#### LUCY TAYLOR v. N. D. WHITE.

(Filed 3 October, 1912.)

1. Marriage and Divorce — Prior Marriage — Living Wife.

An action brought to annul a marriage- on the ground that the defendant had a living wife at the time is not technically one for divorce, though in a general way it comes under that heading to the extent that alimony pendente lite may be allowed.

2. Same — Suits—Statutory Affidavits — Interpretation of Statutes.

An action for an annulment of marriage upon the ground that the husband had a living wife at the time will not he dismissed for the failure of the plaintiff to make the affidavit prescribed by Revisal, see. 1563, that the facts “must have existed to the plaintiff's knowledge at least six months prior to the filing of the complaint,” or for “failure to file a petition for divorce within ninety days after the expiration of that time,” the reasons for these provisions not applying to a void marriage.

3. Marriage and Divorce — Former Marriage — Living Wife — Judgment — Fraud and Collusion — Procedure.

A decree in the Superior Court, declaring the defendant’s marriage with a former wife void ab initio, duly entered subsequently to the ceremony with the plaintiff, who is suing for divorce on the ground that the defendant had a living wife at that time, establishes the fact that the defendant was single at the time of the second marriage sought to be annulled, and cannot be attacked unless impeached by direct proceedings for fraud and collusion.

4. Marriage and Divorce — Former Marriage — Voidable—Living Wife —Compulsion—Assent—Judgment.

In proceedings for divorce it appeared that the plaintiff was compelled to marry the defendant against his will; that the mar*39riage was void, and that lie had never lived with her as her husband after the alleged marriage, and a decree was entered declaring the marriage null and void ab initio: Held, though the marriage was at first only voidable, he had not ratified it, and it was therefore void ab initio by the decree; or by the act of the party without the necessity for the decree of nullity, by his not giving his subsequent assent.

5. Marriage and Divorce — Children Legitimate — Interpretation of Statutes.

The children of a marriage which subsequently has been decreed as annulled are made legitimate by our statute. Kevisal, sec. 1569.

Appeal by defendant from Allen, J., at February Term, 1912, of SAMPSON. i

Tbe facts are sufficiently stated in tbe opinion of tbe Court by Mr. Chief Justice Clcurlc.

Fowler & Grumpier for plaintiff.

George E. Butler and N. B. White for defendant.

Clark, C. J.

Tbis is an action brought by tbe plaintiff in ber maiden name for tbe annulment of ber marriage to tbe defendant upon tbe ground tbat it was void because tbe defendant at tbe time of tbe ceremony bad a living wife.

Tbis is not technically an action for divorce, though in a general way it comes under tbat beading to tbe extent tbat alimony pendente lite may be allowed. Lea v. Lea, 104 N. C., 603. We must deny tbe motion made by tbe defendant to dismiss for failure to give the affidavit required by section 1563, for tbat applies strictly to divorces, for tbe requirement tbat tbe facts must “have existed to tbe plaintiff’s knowledge at least six months prior to tbe filing of tbe complaint,” and tbat on “failure to file a petition for divorce within ninety dayte after tbe expiration of tbat time” tbe plaintiff shall forfeit tbe right of action, is intended to prevent hasty action for divorce and to give tbe parties opportunity for reconciliation and to prevent bad faith and collusion. Holloman v. Holloman, 127 N. C., 15; Nichols v. Nichols, 128 N. C., 108. Those reasons do not apply to a void marriage.

*40It is true tbat -such action for annulment and declaring a marriage void ab initio under Revisal, 1560, comes under tbe general bead of divorce in Tbe Code, cb. 31, and is so styled in Johnson v. Kincade, 37 N. C., 470; yet it bas broad features of difference from tbe general action of divorce wbicb, technically speaking, is based upon a valid marriage.

In tbis case, tbe g-round for annulment is tbe allegation tbat tbe defendant at tbe date of bis marriage to tbe plaintiff in December, 1910, was tbe busband of one Georgia A. White. Tbe judgment roll of tbe Superior Court of Edgecombe County at September Term, 1911, was placed in evidence, showing tbat “in a properly constituted action between said N. D. White and bis alleged former wife, Georgia A. White, upon issues submitted to tbe jury, it was found tbat said N. D. White bad been compelled to marry tbe defendant Georgia A. White against bis will; tbat said marriage -was void, and tbat be bad never lived witll her as her busband after said alleged marriage,” and thereupon judgment was entered tbat—

Tbe marriage ceremony performed by wbicb N. D. White and Georgia A.. White were declared man and wife is, and was, absolutely void, and tbat said bonds of matrimony are hereby annulled and declared null and void ab initio.

G. W. Wakd,

Judge Presiding.

It is true tbat said decree was entered subsequently to tbe marriage of N. D. White to tbis plaintiff, but as tbe decree decides, and cannot be controverted, there was never any valid marriage between N. D. White and Georgia A. White, and be was a single man at tbe time of bis marriage to tbis plaintiff. While tbis plaintiff was not a party to tbat action, tbe decree declaring tbe status of tbe parties to tbat action is conclusive unless impeached by a direct proceeding, for fraud or collusion.

“All marriages procured by force or fraud, or involving palpable error, are void, for here tbe element of mutual consent is wanting, so essential to every contract. Tbe law treats a matrimonial union of this kind1 as absolutely void ab initio and permits its validity to be questioned in any court at tbe option, *41however, of the injured party.” Schouler Dom. Eel. (3 Ed.), 38. The marriage between the defendant and Georgia A. White being void, he was free to marry the plaintiff, for “a void marriage imposes no legal restraint upon the party imposed upon from contracting another.” Patterson v. Gaines, 6 How. (U. S.), 591.

. Though the decree of annulment of defendant’s first marriage was rendered after his marriage to the plaintiff, he had always treated the first marriage as void, and the decree declared it void ab initio. Though it was voidable and not void, he did not. ratify it, and it was therefore void ab initio1 by the decree. “A marriage is voidable on the ground of fraud, duress, or error, and not absolutely void; but it is voidable by the acts of the party without the necessity of a decree of nullity.” Tiffany Dom. Eel., 14, 35.

“A decree annulling a marriage is final and conclusive and not open to collateral impeachment, although it may be vacated or set aside for good cause on proper application. Its effect is to make the supposed or pretended marriage as if it had never existed, and hence it restores both parties to their former status and to all rights of property as before the marriage. Hence, also, its effect is to make any children of the marriage illegitimate unless their legitimacy is saved by a statute, as is now the case in several States.” 26 Cyc., 920. Such is the case in this State. Revisal, 1569; Setzer v. Setzer, 97 N. C., 252; Sims v. Sims, 121 N. C., 297.

The position of the plaintiff is inconsistent. She asks to have her own marriage declared void ab initio, but wishes to deny that effect to a decree of the court declaring her husband’s marriage to Georgia A. White also void ab initio. It is true that her ground is the allegation that her husband was incapacitated to marry by reason of an existing marriage, but the ground of the decree obtained by him is that he never entered into the marriage, having been forced into it by duress. In neither case was there a valid marriage, if the allegations were found to be true. The subsequent assent of the husband would have made his voidable marriage valid; but as that was not given, it was void ab initio, and imposed no obligation on him.

*42The alleged marriage of the defendant with Georgia A. White not being ratified by him, was never a de facto marriage, as plaintiff’s attorneys claim, while that-of the plaintiff and defendant was a de facto marriage, if that term can be applied to a marriage at all.

There was no legal impediment on defendant at the time of his marriage to plaintiff, and their marriage is valid.

Error.