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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. Property and Property Rights.
Title XIII. Contracts and Obligations.
Title XIV. Relief.
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.
Chap. LXXVI. Marriage.
Chap. LXXVII. Divorce.
Chap. LXXVIII. Husband and Wife.
Chap. LXXIX. Parent and Child.

CHAPTER LXXIV.

PERSONS ; CLASSIFICATION.

Section.
1981. Minors.

Section.
1982. Unborn child.

Section 1981. Minors:

Minors are: 1.

Males under twenty-one years of age; 2.

Females under eighteen years of age. 1887 R. S. Sec. 2405.

the law takes no notice of the fracFULL AGE IS COMPLETE, tions of a day, he is of age the whole

3 Harr. 557; Hamilton v. Stevenson, 4 Blackstone's Commentaries (Cooley),
Dana, 597; Wells v. Wells, 6 Ind. 447; Vol. I, 463; Kent's Commentaries, Vol.
Bardswell v. Purrington, 107 Mass. 419; 2, 233.
Phelan v. Douglas, 11 How. Pr. 193;

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.

cases cited. A partition of sale unPERSONS IN EXISTENCE, WHO der judgment of partition will bar fuARE: An infant en ventre sa mere,

ture contingent interest of persons was supposed at common law to be not en esse.—Mead v. Mitchell, 17 N. Y. born for many purposes. It was capa

210, 72 Am. Dec. 455. And where an ble of having a legacy, or a surrender estate is vested in persons living, subof a copy-hold estate, made to it. It ject only to the contingency that a permight have a guardian assigned to it;

son may be born who will have an inand it was enabled to have an estate terest therein, the living owners of the limited to its use, and to take after- estate for the purposes of any litigawards by such limitation, as if it were tion in reference thereto, and affecting then actually born. And in this point

the jurisdiction of the courts to deal the civil law agrees with the com- with the same, represent the whole mon law.-Blackstone's Commentaries estate, and stand, not only for them(Cooley), Vol. 1, 130.

selves, but also for persons unborn. It is now a rule established beyond a The rights of persons unborn are sufdoubt, and recognized by text writers ficiently cared for if the estate shall be that a child en ventre sa

mere, for

sold under regular and valid judgment, purposes of inheritance or where its its proceeds take its place and are sebenefit is to be furthered, is regarded cured in the same way for such peras in esse, and as capable of taking as son.--Kent v. Church of St. Michael though born at the time.--Kent's Com- (N. Y.), 18 L. R. A. 331, 32 N. E. 704. mentaries, Vol. 4, 412, and note. For Persons yet unborn are not deprived of the purpose of taking an estate which their rights without due process of is for its benefit, whether by descent, law by making them defendants in devise, or under statute of distribu- a bill to remove a cloud upon title, and tions, an infant is in esse from the time having them represented by a guarof conception, provided, that the infant dian litem.-Loring V. Hildreth be born alive, and after such a period (Mass.), 40 L. R. A. 127, 49 N. E. 652. that its continuance in life might reas- A posthumous child can maintain an onably be expected.-Harper v. Archer, action for injuries causing the death 4 Smed. and M. 99, 43 Am. Dec. 472; of its father, and the fact that an acMarsellis v. Thalhimer, 2 Paige, 35, 21 tion has already been brought by other Am. Dec. 66. A child born within six beneficiaries will not preclude a submonths is presumed incapable of liv- sequent action by a child not born ing.-Id.

when the former action was brought, For a full discussion of the question and whose rights were not considered as to whether an unborn infant is re- in it. And the statute of limitations garded as in esse, see Harper v. Ar- does not begin to run against the right cher, supra, and the extensive note of action of such child because of the thereto.

fact that the mother of the child was A child en ventre sa mere is included capable of suing when the cause of ac. in the term "children."-Nelson v. G. tion accrued.--Nelson v. G. H. & S. Ry. H. S. Ry. Co. (Tex.), 11 L. Co. (Tex.), 11 L. R. A. 391, 14 S. W. R. A. 391, 14 S. W. 1021, and 1021.

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CHAPTER LXXV.
INCAPACITY OF CERTAIN PERSONS.

Section.
1983. Disaffirmance or 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 pther than those specified in the next two sections, the contract of a minor, if made while he is under the age of eighteen, nay 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 nis 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 imanner upon restoring the consideration to the party from whom it was received, or paying its equivalent. 1887 R. S. Sec. 2407.

guardian during minority, under voidDISAFFIRMING CONTRACTS: The able contract, this is a ratification. contracts of an infant, when not in- Clark v. Van Court, 100 Ind. 113, 50 Am. trinsically illegal are voidable, and not Rep. 774. In Green v. Green, 69 N. Y. void; and are binding unless disaf- 553, 25 Am. Rep. 233, it was held where firmed by the minor himself.---Ken- a minor conveyed real estate to his drick v. Niesz (Colo.), 30 Pac. 245. And father, the mere acquiescence for three such contract does not depend upon the years after majority is not a ratificaratification thereof by him after his tion; but in Jones v. Jones, 46 Iowa, minority ends but to invalidate such 473, it was held that four months were contract, he must, by some act clear deemed a reasonable time in which to and unmistakable in its character dis- disaffirm a contract entered into by a affirm the same. The bringing of a suit minor with his father. And Schouler in equity to cancel a deed made when a on Dom. Rel. Sec. 439, in speaking on minor, is a sufficient disaffirmance of the subject of disaffirming conveyance such deed and such act of disaffirmance of real estate says: "There seems to must be made within a reasonable time be no doubt upon the decided cases after he becomes of age.- Englebert v. that mere acquiescence is no confirmaPritchett (Neb.), 26 L. R. A. 177, 58 N. tion of sale of lands unless it has been W. 852. The deed of an infant must be prolonged for a statutory period of disaffirmed by an act of solemnity.--2 limitations; and that a conveyance Kent's Commentaries, 237.

may be made any time before the If an infant grantor, after attaining

statute has barred an entry." What his majority, executes a conveyance of

is a reasonable time for one, after belands embraced in a deed given by him coming of age, to disaffirm a contract when a minor, the second conveyance

made by him during his minority, is a will work a disaffirmance of the first,

mixed question of law and fact, to be unless before an execution of the sec

determined from the circumstances of ond conveyance, the first has been rati- each case. - Englebert V. Pritchett fied, and such ratification may be made (Neb.), 26 L. R. A. 177, 58 N. W. 852; after he arrives at majority, by an ex

Jenkins v. Jenkins, 12 Iowa, 195. press verbal ratification, or by acts The rule that an infant is bound hy which reasonably imply an affirmance, his contracts, unless he disaffirms them or by an omission to disaffirm the deed within a reasonable time after his miwithin a reasonable time.-Hastings v. jority, applies only to such contracts Dollarhide et al. 24 Cal. 195; Craig v. as are beneficial to the infant.--GroesVan Bebber, 100 Mo. 584, 18 Am. St. beck v. Bell, 1 Utah, 338. Rep. 569, 13 S. W. 906; Mustard v.

Under our statute, if the contract is Wohlford's Heirs, 15 Grattan 329; 76

entered into after the minor is eighteen Am. Dec. 209.

years of age, the consideration must No one can take advantage of the be returned upon a disaffirmance of the fact of infancy in avoidance of con- contract; this plain provision settles tracts except the infant himself, or his the question in this state, upon which heirs, personal representatives.--- there is a great divergence of opinion Hastings v. Dollarhide, supra; Craig

among the courts. For an exhaustive Van Bebber, supra; Where discussion of infants' contracts, see minor, after majority, without fraud notes to Englebert v. Pritchett, supra, or undue influence, executes to his late and Craig v. Van Bebber, 100 Mo. 584, guardian a receipt for the value of 18 Am. St. Rep. 569, 13 S. W. 906. (Note property obtained by him from the by Code Commission.

or

a

Section 1984. Minor's Contract for Necessaries: A 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,

1887 R. S. Sec. 2408.

infant are bound to inquire and know CONTRACT FOR NECESSARIES: whether his circumstances and situaIt is a well established doctrine that tion are such that he can bind himself contracts for necessaries are binding for necessaries.---Id. upon an infant.-Parsons V. Keys, 43 NECESSARIES, WHAT ARE: The Tex. 557; Askey V. Williams, 74 Tex. meaning of the term necessaries can294, 5 L. R. A. 176, 11 S. W. 1101. Upon not be defined by a general rule applisuch contracts the contract price can- cable to all cases, but must be deternot be recovered by the vendor, but mined by the facts and circumstances only the reasonable value of the things in each particular case.-Englebert v. furnished.-Locke v. Smith, 41 N. H. Pritchett (Neb.), 26 L. R. A. 177, 58 N. 346; Price v. Sanders, 6 Ind. 310, and W. 852; Craig v. Van Bebber, 100 Mo. the value is a question of fact.—Locke 584, 18 Am. St. Rep. 569, 13 S. W. 906. v. Smith, supra; Kilgore v. Rich (Me.), Room necessary for lodging while at12 L. R. A. 859, 22 Atl. 176; Askey v. tending college a necessary for Williams, supra. The question of

which an infant may contract.-Gregnecessaries is governed by the real cir- ory v. Lee (Conn.), 25 L. R. A. 618, 30 cumstances of the infant and not by Atl. 53; so is the board bill of an inwhat its situation appears to be. An fant while attending school, and the infant when at home under the care of third person who pays for such necesits father and supported by himn can- saries at the infant's request has not be made liable for necessaries.- cause of action against him for the Angel v. McLellan, 16 Mass. 31; Kilgore reasonable value of such necessities.-v. Rich, supra; Rainwater v. Durham, Kilgore v. Rich, supra. In Rainwater 2 Nott & McCord, 524, 10 Am. Dec. 637: v. Durham, supra, it was held that a Kline v. L'Amoreux, 2 Paige, 419, 22 horse does not properly come under Am. Dec. 652. Persons dealing with an 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

V.

or

Section 1986. Persons Without Understanding: A 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.

eration furnished.-Hosler Beard The rule that the promissory note of (Ohio), 35 L. R. A. 161, 43 N. E. 1040. a person non compos mentis, is invalid A sale of personal property, made by is subject to the qualification that a person not having the mental capacwhen it is given for necessaries ity to contract, does not transfer the other adequate consideration of benefit title and is void, both as against the furnished the maker in good faith, vendee and subsequent purchasers without knowledge of his unsound from him.-Harris v. Harris, 64 (al. mental condition, it may be enforced to 108, 28 Pac. 63. the extent of the value of the consid

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.

defense, for a surety or indorser of a The contract of an insane person is promissory note is deemed in law to voidable, not void. The right to avoid contract that the principal inaker of it is a personal right, which can only a note is in every way capable to conbe exercised by the insane person, his tract in the manner he has contr:icover guardian or representatives. And in an and that the instrument is a binding action against the surety of a note, the contract upon the maker.-Caldwell v. insanity of the maker constitutes no Ruddy, 2 Idaho 5, 1 Pac, 339.

Section 1988. Powers of Persons Adjudged of Unsound Mind; After his incapacity has been judicially determined, 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.

is void both as against the vendee and A sale of personal property made by subsequent purchaser from him.-Harone not having the mental capacity to ris v. Harris, 64 Cal. 108, 28 Pac. 63. contract, does not transfer the title and

CHAPTER LXXVI.

MARRIAGE.

Section.

Section, 1989. What constitutes marriage.

2001. When recorder to issue license. 1990. Age of persons contracting mar- 2002. Recorder may administer oaths. riage.

2003. Who may solemnize marriage. 1991. Marriage, how manifested and 2004. Record of licenses, penalty for proved.

neglect. 1992. Marriage, when voidable.

2005. Fees of recorders. 1993. Incestuous marriages.

2006. Books of marriage as evidence. 1994. Certain marriages illegal.

2007. Duty of person solemnizing mar1995. Second marriages, when illegal

riage. and void.

2008. Persons authorized to solemnize 1996. Released from contract for un

marriage. chastity.

2009. Manner of solemnizing marriage. 1997. Foreign marriages valid.

2010. Proof of qualifications. 1998. Marriages, how solemnized.

2011. Parties entitled to certificate. 1999. Marriage license, form of.

2012. Fee for solemnizing marriage. 2000. Certificate of marriage, form of. 2013. Validity of marriage.

Section 1989. What Constitutes a Marriage: Marriage 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.

1887 R. S. Sec. 2420; 1877, 9th Ses. p. of marital rights, duties, or obligations. 24.

Sharon v. Sharon, 75 Cal. 1, 16 Pac. 345. A marriage to be sufficient upon Living together as man and wife is which to base charge of bigamy, need not marriage, nor is an agreement so to not be a regular solemnization and au- live a contract of marriage.—Letters v. thenticated marriage, but it is sufficient Cady, 10 Cal. 533; cited 70 Cal. 564, 11 if there is a consent to the marriage Pac. 653. followed by a mutual assumption of Marriage is a civil contract as well marital rights, duties, and obligations. as a religious vow which, while it is in-People v. Beevers, 99 Cal. 286, 33 Pac. validated by want of consent, is, if 844; People v. Lehmann, 104 Cal. 634, valid obligatory upon the parties dur38 Pac. 422.

ing their joint lives, and cannot be cast A mutual agreement of the parties to off at pleasure.-Fornshill v. Murray live together in the professed relation (Md.), 18 Am. Dec. 344. Marriage is a of husband and wife is essential to civil contract and may be avoided, like create a contract of marriage, and the other contracts, for want of sufficient contract when made imposes upon the mental capacity in the parties. If at parties to it, the obligation to do so. the time of attempting to contract, the --Kilburn v. Kilburn, 89 Cal. 46, 26 Pac. mind is unsound, it is incapable of that 636. See Hinckley V. Ayres, 105 Cal. consent which is necessary to the va357, 38 Pac. 735.

lidity of the contract. Mental unsoundConsent alone will not constitute ness to avoid a marriage contract must marriage, it must be followed by a sol- be clearly shown, and must be sufficient emnization or by a mutual assumption in degree, as it is not every unsound

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