This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
The validity of certain contracts of minors depends in part on the legal effect of certain statutes,- though this effect is not always expressed in the exact wording of the statutes,- and in part upon Common Law rules. At Common Law a male could contract a valid and binding marriage at the age of fourteen; a female at the age of twelve.1 While this age is changed by statute in many states, persons under the age of infancy are by statute in almost all jurisdictions allowed to contract valid marriages.2 From the Common Law rule just given and from the
Tex. 344; 11 S. W. 347; Askey v. Williams, 74 Tex. 294; 5 L. R. A. 176; 11 S. W. 1101.
8 Whitney v. Dutch, 14 Mass. 457;
7 Am. Dec. 229.
9Hardy v. Waters, 38 Me. 450.
10 Hastings v. Dollarhide, 24 Cal. 195.
11 Towle v. Dresser, 73 Me. 252.
12 Patterson v. Lippincott, 47 N. J. L. 457; 54 Am. Rep. 178; 1 Atl. 506.
13 Stiff v. Keith, 143 Mass. 224; 9 X. E. 577; Cummings v. Powell,
8 Tex. 80.
14 Fruchey v. Eagleson, 15 Ind. App. 88; 43 N. E. 146; see Sec. 865 et seq.
1Millsaps v. Estes, 134 N. C. 486; 46 S. E. 988.
2 Robinson v. Coulter, 90 Tenn. 705; 25 Am. St. Rep. 708; 18 S. W, 250.
1 1 Black Com. 436; Fisher v. Bernard, 65 Vt. 663; 27 Atl. 316.
2 Such a statute prevents a person above the Common Law age and under the statutory age from binding himself by a valid marriage, even if it does not specifically abolish the various local statutes, it follows that an executed contract of marriage entered into by one below the age of full majority but above the age so fixed by law is absolutely valid.3 While such statutes generally require the consent of a parent or guardian if the party to be married is under the full age of majority, a marriage without such consent is perfectly valid,4 even if it is a misdemeanor to enter into such a marriage.5 By statute, a marriage under the ordinary age of consent may in certain cases be valid if all the requirements of the statute are complied with, and otherwise, void.6 An infant's executory contract of marriage, however, as it does not cause any change in status is not binding upon him but like his contracts in general, is voidable.7 While Develin v. Riggsbee,8 is often cited as contrary to the principle laid down, it merely holds that a minor female may give a valid release from a promise to marry.
Common Law rule. Eliot v. Eliot, 77 Wis. 634; 10 L. R. A. 568; 46 N. W. S06.
3 Hunter v. Milam (Cal.), 41 Pac. 332; Parton v. Hervey, 1 Gray (Mass.) 119; Governor v. Rector, 10
Humph. (Tenn.) 57; Pool v. Pratt, 1 Chip. (Vt.) 252.
4 LaCoste v. Guidroz, 47 La. Ann. 295; 16 So. 836; Commonwealth v. Graham, 157 Mass. 73; 34 Am. St. Rep. 255; 16 L. R. A. 578; 31 N. E. 706; Holland v. Beard. 59 Miss. 161; 42 Am. Rep. 360; Wilkinson v. Del-linger, 126 N. C. 462; 35 S. E. 819; apparently to this effect is Western, etc., Co. v. Proctor, 6 Tex. Civ. App. 300; 25 S. W. 811; where damages were allowed for failure to deliver a telegram forbidding the clerk to issue a license to the plaintiff's daughter. Apparently contra Eliot v. Eliot. 81 Wis. 295; 15 L. R. A. 259; 51 N. W. 81; where the boy who was under eighteen, the age of consent, represented that he was nineteen and it was held, first, that no estoppel could arise; and, second, that if there could be an estoppel, it could only have arisen from his misrepresentation that his parents had given their consent as required by statute.
5 Hunter v. Milam (Cal.), 41 Pac. 332.
6 People v. Sehoonmaker, 119 Mich. 242; 77 N. W. 934. The statute involved in this case allowed a. marriage under the age of consent, where the girl was seduced, the parents consented, and the parties lived together after the age of consent.
7 McConkey v. Barnes, 42 111. App. 511; Frost v. Vought, 37 Mich. 65; Hunt v. Peake, 5 Cow. (N. Y.) 475; 15 Dec. 475: Rush v. Wick, 31 O. S. 521; 27 Am. Rep. 523; Warwick v. Cooper, 5 Sneed. (Tenn.) 659; Wells v. Hardy, 21 Tex. Civ. App. 454: 51 S. W. 503; Pool v. Pratt. 1 Chip. (Vt.) 252.
8 4 Ind. 464.