$89 AFFIDAVITS. CHAP. 9 attached (or copies of a notice, the original of which is hereto attached), in three public places in ........ township, county, Iowa, to wit: one at .., and one at (Signature of affiant.) 19.. Subscribed and sworn to (or affirmed) before me by the said (name of affiant) this day of (Seal, if any.) (Signature and title of officer.) PROOF OF THE PUBLICATION OF NOTICES. "Publications required to be made in a newspaper may be proved by the affidavit of any person having knowledge of the fact [usually the publisher or foreman], specifying the times when and the paper in which the publication was made, but such affidavit must be made within six months after the last day of publication." (Code, § 4680.) In the case of original notices the affidavit must be made by the publisher or his foreman, and filed before default is taken. (Code, § 3536.) The affidavit for publication may be in the following form: FORM 16. AFFIDAVIT OF THE PUBLICATION OF NOTICE. State of County of ...... ........ in said newspaper ss: I, (name of affiant), being duly sworn (or affirmed), say that I am the publisher (or foreman) of the (name of paper), a weekly (or semi-weekly or daily) newspaper published at ........, in county, Iowa, and that the annexed printed notice was published consecutive weeks, and that the date of the first publication was (give the date), and that the date of the last publication was (give the date). (Signature of affiant.) Subscribed and sworn to (or affirmed) before me by the said (name of affiant) this day of ... (Seal, if any.) 19.. (Signature and title of officer.) AFFIDAVITS AFFECTING TITLE TO REAL ESTATE. Affidavits explaining any defect in the chain of title to real estate may be recorded as instruments affecting the same, but no one except the owner in possession of such real estate has the right to file the same. (Code, § 2957.) The next two forms are examples of affidavits of this character. FORM 17. AFFIDAVIT THAT THE GRANTOR IN A DEED WAS UNMARRIED. I, (name of affiant), being duly sworn (or affirmed), depose and say that I was at the date named below well acquainted with (name of grantor), by whom a certain deed (or mortgage) dated the ... day of ..... ....... of book ........ in the recorder's office of 19.., and recorded at page county, Iowa, purports to have been made, and that at the date of said deed the said (name of grantor) had no wife. ........ (Signature of affiant.) Subscribed and sworn to (or affirmed) before me by the said (name of affiant) this day of ..... 19.. (Seal, if any.) (Signature and title of officer.). CHAP. 9. AFFIDAVITS. $89 FORM 18. AFFIDAVIT THAT GRANTORS WERE THE ONLY HEIRS OF LAST RECORD I, (name of affiant), being duly sworn (or affirmed), depose and say that I was well acquainted with John Ray, now deceased, who formerly lived in county, state of ........, and with his family, for many years before and up to the time of his death, which occurred about the ........ day of ........, 19..; that the only children the said John Ray ever had were three sons, to-wit, Jacob, William and Joseph, and one daughter, whose name was Sarah; that Jacob and Joseph both died before their father, both being unmarried and without children; that Sarah was married about the day of ......................, 19.., to Henry Goodman; and that on the .... day of .... 19. ., the date of a certain deed purporting to be made by said William Ray and said Sarah and Henry Goodman, and recorded at page ........ of book ........, in the recorder's office of ........ county, Iowa, the said William and Sarah were the only heirs at law of said John Ray, deceased. ........ ..... ........ (Signature of affiant.) Subscribed and sworn to (or affirmed) before me by the said (name of affiant) this day of ....... ..., 19.. ......... I, (name of affiant), being duly sworn (or affirmed), depose and say that I am a member of the firm of ....................., creditors (or that I am the creditor) in the attached itemized account; that the several items of merchandise therein named were by said firm (or by me) sold and delivered to the said (name of debtor) at the prices affixed thereto, which were the reasonable values and prices thereof, and that no part of said account has been paid, except as shown by the items of credit therein. (Signature of affiant.) Subscribed and sworn to (or affirmed) before me by the said (name of affiant) this day of .... ..., 19.. (Seal, if any.) (Signature and title of officer.) 98. The necessity of a license and the duty of the clerk of the district court in regard thereto. 99. How to obtain a license-forms for use. 100. Penalty for disregarding law as to license. 101-102. The marriage ceremony: 101. Who may solemnize marriages-duties-form of ceremony. 103. How the fact of marriage is proved. 104-107. Breach of promise of marriage: 104. The promise. 105. The breach and the action thereon. 106. The measure of damages. Defenses to the action. Sec. 90. Marriage as a civil contract. "Marriage is a civil contract, requiring the consent of the parties capable of entering into other contracts, except as herein otherwise declared." (Code, § 3139.) The only exception is that minors may enter into the marriage contract, though they are not competent to bind themselves by other contracts. When minors are married they, by that very act, attain their majority, regardless of their age. (Code, § 3188.) §§ 91-93. MARRIAGE. CHAP. 10 But when it is said that marriage is a civil contract, the emphasis must be placed on the term "civil," and not upon "contract." What is meant is that, under our law, marriage is controlled by the state, or the civil power, and not, as formerly, by the church, or the ecclesiastical power. It is a contract, to be sure, in that the consent of the parties is necessary to its existence; but it differs from other contracts in this, that, when the contract is once executed by the marriage of the parties, a relation is created between them which they cannot change by subsequent agreement. Other contracts may be modified, restricted, enlarged or entirely abrogated by consent of the parties, but it is not so with marriage. When the relation is once established, the law steps in and holds the parties to various obligations and liabilities. This limitation it places upon the liberty of the parties for the good of society. Sec. 91. Consent necessary-force-fraud-jest-mistake. It is a general principle of law that no one is bound by a contract into which he is driven by force or drawn by fraud; and this rule applies to the marriage contract; for where one acts through force or fraud he acts without legal consent, and the consent of the parties is necessary to a valid marriage. Without consent a marriage is null and void. (92 Iowa, 727.) But mere unwillingness on the part of one of the parties is not sufficient to make the marriage void upon the ground of force; the party must have been compelled through fear of bodily injury. If fraud is relied upon to avoid a marriage, it must relate to the very essence of the contract, and be clearly established. Mere false representations by one of the parties as to his fortune, character or social standing will not avoid the marriage. (31 Iowa, 107.) Mistake will avoid a marriage only when it is a mistake as to the identity of the person married. Mistake as to character, fortune, health or social position makes no difference. As to these, the parties take each other "for better or worse." A marriage ceremony gone through in jest or masquerade is no marriage, because not so intended. A marriage which was void in the beginning may be made valid by voluntary cohabitation after the force has been removed, or after the innocent party has knowledge of the facts making the marriage invalid. Sec. 92. WHO MAY MARRY AND WHO MAY NOT. "A marriage between a male of sixteen and a female of fourteen years of age is valid; but if either party has not attained the age thus fixed, the marriage will be a nullity or not, at the option of such party, made known at any time before he or she is six months older than the age thus fixed." (Code, § 3140.) But no minor can lawfully be granted a license to marry without the consent, legally expressed, of his parent or guardian. But as to this see sections 98, 99 and 100 hereof. Sec. 93. Relatives by blood or marriage.— "If any man marry his father's sister, mother's sister, father's widow, wife's mother, daughter, wife's daughter, son's widow, sister, son's daughter, daughter's daughter, son's son's widow, daughter's son's widow, brother's daughter or sister's daughter; or if any woman marry her father's brother, mother's brother, mother's husband, husband's father, son, husband's son, daughter's husband, brother, son's son, daughter's son, son's daughter's husband, daughter's daughter's husband, brother's son or sister's son, they shall be deemed guilty of incest, and imprisoned in the penitentiary not exceeding ten years nor less than one year." (Code, § 4936.) Marriages contracted in violation of this statute are void (Code, § 3151), and confer no rights upon either party as to the property of the other (24 Iowa, 200). |