White v. Williams , 159 Miss. 732 ( 1931 )

The question for decision is: Is the marriage of an insane person void? If it is, the decree of the court below should be affirmed, but, if not, it should be reversed.

At common law, such a marriage was void, and therefore a nullity, could not be ratified by cohabitation, Ward v. Dulaney,23 Miss. 410, was subject to be attacked collaterally, and the issue thereof were bastards. This rule has been changed by statutes in some of the states under which such a marriage is not void, but may be annulled or dissolved in a judicial proceeding prior to the death of one of the parties thereto. Such is the effect of the statute now appearing as section 1414, Code of 1930, which provides that:

"Divorces from the bonds of matrimony may be decreed to the injured party for any one or more of the eleven following causes, viz: . . . Eighth. — Insanity or idiocy at the time of the marriage, if the party complaining did not know of such infirmity."

While the statute does not expressly so declare, its necessary and inescapable implication is that the marriage of an insane person shall no longer be void, but shall be valid and remain in force unless and until it is dissolved in a suit for divorce. Note its language: `Divorces from the bonds of matrimony may be decreed." "Divorces" are dissolutions or suspensions of the marital relation, and unless such relation exists no divorce is necessary. Moreover, "from the bonds of matrimony" is an express recognition that such bonds exist, a clear negation of the common-law rule that no such bonds result from the marriage of an insane person.

The qualification of this right to a divorce because of insanity of one of the parties at the time of the marriage, to the extent that the party applying for the divorce must not have known of the insanity of the other, cannot be held to limit the clear recognition by the statute of the validity of the marriage. It is but a statutory application of the maxim "that he who has done iniquity shall not have equity." The statute was wholly unnecessary and serves no useful purpose, if the common-law rule that the marriage of an insane person is void remains in force.

Furthermore, as stated in the opinion in chief, the statute was so construed in Smith v. Smith, 47 Miss. 211, since which it has been repeatedly re-enacted, and therefore, under many decisions of this court, the construction there put upon it should not now be departed from.