact that it had not been dissolved, but also upon the fact that his former wife had not been duly sentenced to imprisonment for life and had not absented herself for a period of five years then last past, without being known to him to be living during that time. The averment that his former marriage was in full force and effect is a legal conclusion. It maybe the opinion of .the plaintiff and it may be the opinion of her attorney, but the pleadings must allege facts and not. opinions, because the opinions may be unsound, and if the facts are alleged, the court may decide on demurrer whether the opinion is ,or is not warranted.
Moreover,. I am of opinion that even though the reply negatived the facts which would have taken the former marriage of Stein from the category of void marriages, still the plaintiff’s ceremonial marriage to Stein never having been annulled by a court of competent jurisdiction, her contract for marriage with the defendant was void upon grounds of public policy. Ho case in point upon the facts has been cited or found. The cases in which it has been adjudged that a second marriage was valid without a decree adjudging the first marriage void, have arisen between the parties to a second consummated marriage or concerning■ the issue of such marriage, where the court was compelled to decide the status of the parties or of their issue, after a second ceremonial marriage, followed by cohabitation. In all of 'the text books and decisions the impropriety of the second marriage without the annulment of the first is recognized. In the case at bar not only would society be offended by requiring the defendant to perform his contract to marry the plaintiff or what is tantamount thereto, because it involves the approval of the contract, to pay damages for his failure to do so, but such a decree of the court would result in a serious public scandal that would likely reflect not only on the defendant, hut on. any issue of the marriagé. In her reply plaintiff informs *10us in effect - that her relations' with Stein were meretricious because the marriage ceremony between them was', a nullity owing to the fact that he had a wife living. If that be so, assuming the allegations to be sufficient to show the invalidity of her marriage to Stein, probably if she and the plaintiff. voluntarily performed their marriage contract, the marriage would be valid, but it would always be subject to attack and the defendant and -his issue-might be called upon to" produce proof of the invalidity -of the former marriage at some future period so remote that it might be difficult • or impossible to procure the evidence. It is manifest, that the invalidity of the former marriage rests in doubt upon ' the facts, for plaintiff has brought two actions against her former husband, in one of which she seeks an annulment of the marriage and-in the other she affirms the marriage and seeks - a separation" and alimony. . It is all very well to say that' ' defendant knew the facts and is her .attorney' in those actions which are" still pending. The argument loses sight "of the interest of the public in marriage contracts, which, is the principal ground upon which this dissenting opinion, is based. (See Grover - v. Zooh, 87 Pac. Rep. 638.) Unless the court is prepared to say that it is the duty of every minister and officer authorized to perform the marriage ceremony, to marry parties where, one. of them has been formerly .married, and the former husband or wife is living, and the former marriage has not been annulled, and the parties have not been divorced, and the former husband or wife has not been duly sentenced to imprisonment for life, ■ and has not absented himself or herself for a period of five years then last past, without being known to be living during that time, a contract for a second marriage cannot be sustained. It seems to me that it is clearly against public policy to either require or permit the solemnization "of a second marriage where the former husband or wife of ■one of the parties is living until the former marriage has been duly ■dissolved or annulled by a court of competent jurisdiction. The parties may assert, as the defendant, by a demurrer, here concedes, that at the time of. the former marriage one of the" parties had a husband or wife living, but that alone does" not render the second marriage void, and, as already observed, whether or not it was void -depends upon the three other facts specified" in the- statute. The *11parties may assert that none of the facts which would save the marriage from the invalidity declared by the statute existed, but in this they may be mistaken, and under the forms of law a new marriage might thus be solemnized and consummated which later on, upon a. judicial determination of the facts, might be decreed to be absolutely void. Innocent children might thus be brought into the world to be branded through life as illegitimate. Since the statute authorized an action by the plaintiff to annul her former marriage, and . thus conclusively establish for the benefit of any future husband or ' , the issue of ■ any future marriage her right to remarry, and since there is grave danger to society and to the issue born of a subsequent marriage without such a decree, I am of opinion that the contract upon which this action is based should be declared void as against public policy." I, therefore, vote to affirm the interlocutory judgment.
Judgment reversed, with costs, and demurrer overruled, with costs. ■ •