of fraud in taking title from one whom the grantee knew to be mentally incapacitated. The property has been conveyed for a fair value to innocent parties who took without notice. It has been held in the leading English case of Greenslade v. Dare, 20 Beav. 234, by the master of the rolls (since Lord Romilly), that if a conveyance is made by an alleged lunatic under undue influence, and for an inadequate consideration, a purchaser from such grantee for a valuable consideration, and without notice, would be protected, as any other purchaser for value, and without notice, from a fraudulent alienee. The court instances the insecurity of purchasers if any other doctrine should be laid down. The case of Ashcraft v. De Armond, 44 Iowa, 229, is not exactly in point, but illustrates the proposition that deeds from an undeclared lunatic are voidable on the doctrine of fraud. It holds that where the grantee of a lunatic took for value, and without notice, a subsequent purchaser from such innocent grantee for value, though with notice of the original grantor's incapacity, would not be affected, and cites the well-established doctrine laid down in Kerr on Fraud and Mistake, 316, and cases there quoted. Indeed, the facts in Riggan v. Green, 80 N. C. 239, 30 Am. Rep. 77, are almost identical with those in this case in every particular, and that case should be conclusive of this.

As to exception 6 of the plaintiff, it is sufficient to say: 1. Roxana B. Odom is not a party to this action; her rights, if any, are not set up in the complaint, and the plaintiffs claim under their father, and not under her. 2. The deed from Oliver to Richard Odom was executed February 21, 1866, two years and a half before the married women's rights were enlarged by the constitution of 1868, and more than a year before the act was passed restoring to married women the common-law right of dower, March 2, 1867. There was no necessity, then, for a wife to join her husband to convey his land: Sutton v. Askew, 66 N. C. 187; 8 Am. Rep. 500; see also the code, sec. 2115.

Our conclusion, therefore, is, that, upon the facts found, judgment should have been entered for the defendants. This disposes of both appeals.

In the plaintiff's appeal, no error. In the defendants' appeal, error.

DEEDS INSANE PERSONS.

- Deeds by insane grantors are not void: Pear son v. Cox, 71 Tex. 246; 10 Am. St. Rep. 740, and note. Compare Rollet v. Heiman, 120 Ind. 511; 16 Am. St. Rep. 340.

LEA v. LEA.

[104 NORTH CAROLINA, 603.]

DIVORCE. ALIMONY MAY BE ALLOWED IN AN ACTION TO HAVE A MAR RIAGE DECLARED VOID because the defendant at the time of such marriage was the husband of another woman who is still living.

DIVORCE, SUIT FOR, WHAT IS. — A SUIT TO HAVE A MARRIAGE DECLARED VOID because one of the parties was incompetent to enter into it is properly styled a suit for a divorce, and the woman who is plaintiff in such suit may be awarded alimony pendente lite.

ACTION by plaintiff to annul a marriage contract between her and the defendant, upon the ground that at the time it was contracted the defendant was already a married man, and that his wife is still living. During the pendency of the action, a motion for alimony was made, and was resisted, chiefly upon the ground that the action was not one for divorce, and that aliniony could not be granted to the plaintiff, because it appeared, by her pleading, that she was not the wife of the defendant, and that the defendant was incompetent to make her his wife, because of a preceding marriage, which had not been dissolved by death or otherwise. The trial court, however, granted the motion for alimony, and the defendant appealed. L. M. Scott, for the defendant.

No counsel for the plaintiff.

SHEPHERD, J. The defendant denies his liability for alimony pendente lite, for the reason that this is not, technically, an action for divorce from the bonds of matrimony, but an action to declare a marriage void, because of a prior existing marriage on the part of the defendant.

At common law, suits for nullity were freely entertained in the ecclesiastical courts, and while they were unnecessary in cases like the present, so far as they affected the actual legal relations of the parties, it was deemed "expedient to procure a sentence, to prevent the consequences which might, in future, take place from the death of witnesses, or other occurrences, rendering proof of the invalidity of the marriage difficult or impossible. . . . . It is a matter of duty which the courts owe to the public to declare the situation of the parties. . . . . It may be necessary, for the convenience and happiness of families, and of the public likewise, that the real character of these domestic connections should be ascertained and made known": Shelford on Marriage and Divorce, 332. Appreciating these

reasons, our legislature has provided (code, sec. 1283) "that the superior court, in term-time, on application made, as by law provided, by either party to a marriage contracted contrary to the prohibition contained in chapter 42 [code], or declared void by said chapter, may declare such marriage void from the beginning."

Chapter 42, section 1810, of the code provides that all marriages "between persons, either of whom has a husband or wife living at the time of such marriage, . . . . shall be void."

It was decided in Taylor v. Taylor, 1 Jones, 528, that the courts of this state had no power to allow alimony pendente lite, but this relief was subsequently given by the legislature, in 1852, and the existing law upon the subject is to be found in the code, sections 1291 et seq., which provides that such alimony may be given where any married woman shall apply to a court for a divorce from "the bonds of matrimony, or from bed and board."

It is insisted by the defendant that, as the marriage was void, there were no "bonds of matrimony" to dissolve, and therefore the plaintiff's case is not within the statute. We cannot accept this restricted interpretation. The words "from the bonds of matrimony," a vinculo matrimonii, have a wellknown significance at common law, and it must be presumed that it was in this sense that they were used by the legisla ture.

At common law, no divorce a vinculo could be granted, except for causes existing previous to the marriage, and which "rendered the marriage unlawful ab initio." "In such cases," says Blackstone, "the law looks upon the marriage to have been always null and void, . . . . and decrees not only a separation from bed and board, but a vinculo matrimonii itself": 2 Bla. Com. 94. In view of this high authority, the argument of the defendant, founded upon the strict and literal meaning of the words of the statute, must fall to the ground. Pre-contract of marriage is, in common legal parlance, considered as a cause for divorce. For example, we have the able and discriminating Mr. Irving Browne, in his work on domestic relations, page 61, using the following language: "The law recognizes three kinds of divorces: 1. Divorces on the ground of the nullity of the marriage contract. . . . . For this divorce there are, generally, five causes, lack of legal age, former marriage," etc.

...

We could, if necessary, add a great number of authorities.

in which the word "divorce" is used in this comprehensive sense, but it is unnecessary to do so, as we have a decision in our own reports which we think fully settles the question. It is the case of Johnson v. Kincade, 2 Ired. Eq. 470. There the marriage was declared a nullity because of the mental inpacity of the plaintiff. There was no statute conferring jurisdiction upon the courts in cases of judicial separation, except chapter 39, Revised Statutes. This provided that the superior courts of law and equity should have sole and original jurisdiction "in all cases of application for divorce and alimony." The causes specified were, impotency at the time of the contract, adultery, and "any other just ground of divorce."

It is clear, from the above language, that unless the case could be brought within the meaning of the word "divorce," the court had no jurisdiction. Chief Justice Ruffin, after discussing other parts of the chapter, says: "It is plain, therefore, that the act covers the case in which the parties contracted by show of marriage, but were never in law and truth married, for want of capacity, for which reason the sentence pronounces the marriage null and void; but because there is a marriage de facto, the sentence proceeds to dissolve that." The court therefore pronounces that the marriage in fact solemnized between Reese Johnson and Anna Kincade is "in law null and void, for the want, at the time of solemnizing the same, of mental capacity, on the part of the said Reese, sufficient to understand the nature of and assent to such a contract, and that the said Reese ought to be, and is, set free and divorced from the said Anna." Here we have the court granting a divorce on the ground that the contract was null and void. We think that these authorities sustain us in holding that the words of the statute embrace all cases where there has been a de facto marriage.

The defendant further contends that inasmuch as the plaintiff alleges that the marriage is void, she is estopped. This is but another form of the foregoing objection, and is therefore untenable. If, as we have seen, her case is within the statute allowing alimony, it would be strange indeed if she is to be deprived of it by alleging the very fact upon which her cause of action depends. All that the law requires is the proof or admission of a de facto marriage. This suggestion of estoppel comes with little grace from one who has beguiled the plaintiff into a false marriage, and who, when she is compelled to leave him by reason of his cruel treatment, as well

as the discovery of her forlorn legal status, detains from her what little property she owns.

Such are the facts found by his honor for the purpose of this motion. They should not, of course, work prejudice to the defendant, upon the trial of his case before the jury.

In further support of the view we have adopted, we add the authority of Shelford on Marriage and Divorce, 587, which says that, "after proof of a marriage in fact, alimony pending the suit will be allotted, whether commenced by or against the husband, not only in cases of impotency, but in all cases of nullity of marriage." To the same effect is 2 Bishop on Marriage and Divorce, 402, where the learned author fully sustains us, and successfully refutes the opposing view. This author says that the right to alimony pendente lite grows out of the changed pecuniary relations of the parties, by which the property of the wife is practically placed under the control of the husband, and this whether the marriage is valid, or de facto only.

This, as we have seen, is well illustrated in the present case, and we think that the plaintiff's claim for alimony ad interim is as meritorious as it would be were she suing for any other cause of divorce.

2. The defendant further objects to the order of his honor, on the ground that notice of this motion was not given as required by law. Granting that the motion could only have been heard in Randolph County, where the action was pending, we are still unable to perceive any force in the defendant's exception. It appears that the defendant and his counsel were both present in Stanly County, before Judge Philips, when he made the order continuing the motion, to be heard at the March term of the superior court of Randolph County. No particular day was named, but the defendant had notice that the motion would be heard at that term. The statute does not require that a day shall be set when a motion in the cause is to be heard at term. It only provides that five days' notice shall be given; and we think that this requirement was fully complied with in the present case. It is not insisted that the defendant did not in fact know that his case would be heard during the term. On the contrary, his attorney was present, making the objection, and also insisting that the plaintiff was not entitled to alimony, because there was no valid marriage. We are entirely satisfied that