by the law flow from said contract." In re Imboden's Estate, 86 S. W. 263, 265, 111 Mo. App. 220 (citing Banks v. Galbraith, 51 S. W. 105, 149 Mo. 536; State v. Bittick, 15 S. W. 325, 103 Mo. 183, 11 L. R. A. 587, 23 Am. St. Rep. 869; Dyer v. Brannock, 66 Mo. 391, 27 Am. Rep. 359). Marriage, while from its very nature a sacred obligation, is nevertheless, in most civilized nations, a civil contract, and usually regulated by law. Upon it society may be said to be built, and out of its fruits spring social relations, and social obligations and duties, with which government is necessarily required to deal. In re De Laveaga's Estate, 75 Pac. 790, 795, 142 Cal. 158 (citing Reynolds v. United States, 98 U. S. 145, 25 L. Ed. 244). Marriage is a civil contract, and the wife owes to the husband the same full performance of marital duties that he owes to her. Richardson v. Richardson, 114 N. Y. Supp. 912, 914. As between the immediate parties, "marriage" is, in law, a civil contract. Nelson v. Brown, 51 South. 360, 363, 164 Ala. 397, 137 Am. St. Rep. 61. Code, 3139, defines "marriage" as a civil contract. Pegg v. Pegg, 115 N. W. 1027, 1028, 138 Iowa, 572. As a civil institution Marriage is a social institution or status, in which, because the foundations of the family and the domestic relations rest upon it, the commonwealth has a deep interest to see that its integrity is not jeopardized. Coe v. Hill, 86 N. E. 949, 950, 201 Mass. 15. "'Marriage' is an institution in which the public have an interest." This is shown by the safeguard which the statute has thrown around the contract and its dissolution. Bacon v. Bacon, 86 N. E. 1030, 43 Ind. App. 218. As a civil relation "The 'marriage contract' once entered into becomes a relation rather than a contract, and invests each party with a status toward the other and society at large, involving duties and responsibilities, which are no longer matter for private regulation but concern the commonwealth." Coy v. Humphreys, 125 S. W. 877, 879, 142 Mo. App. 92. As a civil status In Christian nations marriage is not treated as a mere contract to be suspended or dissolved, at pleasure, but rather as a status based on public necessity, and controlled by law for the benefit of society at large. People v. Case, 89 N. E. 638, 640, 241 Ill. 279, 25 L. R. A. (N. S.) 578. Marriage is a status resulting from a contract to marry entered into by a man and woman capable of making such a contract, and cohabitation does not of itself constitute marriage. Compton v. Benham (Ind.) 85 N. E. 365, 367. Under Const. art. 16, § 51, and Rev. St. 1895, art. 2396, defining a homestead, the homestead right of a married woman rests upon the fact that she has the status of a wife, and that as such she actually used and occupied the 200-acre homestead for the purpose of a home, at the time of its attempted alienation, and did not join in the execution of the conveyance or in any way assent thereto; the term "marriage" meaning the civil status of a man and woman lawfully united in the relation of husband and wife, and "wifehood" being defined as the state of being a wife. McCracken v. Taylor (Tex.) 146 S. W. 693, 695. Contract distinguished Wilson's Rev. & Ann. St. 1903, c. 51, art. 1, § 1, par. 3482, provides that marriage is a personal relation arising out of a civil contract, differing from all other contracts to such an extent that the rule that prohibited contracts are void does not apply thereto. Hunt v. Hunt, 100 Pac. 541, 543, 23 Okl. 490, 22 L. R. A. (N. S.) 1202. Wilson's Rev. & Ann. St. 1903, c. 51, art. 1, § 3, par. 3484, prohibits any male under the age of 18 years, and any female under the age of 15 years, to marry. Chapter 51, art. 1, § 16, par. 3497, makes it criminal to solemnize or enter into a marriage contrary to foregoing provisions. Held, that while a marriage of a youth of 16 and a girl of 14 was illegal, it was voidable only, and not void. Hunt v. Hunt, 100 Pac. 541, 543, 23 Okl. 490, 22 L. R. A. (N. S.) 1202. Same-Capacity of parties "Marriage is not a civil contract, except in so far as the relation is based on the agreement of the parties. It is true the statute (section 7289, Burns' Ann. St. 1901) declares marriage to be a civil contract, but the statute itself takes it out of the clause of simple contracts by providing that it may be entered into by persons under age." Eikenbury v. Burns, 70 N. E. 837, 838, 33 Ind. App. 69. In an action by parents to recover for the death of a child 13 years old, it is unnecessary to allege that the child was unmarried; Rev. St. 1899, § 4311, providing that marriage is in law a civil contract to which the consent of parties capable in law of contracting is essential, not giving the right to parents or guardians to contract marriages between males under the age of 14 years and females under the age of 12 years. Bellamy v. Whitsell, 100 S. W. 514, 515, 123 Mo. App. 610. Same-Interest of state Marriage is more than a mere civil contract for the establishment and maintenance by the parties to it of certain relations to each other. It involves, except as modified nor marital duties imposed, and, if one or by statute, an intimate personal union of those participating in it of a character unknown to any other human relation, and creates a civil status, the maintenance of which in its integrity is vital to the moral welfare of society. Taylor v. Taylor, 69 Atl. 632, 634, 108 Md. 129. While our law defines marriage as a civil contract, it differs from all other contracts in its consequences to the body politic, and for that reason, in dealing with it, or with the status resulting therefrom, the state never stands indifferent, but is always a party whose interest must be taken into account. Willits v. Willits, 107 N. W. 379, 380, 76 Neb. 228, 5 L. R. A. (N. S.) 767, 14 Ann. Cas. 883. "Marriage" is more than a civil contract, for it can only be entered into in a manner recognized by law, and can only be dissolved in a like manner. The state is the third party to the contract and has a direct interest therein. Grover v. Zook, 87 Pac. 638, 642, 44 Wash. 489, 7 L. R. A. (N. S.) 582, 120 Am. St. Rep. 1012, 12 Ann. Cas. 192 (citing Blank v. Nohl, 20 S. W. 477, 112 Mo. 167, 18 L. R. A. 350; State v. Bittick, 15 S. W. 325, 103 Mo. 183, 11 L. R. A. 587, 23 Am. St. Rep. 869). both of the parties be insane and therefore incapable of giving consent, there is no marriage, but in the interest of good order the courts will assume jurisdiction to decree the annulment of the union though annulment is not necessary to clothe the parties with all the rights of unmarried persons. Floyd County v. Wolfe, 117 N. W. 32, 34, 138 Iowa, 749. Under the statutory definition of marriage in Missouri as a civil contract to which the consent of parties capable in law of contracting is essential, there could be no marriage in legal contemplation between slaves in that state, who had no capacity to contract; and hence, where a man and woman, slaves, "took up with each other" in Missouri, with their mistress' consent, according to the custom of slaves, the relation being merely temporary and subject to termination at any time, either by their own act or that of their mistress, there was no such marriage as would permit their children to In re Campbell's inherit from their father. Estate, 108 P. 669, 673, 12 Cal. App. 707. Same-Consent of state "A 'marriage' is a civil contract made in due form, by which a man and woman agree to take each other for husband and The "marriage" contract, once entered in- wife during their joint lives, unless it is anto, becomes a relation, rather than a contract, nulled by law, and to discharge towards each and invests each party with a status towards other the duties imposed by law upon such the other, and society at large, involving relation. Each must be capable of assenting, duties and responsibilities which are no longer and must in fact consent to form this new matter for private regulation, but concern the relation. If a statute forbids the solemnizacommonwealth, and in this aspect is a civil tion of marriage without a license, still, in or social institution, being the foundation of the absence of a clause of nullity, the marthe family and the origin of domestic rela-riage will be good, though no license was had. tions of the utmost importance to civiliza- No particular form of words is necessary to tion and social progress; hence the state is constitute a common-law marriage. If what deeply concerned in its maintenance in pu- is done and said evidences an intention by rity and integrity. Coy v. Humphreys, 125 the parties to assume the marriage status, S. W. 877, 879, 142 Mo. App. 92. and the parties thereupon enter into the reCreation of relation-Capacity of par-lation of husband and wife, that is sufficient, ties whatever may be the form of expression used." Heymann v. Heymann, 75 N. E. 1079, 1080, 218 Ill. 636. Same-Solemnization "Marriage" is a contract and nothing else, which presupposes the meeting of two minds on the subject-matter of it. If one of the parties when the ceremony was per- Marriage is a civil contract, the consent formed was so far under the influence of of the parties to it being all that is required liquor as to be unable to understand the con- by natural public law. It is true that in tracting of such marital relation, then in law most, if not all, of the states of the Union, the proceeding amounted to nothing, because there are statutes regulating the manner of the meeting of minds presupposes sufficient forming the marriage contract, providing for intelligence to determine whether the con- the performance of ceremonies, and naming tract shall be made. Unless there shall be those persons who can perform the ceremopresent this degree of intelligence at the nies or celebrate the rites of matrimony; time the marital relation is entered into, but it is held in a number of the states that, then there is no contract. Allen v. Allen, in the absence of positive statutes declaring 110 N. Y. Supp. 303, 305, 125 App. Div. 838. all marriages void that are not performed as Under the express provisions of Code, § directed by law, any marriage made accord3139, marriage is a civil contract, requiring ing to the common law would be a valid marthe consent of parties capable of entering riage. Such marriage may be proved by repinto other civil contracts, and hence without utation, declarations, and conduct of the such consent no marital rights are acquired parties, and other circumstances usually ac MARRIAGE relation. Edelstein V. companying that Brown, 80 S. W. 1027, 35 Tex. Civ. App. 625. "Two essentials to a valid 'marriage' are Marriage is a civil capacity and consent. contract, and no ceremonial is indispensably requisite to its creation. A contract of marriage made per verba de præsenti amounts to an actual marriage and is valid." Travers v. Reinhardt, 27 Sup. Ct. 563, 568, 205 U. S. 423, 438, 51 L. Ed. 865 (quoting Voorhees v. Voorhees, 19 Atl. 172, 173, 46 N. J. Eq. 411, 413, 414, 19 Am. St. Rep. 404, 406). "Marriage" in a legal sense is a civil contract. It is not indispensable that a clergyman should be present to authorize and confirm the contract to give validity to the marriage. Statutes which direct that a license must be issued, that only certain persons shall perform the ceremony, that a certain number of witnesses shall be present, that a certificate of marriage shall be returned and recorded and the person violating the conditions shall be guilty of a criminal offense, are directory merely, and in no wise affect the validity of the marriage contract, unless they contain an express provision to that effect. Reaves v. Reaves, 82 Pac. 490, 492, 493, 494, 15 Okl. 240, 2 L. R. A. (N. S.) 353 (citing Gibson v. Gibson, 39 N. W. 450, 24 Neb. 394). * * note; and citing and adopting Dyer v. Brannock, 66 Mo. 391, 27 Am. Rep. 359). An instruction that "marriage" is a civil contract entered into between a man and a woman, both of whom are equally competent to enter into the relationship, and that it may be consummated by a form prescribed by statute, or by some other formal method, or by a formal agreement between the parties, and that some of these methods are necessary to constitute "marriage," is incorrect, since whatever be the form of the ceremony or if there be no ceremony, if the parties agree presently to take each other for husband and wife, and from that time on live professedly in that relation, proof of these facts would be sufficient to constitute proof of a marriage binding on the parties, which would subject them to legal penalties for a disregard of the obligation. Darling v. Dent, 100 S. W. 747, 748, 82 Ark. 76 (citing Hutchins v. Kimmell, 31 Mig. 130, 18 Am. Rep. 164). Evidence of Mere co ""Where parties have cohabited together, and held themselves out as man and wife, and there are circumstances from which a present contract may be inferred, the law out of charity, and in favor of innocence and good morals, will presume matrimony. The law in general presumes against vice and imA present agreement between competent morality, and on this ground holds acknowlpersons to take each other for husband and edgment, cohabitation, and reputation prewife constitutes a valid "marriage," though sumptive evidence of marriage. there be no witnesses. Dietrich v. Dietrich, habitation is not usually considered suffi112 N. Y. Supp. 968, 970, 128 App. Div. 564. cient.' Bishop lays down the doctrine that "That there may be a valid 'marriage' cohabitation and the reputation of being without solemnization by minister, priest, or husband and wife are usually considered toofficer is not questioned in this country ex-gether in questions concerning the proof of cept where the statute forbids, and it once marriage; the one being in a certain sense the shadow of the other. Some of the auwas SO understood in England. Marriage is recognized as a status brought thorities favor the idea that reputation of about by civil contract, and it may be con- itself may be received as sufficient proof tracted by the parties themselves, as any oth- prima facie, but it must be uniform and gener contract, without even the presence of eral; if there is a conflict in the repute, it We have already shown will not establish the marriage. On the othwitnesses. that it need not be followed by er hand, its sufficiency in any case has been cohabitation, either in the sense of living to- denied, unless there be accompanying proof of cohabitation.' 1 Bishop, Marriage & Digether or of sexual intercourse. consent, expressed, is the requisite." "Mar-vorce (5th Ed.) 483. 'Cohabitation and repriage," as distinguished from an agreement utation are at best only presumptive proofs, to marry and from the act of becoming mar- and, when one of these foundations is withThere is good sense in the ried, is the civil status of one man and one drawn, what remains is too weak to build a woman, legally united for life. "The contract presumption on. makes the marriage, and the status is the Scotch law, by which cohabitation alone is considered insufficient, and which requires in Hence it is said that marriage addition habit and repute, because it is said marriage. is a status which arises out of the contract. that the parties may eat, live, and sleep toThat a contract of marriage in gether as mistress and keeper without any præsenti is itself a marriage—that is, produc- intention of entering into marriage.' the marriage status without anything well established in this state that a marriage more is stated by all commentators on the without observing the statutory regulations, common law and by all adjudications there- if made according to the common law, is a of in this country." Davis v. Stouffer, 112 valid marriage, and that by the common law, S. W. 282, 285, 286, 132 Mo. App. 555 (quot-if the contract be made per verba de præsenti ing and adopting Yardley's Estate, 75 Pa. it is sufficient evidence of a marriage, or if it 207; 1 Bishop, Marriage & Divorce, § 11, and be made per verba de future cum copula, the es * * * Mutual It is de As matter or thing See Matter or Thing. cohabitation is presumed to be on the faith | there must be evidence that the parties asof, the marriage promise. That is, however, sumed the relation of husband and wife, merely a rule of evidence, and it is always treating each other as married, and so concompetent, in such cases, to show by proof ducting themselves as to have full repute that the facts are otherwise. Under our law, among their friends and associates to be mar'marriage' is a civil contract by which a ried. In re Baldwin's Estate, 123 Pac. 267, man and a woman agree to take each other 275, 162 Cal. 471. for husband and wife during their joint lives, unless it is annulled by law, and to discharge towards each other the duties imposed by law upon such relation. Each must be capable of assenting and must, in fact, consent, to "Marriage" is a contract by which a form this new relation. When the consent social union is established; and the status to marry is manifested by words of each spouse, and his or her rights in præsenti, a present assumption of the mar- the common property, are fixed by special riage status is necessary." On the issue as provisions of law applicable to that relation to a common-law marriage, the woman testi- alone. It will not be just to say that, because fied that while she and the man were riding the personal identity of the husband or wife together he said she was his wife, and that a is the same after as before marriage, there marriage ceremony was unnecessary, if they has been no loss or surrender of those legal should hold marriage relations, and that | characteristics affected by the assumption of she agreed to hold such relations, and that the relation. There is in many respects a afterwards he acknowledged her as his wife, complete merger of identities and a total loss but that they did not live openly together of the separate individual rights that formeruntil five months thereafter. It appeared ly existed. Clark v. Brown (Tex.) 108 S. W. that subsequently their neighbors and the 421, 443. woman insisted that a ceremony be performed, and that, because of the man's refusal to have a ceremony, a difficulty arose between the man and the woman's son, in which the latter killed the former. Held that the facts were insufficient to show a marriage. Topper v. Perry, 95 S. W. 203, 207, 197 Mo. 531, 114 Am. St. Rep. 777 (citing Cargile v. Wood, 63 Mo. loc. cit. 512; State v. Bittick, 15 S. W. 325, 103 Mo. loc. cit. 191, 11 L. R. A. 587, 23 Am. St. Rep. 869; State v. Cooper, 15 S. W. 327, 103 Mo. 271; Dyer v. Brannock, 66 Mo. 391, 27 Am. Rep. 359; Cartwright v. McGown, 12 N. E. 737, 121 Ill. 388, 2 Am. St. Rep. 105; Hantz v. Sealy [Pa.] 6 Bin. 405; Elzas v. Elzas, 49 N. E. 717, 171 Ill. 635). As used in Rev. Code, § 2611, defining it as a personal relation arising out of a civil contract to which the consent of the parties is necessary, and that consent alone will not constitute it, but it must be followed by a solemnization or by mutual assumption of marital rights, duties, and obligations, was fully proven by evidence that the parties in this case had been married by a minister on authority of a certificate issued by law and had lived together for 28 years as man and wife, though at the time of the ceremony a prior spouse of one of the parties was alive; there being a presumption of divorce. Huff v. Huff, 118 Pac. 1080, 1083, 20 Idaho, 450. Civ. Code, § 55, declaring that marriage is a personal relation arising out of a civil contract, but consent alone will not constitute a marriage, and it must be followed by a mutual admission of marital rights, does not modify the requirements of the common-law rule that the repute and cohabitation necessary to create a presumption of marriage must be uniform, general, and open, and As valuable consideration See Valuable Consideration. A book known as the "Marriage Bond Record" is a book kept in the county clerks' offices in Kentucky, containing the names of persons who obtained licenses to marry and other evidence touching their age and residence. Pace v. Cawood (Ky.) 110 S. W. 414, 415. MARRIAGE BROKERAGE A contract based on a money consideration to aid a woman in securing a husband, the services contracted for being in connection with efforts already being made by her to secure such man, was nothing less than that known as "marriage brokerage" and was invalid by common law as against public policy. Wenninger v. Mitchell, 122 S. W. 1130, 1132, 139 Mo. App. 420. MARRIAGE PER VERBA DE FUTURA CUM COPULA See, also, Common-Law Marriage. "Marriage per verba de futuro cum copula" is not consummated, unless the copula is had in fulfillment of the future agreement. An existing agreement between a man and a woman to marry at a future day conclusively negatives the claim of a marriage per verba de præsenti between the same parties. Sorensen v. Sorensen, 100 N. W. 930, 933, 68 Neb. 483. MARRIAGE PROMISE Breach of as personal injury, see Personal Injury. Seduction induced by, see Seduce Se duction. MARRIAGE RELATION feated, and on her entering into a polyga See Property Growing Out of Marriage mous marriage the gift to her terminated. MARRIAGEABLE WOMAN A woman, to be "marriageable," must at the time be able to bear children to her husband, and a representation to this effect is implied in the very nature of the contract. Baker v. Baker, 13 Cal. 87, 103.. MARRIED WOMAN As public merchant, see Public Merchant. In Domestic Relations Law (Consol. Laws 1909, c. 14) § 81, providing that a married woman is a joint guardian of her children with her husband, the term "married woman" does not refer to one married to another than the living father of the child after divorce from him, but only to the mother married to the father of the infant. In re Wagner, 135 N. Y. Supp. 678, 683, 75 Misc. Rep. 419. MARSH LAND The drainage act of 1881 (Laws 1881, p. 236, c. 51) confers the power upon county authorities to create drainage districts for the purpose of draining "marsh or swamp lands" alone, and does not confer power to change the channel or divert surface water drains for the purpose of relieving the lands of riparian proprietors lower down the stream from periodical overflows in seasons of freshet. The term "marsh or swamp lands," as used in said act, has a wider significance than the terms "marshes" or act to drain lands which are not, strictly "swamps." The power is conferred by this speaking, “marshes" or "swamps," but which by lands which are so situated as to be renare "marsh or swamp lands," meaning there dered difficult or incapable of successful cul MARRIED WOMAN'S SEPARATE ES- tivation by reason of retaining in the soil or TATE See Separate Estate. MARRY As used in Rev. St. 1899, § 2169, declaring that every person, having a husband or wife living, who "shall marry another person" without this state in any case where such marriage would be punishable, is contracted or solemnized within the state, or shall thereafter cohabit with such person within the state, shall be adjudged guilty of bigamy, should be taken to mean the going "through" the form and ceremony of marriage with another person, regardless as to the validity of the second marriage as a matter of law. State v. Stuart, 92 S. W. 878, 882, 194 Mo. 345, 112 Am. St. Rep. 529, 5 Ann. Cas. 963. MARRYING AGAIN Testator devised real estate described to his wife, and gave to another woman named other described real estate, to be held by her for the support of herself and testator's children by her, and provided that, in the event of her "marrying again," the gift to her should become void, and the property should go to such children. A provision in similar language was made in favor of a third woman. The woman so named was testator's polygamous wife. Testator and she were members of the Mormon Church and believed in its doctrines, including the doctrine of polygamy. Held, that the words "marrying again" included the entering into a polygamous marriage, and the gift to such woman was within Comp. Laws 1907, § 2795, providing that a conditional disposition is one which depends on the occurrence of some uncertain event by which it is either to take effect or be de carrying on the surface an excessive quantity of water during certain portions of the year, even though at other times they may be as solid, dry, and firm as lands in general. Campbell v. Youngson, 114 N. W. 415, 417, 418, 80 Neb. 322. MARSHAL As city officer See City Officer. The doctrine of "marshaling assets" is defined as follows: "It is a settled principle that when there are two classes of creditors and two funds, and one class of creditors can only go against one fund while the other can go against both, the court will marshal the assets, restricting the creditors who have a double security from touching the fund applicable to the first class of creditors until they are paid in full." In re Terens, 175 Fed. 495, 497. The rule that he who has two funds for the satisfaction of his claim shall not, by electing to resort to the doubly charged fund, disappoint him who has that fund only to resort to, is subject to qualifications, and among them is the qualification that both funds must be within the jurisdiction and control of the court, except in the rare cases in which it is clear that the creditor of the two funds will sustain no loss, delay, or additional expense if required to resort first to the fund without the jurisdiction. Stern |