CHAPTER 13.-DOMESTIC RELATIONS. Secs. 1394 to 1410 formed ch. 34, R. S. 1866, p. 254, entitled "Marriage." 1394. In law, marriage is considered a civil contract, to which the consent of the parties capable of contracting is essential. 1395. At the time of the marriage the male must be of the age of eighteen years or upwards, and the female of the age of sixteen years or upwards. 1396. Marriages are void: First-When one party is a white person and the other is possessed of one-fourth or more negro blood. Second - When either party has a husband or wife living at the time of marriage. Third-When either party is insane, or an idiot, at the time of marriage. Fourth-When the parties stand to the relation to each other of parents and children, grandparents and grandchildren, brother and sister, of half as well as whole blood, uncle and niece, aunt and nephew; and this subdivision extends to illegitimate as well as legitimate children and relatives. 1397. Previous to the solemnization of any marriage in this state, a license for that purpose must be obtained from the probate judge of the county wherein the marriage is to take place. 1398. When either party is a minor, no license shall be granted without the verbal consent, if present, or written consent, if absent, of the father, if living, if not, then of the mother, of such minor, or of the guardian or person under whose care and government such minor may be, which written consent shall be proved by the testimony of at least one competent witness. 1399. When application shall be made for a license to the probate judge he shall upon the granting of such license state therein the Christian and surnames of the fathers of both parties, the Christian and maiden names of the mothers of both parties, the Christian and surnames of the parties, the residence of both parties, their places of birth, their respective ages, their color, which license shall, prior to the issuing thereof, be entered of record, in the office of the probate judge, in a suitable book to be provided for that purpose. Amended 1869, p. 167. 1400. If, on such testimony being given, it shall appear that either of the parties is legally incompetent to enter into such contract, or that there is any impediment in the way, or, if either party is a minor, and the consent mentioned in section five shall not be given, the said judge shall refuse to grant a license. 1401. Every judge and justice of the peace, and every preacher of the gospel, authorized by the usages of the church to which he belongs, to solemnize marriages, may perform the marriage ceremony in this state; *and every such person performing the marriage ceremony shall enter upon the said license a full return of his proceedings in the premises, which return shall be made to the probate judge of the proper county, within three months after such marriage ceremony has been performed, and which return the said probate judge shall record or cause to be recorded in the same book where the said marriage license is recorded. Amended and all after* added 1869, p. 168. 1402. In the solemnization of marriage no particular form shall be required except that the parties shall solemnly declare, in the presence of the magistrate or minister and the attending witnesses, that they take each other as husband and wife; and in any case there shall be at least two witnesses, besides the minister or magistrate present at the ceremony. Not indispensable that clergyman or magistrate should be present to authorize contract; it may be made in one state and if followed by celebration and cohabitation in another, is valid. 24, 434 (39 N. W., 450). 1403. Whenever a marriage shall have been solemnized pursuant to the provisions of this chapter, the minister or magistrate who solemnized the same shall give to each of the parties, on request, a certificate, under his hand, specifying the names, ages, and places of residence of the parties married, the names and residence of at least two witnesses who were present at such marriage, and the time and place thereof. 1404. Every person having authority to join others in marriage shall, within three months after the solemnization of any such marriage, make and deliver to the probate judge of the county in which the marriage took place, a certificate containing the particulars mentioned in the preceding section. 1405. The probate judge of each county in the state shall record all such returns of such marriages in a book to be kept for that purpose, within one month after receiving the same. 1406. [Violation of act-Penalty.]-If any justice, minister, or other person whose duty it is to make and transmit to the probate judge such certificate, shall neglect to make and deliver the same; or if the probate judge shall neglect to to record such certificate; or if any person shall undertake to join others in marriage, knowing that he is not legally authorized so to do, or knowing of any legal impediment to the proposed marriage; or if any person authorized to solemnize any marriage shall willfully and knowingly make a false certificate of any marriage to the probate judge; or if the said probate judge shall willfully and knowingly make a false record of any certificate of marriage to him made, he shall be deemed guilty of a misdemeanor and shall be punished by a fine not exceeding five hundred dollars, or imprisonment for a period not exceeding one year, at the discretion of the court. 1407. No marriage solemnized before any person professing to be a justice of the peace, or a minister of the gospel, shall be deemed or adjudged to be void, nor shall the validity thereof be in any way affected on account of any want of jurisdiction or authority in such supposed justice or minister; Provided, The marriage be consummated with a full belief on the part of the persons so married, or either of them, that they have been lawfully joined in marriage. 1408. It shall be lawful for every religious society to join together in marriage such persons as are of the said society, according to the rites and customs of such society to which they belong; the clerk or keeper of the minutes, proceedings, or other book of the religious society wherein such marriage shall be had, or if there be no such clerk or keeper of the minutes, then the moderator or person presiding in such society, shall make out and transmit to the probate judge of the county a certificate of the marriage, and the same shall be recorded in like manner as is provided in the preceding section of this chapter. 1409. The original certificate and record of marriage made by the minister, officer, or person, as prescribed in this chapter, and the record thereof, made as prescribed, or a copy of such record, duly certified by such officer, shall be received in all courts and places as presumptive evidence of the fact of such marriage. May be proved by an eye witness of ceremony. 17, 529 (23 N. W., 507). 1410. All marriages contracted without this state, which would be valid by the laws of the country in which the same were contracted, shall be valid in all courts and places in this state. Private marriage in Illinois held not invalid in that state and hence binding in Nebraska. 24, 429 (39 N. W., 450). Secs. 1411 to 1416. "An act respecting the rights of married women." 1871, p. 68. In force June 1. 1411. The property, real and personal, which any woman in this state may own at the time of her marriage, and the rents, issues, profits, or proceeds thereof, and any real, personal, or mixed property, which shall come to her by descent, devise, or the gift of any person except her husband, *or which she shall acquire by purchase or otherwise,* shall remain her sole and separate property, notwithstanding her marriage, and shall not be subject to the disposal of her husband, or liable for his debts; *Provided, That all property of a married woman not exempt by law from sale on execution or attachment shall be liable for the payment of all debts contracted for necessaries furnished the family of said married woman after execution against the husband for such indebtedness has been returned unsatisfied for want of goods and chattels, lands and tenements whereon to levy and make the same. Words "or bequest" after devise omitted and to * added 1875, p. 88; and all after last * added 1887, p. 478. Wife's separate property not liable for husband's debts, although he had reduced it to his possession so it would be liable under the common law. 12, 389 (11 N. W., 852). Since the act of 1875 there is no law subjecting the separate property of a married woman to execution or sale for any debt of her husband whatever. 14, 264 (15 N. W., 336). Female marrying under sixteen years can convey her real estate after arriving at that age. 19, 431 (27 N. W., 393). Wife may become creditor of husband. 4, 170. In contest between creditors, presumption against wife. 8, 329. Exempt property cannot be taken for necessaries. 25, 658 (41 N. W., 642). No presumption of law that personalty in possession of wife while living with her husband belongs to latter. 29, 428 (45 N. W., 471). See 5, 246; 17, 348 (22 N. W., 776); 24, 760 (40 N. W., 282); 28, 373 (44 N. W., 450); 28, 807 (44 N. W., 1136). 1412. A married woman, while the marriage relations subsists, may bargain, sell, and convey her real and personal property, and enter into any contract with reference to the same in the same manner, to the same extent, and with like effect as as a married man may in relation to his real and personal property. Common law rule adopted. 6, 264. Wife bound by her contracts regarding her separate estate. 6, 363. Married woman may make the same disposition of her individual property as may a married man. 4, 315. A married woman is liable upon her contract of warranty for her property. 17, 667 (24 N. W., 333). Married woman may bind her separate property to secure her husband's debts. 12, 468 (12 N. W., 1). Mortgage given by a married woman to secure her hus band's note made three months before, there being no new consideration, cannot be enforced. 11, 448 (9 N. W., 569). Married woman is not liable on note signed by her unless it was given with reference to and upon the faith and credit of her separate property. 10, 311 (4 N. W., 1054). Where husband transacts business for his wife and she ratifies his acts, she is bound. 6, 377. Making and delivering of a promissory note by husband to wife for a valuable consideration, a valid contract. 9, 22 (2 N. W., 221). Bona fide contract between husband and wife will not be declared fraudulent, from the mere fact that years afterward the husband was unable to pay his debts. 11, 249 (9 N. W., 90). Wife not liable for medical services for family. 8, 359. See 23, 420 (36 N. W., 572). 1413. A woman may, while married, sue and be sued, in the same manner as if she were unmarried. Wife may maintain suit against her husband on promissory note. 9, 25 (2 N. W., 221). Wife may maintain an action for an injury to her person. 7, 486. 1414. Any married woman may carry on trade or business, and perform any labor or services on her sole and separate account; and the earnings of any married woman, from her trade, business, labor, or services, shall be her sole and separate property, and may be used and invested by her in her own name. To enable a married woman to avoid payment of note executed by her as security for another it is not sufficient to allege that the notes are not a charge on her separate estate; she must allege that the contract did not concern her separate property, trade, or business. 20, 457 (30 N. W., 526). 1415. Any woman who shall have been married out of this state shall, if her husband afterwards become a resident of this state, enjoy all the rights as to property which she may have acquired by the laws of any other state, territory, or country, or which she may have acquired by virtue of any marriage contract or settlement made out of this state. 1416. Nothing in this act contained shall invalidate any marriage settlement or contract now made, or to be made hereafter. Sec. 1417. "An act to exempt the property of the husband from liability of the debts contracted by the wife before marriage." 1877, p. 33. In force June 1. 1417. The property of the husband shall not be liable for any debts contracted by the wife before marriage. Secs. 1418 to 1460, except secs. 1440 and 1441, formed ch. 16, R. S. 1866, p. 128, entitled "Divorce and Alimony." 1418. Marriages which are declared void by section three of chapter 40, entitled "Marriages," are void without any decree of divorce. 1419. In case of a marriage solemnized when either of the parties are under the age of legal consent, if they shall separate during such nonage, and not cohabit together afterwards, or in case the consent of one of the parties was obtained by force or fraud, and there shall have been no subsequent voluntary cohabitation of the parties, the marriage shall be deemed voidable. 1420. When a marriage is supposed to be void, or the validity thereof is doubted, for any of the causes mentioned or referred to in the two preceding sections, either party, excepting in the cases where a contrary provision is hereinafter made, may file a petition in the district court of the county where the parties, or one of them, reside, for annulling the same, and such petition shall be filed, and proceedings shall be had thereon, as in the case of a petition filed in said court for a divorce; and upon due proof thereof, it shall be declared void by a decree or sentence of nullity. 1421. When the validity of any marriage shall be denied or doubted by either of the parties, the other may file a petition in the manner aforesaid, for affirming the marriage, and upon due proof of the validity thereof it shall be declared valid by a decree or sentence of the court, and such decree, unless reversed on appeal, shall be conclusive upon all parties concerned. Woman competent to testify against her alleged husband; her testimony corroborated by letters, etc., held sufficient in case stated to prove marriage when opposed to unsupported denial of husband. 24, 424, 434 (39 N. W., 450). 1422. A divorce from the bonds of matrimony may be decreed by the district court of the county where the parties, or one of them, reside, on the application by the petition of the aggrieved party in either of the following cases: FirstWhen adultery has been committed by any husband or wife. Second-When one of the parties was physically incompetent at the time of the marriage. ThirdWhen one of the parties has been sentenced to imprisonment in any prison, jail, or house of correction, for three years or more; and no pardon granted, after a divorce for that cause, shall restore such party to his or her conjugal rights. Fourth— Where either party shall willfully abandon the other without just cause, for the term of two years. Fifth-When the husband or wife shall have become an habitual drunkard. *Sixth-When either party shall be sentenced to imprisonment for life; and no pardon shall effect a decree of divorce for that cause rendered. *Amended and sixth clause added 1875, p. 79. Action may be brought in county where plaintiff resides and summons issued to and served upon defendant in another county. 10, 349 (6 N. W., 397). General denial, good answer to allegation of adultery. 6, 306. See 20, 536; 28, 275; 29, 533 (45 N. W., 777). 1423. A divorce from the bonds of matrimony or from bed and board may be decreed for the cause of extreme cruelty, whether practiced by using personal violence, or by other means; or for utter desertion of either party for the term of two years; and a like divorce may be decreed, on complaint of the wife, when the husband, being of sufficient ability to provide suitable maintenance for her, shall grossly or wantonly, and cruelly refuse or neglect so to do. Mere rudeness of language, austerity of temper, etc., not sufficient. 16, 15 (19 N. W., 784). Husband must grossly or wantonly refuse or neglect to support the wife to entitle her to a divorce. 10, 145 (4 N. W., 1036). 1424. No divorce shall be granted unless the complainant shall have resided in this state for six months immediately preceding the time of filing the complaint, or unless the marriage was solemnized in this state, and the applicant shall have resided therein from the time of the marriage to the time of filing the complaint. At least one of the parties must be bona fide resident of place where divorce is granted. 19, 706 (28 N. W., 296). 1425. No divorce shall be decreed in any case when it shall appear that the petition therefor was founded in or exhibited by collusion between the parties, nor where the party complaining shall be guilty of the same crime or misconduct charged against the respondent. Courts of general jurisdiction can vacate decree after term at which rendered, if obtained by fraud. 24, 551 (39 N. W., 594). 1426. A petition or bill of divorce, alimony, and maintenance may be exhibited by a wife in her own name, as well as a husband; and in all cases the respondent may answer such petition or bill without oath; *and in all cases of divorce, alimony, and maintenance, when personal service cannot be had, service by publication may be made as is provided by law in other civil cases under the Code of Civil Procedure. Amended and all after * added 1869, p. 28. Affidavit for service by publication defective, court acquires no jurisdiction. 8, 200 (2 N. W., 466). See 21, 390 (32 N. W., 170). 1427. That either party may be a witness as in other civil cases. 1428. Suits to annul or affirm a marriage, or for a divorce, shall be conducted in the same manner as other suits in courts of equity; and the court shall have the power to award issues, to decree costs, and enforce its decrees as in other cases. 1429. In every suit brought, either for a divorce or for a separation, the court may, in its discretion, require the husband to pay any sum necessary to enable the wife to carry on or defend the suit during its pendency; and it may decree costs against either party, and award execution for the same; or it may direct such costs to be paid out of any property sequestered, or in the power of the court, or in the hands of a receiver. See 29, 459 (45 N. W., 466). 1430. After the exhibition of the petition in a suit to annul a marriage, or for a divorce, whether from the bonds of matrimony or from bed and board, the court may at any time, either in term or vacation, on the petition of the wife, prohibit the husband from imposing any restraint upon her personal liberty during the pendency of the cause. 1431. The court may in like manner, on the application of either party, make such order concerning the care and custody of the minor children of the parties, and their suitable maintenance, during the pendency of such suit, as shall be deemed proper and necessary, and for the benefit of the children. Custody of children taken from grandparents, with whom erring wife lived, and awarded to husband. 29, 459 (45 N. W., 466). 1432. Upon pronouncing a sentence or decree of nullity of a marriage, and also upon decreeing a divorce, whether from the bonds of matrimony or from bed and board, the court may make such further decree as it shall deem just and proper |