CIVIL CODE. PRELIMINARY PROVISIONS. Section 1980. Title of Act and How Divided: This act shall be known as the Civil Code of the State of Idaho, and whenever cited, enumerated, referred to or amended, may be designated simply as the Civil Code, adding, when necessary, the number of the section. It is divided into five titles, as follows: Title X. Persons and Personal Relations. Title XI. Corporations. Title. XII. 1887 R. S. Sec. 2400; Titles added by Commission. TITLE X. PERSONS AND PERSONAL RELATIONS. Chap. LXXIV. Persons; Classification. Chap. LXXV. Incapacity of Certain Persons. 1887 R. S. Sec. 2405. FULL AGE IS COMPLETE, WHEN: In computing the age of a person, the day of his birth is included. A person is therefore of the age of twenty-one years the day before the twenty-first anniversary of his birthday. On that day he may do any act which a man may do, and which an infant, that is, a person under the age of twenty-one years, cannot do, and as the law takes no notice of the fractions of a day, he is of age the whole of the day before his twenty-first birthday. If a person is required to do any act within a definite time, after reaching his majority, the time is computed from the day before his twentyfirst birthday, and the statute of limitation begins to run from that day.-Ross v. Morrow, 85 Tex. 172. 16 L. R. A. 542, 19 S, W, 1090; State v. Clark (Del.), 3 Harr. 557; Hamilton v. Stevenson, 4 Dana, 597; Wells v. Wells, 6 Ind. 447; Bardswell v. Purrington, 107 Mass. 419; Phelan v. Douglas, 11 How. Pr. 193; Blackstone's Commentaries (Cooley), Vol. I, 463; Kent's Commentaries, Vol. 2, 233. Section 1982. Unborn Child: A child conceived, but not yet born, is to be deemed an existing person so far as may be necessary for its interests, in the event of its subsequent birth. 1887 R. S. Sec. 2406. PERSONS IN EXISTENCE, WHO ARE: An infant en ventre sa mere, was supposed at common law to be born for many purposes. It was capable of having a legacy, or a surrender of a copy-hold estate, made to it. It might have a guardian assigned to it; and it was enabled to have an estate limited to its use, and to take afterwards by such limitation, as if it were then actually born. And in this point the civil law agrees with the mon law. Blackstone's Commentaries (Cooley), Vol. 1, 130. com For It is now a rule established beyond a doubt, and recognized by text writers that a child en ventre sa mere, for purposes of inheritance or where its benefit is to be furthered, is regarded as in esse, and as capable of taking as though born at the time.-Kent's Commentaries, Vol. 4, 412, and note. the purpose of taking an estate which is for its benefit, whether by descent, devise, or under statute of distributions, an infant is in esse from the time of conception, provided, that the infant be born alive, and after such a period that its continuance in life might reasonably be expected.-Harper v. Archer, 4 Smed. and M. 99, 43 Am. Dec. 472; Marsellis v. Thalhimer, 2 Paige, 35, 21 Am. Dec. 66. A child born within six months is presumed incapable of living.-Id. For a full discussion of the question as to whether an unborn infant is regarded as in esse, see Harper v. Archer, supra, and the extensive note thereto. A child en ventre sa mere is included in the term "children."-Nelson v. G. H. & S. Ry. Co. (Tex.), 11 L. R. A. 391, 14 S. W. 1021, and Section. cases cited. A partition of sale under judgment of partition will bar future contingent interest of persons not en esse.-Mead v. Mitchell, 17 N. Y. 210, 72 Am. Dec. 455. And where an estate is vested in persons living, subject only to the contingency that a person may be born who will have an interest therein, the living owners of the estate for the purposes of any litigation in reference thereto, and affecting the jurisdiction of the courts to deal with the same, represent the whole estate, and stand, not only for themselves, but also for persons unborn. The rights of persons unborn are sufficiently cared for if the estate shall be sold under regular and valid judgment, its proceeds take its place and are secured in the same way for such person. Kent v. Church of St. Michael (N. Y.), 18 L. R. A. 331, 32 N. E. 704. Persons yet unborn are not deprived of their rights without due process of law by making them defendants in a bill to remove a cloud upon title, and having them represented by a guardian ad litem.-Loring V. Hildreth (Mass.), 40 L. R. A. 127, 49 N. E. 652. A posthumous child can maintain an action for injuries causing the death of its father, and the fact that an action has already been brought by other beneficiaries will not preclude a subsequent action by a child not born when the former action was brought, and whose rights were not considered in it. And the statute of limitations does not begin to run against the right of action of such child because of the fact that the mother of the child was capable of suing when the cause of action accrued.-Nelson v. G. H. & S. Ry. Co. (Tex.), 11 L. R. A. 391, 14 S. W. 1021. CHAPTER LXXV. INCAPACITY OF CERTAIN PERSONS. 1983. Disaffirmance of contract by minors. 1984. Minor's contract for necessaries. 1985. Certain obligations binding. 1986. Persons without understanding. Section. 1987. Contract of persons of unsound mind. 1988. Powers of persons adjudged of unsound mind. Section 1983. Disaffirmance of Contract by Minor: In all cases other than those specified in the next two sections, the 3 contract of a minor, if made while he is under the age of eighteen, may be disaffirmed by the minor himself, either before his majority or within a reasonable time afterwards; or, in case of his death within that period, by his heirs or personal representatives; and if the contract. be made by the minor while he is over the age of eighteen, it may be disaffirmed in like manner upon restoring the consideration to the party from whom it was received, or paying its equivalent. 1887 R. S. Sec. 2407. DISAFFIRMING CONTRACTS: The contracts of an infant, when not intrinsically illegal are voidable, and not void; and are binding unless disaffirmed by the minor himself.-Kendrick v. Niesz (Colo.), 30 Pac. 245. And such contract does not depend upon the ratification thereof by him after his minority ends but to invalidate such contract, he must, by some act clear and unmistakable in its character disaffirm the same. The bringing of a suit in equity to cancel a deed made when a minor, is a sufficient disaffirmance of such deed and such act of disaffirmance must be made within a reasonable time after he becomes of age.-Englebert v. Pritchett (Neb.), 26 L. R. A. 177, 58 N. W. 852. The deed of an infant must be disaffirmed by an act of solemnity.-2 Kent's Commentaries, 237. If an infant grantor, after attaining his majority, executes a conveyance of lands embraced in a deed given by him when a minor, the second conveyance will work a disaffirmance of the first, unless before an execution of the second conveyance, the first has been ratified, and such ratification may be made after he arrives at majority, by an express verbal ratification, or by acts which reasonably imply an affirmance, or by an omission to disaffirm the deed within a reasonable time.-Hastings v. Dollarhide et al. 24 Cal. 195; Craig v. Van Bebber, 100 Mo. 584, 18 Am. St. Rep. 569, 13 S. W. 906; Mustard v. Wohlford's Heirs, 15 Grattan 329; 76 Am. Dec. 209. representatives. No one can take advantage of the fact of infancy in avoidance of contracts except the infant himself, or his heirs, or personal Hastings v. Dollarhide, supra: Craig V. Van Bebber, supra; Where a minor, after majority, without fraud or undue influence, executes to his late guardian a receipt for the value of property obtained by him from the guardian during minority, under voidable contract, this is a ratification. Clark v. Van Court, 100 Ind. 113, 50 Am. Rep. 774. In Green v. Green, 69 N. Y. 553, 25 Am. Rep. 233, it was held where a minor conveyed real estate to his father, the mere acquiescence for three years after majority is not a ratification; but in Jones v. Jones, 46 Iowa, 473, it was held that four months were deemed a reasonable time in which to disaffirm a contract entered into by a minor with his father. And Schouler on Dom. Rel. Sec. 439, in speaking on the subject of disaffirming conveyance of real estate says: "There seems to be no doubt upon the decided cases that mere acquiescence is no confirmation of sale of lands unless it has been prolonged for a statutory period of limitations; and that a conveyance may be made any time before the statute has barred an entry." What is a reasonable time for one, after becoming of age, to disaffirm a contract made by him during his minority, is a mixed question of law and fact, to be determined from the circumstances of each case. - Englebert V. Pritchett (Neb.), 26 L. R. A. 177, 58 N. W. 852; Jenkins v. Jenkins, 12 Iowa, 195. The rule that an infant is bound by his contracts, unless he disaffirms them within a reasonable time after his majority, applies only to such contracts as are beneficial to the infant.-Groesbeck v. Bell, 1 Utah, 338. Under our statute, if the contract is entered into after the minor is eighteen years of age, the consideration must be returned upon a disaffirmance of the contract; this plain provision settles the question in this state, upon which there is a great divergence of opinion among the courts. For an exhaustive discussion of infants' contracts, see notes to Englebert v. Pritchett, supra, and Craig v. Van Bebber, 100 Mo. 584, 18 Am. St. Rep. 569, 13 S. W. 906. (Note by Code Commission. A Section 1984. Minor's Contract for Necessaries: minor cannot disaffirm a contract otherwise valid, to pay the reasonable value of things necessary for his support, or that of his family, entered into by him when not under the care of a parent or guardian able to provide for him or them, 4 1887 R. S. Sec. 2408. CONTRACT FOR NECESSARIES: It is a well established doctrine that contracts for necessaries are binding upon an infant.-Parsons v. Keys, 43 Tex. 557; Askey v. Williams, 74 Tex. 294, 5 L. R. A. 176, 11 S. W. 1101. Upon such contracts the contract price cannot be recovered by the vendor, but only the reasonable value of the things furnished.-Locke v. Smith, 41 N. H. 346; Price v. Sanders, 6 Ind. 310, and the value is a question of fact.-Locke v. Smith, supra; Kilgore v. Rich (Me.), 12 L. R. A. 859, 22 Atl. 176; Askey v. of The question Williams, supra. necessaries is governed by the real circumstances of the infant and not by what its situation appears to be. infant when at home under the care of its father and supported by him cannot be made liable for necessaries.Angel v. McLellan, 16 Mass. 31; Kilgore v. Rich, supra; Rainwater v. Durham, 2 Nott & McCord, 524, 10 Am. Dec. 637; Kline v. L'Amoreux, 2 Paige, 419, 22 Am. Dec. 652. Persons dealing with an An infant are bound to inquire and know whether his circumstances and situation are such that he can bind himself for necessaries.-Id. The NECESSARIES, WHAT ARE: meaning of the term necessaries cannot be defined by a general rule applicable to all cases, but must be determined by the facts and circumstances in each particular case.-Englebert v. Pritchett (Neb.), 26 L. R. A. 177, 58 N. W. 852; Craig v. Van Bebber, 100 Mo. 584, 18 Am. St. Rep. 569, 13 S. W. 906. Room necessary for lodging while atfor a necessary tending college is which an infant may contract.-Gregory v. Lee (Conn.), 25 L. R. A. 618, 30 Atl. 53; so is the board bill of an infant while attending school, and the third person who pays for such necessaries at the infant's request has a cause of action against him for the reasonable value of such necessities.In Rainwater Kilgore v. Rich, supra. v. Durham, supra, it was held that a horse does not properly come under the designation of necessaries. Section 1985. Certain Obligations Binding: A minor cannot disaffirm an obligation otherwise valid, entered into by him under the express authority or direction of a statute. 1887 R. S. Sec. 2409. A Section 1986. Persons Without Understanding: person entirely without understanding has no power to make a contract of any kind, but he is liable for the reasonable value of things furnished to him necessary for his support or the support of his family. 1887 R. S. Sec. 2410. or The rule that the promissory note of a person non compos mentis, is invalid is subject to the qualification that when it is given for necessaries other adequate consideration of benefit furnished the maker in good faith, his unsound without knowledge of mental condition, it may be enforced to the extent of the value of the consid V. Beard eration furnished.-Hosler (Ohio), 35 L. R. A. 161, 43 N. E. 1040. A sale of personal property, made by a person not having the mental capacity to contract, does not transfer the title and is void, both as against the and subsequent purchasers vendee from him.-Harris v. Harris, 64 Cal. 108, 28 Pac. 63. Section 1987. Contract of Person of Unsound Mind: A conveyance or other contract of a person of unsound mind, but not entirely without understanding, made before his incapacity has been judicially determined is subject to rescission. 1887 R. S. Sec. 2411. The contract of an insane person is voidable, not void. The right to avoid it is a personal right, which can only be exercised by the insane person, his guardian or representatives. And in an action against the surety of a note, the insanity of the maker constitutes no defense, for a surety or indorser of a promissory note is deemed in law to contract that the principal maker of a note is in every way capable to contract in the manner he has contracted and that the instrument is a binding contract upon the maker.-Caldwell v. Ruddy, 2 Idaho 5, 1 Pac. 339. Section 1988. Powers of Persons Adjudged of Unsound Mind; After his incapacity has been judicially determined, MARRIAGE a person of unsound mind can make no conveyance or other contract, nor delegate any power or waive any right until his restoration to capacity. But a certificate from the medical superintendent or resident physician of the insane asylum to which such person may have been committed, showing that such person has been discharged therefrom, cured and restored to reason, shall establish the presumption of legal capacity in such person from the time of such discharge. 1887 R. S. Sec. 2412. A sale of personal property made by one not having the mental capacity to contract, does not transfer the title and Section. is void both as against the vendee and subsequent purchaser from him.-Harris v. Harris, 64 Cal. 108, 28 Pac. 63. CHAPTER LXXVI. MARRIAGE. 1997. Foreign marriages valid. Section. 2001. When recorder to issue license. 2002. Recorder may administer oaths. 2003. Who may solemnize marriage. 2004. Record of licenses, penalty for neglect. 2005. Fees of recorders. 2006. Books of marriage as evidence. 2007. Duty of person solemnizing marriage. 2008. Persons authorized to solemnize 2009. Manner of solemnizing marriage. Mar Section 1989. What Constitutes a Marriage: riage is a personal relation arising out of a civil contract, to which the consent of parties capable of making it is necessary. Consent alone will not constitute marriage; it must be followed by a solemnization. or by a mutual assumption of marital rights, duties or obligations. 24. 1887 R. S. Sec. 2420; 1877, 9th Ses. p. A marriage to be sufficient upon which to base a charge of bigamy, need not be a regular solemnization and authenticated marriage, but it is sufficient if there is a consent to the marriage followed by a mutual assumption of marital rights, duties, and obligations. -People v. Beevers, 99 Cal. 286, 33 Pac. 844; People v. Lehmann, 104 Cal. 634, 38 Pac. 422. A mutual agreement of the parties to live together in the professed relation of husband and wife is essential to create a contract of marriage, and the contract when made imposes upon the parties to it, the obligation to do so. -Kilburn v. Kilburn, 89 Cal. 46, 26 Pac. 636. See Hinckley v. Ayres, 105 Cal. 357, 38 Pac. 735. Consent alone will not constitute marriage, it must be followed by a solemnization or by a mutual assumption of marital rights, duties, or obligations. Sharon v. Sharon, 75 Cal. 1, 16 Pac. 345. Living together as man and wife is not marriage, nor is an agreement so to live a contract of marriage.-Letters v. Cady, 10 Cal. 533; cited 70 Cal. 564, 11 Pac. 653. Marriage is a civil contract as well as a religious vow which, while it is invalidated by want of consent, is, if valid obligatory upon the parties during their joint lives, and cannot be cast off at pleasure.-Fornshill v. Murray (Md.), 18 Am. Dec. 344. Marriage is a other contracts, for want of sufficient civil contract and may be avoided, like mental capacity in the parties. If at the time of attempting to contract, the mind is unsound, it is incapable of that consent which is necessary to the validity of the contract. Mental unsoundness to avoid a marriage contract must be clearly shown, and must be sufficient in degree, as it is not every unsound |