Opinion
04-28-1899
In re GRAHAM.
John S. Voorhees, Esq., for petitioner.
Petition by Sarah Graham for an order authorizing her to mortgage lands without the joining of her husband. Petition dismissed.
John S. Voorhees, Esq., for petitioner.
GREY, V. C.This application is under a special statute of this state which authorizes a married woman living in a state of separation from her husband to apply for an order of this court authorizing her to execute a deed or mortgage without the joining of her husband. Gen. St p. 2016, § 22. The petition asks for the exercise of a statutory power, and in order to enable this court to act or to give any efficiency to its decree, the jurisdictional facts necessary to raise the power must be shown to exist. In this case it appears that the petitioner was married in Massachusetts to a Mr. Smith; that by the decree of a Massachusetts court she was divorced from bed and board, but not from the bonds of matrimony, from Mr. Smith, on her own application. By the law of that state it appears that, after such a decree, if the parties lived in a state of separation for five years, on application of the complainant a decree for divorce from the bonds of matrimony may be made; and upon the expiration of ten years after such decree from bed and board, if the parties lived in such a state of separation for that time, application for divorce from the bonds of matrimony may be made by either party. No application of this character was made, nor was any decree entered by the Massachusetts court divorcing the parties from the bonds of matrimony. While the first husband, Smith, was still living, the petitioner in this matter went through the ceremony of marriage with Mr. Graham; and the application presently made is, upon notice to Graham, assuming him to be in fact and in law the petitioner's husband, alleging that she is living separately from him, for leave to have an order authorizing her to make a mortgage without Mr. Graham joining her in the execution of it. As above stated, it is only on application of a married woman living in a state of separation from her husband that this court is authorized to make such an order, and the proofs show that the first husband survived the period of the second supposed marriage, but that he has since died. This case, in some of its particulars, resembles that of Voorhees v. Voorhees' Ex'rs, 46 N. J. Eq. 411, 19 Atl. 172. Vice Chancellor Van Fleet there held that where there was a valid marriage, and the husband, during the existence of the marriage bond, went through a ceremony of marriage with another woman, and thereafter publicly lived with her, and the valid marriage was afterwards ended by divorce, the ceremony of marriage with the second woman was not only invalid ab initio, but all proofs of cohabitation and publication of the marriage relation between the husband and the second woman, though happening after the termination of the lawful marriage, must be related to their original invalid association, and cannot be considered to be evidential of a second marriage at a later date, after the first and lawful marriage had terminated. This case was affirmed on appeal to the court of errors, without opinion. 47 N. J. Eq. 315, 20 Atl. 676, sub. nom. Collins v. Voorhees. An interesting dissenting opinion by Justice Garrison insists that it is the policy of the law to declare those in the connubial relation to be lawfully associated, and that where parties are unlawfully associated, and by reason of an impediment cannot be lawfully married, a presumption of a lawful matrimonial contract will arise from such acts of cohabitation and reputation, as soon as by the removal of the impediment the parties could enter into the contract of marriage. An application was made for a rehearing of the appeal, which was refused by the court of errors; and on this refusal the late Chief Justice Beasley delivered an opinion sustaining the judgment of Vice Chancellor Van Fleet, ignoring the argument based upon public policy, and placing the decision upon the ground that the husband, in going through the second marriage ceremony, knowing his wife to be living and not divorced, had a fraudulent purpose to deceive the second wife, but no purpose to contract a marriage; that in such a case the evidence must be sufficient to show an abandonment of the adulterous purpose, and the making of a new matrimonial contract; and that cohabitation and repute alone were insufficient to show such a condition. That the ceremonial marriage of the petitioner to Graham in Smith's lifetime, in the case under consideration, was void ab initio, is beyond question. The petitioner, being the actor in the suit against Smith for limited divorce in Massachusetts, must have known that the decree in that suit did not dissolve her marriage with Smith. She went through the second ceremony andcontinued her relations with Graham with that knowledge, and even if it were shown that she eohabitated with him, with public acknowledgment of marriage, after Smith died, such facts are, under the cases cited, insufficient to justify an inference of a valid second marriage to Graham. The result of this showing of facts is that the petitioner, who was lawfully married to. Smith, was never, in the consideration of the law, married to Graham, either by the formal ceremony she went through with him during Smith's life, or by any presumption which might arise by reason of her public cohabitation with Graham, as his wife, after Smith's death. The petitioner is therefore not a married woman, but an unmarried woman,—the widow of Smith. Being an unmarried woman, she has neither occasion nor right to apply to this court for an order authorizing her to make a mortgage of her lands without her husband joining; and this court cannot entertain her petition in this behalf, because it has no jurisdiction, for want of the existence of the facts required by the statute. For lack of jurisdiction over the subject-matter, the application of the petitioner should be refused.