56 N.C. 446 | N.C. | 1857
The bill was filed by the plaintiffs, as husband and wife, against the wife's guardian, for an account and settlement of his trust. By way of anticipation, it was alleged, that the form of a marriage had passed between the feme plaintiff and one Cashion, who is still living, and that the defendant made that as an excuse for not settling with the plaintiff; but that this was not a bar to their right of recovery, for that at the time of this pretended marriage, she was little over thirteen years old; was very weak of intellect, and was brought to submit to this pretended ceremony by fraud and article, accompanied, in some degree, with actual force, but that she did not understand the nature of the transaction in which she was involved; that she did not give her consent to a marriage, and never afterwards consummated such a marriage by cohabitation with said Cashion; that she remained in the house of the said Cashion, closely watched by his near relations, residing with him, for about six months, when accidentally meeting with her mother, she was rescued from this state of duress by her, assisted by her slaves; that she never saw or spoke to the said Cashion afterwards; that he shortly after this ran away from this country and went to parts unknown to her; that this took place in 1846, more than nine years before the filing of this bill, and that the said Cashion, except one visit to her mother's house, a few days after her rescue, when she refused to see him, has made no assertion of marital rights or authority. The plaintiffs state that, not deeming such an iniquitous transaction a marriage, after arriving at *447 mature years and a better state of mind, she entered into a marriage with the plaintiff Williamson, and as such husband and wife, this suit is brought for the recovery of her estate, which consists of land and slaves and money, and the profits arising from these for several years past.
The defendant Williams, the guardian, avers the validity of the former marriage, and alleges it in bar of the plaintiffs' right to recover in this action.
A judgment pro confesso was entered as to the defendant Cashion. Replication, commissions and proofs, and the cause being set for hearing, was sent to this Court, where the case was contested upon the question of the validity of the former marriage. This is an ordinary bill by a ward against a guardian for an account and settlement of her estate. By way of anticipating the defense, the plaintiffs charge that the defendant refuses to account, pretending that, prior to the intermarriage of the feme plaintiff with the other plaintiff, she was married to one Cashion, who is still living; but they aver that, although there was a marriage de facto between the said Cashion and the feme plaintiff, yet such marriage was null and of no force or effect, for that, at the time of its celebration, she was of a weak and imbecile mind, and did not consent to the marriage, but was by fraud and duress procured to enter into it against her will, and that as soon as she was freed therefrom, she separated from him and refused to recognise the relation of man and wife in respect to him.
The answer relies upon the marriage of the feme plaintiff with Cashion as a defense, and the validity of that marriage is thus incidentally put in issue.
The plaintiffs' counsel cited several authorities in support of the position that where "nullity" of marriage is incidentally put in issue, in any proceeding, before any tribunal, such *448 tribunal has power to decide the question as necessarily involved in the exercise of its appropriate jurisdiction. Without entering upon this subject, it is sufficient to say, in the language of the court, in Johnson v. Kincade, 2 Ire. Eq. 474, "It is convenient and fit in respect to the decent order of society, the condition of the parties and succession of estates, that the validity of such a marriage should be directly the subject of judicial sentence." And as the Legislature has conferred sole,original jurisdiction in all applications for divorce, upon the superior courts of law and courts of equity, (Rev. Code. ch. 39, sec. 1,) and pointed out the mode of proceeding, and the rules and regulations to be observed (sec. 5) and required that the material facts charged in the petition or libel shall be submitted to a jury, upon whose verdict, and nototherwise, the court shall decree, (sec. 6,) and authorised a decree from the bonds of matrimony, or that the marriage is null and void, and, after a sentence nullifying or dissolving the marriage, all and every, the duties,c., in virtue of such marriage, shall cease and determine, with a proviso as to the legitimacy of the children, (sec. 11,) we do not feel at liberty to decide a question of such grave importance, as a thing collateral or incidental to an ordinary bill for an account, where the trial will be made, without the intervention of a jury, upon depositions which are usually taken in a defective and unsatisfactory manner; Fisher v. Carroll, 1 Jones' Rep. 27.
That the jurisdiction of the Superior Courts of Law and Courts of Equity, under the statute, extends to a case of "nullity of marriage, is settled; Johnson v. Kincade, supra; Crump v. Morgan, 3 Ire. Eq. 91; and the propriety of requiring that fact to be established by the judgment or sentence of a tribunal having sole original jurisdiction, is too manifest to require any further observation.
The cause will be retained "for further directions," to the end, that the plaintiff, if so advised, may institute proceedings in the proper court to obtain a decree of nullity of marriage, after which they will be at liberty to move in this cause, and *449 in the meantime to take any order that may be necessary to secure the fund.
PER CURIAM, Decree accordingly.
