— The special counts of the complaint declare on a contract, called a “ marriage insurance policy,” issued by the “ Equitable Nuptial Benefit Union,” which is averred to be a corporation, duly incorporated under the laws of this State. The question of the validity of the contract was made by demurrer to the special counts; the causes assigned being, that it is in the nature of a marriage-brokage contract, is in restraint of marriage, and is in the nature of a gambling contract.
A marriage-brokage contract is an agreement for the payment of money, or other compensation, for the procurement of a marriage. Although they may not be a fraud on either party, such contracts are held to be void, and a public mischief, forasmuch as they are’calculated to bring to pass mistaken and unhappy marriages, to countervail parental influence in the training and education of children, and to tempt the exercise of an undue and pernicious influence, for selfish gain, in respect to the most sacred of human relations. An essential element in such contract is the procurement of a marriage, oftentimes without regard to the wishes of friends or parents, or to the *259happiness of the parties most deeply interested. There is no such element in the contract sued on ; nor is there anything in its nature that contemplates compensation for the negotiation or procurement of any particular marriage. By the contract, it is agreed to pay an amount of money upon the contingency of marriage, but leaves the party in the exercise of entire freedom as to the person with whom he may propose to contract marriage. While, in view of the conclusions at which we have arrived, it is unnecessary to decide this question, we have said this much, it being presented by the record, to exclude any inference, that in our opinion the contract is obnoxious to this objection.
Without extending this opinion by au unnecessary attempt to consider the different and varied applications of the rules determining the illegality of contracts, and of conditions annexed to gifts or testamentary dispositions in restraint of marriage, we shall refer to those rules that have been generally accepted and recognized. Subject to modifications and limitations by the application of other special rules, dependent upon the facts, whether the condition be precedent or subsequent, or whether there is a gift over, or whether the property be real or personal, all conditions in deeds or wills, and all contracts, ex-ecutory or executed, that create a general prohibition of marriage. are contrary to public policy, and to “ the common weal and good order of society.” The rule rests upon the proposition, that the institution of marriage is the fundamental support of national and social life, and the promoter of individual and public morality and virtue; and that to secure well-assorted marriages, there must exist the utmost freedom of choice. Neither is it necessary there shall he positive prohibition. If the condition is of such nature and rigidity in its requirements as to operate as a probable prohibition, it is void.
On the other hand, conditions in conveyances, or annexed to legacies and devises, in partial restraint of marriage, in respect to time, or place, or person, if reasonable in themselves, and do not materially and practically create an undue restraint upon the freedom of choice, are not void. Says Judge Story: “But the same principles of public policy which annul such conditions, when they tend to a general restraint of marriage, •will confirm and support them, when they merely preserve such reasonable and prudent regulations and sureties, as tend to protect the individual from those melancholy consequences, to which an over-hasty, rash, or precipitate match would probably lead.” — 1 Story Eq. Jur. § 281.
The want of harmony in the adjudged cases does not arise from any ambiguity in the rule itself, but from its comprehensive terms, inasmuch as the application of the rule to each *260particular case is submitted to the sound discretion and judgment of the court. The courts apply it according to their estimation of the relative necessity and importance of preserving the largest liberty in the formation of marital alliances, on the one hand, and on the other, of upholding the prerogative of the dispenser of bounty to dictate the terms, upon which its enjoyment shall commence or continue, and of the right of persons competent to contract to fix the terms of their agreement so far as may be consistent with the public weal. — 2 Lead. Cas. in Eq. 420; Maddox v. Maddox, 11 Grat. 804; Morley v. Rennoldson, 2 Hare, 571; Williams v. Williams, 13 Mo. 211; 2 Com. Eq. Jur. § 933 ; Coppage v. Alexander, 38 Am. Dec. 156, (note). Under the operation- of this rule, conditions restraining marriage, without consent of parents, guardians, or executors, or under twenty-one, or other reasonable age, or with particular persons, are held to be valid; and conditions not to marry a man of a particular profession, or that lives in a named town or country, or who is not seized of an estate in fee, are held to be general and void.— Collier v. Slaughter, 20 Ala. 263; Stackpole v. Beaumont, 3 Ves. 88; Younge v. Furse, 8 D., M. & G. 756 ; Scott v. Tyler, 2 Bro. C. C. 488.
It is true, these instances of the application of the rule are in cases of conditions annexed to gifts, devises, or legacies ; But illustrate that the condition will be sustained, when it is the exercise of due and reasonable precaution against rash and imprudent marriages. But, if it is an evasion of the law, or a cover to restrain marriage generally, or is m terrorem, the condition will be declared void. The present is the case of a contract, and these illustrations are helpful only to the extent that contracts in restraint of marriage are dependent upon the same principles.
The charter of “the Equitable Nuptial Benefit Union” declares, “ The object of the association is to unite acceptable young people in such a way as to endoMr each with • a sum of money, not to exceed six thousand dollars, to be paid at marriage or endowment, according to the regulations adopted.” It proposed to accomplish this ostensibly laudable object, by the issuance of certificates of membership. The one issued in this case contains, among others, the following provisions : “No member will be entitled to any benefit whatever, who marries in less time than three months from the date of his certificate. Every member, who shall have been in good standing as a member for at least three months prior to his marriage, shall- be entitled to forty dollars per month, upon each one thousand dollars named in his certificate, for each whole month of his membership; provided that the sum shall never exceed three thousand dollars, or so much thereof as *261shall be realized from one marriage assessment of all the members of this class.”
The restraint of marriage is partial. The counsel for plaintiff insist, that the restraint is reasonable, not forbidding marriage, but postponing it with the consent of the applicant for membership, to a period when it can presumably be made to greater advantage; and therefore should be held valid, by analogy to similar provisions in gifts, or testamentary dispositions. No circumstances are proved, to show the reasonableness of the restraint. This must be ascertained from the certificate of membership, without the aid of extrinsic and surrounding facts and circumstances. Looking at the certificate, we are forced to the conclusion, that the restraint of marriage for three months is not for the benefit or advantage of the applicant, but to enable the association to realize a benefit fund, and to keep the applicant in a condition to contribute thereto, by the payment of dues and assessments.
In Hartley v. Rice, 10 East, 22, Lord Ellenborough, C. J., says: “ On the face of the contract, its immediate tendency is, as far as it goes, to discourage marriage; and we have no scales to weigh the degree of effect it would have on the human mind. It is said, however, that the restraint is not to operate for an indefinite period, but only for six years, and that there might be reasonable grounds to restrain the party for that period. But no circumstances are stated to us to show that the restraint was reasonable; and the distinct and immediate tendency of the restraint stamps it as an illegal ingredient of the contract.” And in Sterling v. Sinnickson, 2 South. 756, where the action was on a sealed bill to pay one thousand dollars, provided the obligee was not lawfully married in six months, Kirkpatrick, C. J., after stating the general principle, that ali obligations to restrain marriage generally are void, says: “And I find no case, but in that of legacies (with one exception of a gift), that gives validity to an instrument, when made in contradiction to the principle first mentioned. And the principle of time, place, and person, appears to apply to legacies only, unless for a good consideration.”
It is not stated that there existed any relation between the applicant and the plaintiff, or the association, that would or could have moved either the plaintiff or the association to impose the restraint from prudential motives in favor of the applicant. A person having an interest, arising from relationship or close friendship, may, by conditions of partial restraint in gifts or legacies, guard and protect inexperienced youth against rash and improvident marriages ; and the husband may restrain- his widow, in the interests of his children ; but, as is *262added in some of the cases, “ this, could not be done by a stranger.”
In Chalfant v. Payton, 91 Ind. 202, a certificate of membership, issued by the “Immediate Marriage Benefit Association,” was held to be contrary to public policy, and illegal,— the contract being to pay a sum of money, on condition that the member does not marry within two years, and on marriage thereafter to pay a certain sum per day during the time lie shall remain unmarried. It may be said, that the time of restraint by the contract sued on is for a much shorter period. By what rule, in the absence of special facts and circumstances, can the reasonableness of the time of restraint be measured? By what scales, can the degree of its effect upon the mind of the applicant be weighed? "When a parent restrains the marriage of a child, or a friend prohibits it, without the consent of parents or guardian, until an age at which the child is competent to contract without such consent, the restraint does not violate, but is in furtherance of the policy of the law. But, when a stranger, without any interest or motive, except for selfish gain, enters into a contract, restraining the marriage of another for a definite period of time, the contract, pro tanto, violates public policy.
If there were no provision, other than the restraint for three months, a doubt as to its illegality might reasonably be entertained ; but the restraint for three months is not the full scope of the contract. To obtain a clear comprehension of its nature and tendency, another provision must be observed. The certificate not only makes the payment of the money conditioned on not marrying in less than three months, but provides that, upon marriage after the expiration of three months, the member shall be entitled to receive forty dollars, on each one thous- and dollars named in the certificate, for each whole month of his membership; that is, during the time he remains single. Thus, the contract contains an inducement to postpone marriage indefinitely, although the member contemplates its consummation at some future uncertain time; -for the longer the marriage is postponed, the larger is the sum to be paid. The amount which the member will be entitled to receive is conditioned on the length of time marriage is deferred. This inducement, in connection with the restraint for three months, may have the effect to operate an indefinite postponement; and,as there is no limit, within which the member shall marry, it may operate to occasion a general restraint.
Insurance, being an indemnity against loss or risk, is not intended for the benefit of persons having no concern in the subject-matter, nor any interest in the event. In Helmetag v. Miller, at the present term, it is said : “No principle of the *263law of life-insurance is, at this day, better settled, than the doctrine, that a policy taken out by one person upon the life of another, in which he has no insurable interest, is illegal and void, as repugnant to public policy. . . Such contracts are aptly termed Svager policies,’ and are entitled to no higher dignity, in the eye of the law, than gambling speculations, or idle bets on the probable duration of human life.” The same principle, that where there is no insurable interest, the policy is invalid, pervades the law of all kinds of insurance. At an early period, marine-insurance policies, without interest, were considered innocent wagers; but now such policies are held to be void, as contravening the cardinal object of insurance — indemnity against loss — and as being dangerous and demoralizing, by tempting the insured, having nothing to lose but everything to gain, to bring to pass the event upon the happening of which the insurance becomes payable. — May on Ins. § 75. Although the certificate is not properly a policy of insurance, an application of these principles will enable us to arrive at a satisfactory conclusion as to the character of the contract, when considered in the light of the attendant circumstances.
Yanderventer, at the time of making the application, in response to questions propounded, named the plaintiff as the person to whom the benefit should be paid, and to whom notices of dues and assessments should be sent for payment. There was also an agreement, that plaintiff would pay all dues and assessments, which he did, and Yanderventer should receive one-third of the proceeds of the certificate when collected, after deducting expenses. It is manifest that, while Yanderventer made the application personally, and is the nominal member, he was the mere instrument to procure the certificate, and that the contract was made really for the benefit of the plaintiff. It must be regarded as, virtually and substantially, a contract with him.
The plaintiff, not being related to Yanderventer by affinity or consanguinity, and having no business relations with him whatever, had no personal interest in his marital relations. It was speculation on the part of the plaintiff, without interest, upon the probability of Yanderventer’s marriage, — as the plaintiff tei’sely characterized it, in his testimony, ‘'a. speculation in marriage futures.” Such contract is disfavored and disapproved by the law, in the interests of the common weal, of good order and general public policy. It subjects the plaintiff to a temptation, for pecuniary advantages, to promote and procure the marriage of Yanderventer, at some future period, by which the plaintiff has nothing to lose. Upon analogous principles in cases of insurance, such contract is, in its nature, a wager contract. — Chalfant v. Payton, supra.
*264It is further contended, that if the contract is illegal, then the plaintiff is entitled to recover, under the common counts, the sum of the dues and assessments paid by him; especially fi’om ITundley, by virtue of a special promise. The action was commenced originally by process of attachment against three named individuals, among whom is ITundley, who are described in the affidavit preceding the issue of the writ, as “constituting the Equitable Nuptial Benefit Union, organized under the laws of Alabama.” In the margin of the complaint, subsequently filed, the parties are stated in the same manner; but the body of the complaint reads, “The plaintiff, Alexander L. White, claims of the defendant, the Equitable Nuptial Benefit Union, a corporation composed of the defendants, Oscar R. ITundley, William A. McNeely, and Alexander Erskine, Jr., and duly incorporated under the laws of Alabama.” The individuals, named in the margin as defendants, are mentioned in the body of the complaint, which controls the marginal statement, merely as composing the alleged corporation, — -descrigotio persono}. Filing such complaint, and going to trial thereon, operated a discontinuance of the suit against them as individuals, and converted it into an action against the corporation as the sole defendant.
The court will not lend its aid to either party, for the enforcement of an illegal executory contract, in an action to recover for its non-execution ; and when a contract, contravening good morals or public policy, has been fully and voluntarily executed, and the parties are in pari delicto, the court Mull not interfere with the acquired rights of either at the instance of the other. — Hill v. Freeman, 73 Ala. 200. The claim of the plaintiff to recover the dues and assessments paid falls within this rule.
Affirmed.