by him to an infant and placed on record by him, the trial court found as a fact that the grantor, influenced by fear of a creditor, as well as by affection for the grantee "with the intent and purpose of giving to the said [grantee] his title to said land, executed said deed and caused the same to be recorded." The appellate court held that such finding was determinative of the question of delivery, and that the proved facts that a month month elapsed between the execution and delivery of the deed to the town clerk, that the grantor did not place it in the hands of the grantee, and that he retained possession of the land, of necessity exhausted their force upon the minds of the court below, and were not to be considered by the appellate court.

Where a father executes a voluntary deed to his minor children and has it recorded, and then takes it and keeps it in his possession, there is no delivery to the children, and no estoppel against the father to deny a delivery, where he did not do such acts for the purpose of giving effect to the deed, but to protect himself against a threatened claim for alimony. Kopplemann v. Kopplemann, 94 Tex. 40, 57 S. W. 570.

The unquestioned evidence is that the deed was never in fact delivered to the intervener, but was surreptitiously taken by her many years after the execution of the deed; that the deed, after it had been placed upon record, was returned to and retained by the grantor, together with possession of the property conveyed thereby, and that the intention of the grantor in executing the deed was not to convey title to the intervener, but to place the property where it could not be reached for a legal liability that might arise against him.

In Johnson v. Craig, 37 Okla. 378, 130 Pac. 581, it is held: "Where there is a question as to whether there had been a delivery of a deed of conveyance, the real test is the intention of the grantor, which intention may be manifested by mere

acts, or by words, or both combined, and such acts and words and the circumstances relevant thereto are susceptible of parol proof."

In the body of the opinion, it is said: "That such question is one of fact to be determined by the circumstances, actions, statements, and intention of the grantor is the consensus of authorities. 14 Ballard, Real Prop. §§ 146-152; 3 Devlin, Deeds, 3d ed. § 265; 9 Am. & Eng. Enc. Law, 2d ed. 154; 13 Cyc. 750, and authorities cited" thereto.

It is placed beyond question by the evidence in this case, especially the retention of the deed after its record, and the possession and enjoyment of the property as his own by King, and the uncontradicted evidence of King as to his intention in executing and recording the deed, that the intention of King was for the sole purpose to protect the property from a legal liability, and therefore said deed did not pass title to the intervener, and she was not entitled to recover the property. The intervener not having paid any consideration for the property, or assumed any liability on account thereof, and never having been in possession of the property, nor the deed delivered to her, was entirely without the right to any equitable consideration in her behalf.

The unquestioned evidence is that the purpose of King in executing and placing the deed upon record was a fraudulent act, and therefore King "does not come into court with clean hands," and Cloudconsequently equity removal-deed will not grant him creditors. the relief prayed

to defraud

for, "but will leave him where it found him." It is a well-settled maxim of equity that he who comes into equity must come with clean hands.

"The principle of the maxim is that a court of equity will leave the guilty party seeking its aid where it finds him. Not only does it refuse, as has been seen, to carry to fruition a fraudulent, illegal, or otherwise unconscionable transac

tion, but where such transaction has been in whole or in part carried out, it refuses to undo it on the application of a guilty participant, and refuses to relieve him from legal liabilities or other consequences of his misconduct." 16 Cyc. 145, § 3, and the very many authorities there cited.

It follows that the court did not err in refusing the relief prayed for by King for the cancelation of the deed and the record thereof, and the removal of such cloud from the title to the property involved. The interpleader not being entitled to recover in this action as sought by her interplea, the court committed reversible error in overruling the motion for a new trial.

This cause is reversed and remanded, with instructions to the trial court to dismiss the intervention of the intervener, and to dismiss the cross action of the plaintiff in error, and tax the plaintiff

in error with costs, other than the costs heretofore awarded against the Antrim Lumber Company.

Per Curiam:

Adopted in whole.

Petition for rehearing denied, May 21, 1918.

NOTE.

In the reported case (KING V. ANTRIM LUMBER Co. ante, 21), it is held that a person who records but does not deliver a deed, his sole purpose being to defraud his creditors, is not entitled to equitable relief against the grantee where the latter surreptitiously obtains possession of the deed and claims title. The cases involving the equitable maxim that "he who seeks the aid of equity must come with clean hands" are reviewed in the note following LANGLEY V. DEVLIN, post, 44.

between cousins - valid

2. Marriages between first cousins are absolutely void without judicial decree, under statutes declaring them to be incestuous and void and making persons entering into them punishable by imprisonment in the penitentiary. [See 18 R. C. L. 410-412.]

Estoppeldisaffirmance of marriage. 3. Estoppel does not lie against disaffirmance of an illegal marriage. [See 18 R. C. L. 450.]

Marriage suit to annul and solicitors' fees.

alimony

4. Temporary alimony and solicitors' fees in a suit to annul a marriage are not allowed as matter of right, but rest in the sound discretion of the court.

lee.

Cartwright, J., delivered the opinion of the court:

The question in this case is whether the statute by which marriages of cousins of the first degree are declared to be incestuous and void is to be interpreted as declaring that such a marriage is void in the sense of being a nullity, ineffectual under any circumstances to bind the parties or to confer marital rights, or is to be construed as being voidable and possessing validity until disaffirmed by the act of one or both of the parties to the marriage, so that the right to disaffirm may be lost by conduct creating an equitable estoppel. The suit was commenced by

the filing of a bill on February 2,

1915, in the circuit court of Cook county, by the appellant, Elizabeth Arado, against the appellee, David Arado, to whom she had been married by a ceremonial marriage on October 4, 1894. She charged the appellee with habitual drunkenness, extreme and repeated cruelty, and adultery, and alleged that they had two children, a boy aged seventeen years and a girl aged fourteen years, and prayed for temporary alimony, solicitor's fees, a divorce, and custody of the children. The appellee answered, admitting the ceremonial marriage, but denying the charges of misconduct made in the bill, and alleging that the marriage was void and of no effect because he and the appellant were cousins of the first degree. The appellee also filed a cross bill, setting up the statute declaring marriages between first cousins incestuous and void, and praying the court to set aside the marriage. To this cross bill the appellant answered that she and the appellee were communicants of the Roman Catholic Church, a religious

nized such marriages to be valid; that the appellee was estopped from denying the validity of the marriage by a contract under seal, made in compromise of a suit brought by her for separate maintenance, in which he threatened to set up the defense of the invalidity of the marriage; that by the agreement it was declared that the children were lawfully begotten children of herself and the appellee; and that other conduct of the defendant had created an equitable estoppel against the disaffirmance of the marriage contract. The appellee excepted to the matter set up as a compromise of the separate maintenance suit and the matter alleged as an equitable estoppel. The appellee testified that he and the appellant were first cousins, and the

court entered a decree reciting that the cause was heard upon the exceptions and upon a motion of the appellant, based on her verified bill, for temporary alimony and the allowance of solicitor's fees, sustaining the exceptions to the answer to the cross bill, denying the motion for temporary alimony and solicitor's fees, declaring the marriage void and of no effect, and dismissing the bill of appellant for want of equity. The appellate court for the first district affirmed the decree, and granted a certificate of importance and an appeal to this court.

The statute enacted in 1819 provided that males of the age of seventeen and females of the age of fourteen might be joined in marriage if not prohibited by the laws of God, which have been commonly understood as the prohibitions declared by verses from 6 to 18, inclusive, of the 18th chapter of Leviticus. The marriage of cousins of the first degree was not prohibited by those laws, and the most distant relation in consanguin

ity therein stated was that of uncle and niece, or aunt and nephew. The disabilities created by the Levitical Law were canonical, but were recognized by the common law to the extent of treating the prohibited marriages as voidable, and not void until sentence of nullity should be obtained. They were considered valid for all civil purposes until sentence of separation, which must have been made in the lifetime of the parties, and the court would not annul a marriage after the death of either party, by which the issue would be bastardized. 1 Bl. Com. 434; 2 Kent, Com. 95. While the Statute of 1819 was in force, the question of the validity of the marriage of Joseph Bonham and Sarah Beer, his niece, was involved in a suit, and the court held that the marriage, not having been nullified by sentence of separation in the lifetime of Joseph Bonham, was made good for all civil purposes, and the wife was entitled to dower. Bonham v. Badgley, 7 Ill. 622. In the Revised Statutes of 1845 the general assembly made a statutory rule as to what marriages should be declared void on account of consanguinity, and by § 124, division 11, of the Criminal Code, declared that marriages between parents and children (including grandparents and grandchildren of every degree), between brothers and sisters (of the half as well as of the whole blood), and between uncles and nieces, and aunts and nephews, were incestuous and absolutely void. Section 125 of the same division provided that persons within the degrees of consanguinity within which marriages were declared by the preceding section to be incestuous and void, who should intermarry with each other, should be liable to indictment, and upon conviction be punished by imprisonment in the penitentiary not exceeding ten years. Rev. Stat. 1845, p. 173. The next general statutory revision of the Criminal Code was in 1874, and under the title of "Incest" the general assembly re-enacted § 125, division 11, as § 157 of division 1, and omit

ted from the Criminal Code, § 125, prohibiting marriages on account of consanguinity. Rev. Stat. 1874, p.

376.

Section 125 was transferred to the chapter relating to marriages, and was re-enacted as § 1 of that chapter. Rev. Stat. 1874, p. 694. The Revised Statutes of 1845 declared marriages within the prohibited degrees to be absolutely void, and in the Revision of 1874 the word "absolutely" was omitted, and they were merely declared to be incestuous and void. Under these statutes, and up to the year 1887, marriages of cousins of the first degree were valid, but in that year § 1 of the Revision of 1874 was amended by adding marriages between cousins of the first degree, the amended statute otherwise being the same as in the Revision of 1874. Laws 1887, p. 225. The question whether the marriage of the appellant and appellee was void in the proper sense of the term, or voidable merely, must be determined from the amended Act of 1887, and the provision of the Criminal Code making the parties to a marriage declared to be incestuous and void punishable by imprisonment in the penitentiary; and there is a further question whether a marriage prohibited by law, and which constitutes a criminal offense, can become valid by ratification or through an equitable estoppel.

Reasons advanced by counsel for the appellant for construing the word "void" as "voidable" are that the word is of uncertain meaning, and may mean either of no effect or as valid until disaffirmed, and consequently giving rise to an equitable estoppel to dispute the validity of a marriage; that the general assembly, in the Revision of 1874, dropped the qualifying word "absolutely," thereby showing an intent to repeal so much of the earlier statute as gave the word the meaning of nullity; and that in adding to the Marriage Statute, in 1887, the class of marriages between cousins of the first degree, which had been valid previously, the general assembly manifested an intent to give a different.

meaning to the words "incestuous" and "void," as to that class, from the meaning as applied to classes condemned previously by the Criminal Code.

There is no provision of the statute giving jurisdiction to a court to hear and determine the validity of a marriage between cousins of the first degree, or to pronounce a sentence of separation, so that the word "void" cannot be construed as "voidable" upon such a degree by a court of competent jurisdiction. The general assembly itself declared such marriages to be incestuous and void, regardless of disaffirmance or the action of a court, and also made the marriage a criminal act, for which punishment was provided. The courts in the earlier cases naturally manifested a disposition to follow the common-law rule in the construction of statutes. Incest was not indictable at the common-law but was punished by the ecclesiastical courts as an offense against good morals; but by the statute it is punishable by imprisonment in the penitentiary. It would be contrary to reason to say that an act which is criminal can be valid for any purpose, or that a marriage contracted by persons incapable of entering into the contract can have any validity. In the Revision of 1874, the qualifying word "absolutely" was dropped from the statute, but when that fact is considered in connection with the Criminal Code, any inference that the meaning of the word "void" was

Marriage

-validity.

changed in any way between cousins cannot arise. Under such statutes marriages within the prohibited degrees are void and not merely voidable. Fearnow v. Jones, 34 Okla. 694, L.R.A.1916C, 720, 126 Pac. 1015; Blaisdell v. Bickum, 139 Mass. 250, 1 N. E. 281; Hayes v. Rollins, 68 N. H. 191, 44 Atl. 176; McIlvain v. Scheibley, 109 Ky. 455, 59 S. W. 498. The provision of the Criminal Code providing punishment for incestuous marriages was general in its application, and applied to all marriages which were at the time of

its enactment, or might thereafter be declared to be, incestuous and void; and the fact that a change was made in the made in the prohibited degrees could not have any effect to give a different meaning to the word "void," as applied to the class of marriages added to the statute.

Aside from a construction of the statute, no estoppel could arise as against a disaffirmance of an illegal marriage. There was no such estoppel under the rule of the common law. In West Virginia, by statutory enactment, marriages between relations of the forbidden degrees are

only voidable, but Estoppelthe court of appeals disafirmance decided in Martin v. of marriage. Martin, 54 W. Va. 301, 46 S. E. 120, 1 Ann. Cas. 612, that if the parties could continue the marriage relationship without violating the criminal laws of the state the court might be justified in refusing to entertain the plaintiff's bill to annul his marriage; but where the law forbids the continuance of the relation it is the duty of both parties to have the marriage annulled. The general rule that equity will not entertain the complaint of one who comes into the court with unclean hands does not ap- unclean handsply, and if a party when applicable. to an illegal marriage is so wanting in honor as to be willing to publish his own criminal offense, and disgrace and humiliate his children and one with whom he has lived in the marital relation, the public interest requires that he should not be prevented from doing so. The defendant was not barred from alleging the illegality of the marriage.

Equity-maxim

The chancellor denied the motion of the appellant for temporary alimony and solicitor's fees, based upon her verified bill of complaint. Temporary alimony and solicitor's fees are not allowed as a matter of right, but rest in the sound discretion of snit to annulthe court, dependent alimony and on the inability of the complainant to provide for herself and pay the expenses of the liti

Marriage

solicitor's fees.