| Wis. | Apr 29, 1919
The appellants contend that the marriage is void (1) because Jansa was insane at the time of the marriage, and (2) because a marriage with an epileptic is void under the laws of Wisconsin.
The trial court found that Jansa was not insane at the time of the marriage. Aside from the fact that Jansa was admittedly an epileptic and that it appears that his mind was to some extent affected, there is little evidence in the case to establish his insanity at the time of the marriage. It cannot be said that because Jansa was an epileptic he was therefore insane, It is a matter of common knowledge that epileptics often exhibit great intellectual power. The finding of the trial court to the effect that Jansa was not insane at the time of the marriage must be sustained. The finding that Jansa was not insane renders unnecessary the consideration of the question whether or not a marriage with an insane person is void.
It is claimed that a marriage with an epileptic is void under the laws of Wisconsin. Sub. 1, sec. 2330m, Stats., provides :
“If any person residing and intending to continue to reside in this state who is disabled or prohibited from contracting marriage under the laws of this state shall go into another state or country and there contract a marriage prohibited and declared void by the laws of this state, such marriage shall be null and void for all purposes in this state with the same effect as though such prohibited marriage had been entered into in this state.”
At the time of the marriage, October, 1916, sub. 1, sec. 4593m, provided: “No man and woman, either of whom is insane, mentally imbecile, feeble-minded or epileptic, shall intermarry.” For violation of sec. 4593m sec. 4593m provided a penalty by fine or imprisonment, but did not provide that a marriage entered into in violation of the statute should be void.
The correct doctrine is laid down in Gould v. Gould, 78 Conn. 242" court="Conn." date_filed="1905-08-05" href="https://app.midpage.ai/document/gould-v-gould-3318179?utm_source=webapp" opinion_id="3318179">78 Conn. 242 (61 Atl. 604), at p. 245:
“A contract for any matter or thing against the prohibition of a statute is treated as void, although the statute does not declare it to be so, if such contract be relied on in any action as the foundation of the right of recovery. ... . But a contract of marriage is sui generis. It is simply introductory to the creation of a status, and what that status is the law determines. A contract executed in contravention of law may yet establish a status which the law will recognize, and, if one of the contracting parties were innocent of any intention to violate the law, may recognize as carrying with it in his favor the same rights and duties as if the contract had been entirely unexceptionable.”
In this case the trial court found that the defendant did not know that Jansa was an epileptic, and that the marriage was entered into in good faith without any intention on the part of either of the parties thereto to violate the laws of the state of Wisconsin. The basis of the rule is fully discussed in Gould v. Gould, supra, and we shall not rediscuss the matter.
That it was not the understanding or intent of the legislature that a marriage made in violation of sec. 4593m should be considered void is further evidenced by the fact that sec. 2330 was amended in 1917 so as to make an epileptic incapable of contracting marriage. It is argued that Gould v. Gould is not in harmony with the law of Wisconsin, particularly with the conclusions reached in Lanham v. Lanham, 136 Wis. 360, 117 N. W. 787. While there is considerable
By the Court. — Judgment affirmed.