53 So. 986 | Ala. | 1910
Bill for sale of real estate for division between tenants in common. The complainant is the divorced wife of the defendant; the decree annulling the marriage (rendered in June, 1909) being based on the ground of physical malformation of the complainant. The complainant is 19 years of age; and it is objected that she should have proceeded by next friend, as is the practice where the cause of action is in favor of an infant.
Code 1907, § 4499, provides: “The marriage of any woman in this state who is under twenty-one and over eighteen years of age, or on the arrival at the age of eighteen years of any married woman in this state, has the effect immediately to remove her disabilities of minority ; and thereafter she has the same legal rights and abilities as married women over twenty-one years of age.” It appears from the bill that the complainant was a “married woman” upon her attainment of the age of 18 years; that the divorce was granted after she became 18 years of age. The argument for appellant is that divorce, on the ground indicated, voided the marriage ab initio; that it was a nullity from the beginning.
The law is otherwise. Where one or both of the parties are physically incapacitated to enter the marriage relation, the marriage is voidable, not void ab initio, and is regarded as valid until regularly dissolved. Such incapacity differing from the effect upon the status produced when one or both of the parties is or are mentally incapacitated to assume the relation, is good
The bill is sufficient in respect of its decription of the property sought to be sold; but adequate excuse for a more particular description is shown in the bill, and discovery, following sufficient allegations( Pollack v. Claflin Co., 138 Ala. 650, 35 South. 645), is invoked, to the end that the in definiteness in description may be cured. The demurrer was properly overruled,
The decree is affirmed.
Affirmed.
