#### REESE JOHNSON BY HIS GUARDIAN vs. ANN KINCADE.

Idiocy or lunacy is an insuperable impediment to the contracting of marriage. A Court of Equity in this State, under the powers conferred by the Act of Assembly, Rev. Slat. ch. 39, has authority to pronounce a marriage null and void from the beginning, for want of capacity in one of the parties, and to decree a *divorce*on that account, there having been a marriage *de fado.*

Whether a marriage, where one of the parties is an idiot, be void at the common law, and whether therefore it may be unnecessary to have its nullity declared by a judicial sentence ; yet it seems fit and convenient that the invalidity of such a marriage should be directly the subject of judicial sentence.

An inquisition, finding idiocy or lunacy, is open to being rebutted by an opposing party. Whether, in this State, in the absence of opposing testimony, it is sufficient *prima facie*evidence, on which to found a decree of nullity and divorce, quere 1 In England, it seems the ecclesiastical courts look on a finding of this fact, as only a part of the requisite proof of unsoundness of mind, and demand direct evidence to be taken in the cause of that fact.

This case, having been set for hearing at the Spring Term, 1843, of Rowan Court of Equity, was then, by consent of parties, removed to the Supreme Court.

It was a suit instituted in behalf of Reese Johnson by his committee against Ann Kincade, falsely called Ann Johnson, for the purpose of having declared the nullity of a marriage *defacto*between the parties. The1 bill was filed October 15, 1841, and states, that Reese Johnson was an idiot from his nativity, resident in the county of Rowan, and, that, just after he obtained the age of 21 years, an inquisition was duly held upon a writ for that purpose, issued by the court of Rowan, at August Term, 1827, whereby it was found by the verdict-of a jury, that the said Reese was of unsound mind, and was and had been from his nativity an *473idiot, and that thereupon the said court appointed a guardian and committee of his person and properly, and took them under his care, and that the said inquisition and appointment *c*... , , . , of a committee was never reversed or superseded, but remained in full force up to the filing ot the bill. The bill further states, that the said Reese was entitled to a small property, which, under the management of his committee had, after supporting him, accumulated to the value of about $3,000. And the bill then further charges, that, with the view of gaining some interest in the same, the defendant Ann Kincade, in the month of September, 1841, procured a marriage to be celebrated between the said Johnson and herself before a justice of the peace in the town of Salisbury: That in truth, the said Reese was, from mental weakness, incapable at the time of understanding the nature of the contract of marriage, or performing any of the duties arising out of the relation created thereby, and that all that was well known to the defendant: that to effect her said end, the said Ann confederated with one Samuel Owens and one Alpheus Howard, and that they, without any previous courtship or acquaintance between the parties, and carefully concealing their object from the knowledge of the committee and other friends of said Reese, brought or procured him to come with them from the country to Salisbury on a certain day in September, and Owens and Howard procured the license from the Clerk, without allowing the party himself to go with them to the office, and immediately took him privately before a justice of the peace, to whom he was entirely unknown, and had the ceremony performed, then and there deceiving the magistrate as to the plaintiff’s capacity, and obtaining the marriage by fraud and circumvention practised on the plaintiff. The answer admits the marriage, and insists on its validity. It denies, that the defendant at the time had any knowledge of the inquisition, or that the said Reese was under guardianship, and it insists, that he was not an idiot, but had capacity to contract marriage, and, as evidence thereof, the answer states, that she heard her husband say, that he was a member of the Presbyterian *474Church, and further, that, on the night of the day of the marriage, ene Blackwell, who married the sister of said Reese, and was well acquainted with him, came to the house, in which the said Reese and Ann were, for the purpose of pursuading him to leave-her, and that, upon that occasion, the said Blackwell said to the said Reese, that he- had better read his bible than live with the defendant. The answer further states, that the defendant entered into the marriage from motives of affection for the said Reese, and not with the interested pecuniary purposes imputed to her, that the parties lived together harmoniously “ for some time,” and that the defendant believes they would have continued to do so, but for the interference of his relations, who were desi-sirous of securing his property to themselves y for that, on the occasion before mentioned, the said Blackwell failed to prevail on the said'. Reese to leave the defendant, and that he then declared to them, that he would spend $1,000, to have them separated, and that Robert Johnson, an uncle, and the committee of said Reese would spend $1,000 more.

To this answer reylication was taken, and the proofs having been completed, the case was set for hearing.

*Caldwell*for the plaintiff.

No counsel for the defendant.

Ruff-in, C. *J.*

The evidence satisfies the court of *the-*extreme mental weakness, at the least, if not absolute fatuity from birth, of Reese Johnson. The inquisition of 1827 has been produced, and it finds this person to be “of unsound mind, and that he has been so from his infancy.” Pending this controversy, there has also been a second inquisition, on which the jury, upon the testimony of witnesses, and also upon the production and examination of the party in person, found him “to be an idiot, and that he was so from his birth.” It is not necessary to say, whether the inquisitions would or would not be sufficient *prima facie*evidence, on which to found a decree in the absence of all opposing evi-*475deuce. It is certainly open to being rebutted by the defendant, and it seems that in England the ecclesiastical courts look on a finding of this sort as only a part of the requisite proof of unsonndness of mind, and demand direct evidence to be taken in the *cause*of that fact. Such additional evidence has been offered in this case. The depositions were not, indeed, carefully taken or happily expressed. But it appears from the testimony of several witnesses, that the party was ignorant of the most common things in life : such as the parts of a dollar that are current, seed and harvest time of the usual crops .of that part of the country, and the days of the week: and the witnesses give it as their opinion, that he has been a natural fool, or an idiot from birth. On the other hand, the defendant -has produced no witness : none to speak as to the other party’s capacity at the time of the marriage or before: none to shew a previous acquaintance between the parties or any addresses paid to her.: not even Howard or Owens, who attended upon the occasion, and are charged to have participated in the alleged imposition, who ought to have been produced to repel' that imputation, and to establish, if they could, that the marriage and the arrangements leading to it, were the acts of Reese Johnson, as a reasonable man, and not the contrivances of the defendant and her supposed confederates. This was the more indis-pensible, as the respectable gentleman, who .performed the ceremony, states, that the application to him was in Salisbury, by Howard, that he hesitated to name the parties, that in ten or.fifteen minutes the parties came, and with them Howard and Owens and another person, that he had never seen Johnson before, and had only a few words with him just before the marriage, which took place at once, and that immediately after the marriage Owens said Johnson was *non compos*mentis, and that he, Owens, had furnished money to pay for the license, and he appeared to be much diverted.; When to all this are added the known estimate put on this person’s understanding by his family, their distress at the occurrence, the immediate measures taken by the nearest members of it to rescue him frbm this connection and induce *476him to return to them, *and*the short period aquired to effect that end; one cannot hesitate to believe, that the party la-borod under great weakness, if not nearly total want of un-c[erstan(jjngj an¿ was incompetent to make any contract, and especially, one of such great importance as marriage; and, furthermore, that it was essentially solicited, procured and celebrated clandestinely, whereby those concerned evinced a consciousness of the wickedness of bringing it about, and that it was necessary to their success to conceal their purposes from the relations and guardian of this unfortunate being.

Being satisfied that such were the facts in this case, it only remains to consider, whether this marriage in fact is void in law, and whether this court is competent' to pronounce it null. Upon each of those points our opinion is clear in the affirmative. It cannot be doubted, that idiotcy or lunacy is an insuperable impediment to the contracting of marriage, as it is to the entering into any other contract. Whatever doubt may in a dark age have been dropt by writers ou the law, the intelligent commentators of modem times, and most able Judges unite in holding, that a competent share of reason is necessary to the validity of the matrimonial contract, for that it, as every other, depends on the consent of the parties, and, without understanding, consent cannot be given. 1 Bl. Com. 438. *Turner*v *Myers,*J. Hogg. Cons. Rep. 416, and the cases there cited by Lord Stowell. These authorities hold such a marriage void at common law, and by some it seems to have been thought unnecessary, even to have its nullity declared by judicial sentence. However that may be, it is obvious that it is convenient and ñt in respect to the decent order of society, the conditio n of the parties and the succession of estates, that the invalidity. of such a marriage should be directly the subject of judicial sentence. Hence, although the *common*law deems it void, it has been the constant course in England for the courts, having the cognizance of matrimonial causes, to entertain suits for declaring its nullity, as in other cases of marriages void by reason of a legal impediment, as in cases of impo*477tency, duress, incest, or the like. *Earl of Essex case,*2 State Tr. 355. It has been thought by persons eminent in the profession, that as there are no ecclesiastical courts, properly speaking, in this country, the Court of Equity, from necessity, succeeded here to the jurisdiction of such questions. We are, however, spared the trouble of examining the point, since there cannot, we think, be a doubt, that the. jurisdiction is conferred by statute according to a fair and sound construction. The act, Rev. St. c. 39, gives jurisdiction both to the Superior Courts of Law, and to the Courts of Equity “ in all cases of applications for divorce,” and, by the second section, taken from the acts of 1814 and 1827, it is enacted, that when either party was and still is naturally impotent or has separated him or herself from the other and is living in adultery, “ or any other just cause for a divorce exists,” the injured person may obtain a divorce, either from bed or board, or from the bonds of matrimony, at the discretion of the court. The act creates and confers a jurisdiction over all matrimonial causes, and includes necessarily, we think, the jurisdiction to pronounce the nullity of a marriage *defacto*for want of capacity. For, although that case is not specially mentioned in the acts, and although the sentence in such case is not properly a divorce, whereby the bonds of matrimony are dissolved, but rather a sentence that the marriage never legally existed : Aud although, as we have before said, those large terms of the act of 1827 do not confer the arbitrary power of divorce, but must be restricted to the causes enumerated in the act of 1814, or others of a like nature, or to such enumerated causes as were grounds for holding a marriage void at common law and still in íea-*son*should annul it : Yet the act embraces this case, as we think, because this is divorce in the same sense that a sentence of nullity forimpotency is, and that is one of the cases mentioned in the act of 1814, and at common law the marriage of one deficient of understanding is, as we have seen, void.

In the case of the *Earl of Essex,*the sentence found the fact of impoteney, as presumed, because after three years *478trial, after he was 18 years old, there had been *nil ad cop-*ulam; and then proceeded to declare the law, that such was cause of divorce *a vinculo*matrimonii: And, thereupon, it *“*pronounced and decreed the pretended marriage, so contracted and solemnized *de facto*between them, to have been and to be utterly void and to no effect, and that it ought to want and did want the strength of the law : And that the said Frances was and is, and ought to be free, and at liberty from any bond of such pretended marriage, *defacto*contracted and solemnized: And we do pronounce, that she ought to be divorced, and so we do free and divorce her, leaving the parties as touching other marriages, to their consciences.”— Thus it is seen, the nullity of the marriage is pronounced, but also a formal decree of divorce from that marriage, existing *de*facto, is also pronounced. So, it seems, it must be also in a suit for nullity of *the marriage*of an idiot or lunatic, and, therefore, it may be deemed appropriately “ an application for divorce,” according to the words of the statute, in that part of it, which confers the jurisdiction. For although impotency and want of capacity have this difference, that in the one case there is consent, and in the other none, yet in each, the sentence, in the first place, pronounces the marriage void, and there seems to be no incongruity in the one case more than in the other, in proceeding further actually to divorce the parties. This construction is rendered the clearer by the language of the subsequent part of the act, section 9, by which the proper decrees are provided for the several cases in which the jurisdiction had been previously vested: which are first, a decree dismissing the Ii-ble, or, secondly, a decree of divorce and separation from bed and board, or from the bonds of matrimony ; or thirdly *a decree that the marriage is null and void;*and then come the expressions, that “after a sentence nullifying or dissolving the marriage, all the duties and rights and claims of the parties in right of said marriage shall cease.” It is plain, therefore, that the act covers the case in which the parties contracted by shew of marriage, but were never in ■law and truth married for want of capacity, for which rea*479son the sentence pronounces the marriage null and void, but, because there is a marriage *de*facto, the sentence proceeds to dissolve *that.*The Court therefore pronounces that the marriage in fact, solemnized between Reese Johnson and Anna Kincade, is in law null and void for the want, at the time of solemnizing the same, of mental capacity on the part of the said Reese, sufficient to understand the nature of and assent to such a contract; and that the said Reese ought to be and is set free and divorced from the said Ann.

The Court also thinks it very clearly a case for costs against the defendant upon the ground of fraud and circumvention in effecting the marriage.

Per Curiam. Decree accordingly.