Summary
In Johnson v. Johnson, 196 Miss. 768, 17 So.2d 805, 806 (1944), a man married his second wife believing his first wife to have died after they separated.
Summary of this case from In re HendrixOpinion
No. 35584.
May 8, 1944.
1. BASTARDS.
Where husband thought first wife was dead and ceremonially married another, evidence, in suit involving question whether children of second marriage were lawful heirs, established that second marriage was entered into in good faith with bona fide intention of becoming man and wife and that parties lived together as man and wife and were so recognized by general public until husband's death.
2. BASTARDS.
Where husband thought that first wife was dead and in 1896 ceremonially married another with whom he lived until his death in 1941, without knowing that first wife died in 1923, the second marriage became lawful after removal of the impediment thereto by death of first wife and offspring of second marriage were legitimate children entitled to share in their father's estate (Code 1942, secs. 461, 465, 474).
APPEAL from the chancery court of DeSoto county, HON. L.A. SMITH, SR., Chancellor.
R.F.B. Logan, of Hernando, and J.R. McDowell, of Memphis, Tenn., for appellants.
Under all the facts disclosed by this record appellants have met the burden imposed upon them. The evidence is clear and emphatic that at the time Richard Johnson, Sr., contracted a marriage with Ella Wright on May 21, 1896, in Shelby County, Tennessee, he had a living wife from whom he had not been divorced. He was incapacitated under the law to contract a valid marriage and his marriage was wholly void and not made in good faith. There is not a scintilla of evidence in the record to show that Richard Johnson, Sr., and Ella Wright married after the births of Cassie Mae Johnson, Laurindy Johnson and Myrtle May Johnson and that Richard acknowledged them as his children, and after the impediment to their marriage had been removed, as provided in said Section 1408 of the Code of 1930; and for these reasons we submit that this case should be reversed.
Watson v. Watson et al., 177 Miss. 767, 171 So. 701; Thompson v. Clay et al., 120 Miss. 190, 82 So. 1; Bourland v. Hatchcock et al., 186 Miss. 223, 188 So. 9; Clark v. Clark, 115 Miss. 726, 76 So. 638; Sullivan v. Grand Lodge Knights of Pythias, 97 Miss. 218, 51 So. 360; Colored Knights of Pythias v. Tucker, 92 Miss. 501, 46 So. 51; Rundle v. Pegram, 49 Miss. 751; Blanks v. Southern R. Co., 82 Miss. 703, 35 So. 570; Alabama V.R. Co. v. Williams, 78 Miss. 209, 28 So. 853; Illinois Cent. R. Co. v. Johnson, 77 Miss. 727, 28 So. 753; Sims v. Sims, 122 Miss. 745, 85 So. 73; Sykes v. Sykes, 162 Miss. 487, 139 So. 853; Taylor v. Garrett, 101 Miss. 660, 57 So. 658; Howard v. Kelly, 111 Miss. 285, 71 So. 391; Ladner v. Pigford, 138 Miss. 461, 103 So. 218; Alabama V.R. Co. v. Beardsley, 79 Miss. 417, 30 So. 660; Edwards, Admr., et al. v. Gaulding et al., 38 Miss. 118; Malone v. Pope et al., 189 Miss. 46, 196 So. 319; Johnson v. Taliaferro, 45 L.R.A. 95; Croan v. Phelps, 23 L.R.A. 753, 14 Ky. L. Rep. 915; Code of 1892, Secs. 1549, 1737, 2864; Code of 1906, Sec. 3249; Code of 1930, Secs. 1408, 1537; 38 C.J. 1294, 1296, 1343; 38 C.J. 128, note 85.
The court below based its decision apparently on one fact, to-wit, that Richard Johnson and Ella Johnson entered into their marriage in 1896 in good faith, and in its opinion takes the position that since they held themselves out to the world as husband and wife and lived together in good faith as such that the relationship of common-law wife existed. As I see it, the fallacy of the court's position is that they did not enter into this relationship in good faith as single persons. In the Sims case, cited by appellee and relied upon by the court as controlling, it will be observed that the woman had been separated from her former husband and that he had written her that he had obtained a divorce and, believing this statement, she contracted this second marriage to Sims. When it developed that the first husband had not been divorced, she then divorced him and continued to live with Sims as his wife without a ceremony. In the case at bar, however, both Ella Johnson and Richard Johnson knew there had been no divorce, they knew that seven years had not run so that there was a presumption of death. The only thing that they did was to consult a Dr. Wesson, who told them that a divorce was not necessary because the woman had been gone so long.
At this time, 1896, there was no such thing in Mississippi as a common-law marriage between the years 1892 and 1906, when the statute was changed to recognize common-law marriages.
Olivari v. Clark, 175 Miss. 883, 894-896, 168 So. 465; Walker v. Matthews, 191 Miss. 489, 3 So.2d 820.
The case at bar more nearly approaches the facts in the case of Frank v. Frank, 193 Miss. 605, 10 So.2d 839. In that case, which is the most recent pronouncement from this court, the facts are substantially as follows: Ollie Lee married Dan Evans, who left the state and was living at the time of the trial in Arkansas. No divorce was ever granted between Ollie and Evans. Ollie married Isom Frank, who died leaving a policy of insurance in a fraternal order, the by-laws of which provided that the beneficiaries must be related by blood or marriage to the insured. Ollie was named as beneficiary. The court held that Ollie's marriage to Isom Frank was void, therefore she could not take the proceeds of the policy. The court said that the fact that Evans was alive negatived the presumption of his death and there was no evidence whatsoever of a divorce.
See Gibson v. State, 38 Miss. 313; Watson v. Watson, 177 Miss. 767, 171 So. 701; Henderson v. Woodmen of Union, 163 Miss. 210, 141 So. 345; Ladner v. Pigford, 138 Miss. 461, 103 So. 218; Freeman v. Barnett, 146 Miss. 849, 112 So. 161, 52 A.L.R. 375; Bourland v. Hatchcock, 186 Miss. 223, 188 So. 9; Harper v. Fears, 168 Miss. 505, 151 So. 745, 93 A.L.R. 341; 38 C.J. 1926.
It seems to me that Dick Johnson and Ella, if they wanted to act in good faith, would have gone to the circuit clerk at Hernando, the county in which they lived, to obtain a marriage license. The clerk would have undoubtedly questioned them about their marital status and it might have been that the clerk knew Uncle Dick and knew that he had a wife somewhere and might have refused to issue the license. So Uncle Dick, to avoid any questions, stepped across the line into Memphis, a big city where he was not known, and got a license without being interrogated too carefully. The license he obtained, however, recited that it was void if there was any legal impediment, but that did not seem to bother Uncle Dick or Ella so they stood out under a tree across the line in Tennessee and got married. To my mind, this shows bad faith.
We have shown that Dick Johnson never did get a divorce, and we have also shown that there was no divorce granted in any of the counties where Cherry Johnson lived, and when some question was raised about Cross County, Arkansas, we obtained a certificate from that county. We contend, therefore, that we have met every burden which might be upon us to show that there was never a divorce between Dick and Cherry Johnson.
In the case at bar, there was no such thing as a common-law marriage when these people had their pretended marriage. They were never legally married after Cherry Johnson died, as contemplated by the Code of 1930, Section 1408, which is very plain in the provision that in order to legitimatize the children born before a marriage the parties must "afterwards marry" and the man recognize the children born out of wedlock. Dick and Ella Johnson never did marry after the birth of these children who, according to their ages, seem to have been born prior to the Code of 1906. The counsel argues that there was no way for Dick or Ella to know when Cherry died. They made no effort to find out. They knew in 1896 that she was not divorced from Uncle Dick and she was not presumed to be dead at that time.
It cannot be argued by counsel that when this marriage occurred there was any presumption of death or divorce, as was in the case of Ouzts v. Carroll, 190 Miss. 217, 199 So. 76, because Dick and Ella proceeded on the theory, not that Cherry was dead or divorced from Dick, but that they did not need a divorce because she had absented herself. The clerk of the court or any lawyer could have told them better but they did not seek that kind of advice because they did not want to get the proper legal advice but wanted an answer that suited their convenience at the time, and Dr. Wesson probably just pushed the matter aside because so many members of the negro race do not bother about divorces or marriage licenses either.
That leaves just one thing to support the decree of the chancellor based upon good faith. The chancellor takes the position that since undoubtedly Cherry has been dead since 1921 or 1923 that the continued living together by Dick and Ella after the death of Cherry constituted a common-law marriage, the impediment having been removed. Our response to this is that they never entered into the relationship in good faith and that after Cherry's death they simply took up or continued in a relationship illegal in its inception when the plain wording of the statute would require a legal marriage after the impediment was removed, otherwise the children born out of wedlock could not be legitimate and inherit from the father. This would leave out the three children of Dick and Ella, who have never been legitimatized according to the statute of Mississippi.
Gerald Chatham, of Hernando, for appellees.
The question involved in this suit is whether or not the marriage of Uncle Dick Johnson to Ella Wright Johnson was a valid one, for the reason that no divorce was obtained by him from his first wife, Cherry Williams Johnson, prior to his marriage to his second wife, Ella Johnson. If it was not, of course Ella Johnson was not his widow and was not entitled to inherit from him, and his children by her were not legitimate and were not entitled to inherit from him, and all of his property would go to his children by his first wife. Under the facts in this case, it is the contention of the appellees that Ella Johnson was the lawful widow of Uncle Richard Johnson, and that their children were legitimate and entitled to inherit from him.
Assuming that there was an impediment to the marriage of Richard Johnson, Sr., and Ella Johnson in 1896, and assuming that his first wife, Cherry, did not actually die until 1923, and assuming that Cherry never did get a divorce from Uncle Dick Johnson during all of these years, which is a violent assumption, the appellees contend that even if this all be true, a legal and binding common-law marriage was effected between Richard Johnson, Sr., and Ella Johnson, his second wife, after the removal of the impediment to their marriage, which was the date of the death of the first wife, Cherry, which was said to have occurred in 1923. In other words, if Cherry, the first wife, did not die until 1923, then Uncle Dick and Aunt Ella, by their conduct, became man and wife by common-law marriage, and should be considered as such, from 1923 to 1941, or a period of eighteen years which they lived together as man and wife after the date of the death of the first wife, Cherry.
Prior to the Code of 1892 a common-law marriage was undoubtedly and without question valid in this state, and such a marriage is expressly recognized by Section 3249, Code of 1906, and Section 2363, Code of 1930. From the adoption of the Code of 1892 until the adoption of the Code of 1906, there is reasonable doubt as to whether or not a common-law marriage contracted between 1892 and 1906 was valid.
Code of 1892, Sec. 2864.
It is established, without question, that now common-law marriages are as valid and binding in Mississippi as the statutory ceremonial marriage.
Jones v. Lamensdorf, 175 Miss. 565, 167 So. 624; Jourdan v. Jourdan, 181 Miss. 176, 179 So. 268; D'Antonio v. State, 187 Miss. 648, 191 So. 281; Sims v. Sims, 122 Miss. 745, 85 So. 73; Sykes v. Sykes, 162 Miss. 487, 139 So. 853; Code of 1906, Sec. 3249; Code of 1930, Sec. 2362.
Every reasonable presumption will be indulged in favor of the validity of a marriage.
Ward v. Dulaney, 23 Miss. 410; Wilkie v. Collins, 48 Miss. 496; Howard v. Kelly, 111 Miss. 285, 71 So. 391; Ladner v. Pigford, 138 Miss. 461, 103 So. 218; Spears v. Burton, 31 Miss. 547; Aldridge v. Aldridge, 116 Miss. 385, 77 So. 150.
A marriage duly proved will be presumed valid although a former husband of the woman may be still living, and the burden of proof is upon the party asserting the invalidity of the marriage to prove that there has been no divorce of the former marriage.
McAllum v. Spinks, 129 Miss. 237, 91 So. 694.
The presumption of the validity of an alleged marriage shown in fact to have been entered into is not conclusive, but may be rebutted by evidence of invalidating facts. To overcome the presumption, however, the evidence must be strong, distinct, satisfactory, and conclusive; and if there is any evidence to support a finding in favor of the marriage it will be sustained.
Taylor v. Garrett, 101 Miss. 660, 57 So. 658; 38 C.J. 1344, Sec. 116.
If Cherry remained beyond the borders of the State of Mississippi for seven years successively without being heard of since 1913, under the above quoted section, she was presumed to be dead around the year 1920, but even if she did not die until 1923, it would make no difference insofar as it removed the impediment to Richard Johnson's second marriage.
Code of 1930, Sec. 1537.
Where a marriage between a man and woman is contracted while under disability or an impediment, they continue to occupy that relation in fact, although a new marriage agreement was not made by them after the removal of the impediment.
Sims v. Sims, 122 Miss. 745, 85 So. 73; Sykes v. Sykes, 162 Miss. 487, 139 So. 853.
If the parties desire marriage, and do what they can to render their union matrimonial, yet one of them is under a disability, as where there is a prior marriage undissolved, their cohabitation, thus matrimonially meant, will in matter of law make them husband and wife from the moment when the disability is removed, and it is immaterial whether they knew of its existence or its removal or not.
Travers v. Reinhardt, 205 U.S. 423; Bishop on Marriage, Divorce and Separation, Sec. 422.
See also Bourland v. Hatchcock, 186 Miss. 223, 188 So. 9; Franks v. Franks, 193 Miss. 605, 10 So.2d 839; Ouzts v. Carroll, 190 Miss. 217, 199 So. 76.
There was sufficient evidence to warrant the chancellor in holding that a common-law marriage had been established in this case.
Richard Johnson and Cherry Williams were duly married in 1875. They lived together as man and wife until 1890. During that time five children were born to them, two of whom are now living and three of whom are dead. In 1891 Cherry left Richard while they were living in Marshall County, Mississippi. She went to Tennessee and subsequently to Arkansas. Richard, shortly after the separation, moved to DeSoto County, where he resided until his death March 2, 1941. Richard never heard from Cherry again. In 1896 Richard and Ella Wright were ceremonially married. Richard had not obtained a divorce from Cherry, nor she from him, to his knowledge, and it is reasonably certain, although not conclusively so proven, that she had not done so as a matter of fact. Richard and Ella discussed this situation before going through their ceremony of marriage. They had heard Cherry had been drowned in Arkansas. She had been gone some six years. So confronted they sought the advice of Dr. Wesson, a white man, their family doctor, as to whether Richard should obtain a divorce from Cherry before they, Richard and Ella, should become married. Dr. Wesson advised them he did not think that was necessary under the circumstances; whereupon they, without Richard having obtained a divorce from Cherry, undertook to become man and wife through a public marriage ceremony under a regular license. They lived together as man and wife in DeSoto County, holding themselves out as such, and being so recognized in the community in all respects until the death of Richard. During this time three children were born to them, whom they at all times recognized and treated as legitimate children. Cherry died in Arkansas in 1923. Richard and Ella knew nothing of that, in fact, they did not know whether she was living or dead, but, as stated, there was evidence they thought she had drowned many years before. Knowing nothing of the death of Cherry they naturally had no new understand-as to their marital status and made no change in their relations with each other after her death. They simply continued to live together as man and wife with the same intentions and understanding as theretofore.
When Richard died he owned 180 acres of land, and some personal property, in DeSoto County. Richard, Jr., and Lula Johnson Lane, the two living children of Richard and Cherry, filed a bill in chancery for sale of these lands and division of proceeds, averring that they, together with certain heirs of deceased children of Richard and Cherry, were tenants in common thereof as the only heirs at law of Richard, deceased, asserting that Ella was not the lawful wife of Richard and that their three children were illegitimates, and that, therefore, they owned no interest in the estate left by Richard. This contest then is between two living children and certain grandchildren of Richard and Cherry, on the one side, and Ella Johnson and the three children of herself and Richard, on the other side.
The chancellor held that all of the parties hereto were lawful heirs of Richard Johnson, deceased, and that Ella was his lawful widow.
He found that the marriage between Richard and Ella was entered into in good faith, with the bona fide intention of becoming man and wife, and that they lived together as man and wife under those conditions and were so recognized by the general public until the death of Richard, some forty-five years. The evidence amply supports this finding.
He held that, although common law marriages were not recognized in Mississippi from 1890 to 1906, that such marriages have been recognized since 1906, and that all of the essential facts of such marriage exist in this case, and that the marriage being at all times in good faith, and so continuing from 1923, when Cherry died, until the death of Richard in 1941, that the marriage became lawful and legal and valid after the removal of the impediment thereto by the death of Cherry, without any new or different understanding or intention between them as to their relations, and that their offspring became and are legitimate children.
The chancellor was correct in his findings and conclusions. Section 461, Code 1942, (Section 2363, Code 1930); Section 465, Code 1942 (Section 3249, Code 1906, Section 2367, Code 1930); Section 474, Code 1942 (Section 1408, Code 1930); Sims v. Sims, 122 Miss. 745, 85 So. 73; Sykes et al. v. Sykes et al., 162 Miss. 487, 139 So. 853.
Affirmed and remanded.