Opinion
No. 34394.
January 20, 1941.
1. EQUITY.
A wife seeking to set aside an allegedly invalid divorce decree obtained by her husband came into court with "unclean hands" and was not entitled to affirmative relief where she had married another man subsequent to the rendition of the decree, even if she did not know of the decree at the time of her second marriage.
2. DIVORCE.
The fact that wife did not remarry until after her former husband had married another woman following rendition of divorce decree in husband's favor did not prevent second wife from pleading first wife's remarriage in defense of first wife's suit to set aside the divorce decree for sole purpose of enabling the first wife to obtain life insurance which was left by the husband at the time of his death and which was payable to his widow.
APPEAL from the chancery court of Coahoma county, HON. R.E. JACKSON, Chancellor.
J.J. Breland, of Sumner, and Stovall Lowrey, of Clarksdale, for appellant.
The appellant, on the facts in this record, is not estopped to attack directly the divorce decree in question.
Before any person can be estopped in any proceeding, they must have knowledge thereof. In the case at bar, it is affirmatively shown, and without conflict, that the complainant in this cause never at any time knew that her husband, Edward Joy, had filed a bill for divorce or had attempted to procure a divorce until shortly before she filed the bill of complaint in this cause in the court below.
The principle on which the doctrine of estoppel by conduct rests is that it would be a fraud in a party to assert what his previous conduct has denied when, on the faith of the denial, others have acted. Stated differently, estoppel by conduct arises from an act or declaration of a person intended or calculated to mislead another, on which that other has relied and has so acted, or refrained from action, and that injury will befall him if the truth of the act or declaration be denied.
Staton v. Bryant, 55 Miss. 261; Day et al. v. McCandless (Miss.), 142 So. 486.
The general proposition of law as stated in many of the law books is to the effect that whenever there has been rendered a void divorce decree because of fraud or deceit, where the defendant has remarried, that they are thereafter estopped to set up the invalidity of the marriage.
17 Am. Jur. 376, sec. 460; L.R.A. 1917B, 503, annotation.
An examination of the authorities cited in the above cited note shows in each case that the party complaining had knowledge of the divorce proceedings or had knowledge that the divorce decree had been entered at the time of the remarriage.
Roberson Luckett, of Clarksdale, for appellees.
Bonnie Joy is estopped to complain of defects, if any, in decree of October 26, 1922.
17 Am. Jur., Divorce and Separation, sec. 461; Amis' Divorce and Separation in Miss., p. 432; Arthur v. Israel, 10 L.R.A. 693; Cratin v. Cratin, 178 Miss. 881, 173 So. 415; Bruguiere v. Bruguiere, 172 Cal. 199, 155 P. 988, Ann. Cas. 1917E, 122; Drummond v. Lynch, 82 F.2d 806; Fanning v. C.I.T. Corp., 192 So. 41; Fitzgerald v. Union Planters Bank Trust Co., 121 So. 148, 153 Miss. 500; Hester v. Hester, 103 Miss. 13, 60 So. 6; Lamar v. Houston, 184 So. 293, 183 Miss. 260; Marvin v. Foster (Minn.), 52 A.S.R. 586; Williams v. Johnston, 114 So. 733, 148 Miss. 634; Woodson v. Colored Grand Lodge of Knights of Honor of America, 97 Miss. 210, 52 So. 457.
Such result follows the proved conduct of Bonnie Joy, whether this court be of the opinion that she acted with or without knowledge of the decree of October 26, 1922.
Woodson v. Colored Grand Lodge of Knights of Honor of America, 97 Miss. 210, 52 So. 457.
Appellant has, because of her conduct, her second marriage, her silence throughout the years, forfeited all right to the active, affirmative assistance of a court of equity. She cannot command such aid because she does not come into court with clean hands.
Argued orally by J.J. Breland and Stovall Lowrey, for appellant, and by Semmes I. Luckett, for appellees.
When the proof discloses, as it does in this case, that a wife seeking to set aside an invalid divorce decree obtained by her husband had become married to another man subsequent to the rendition of such decree, it cannot be said that she comes into a court of equity with clean hands asking for affirmative relief. Moreover, even if it be true — and the chancellor found to the contrary — that she did not know of the decree at the time of her second marriage, such want of knowledge would afford less excuse for having entered into the bigamous relationship with her second husband than if she had known of the divorce proceedings, since she did know that her former husband was still alive, and that she herself had not obtained a divorce. Nor does the fact that she did not remarry until after her former husband had married another woman, following the rendition of the divorce decree in his favor, prevent his second wife from pleading such fact in defense of a suit to set aside the decree of divorce for the sole purpose of enabling the complainant in such a suit to obtain the life insurance left by the divorced husband at the time of his death, and which was payable to his widow. It is not a question of whether the woman who entered into the second marriage with the man who had obtained the invalid divorce has done so in reliance upon the conduct of the first wife in remarrying. The case is controlled in principle, though not analogous on the facts, by what was said by this court in the cases of Woodson v. Grand Lodge K. of H. et al., 97 Miss. 210, 52 So. 457; and Williams v. Johnston, 148 Miss. 634, 114 So. 733. Also, see 17 Am. Jur. 377. Compare, Cratin v. Cratin, 178 Miss. 881, 173 So. 415, 174 So. 255. The decree of the chancellor, declining to set aside the divorce decree, is therefore affirmed.
Affirmed.