The opinion of the court was delivered by
Horton, C. J.:i. insanity, as ivorce. An action was commenced in January 1875, in the district court of Neosho county, by Margaret Powell to obtain a divorce from James L. Powell. Thé causes alleged in the petition were the impotency of the defendant, and extreme cruelty on his part toward the plaintiff. The petition also stated that the defendant was at the time of the marriage, and at the time that the plaintiff contracted to marry the defendant, afflicted with insanity, winch then and long after the marriage was wholly unknown to the plaintiff; that the defendant had continued insane from the time of the marriage to the commencement of the action, and that his insanity had continually grown worse; that on or about June 11th 1872, he was committed to the insane asylum at Osawatomie, and had since that time been confined in the asylum.. Service of the summons was made on the guardian of the defendant in pursuance of sec. 36 of ch. 60, Gen. Stat. 557. No answer was filed, and on proof offered, the court entered a decree of divorce releasing the parties from the obligations of the marriage, giving the custody of the children born in wedlock to the plaintiff, and adjudging that the plaintiff should have, enjoy, and possess as alimony, certain real estate with the right to sell the same at her pleasure. Eleven months afterward, a motion was made by James L. Powell, by his counsel John C. Carpenter, Esq., to vacate and set aside the judgment, as wholly void, because the petition did not state facts sufficient to constitute a cause of action. On 29th December 1875, the court sustained the motion, and ordered an entry to be made that the judgment should be set aside as void, and held for naught. To this action of the court the plaintiff excepted, and asks that it be reversed.
Under the allegations in the petition, we must assume that *378the defendant was insane at the time of the alleged acts of cruelty, and, as a sequence, was mentally incapable of knowing what he did. Under such circumstances, on very familiar principles, he could not be held responsible for his acts, and we do not think the acts thus committed a sufficient cause of divorce. As insanity itself, after marriage, is no cause for a divorce, nothing which is a consequence of it can be. The counsel for plaintiff do not dispute this conclusion, but insist that the petition should be so construed that the defendant had lucid intervals, and that thereupon, proof was introduced that the defendant was sane at the commission of the acts complained of. Unfortunately for this theory, there is no room for this construction. The allegations in the petition are broad and sweeping. It is asserted “that the defendant was at the time of the marriage, and has continued to be and still remains insane, and that his insanity has continually grown worse.” The extreme cruelty alleged, occurred June 1st 1872, and ten days afterward the defendant was taken to the insane asylum. If the defendant had lucid interváls, and committed any act for which he was responsible during such times, upon which a decree of divorce could be based, the petition should have so stated. In the absence of any such allegations, we cannot presume, against the averment to the contrary, that the defendant was sane at the commission of the alleged acts of cruelty. The petition excludes the idea.
Counsel for plaintiff admit that the statements concerning impotency set forth in the petition are insufficient, and should be treated as surplusage; hence, we need only say, as to that alleged cause for divorce, that our statute in that ' regard is to be interpreted in harmony with the common law; and when the legislature enacted that a divorce might be granted for impotency, it was intended that the impotence must have existed at|the time of the marriage. If a person should become impotent after marriage, the marriage is good, and no ground of divorce exists therefor. Such is the universal doctrine.
*3793.insanity at time of marri»ge. 4 sentence of nuiiity. The only serious question in this ease is, the effect of the averments of the insanity of the defendant at the time plaintiff contracted to marry him, his insanity at the , ~ , . 1 ¶ . _ date ot such marriage, and the continuance or such insanity. The marriage of an insane person is absolutely void, by reason of the want of capacity of such a party to contract; and in this case, if the allegations in the petition are true, the marriage of the plaintiff and defendant was null and void, and has never since obtained any validity, because the defendant has never been in any mental condition to ratify or consummate it. Not only was there no marriage de jure, but it would also be a misnomer to call it a marriage defacto, although law-writers thus frequently designate it. It was a nullity, and the plaintiff is in no way bound to defendant by any marriage relation. The concurring assent of the two minds was wanting. The plaintiff is as free from the defendant as if the court below had pronounced a decree of nullity, as no judgment was necessary to restore the parties to their original rights. The fitness and propriety of a judicial decision pronouncing the nullity of such a marriage, is supported, because conducive to good order and decorum, and to the peace and conscience of the party seeking it. Weightman v. Weightman, 4 Johns. Ch. 343; Rawdon v. Rawdon, 28 Ala. 565. Another reason why a judicial determination of such a marriage ought to be sanctioned, is, that an opportunity should be given, when the evidence is obtainable and the parties living, to have the proof of such marriage being void preserved in the form of a judicial record, so that it cannot be disputed or denied. But in the case at bar, the cause was prosecuted, tried, and decided, as a “divorce suit” under the provisions of the code. This is more apparent when we fully examine the record. Permission was obtained to amend the petition, and two statutory causes for which divorces are granted, were inserted; the maiden name of the plaintiff was omitted; the petition was verified; the children’s names were set forth, with the *380surname of the defendant; the real estate of the defendant was specifically described, and in the prayer for relief the court was asked to grant a divorce, to divide the real estate, to give $3,000 as alimony, and to award the custody of the children to plaintiff. The court in rendering judgment granted all the relief prayed for, but instead of dividing the real estate, decreed all of it as alimony to the plaintiff, who has assumed and retained the name of the defendant. Under the particular circumstances of this case, we cannot construe the action as one prosecuted to have the void marriage pronounced a nullity, and that therefore the action of the court below, in vacating and setting aside the judgment for being void, was not erroneous.
, „ riweifmid. au initio. It is immaterial whether the defendant, or his attorney, had the right to appear and make such motion or not. If the judgment was void, no injury resulted to the plaintiff from the order of the court; and holding the judgment void, we cannot interfere with the action of the district court. If the judgment in this case could be construed as a decree annulling a void marriage, so much of the judgment as awards alimony to the plaintiff would be nugatory. We view the case as the court below considered it, and treat it as that court treated it, simply as an action for divorce and alimony, under the provisions of the code. Any other construction by us would be grossly unjust to all the parties to the proceeding, and especially so to the plaintiff. It is doubtful whether the plaintiff would be willing to accept the original judgment attempted to be rendered, if she was fully acquainted with the consequences which would result if we w;ere to hold the judgment valid so far as determining the marriage void ah initio by reason of the insanity of the defendant. A senteuce of nullity like this would strip her of all alimony, deprive her of all interest in the property of defendant, and bastardize her children. We make these last remarks more freely, because the counsel for the plaintiff in this court state in *381their brief “that they first became connected with the case after the filing of the motion to vacate the judgment, and hence are not responsible for the pleadings.”
s. Relief; juriscourt. If upon full consideration, the plaintiff still wishes to end the mesalliance between herself and the defendant by a sentence of nullity declaring void the marriage for want of sufficient mental capacity of the defendant, with consent of the court below she can amend her petition, and prosecute the suit to final judgment, or she may disregard the proceedings had and commence de novo. Sec. 648 of the code (Gen. Stat. p. 759,) does not in any manner restrict the plaintiff from prosecuting or instituting her action to annul a void marriage. Said section applies only to incapables, who are unable to contract marriage from want of age, or understanding. Independently of the provisions relating to divorce, the district court has full jurisdiction to afford the plaintiff requisite relief. If she wishes no judicial determination of the question, and the defendant was insane at the time of the marriage, and has had no lucid intervals since, she may treat such marriage as wholly void. So it is not correct, as the counsel for plaintiff suggest in their brief, that if this judgment is not upheld the unfortunate plaintiff has no relief.
The order of the district court in vacating the said judgment will be affirmed.
All the Justices concurring.