By the Court,
WHITMAN, J.:This was an action for divorce brought in the District Court of the Eighth Judicial District, and by that Court referred by the following order: “ By consent in open Court the above cause is ordered referred to D. W. Perley, Esq., to take the testimony herein and report the same to this Court with the proper order therein.”
Acting thereunder, the referee took the testimony offered, and filed his findings of fact and conclusions of law, to the effect that plaintiff was entitled to a decree of divorce. On the same day the Court set aside the report and directed a judgment for defendant, which was subsequently entered. From that judgment this appeal is taken.
The course pursued by the District Court would seem to be irregular in point of practice, in any view of the force of the order of reference. If the reference was general, as was evidently the understanding of the referee, then his report stood as the decision of the Court, and upon filing, judgment should have been thereon entered, unless such decision had been altered or amended. (Stats. 1869, 224-5.) If the reference was to find the facts, then the *66report stood as a special verdict, (Stats. 1869, 225) and upon that special verdict the Court should have found conclusions of law. (Stats. 1869, 223.) But as no objection is made to the action of the Court in this regard, and the case is argued entirely upon its merits, the judgment being objected to as erroneous under the law of divorce, the case will be considered as presented; and the only point decided will be, whether under the findings of fact by the referee, the conclusions of law practically deduced by the Court, as evidenced by the judgment, are correct.
The statute of this State provides that “ male persons of the age of eighteen years, and female persons of the age of sixteen years, not nearer of kin than second cousins, and not having a husband or wife living, may be joined in marriage: provided always, that male persons under the age of twenty-one years and female persons under the age of eighteen years shall first obtain the consent of their fathers respectively, or in the case of the death or incapacity of their fathers, then of their mothers or guardians; and provided further, that nothing in this act shall be construed so as to make the issue of any marriage illegitimate, if the person or persons shall not be of lawful age.” (Stats. 1867, 88.) *
It is admitted by counsel for appellant that it is commonly held under similar statutes, that the lack of the consent of parent or guardian does not invalidate the marriage; but it is claimed that the second proviso, above quoted, alters the effect of the statute, and evidences the intention of the Legislature to make such marriage void, by carefully providing against evil results to its issue. That proviso cannot indicate any such intent, as it only relates to the issue of persons not of lawful age — that is, not of the age of eighteen years in the male or sixteen years in the female. Those are the lawfful ages; any thing less would be unlawful under the statute; so that proviso applies merely to the issue of persons marrying under the ages mentioned, and does not touch the question in hand.
It has been said that the ages of eighteen and sixteen, for males and females respectively, are lawful ages of marriage. Now, it remains to be seen what is the effect of the first proviso, and how a marriage between persons of lawful age is affected, if at all, by *67reason of non-consent of parent or guardian. In deciding this question, the hardship of a particular case can properly have no effect. What the authorities have declared the law to be, must be the rule of decision.
By the common law and the statute law of this State, (Stats. 1861, 94) marriage is held, to be a civil contract. To render the contract valid, the parties must be able and willing to contract. At common law the age of capacity to make the contract of marriage was fixed at fourteen years for males and twelve years for females, upon the supposition, all things considered, that such provision was for the best interests of society; and by so fixing the age of capacity or contract, the inference naturally follows, “ that the parties at that age have sufficient discretion for such a contract, and they can then bind themselves irrevocably, and cannot be permitted to plead even their egregious indiscretion, however distressing the result of it may be. Marriage before such age is voidable at the election of either party, on arriving at the age of consent, if either of the parties be under that age when the contract is made.” (2 Kent, 44.)
The statute of this State does not alter the common law, save by substituting the ages therein named for the common law ages; and it has been generally, if not universally held, in construing similar statutes, that in the absence of any provision declaring marriage made in violation of the statutory proviso void, it was a valid and binding contract, upon the theory that persons of the consenting or lawful age, voluntarily entering into a contract, should be held thereto precisely as they would be held to any other lawful contract voluntarily assumed at the legal age, or upon majority. In other words, that the age fixed by statute as the age of consent, renders parties of such age no longer infants with regard to that special contract. (Goodman v. Thompson, 2 C. Greene, (Iowa) 329; Parton v. Hervey, 1 Gray, 119; Hervey v. Mosely, 7 Gray, 479; Dumaresly v. Fishley, 3 A. J. Marshall, 369; Rex v. Birmingham, 8 B. & C. 24; 2 Greenlf. Ev., Sec. 460; 2 Kent. Com. 52.)
In the case at bar the evidence was conflicting on some points, but still warranted the findings of fact of the referee; but the *68material facts found by him seem to have been overlooked in his legal conclusions. The referee finds that appellant was born in April, 1853, and married in September, 1869, so that she was, at the date of her marriage, over the age of sixteen years; and he further finds that so far as she “ was concerned, the marriage was not procured by force or fraud, but was entered into with her full and free consent.”
These findings are conclusive of the case. The appellant being of lawful consenting age to make a marriage contract, and entering into the same “ without force or fraud,” and “ with her full and free consent,” did make a valid binding contract, which can only be avoided by her for some reason by law provided for such avoidance ; and none such has been presented in this case.
The judgment of the District Court was therefore correct and must be affirmed.