I dissent especially from the statement of principle as pronounced in the first division of the decision. The pronouncement is in effect that a bald agreement between a man and woman, under no legal disability, presently to be husband and wife, made in good faith and intended by them to create the relationship of husband and wife, is sufficient without more to constitute a valid marriage. This pronouncement fails to give effect to the Code, § 53-101 (3), viz.: "To constitute a valid marriage in this State there must be — 1. Parties able to contract. 2. An actual contract. 3. Consummation according to law." This section originated by adoption of the Code of 1863, in which it appeared as § 1653. It was carried into the subsequent Codes of 1895, 1910, and 1933, all having been adopted by legislative enactment. It has the binding effect of a statute. Central of Georgia Railway Co. v. State, 104 Ga. 831 (2) (31 S.E. 531, 42 L.R.A. 518). It was carried in the Code of 1882 as § 1698. That Code was not adopted by the legislature, but was in vogue at the time of the decision ofSmith v. Smith, 84 Ga. 440, 442 (supra), rendered in 1889, involving a ceremonial marriage between a boy and girl who, not having attained the prescribed age, entered a ceremonial marriage that was not valid, and lived together as husband and wife. In the opinion in that case the court, through Chief Justice Bleckley, quoted and discussed that section in connection with other sections of the Code, certain decisions of this court, including Askew v. Dupree, 30 Ga. 173 (supra), that will be mentioned later, and the common law. Following this discussion it was said: "The common law as to informal marriages was thus restored and reinstated. It follows that a lawful marriage may be contracted between parties prematurely married, if at any time after arriving at the age of consent they so agree, and their marriage may become complete without the observance of any prescribed forms. If Smith and wife, after he had become seventeen years of age, had actually agreed to live together as husband and wife, and had continued to cohabit accordingly, a true matrimonial relation would have been established between them. If cohabitation based on express agreement would have had this effect, why should not cohabitation based on acquiescence in their premature marriage have a like effect? Cohabitation referable to that marriage would seem to be as free from moral impurity, and as wholesome *Page 577 to private conscience and public order and decorum, as if it followed upon a new affirmative agreement consciously entered into for the distinct purpose of inaugurating marriage. Indeed, if persons who unite matrimonially whilst too young to enter wedlock are to remain together at all after coming to the full age of discretion, it would seem that the more delicate and decorous way to do it, if they can be allowed to omit public forms, is to recognize the past as not abruptly severed from the present and the future by the wide chasm which divides illicit intercourse from matrimonial union. The making of a new agreement would necessarily bring into consciousness a suggestion of something gross and repulsive in the past cohabitation. For a young husband, on consummating his seventeenth year, to propose marriage to the wife with whom he had lived for a year or two previously as a wife, might be necessary under a system of law such as that which the Code attempted to introduce; but we can not think it necessary under the old system which the legislature designed to reinstate, and did reinstate, by the repealing act of 1863."
The philosophy of this deliverance has been consistently followed, the latest expression being found in the decision delivered through Mr. Justice Jenkins in Addison v. Addison,186 Ga. 155 (197 S.E. 232), where it was held: "While it is the rule that cohabitation, illicit in its inception, will be presumed to have so continued throughout the period of cohabitation, yet if, after the disability of the parties has been removed by lapse of time or otherwise, the cohabitation is continued, and the parties thereafter hold themselves out as man and wife, if the original illegal cohabitation was had in the absence of an attempted ceremonial marriage, a new and valid agreement of marriage will be presumed to have been entered upon, in the absence of anything appearing to the contrary; and if such illegal original cohabitation was in pursuance of an abortive ceremonial marriage, the continued cohabitation as man and wife after the disabilities have been removed will, in the absence of anything appearing to the contrary, cause the original declaration of intent to be treated as continuing. Foster v.Foster, 178 Ga. 791 (3) (174 S.E. 532); Drawdy v.Hesters, 130 Ga. 161 (4-6) (60 S.E. 451, 15 L.R.A. (N.S.) 190); Powers v. Powers, 138 Ga. 65 (74 S.E. 759); Luke v. Hill, 137 Ga. 159, 161 (73 S.E. 345, 38 L.R.A. (N.S.) 559); Smith v. Smith, 84 Ga. 440, 445, *Page 578 451 (11 S.E. 496, 8 L.R.A. 362); Smith v. Reed, 145 Ga. 724 (89 S.E. 815, L.R.A. 1917A, 492); Hamilton v. Bell,161 Ga. 739 (3) (132 S.E. 83); Heflinger v. Heflinger,161 Ga. 867 (132 S.E. 85)." The decision in Askew v. Dupree,30 Ga. 173 (supra), was rendered at the March term, 1860, before the Code of 1863 went into effect. That was a case where James F. Dupree and his wife, Uriah E. Dupree, instituted suit against Uriah Askew as guardian for Mrs. Dupree, for an accounting and to recover her distributive share in the estate of her deceased father in the hands of defendant as administrator. The defendant pleaded in abatement, that complainants were not man and wife; that they were not lawfully married; that the pretended marriage between them was solemnized by a named person as a minister of the Gospel who in fact had been expelled from the ministry, by means whereof he was disqualified to perform the marriage ceremony. A demurrer to the plea was sustained, and the plaintiff excepted. In the opinion this court through Lumpkin, J., adopted an opinion of the trial judge, which was quoted at length, being an exposition of the common law in respect to marriage. Judge Lumpkin added: "The conclusions to be deduced from the whole matter are these: That marriage is founded in the law of nature, and is anterior to all human law; that in society it is a civil contract; that if the contract is per verba depresenti — that is, I take you to be my wife, and I take you to be my husband, — though it be not consummated by cohabitation, or if it be made per verba de futuro, and be consummated, it amounts to a valid marriage, in the absence of all municipal regulations to the contrary; and that notwithstanding there be statutes directing a license, to issue, as in this State, and inflicting a penalty on any minister or magistrate who shall unite the parties in wedlock, without such license, yet, in the absence of any positive enactment, declaring that all marriages not celebrated in the prescribed form, shall be void; a marriage deliberately and intentionally entered into by the parties, who are able to contract according to the rules of the common law, without conforming to the enactment, is still a valid marriage."
As stated above this decision was before adoption of the Code, when there was no express statute making one of the essentials of a valid marriage "consummation according to law." as afterwards was provided by law. Code of 1933, § 53-101 (3). In that case the *Page 579 plaintiffs by the allegations of their bill held themselves out to the court as husband and wife; and had there been such statute, it is to be inferred in view of the quoted language of Judge Lumpkin, "in the absence of all municipal regulations to the contrary," that he would not have said: "that if the contract is per verba de presenti — that is, I take you to be my wife, and I take you to be my husband, — though it be not consummated by cohabitation, or if it be made per verba de futuro, and be consummated, it amounts to a valid marriage;" or that he would have said "a marriage deliberately and intentionally entered into by the parties, who are able to contract according to the rules of the common law, without conforming to the enactment [relating to marriage license], is still a valid marriage." Judge Lumpkin was talking about marriages under the common law, and used the language, "though it be not consummated by cohabitation." What he meant by consummation was, to use his language, "by cohabitation" which is the natural culminating act of marriage. With that deliverance fresh in mind, the legislature, perceiving the far-reaching effect and dangers of the common law as expounded, proceeded, by adoption of the Code of 1863 — not ignoring the whole common law relating to marriage, but recognizing its existence — to safeguard it (to use the language of Judge Lumpkin) by "municipal regulations." To accomplish that result the legislature adopted the provision of the Code of 1863 (Code of 1933, § 53-101), and made one of the essentials of a valid marriage in this State "consummation according to law." That provision was suggested by the substance of the opinion of Judge Lumpkin, and used almost his exact language, "consummated." Consummation as used in the statute (again employing the language of Judge Lumpkin) means "by cohabitation." "According to law" as used in the statute had reference to the common law as expounded by that decision, and recognized by the legislature as then existing, but which on that feature was intended to be "regulated." In the light of the history of the Code section, its language and substance, it can not be said that it refers only to ceremonial marriages, or that it does not apply to marriages at common law. In Smith v. Smith, 84 Ga. 440 (supra), the court viewed the case in the light of the facts of that case and all the statutes on the subject, applied the Code (now § 53-101), and sustained the premature ceremonial marriage, not on the ground of a valid ceremonial marriage, but on the basis of *Page 580 that attempted marriage and the additional fact of the parties living together as husband and wife after the disabilities of the parties had been removed. This thread of thought is seen in all of the cases which have been cited above, rendered since adoption of the Code. In them the additional fact of cohabitation is treated as essential, if not the main factor in establishing in this State a common-law marriage. Not one of the decisions has held that a mere agreement — unattended by cohabitation as husband and wife — between a man and woman under no legal disability, presently to be husband and wife, made in good faith and intended by them to create the relation of husband and wife, is sufficient without more to constitute a valid marriage. After nearly one hundred years it is now proposed to go back, and apply the defective common law which the Code professed to correct. Such a ruling would be contrary to the legislative intent reflected in the statute, and opposed to the principles ruled in all the decisions of this court. It would go to the integrity of the marital relations, the foundation of society, and all that flows from that relation. Under such ruling a man being at one place in this State and a woman being at another and distant place, who had never seen each other, could by private exchange of letters or telegrams, or even by telephone or radio conversation, by mere agreement effect a valid marriage, thereby creating the relation of husband and wife though they might never afterwards see each other or cohabit as man and wife. It would enable a man or woman under a spurious claim of marriage to evade the statutes of frauds, and in virtue of supposed marital relations, by force of the inheritance laws or the right of dower or the statutory right to a year's support, acquire title to property that ordinarily could devolve only by deed or will. And it would enable either under spurious claim of marriage to deprive the other of the right to marry. Neither personal nor property rights of either would be safe. Even creditors might be injuriously affected, and the State hampered in the enforcement of its penal laws. The Code, § 53-101 (3), should be interpreted in the light of the old law (as expounded in Askew v. Dupree, supra), the mischief, and the remedy that was afforded by adoption of the Code of 1863 (1933, § 53-101). In connection with what is said above, see 38 C. J. 1316, §§ 89-91; Dale v.State, 88 Ga. 552, 556 (15 S.E. 287); Chance v. Chance,60 Ga. App. 889 (5 S.E.2d 399).
Justice Duckworth concurs in this dissenting opinion. *Page 581