#### C. J. JULIAN v. J. S. DANIELS.

(Filed 15 May, 1918.)

1. Register of Deeds — Marriage License — Statutes—Reasonable Inquiry— Evidence — Questions of Law.

The question of reasonable inquiry to be made by the register of deeds as to the age o'f the woman for whom a marriage license is requested, or as to the consent of those required by the statute, Revisal, sec. 2088, is one of law when the evidence is not conflicting.

2. Same — Consent—Penalty.

Where the uncontradicted evidence tends only to show that a register of deeds issued a license for the marriage of a woman under 18 years of age without the consent of her father, who lived about 20 miles distant, was well known in his community, accessible by telephone, and solely upon the oath of the prospective groom and his friend, unknown to him, *550and that he only made further Inquiry of one person known to him, who was unaware of the information desired: Held, such inquiry was not reasonable under the statute, as a matter of law, and the register of deeds is liable for the penalty at the suit of the father. Revisal, secs. 2088, 2090.

Appeal from Gline, J., at tbe August Term, 1917, of Davie.

Civil action to recover of defendant, tbe register of deeds of Davie County, tbe penalty of $200 allowed by tbe statute, sections 2088 and 2090 of tbe Revisal, for having issued a marriage license for plaintiff’s daughter, Nona Thelma Julian, then about 16 years of age,- to one Eloyd Kincaid, without tbe consent of her parents and without reasonable inquiry as to her age, she being at tbe time under tbe age of 18. There was no claim or evidence that any written consent bad been given by tbe parents, guardian, etc., and on tbe issue as to reasonable inquiry tbe material testimony was as follows:

“C. J. Julian, tbe plaintiff: .1 live in Rowan County, six or seven miles from Cooleemee, N. C., and have been living around there for twenty years. My daughter, Nona Thelma Julian, who was married to Eloyd Kincaid on tbe 14th day of April, A. D. 1917, was born on 23 March, 1901, and was just a little past sixteen years of age at tbe time of her marriage. A few weeks after the birth of Nona Thelma Julian, my wife, in my presence, entered her name and tbe date of her birth in tbe family Bible, and this (exhibits tbe family Bible and testifies that tbe name is correct) is tbe entry she made: ‘Nona Thelma Julian was born March tbe 23, 1901.’

“Eloyd Kincaid bad been to my bouse to a party, but I did not know that be was going to see my daughter, Nona Thelma Julian. I found on Sunday, after they bad obtained marriage license at Mocksville, N. C., to get married, that they were married. It was a run-awav marriage and I did not give my consent. I called for tbe register of deeds at Mocksville, N. C., over tbe telephone and a man answered who said be was the register of deeds for Davie County. I asked him if Eloyd Kincaid bad secured marriage license for Nona Thelma Julian, and be said be did.

“Cross-examination: My daughter and Eloyd Kincaid lived near Second Creek Branch in Rowan County, N. C. I bad nothing against him and did not threaten to run my daughter away from home. He did not visit my home; was only there one time. If other times, be slipped in. I could not tell you bow they are getting along; we are peaceable. Gr. D. Daniels, witness, is a first cousin to my daughter. He lives three miles from me around tbe road, and has been living there for two years. I have married twice, and Nona Thelma Julian is tbe daughter of my first wife.”

*551Grov.er Swicegood, a witness for tbe plaintiff, testified as follows (direct examination) : “I live- in Davie County. On or about tbe 14th day of April, 1917, in company witb J. C. Sbepard, Mr. Barnes, Kin-caid and Daniels, Floyd Kincaid applied for license to marry Nona Tbelma Julian. Tbe register of deeds called me in from tbe machine and asked me if I knew tbe parties applying. I told bim tbat I knew Kincaid, but I did not know tbe girl, Nona Tbelma Julian, and tbat I did not know tbe witness Daniels, and tbat I did not know tbe girl’s age- .

Cross-examination: “I have known Floyd Kincaid about eight years and Mr. Daniels, tbe defendant, about seven years. I never knew C. D. Daniels, tbe witness, at all. I went to. school with Floyd Kincaid one winter, and think be was about 21 years old, and be is all right as far as I know.”

Redirect examination: “I did not know tbe girl, and there was no one there who did know her.”

Recross-examination: “Tbe witness G. D. Daniels was in tbe machine and said tbat was bis name, but I did not know bim.”

Tbe witness Swicegood was later recalled by tbe court and testified further as follows:

Question by tbe Court: ■ “What did tbe register, Mr. Daniel, say to you ?” Answer: “He came to tbe door and called to me to come in, and I went in and be asked me if I knew tbe parties applying for license, and I told bim I knew Kincaid and did not know tbe girl or tbe other witnesses, and be asked me if there w.as any trouble, and I told bim none tbat I knew of.”

Q. (By tbe Court) : “Was there anything else said?” A. “Not tbat I remember.”

Tbe defendant, a witness in bis own behalf, testified as follows:

“J. S. Daniel, tbe defendant, testified as follows (direct examination) : I have been register of deeds for Davie County for three years. I issued a marriage license for Nona Tbelma Julian and Floyd Kincaid. Mr. Kincaid, Mr. Daniels, Mr. Swicegood, and Mr. Barnes and another gentleman in tbe machine I did not know, came to my bouse about 6 o’clock P. M. I came up to tbe office witb them. Kincaid and Daniels came into tbe office and said there was no trouble; that tbe girl was 19 years old; tbat they lived near her and bad gone to school witb her. .Mr. Swicegood said tbat be knew Kincaid and tbat they did not run away as be knew of. I swore Kincaid and Daniels on tbe Bible after reading tbe oath to them. Swicegood said tbat be bad known Kincaid for seven or eight years, and tbat be, Kincaid, was a good man as far as be knew; tbat be did not know tbe witness G. D. Daniels.

“The oath taken by Kincaid and Daniels was as follows:

*552“F. A. Kincaid and Gr. D. Daniels, being duly sworn, say tbat tbe parties applying for license are of lawful age and tbat, so far as be is informed and believes, there is no lawful cause or impediment forbidding said marriage. A.

Gr. D. DANIEL.

“Sworn to and subscribed before me, tbis 14 April, 1917.

J. S. DaNiel.”

Cross-examination: “I bad closed my office and was at borne in tbe afternoon when a man by tbe name of Kincaid came to my borne for a marriage license. I did not know biin and did not know where be lived. I have parties who live in town to come as late as 9 o’clock P. M. for license. I knew some of tbe parties in tbe crowd, but did not know tbe girl. They said they lived in tbis county. Tbe only one in tbe crowd whom I knew was Mr. Swicegood, and be told me be did not know tbe girl Nona Thelma Julian. I knew there were telephones, but did not telephone to Cooleemee or any other place, and did not ask tbe sheriff of tbe county concerning it. I thought all tbe parties were citizens of Davie County and lived near Cooleemee, N. C. ‘ I did not think it my duty to make any inquiry other than taking their oath and having them sign tbe same. I did not think it was my duty to find some one who knew tbe girl. I made no further inquiry except taking tbe oath of Mr. Kincaid and Mr. Daniels. I never swore Mr. Swicegood.”

Redirect examination: “I asked George Daniels if be knew her age, and be said she was bis first cousin and tbat be bad known her all his life.”

Plaintiff also introduced tbe family Bible.

On tbe issue as to reasonable inquiry, bis Honor was of opinion and so construed tbe inquiry tbat, on tbe entire testimony if believed by tbe jury, including tbat of defendant, no reasonable inquiry bad been made. There was verdict for plaintiff; judgment, and defendant excepted and appealed, assigning for error chiefly: (1) Tbe charge of bis Honor on tbe second issue as indicated. (2) For tbat, on tbe facts in evidence, tbe question of reasonable inquiry should have been submitted to tbe jury.

T. Franh Hudson, J. G. Hudson, and T. G. Furr for plaintiff.

A. G. Grant, Jr., for defendant.

Hoke, J.,

after stating tbe case: There is no substantial difference in tbe testimony relevant to tbe issue, and, under our decisions on tbe subject, bis Honor correctly held tbat tbe question of reasonable inquiry was one of law for tbe court. Gray v. Lentz, 173 N. C., 346; Joyner v.

*553 Harris, 157 N. C., 296; Furr v. Johnston, 140 N. C., 157; Joyner v. Roberts, 114 N. C., 389. And, on tbe record and facts in evidence, we concur also in bis Honor’s ruling tbat in tbis instance no reasonable inquiry was made. We bave beld in several well considered cases tbat where a matter of tbis kind necessarily depends upon inquiry, tbe register of deeds must seek bis information from persons known by bim to be reliable, or, if unknown, identified and approved by some reliable person known to be reliable. Assuredly so wben, as in tbis case, such sources of information are open to bim and readily accessible.

Tbis test of responsibility, laid down by Associate Justice Connor in Trolinger v. Boroughs, 133 N. C., 312, as tbe proper construction of tbe statute and tbe fair deduction of tbe cases interpreting tbe same, was again formally stated by tbe same learned judge in Furr v. Johnston, 140 N. C., 157, and bas been repeatedly approved and applied by tbe Court in sustaining recoveries for tbis penalty. Gray v. Lentz, supra; Joyner v. Harris, supra; Morrison v. Teague, 143 N. C., 186 Agent v. Willis, 124 N. C., 29; Cole v. Laws, 104 N. C., 651.

In illustration of tbe position, it was beld in Morrison v. Teague, Associate Justice Brown delivering tbe opinion, tbat “In an action .against a register of deeds to recover tbe penalty under Eevisal, sec. 2090, for issuing a marriage license contrary to its provisions, where tbe uncontradicted evidence showed tbat tbe register took tbe word of tbe prospective bridegroom and bis friend, neither of whom be knew, as to tbe age of tbe young lady, and made no further inquiry of any one, tbe court should bave given tbe plaintiff’s prayer for instruction tbat as a matter of law defendant failed to make reasonable inquiry as to tbe age of plaintiff’s daughter.”

And in Cole v. Laws, supra: “When a register of deeds issues a license for tbe marriage of a woman under 18 years of age without tbe assent of her parents, upon tbe application of one of whose general character for reliability be was ignorant, and who falsely stated tbe age of tbe woman, without making any further inquiry as to bis sources of information: Held, tbat be bad not made such reasonable inquiry into tbe facts as tbe law required, and be incurred tbe penalty for tbe neglect of bis duty in tbat respect.”

And in Joyner v. Harris: “It is not a reasonable inquiry by tbe register of deeds as to tbe age of tbe prospective bride which will relieve bim of tbe penalty of Eevisal, sec. 2083, forbidding tbe issuing of a license for tbe marriage of a woman under 18 years of age without tbe 'Consent of tbe person designated by tbe statute, for bim to rely solely upon tbe answers of those whom be did not know but merely trusted because of their manner and appearance, their information as to tbe age of tbe woman appearing to depend only upon what she bad told *554them, and when by the exercise of reasonable care and diligence a means of obtaining reliable information could have been made available. Cole v. Laws, 104 N. C., 651; Morrison v. Teague, 143 N. C., 186, cited and applied.”

In the cases cited for defendant, Walker v. Adams, 109 N. C., 481; Bowles v. Cochrane, 93 N. C., 398, and others, all of them so far as examined, except Harcum v. Marsh, 130 N. C., 154, the register acted upon information of parties known to him who professed also to be cognizant of the facts and where there was no reason for him to suspect the truth of their statements. The case of Ilarcum v. Marsh, to which we were also cited by defendant, has been disapproved in subsequent decisions as not being a helpful guide to the true interpretation of the statute. Gray v. Lentz, supra; Trolinger v. Boroughs, supra.

Recurring to the testimony, it appears that this was a run-away match where a license was issued by defendant for the marriage of plaintiff’s daughter, residing with him at the time, and who was only 16 years of age; where no consent of any kind had been given and the father did not know or have any reason to believe that the young man had been paying his daughter attention likely to result in marriage; that on the occasion in question a party of four men came to his home in an automobile about 6 o’clock P. M., after office hours, and applied for a license for the marriage of Eloyd Kincaid, one of the party, to plaintiff’s daughter, Nona Thelma, not present; that the defendant practically issued the license on the statements of the prospective husband and his young friend calling himself G. D. Daniel, neither of whom was known to the register; that the witness Swicegood, who was known to the register, told him that he did not know the girl nor know her age, and that he did not know the witness Daniel; that he knew Kincaid and did not know anything against him. It further appeared that the father lived at Cooleemee, a village in Rowan County, near the Davie County line, and had done so for 20 years past, accessible by telephone, and no effort was made to communicate with the father or any of the girl’s relatives. The witness Swicegood, recalled by the court, stated that the register came to the door and called the witness in and asked him if he knew the parties applying for license, and that the witness replied that he knew Kincaid but did not know the girl or the other witnesses and there was no trouble that witness knew of, and defendant having testified that Swicegood told him he did not know the girl and that defendant “did not telephone Cooleemee or any other place, and did not ask the sheriff about it; that he did not think it was his duty to make any inquiry other than taking their oath and having them sign the same; that he made no further inquiry except taking the oath of Mr. Kincaid and Mr.-Daniels.”

*555It bas been often shown in our decisions on the subject that this requirement of reasonable inquiry is not merely a formal matter, wbicb is met by taking the oaths of the husband or other parties unknown to the register, but it is expressive of a sound principle of public policy designed to protect immature persons from hasty and ill-advised marriages, made without the consent of their parents or guardians or those having properly the care over them.

Speaking to the question in Agent v. Willis, supra, Montgomery, J., said: “To all persons who believe that the welfare of human society depends largely on the family relation and that the contract of marriage should be defended by careful and just laws for the purpose of guarding against legal impediments and to prevent the marriage of those under a certain age when the parties are presumed to be unable to contract, the duty of the register of deeds, the officer in our State charged with the duty of issuing marriage licenses, seems most important and most solemn. That officer must exercise his duties carefully and conscientiously and not as a mere matter of form.”

On careful consideration of the facts in evidence, we are of opinion that the cause has been correctly tried and judgment in plaintiff’s favor should be affirmed.

No error.