Reed v. Reed

H. T. Kellogg, J.:

This is an appeal from a judgment sustaining a demurrer to a complaint. The complaint is very brief. It alleges that the parties to the action were married on the 11th day of November, 1914; that at the time of the marriage the defendant was a lunatic; that defendant has continued ever since to be insane; that she is now confined in a State hospital for the insane; that the parties have not lived together since the 18th of December, 1914; that there were no issue of the marriage. It is not alleged that ■ the plaintiff was ignorant of the lunacy of the defendant at the time of the marriage, or that any fraud was practiced to conceal from him that fact. The simple question is presented: Can the sane party to a marriage contract maintain an action against his insane spouse to annul the marriage on the ground of insanity? The Code of Civil Procedure provides in section 1743 that an action to annul a marriage may be maintained on the ground of the non-age of a party, the invalidity of the marriage, the idiocy or lunacy of a party, the procurement of the marriage by force, duress or fraud, the physical incapacity of a party, or the relationship of the parties within prohibited degrees. It specifically provides that if infancy be the ground the action may be maintained only on behalf of the infant. (§ 1744.) It specifically provides that either party may bring the action on the ground of the invalidity of the marriage. (§ 1745.) It fails to specify which party may sue in case of the- relationship of the parties within prohibited degrees. From this it may be assumed that in such case an action will lie in favor of either party. As to the three remaining grounds for annulment it provides that an action will lie on behalf • of the idiot or lunatic, in favor of the defrauded or injured party, and in favor of the capable against the incapable party, or, if the incapable party were married when unaware of his incapacity, then in favor of either party. Clearly a party who procures a marriage by fraud or a party who marries knowing that he is incapable ought not to be permitted to avoid the marriage, the one for his fraud or the other for his incapacity. Neither of them, however, is expressly debarred from bringing suit. The sane party to a marriage with an insane person is under the statute in a precisely similar situation. He is neither given nor expressly denied a right to maintain an action. We think that the Legislature in expressly naming the particular parties who might bring suit for annulment intended thereby to exclude all other persons from rights of action. Accordingly, we hold that a sane party to a marriage with an insane party may not bring suit to avoid it on the ground of insanity. It is clearly for the public good that this should be the law. Otherwise a man knowingly marrying an insane woman might, after cohabitation, discard her at will. We think that the demurrer was properly sustained.

The judgment should be affirmed.

All concur, Kilby, J., with a memorandum, in which Woodwaed, J., concurs.