Opinion
No. 36139.
May 27, 1946.
1. MARRIAGE.
Where divorced wife went to live with divorced husband after she had married a second husband, second husband's death freed the wife of any obstacle which might have existed to establishment of a matrimonial common-law status between her and divorced husband.
2. HOMESTEAD.
If a common-law marriage was established, its incidents, including application of statute requiring deed conveying wife's homestead to be signed by husband, would be those evoked by a ceremonial marriage (Code 1942, sec. 332).
3. MARRIAGE.
The statute making criminal the cohabitation of divorced persons and punishing it as for adultery does not forbid the contracting of a valid subsequent common-law marriage between divorced parties (Code 1942, secs. 1998, 2746).
4. HOMESTEAD. Marriage.
Evidence established valid common-law marriage between divorced husband and wife, so that deed conveying part of wife's homestead, was void because not signed by husband (Code 1942, sec. 332).
APPEAL from the chancery court of Marion county, HON. LESTER CLARK, Chancellor.
Rawls Hathorn, of Columbia, appellants.
The conveyance or encumbrance of a homestead by one spouse without the consent and signature of other spouse is absolutely void.
Yazoo Lumber Co. v. Clark, 95 Miss. 244, 48 So. 516; McKenzie v. Shows, 70 Miss. 388, 12 So. 336; Zukoski v. McIntyre, 93 Miss. 806, 47 So. 435; Code of 1942, Sec. 332, p. 492.
Bertha Jett and Foster Jett were never legally divorced.
Common law marriages are recognized and given the same sanctity as ceremonial marriages in Mississippi.
Sykes v. Sykes, 162 Miss. 487, 139 So. 853; Jourdan v. Jourdan, 181 Miss. 176, 179 So. 268; D'Antonio v. State, 187 Miss. 648, 191 So. 281; Code of 1930, Sec. 2367.
Any statement made by a wife as to her marital status with her husband would not be binding on or conclude husband.
Hinds v. Morgan, 75 Miss. 509, 23 So. 35.
The presumption is that when Felix Rhodes married Carrie Kennedy in 1925 he and Bertha Jett were divorced; also that when Bertha contracted a common law marriage with Foster Jett, Felix Rhodes was either dead or had divorced Bertha.
Howard v. Kelly et al., 111 Miss. 285, 71 So. 391.
Conceding for the sake of argument that at the time of Bertha's common law marriage to Foster she was under legal disability by being married to Felix Rhodes, when Felix died the meretricious relation ripened into a valid and binding common law marriage.
Howard v. Kelley, supra; Sims v. Sims, 122 Miss. 745, 85 So. 73.
The rule that "he who seeks equity must do equity," does not apply.
Woods v. Campbell, 87 Miss. 782, 40 So. 874.
R.H. Dale, of Columbia, for appellee.
Bertha Jett and Foster Jett married and separated in Lawrence County, Mississippi, and Bertha was living in Lawrence County when she instituted suit for divorce against Foster Jett. The divorce having been granted, Bertha afterwards married Felix Rhodes. Bertha and Foster Jett having thus been divorced, they could not thereafter lawfully cohabit unless they remarried — had a ceremonial marriage performed —, as Section 1674, Code of 1906, which was in force when the divorce was granted and which has been brought forward as Section 2746, Code of 1942, expressly prohibits divorced persons from cohabiting. That section of our Code reads as follows: "Divorced Persons Not to Cohabit. If any person who shall be divorced on account of their being within the degrees prohibited by law, shall afterwards cohabit, they shall be liable to the pains and penalties provided by law against incest; and if any persons who shall be divorced on account of a prior marriage, adultery, or other cause, shall afterwards cohabit, they shall be liable to all the pains provided by law against adultery." Therefore, under our law the relationship now existing between Bertha Jett and Foster Jett is unlawful, and this section of our Code is an impediment to a common law marriage between Bertha and Foster Jett and their pretended marriage should not be sanctioned. This being the case, and they not having since had a ceremonial marriage performed, they were not husband and wife at the time of the execution of the deed by Bertha to Jodie McLendon, and it was not necessary that Foster Jett sign said deed.
A court of equity will not afford relief to one who seeks relief while guilty of misconduct, or of such acts as would perpetrate wrong and injustice to others.
Cherry v. Bivins, 185 Miss. 329, 187 So. 525; Dogan v. Cooley, 184 Miss. 106, 185 So. 783.
Appellants filed their bill to cancel deed from Bertha Jett to Jodie McClendon, and a subsequent deed from McClendon to appellee and to confirm title in appellants to the land involved which is described as:
"Begin at the center of SE 1/4 of Section 32, Township 4 North Range 18 West and run thence South 10 chains, 25 links, thence West 174 feet, thence North 125 feet to point of beginning of land hereby conveyed thence North 50 feet, thence West 50 feet, thence South 50 feet, thence East 50 feet to place of beginning, . . ."
The basis for complainants' contention is that the deed from Bertha Jett is void under Section 332, Code of 1942, for the reason that it conveyed part of a homestead, and the deed was not executed also by the husband. Appellee's answer raises the factual legal issue whether grantor was legally the wife of Foster Jett, her purported spouse.
The relevant facts are as follows: Foster and Bertha Jett were legally married about fifty years ago. They were divorced in 1907. Prior to the divorce, Foster Jett had been committed to the State Hospital for the insane, where he remained for about seven years, and whence he was then discharged. They had four children, two of whom are the appellants.
In 1925, Bertha married one Rhodes. They separated a few years later. The record discloses no divorce. Bertha purchased the homestead in 1926. In 1930, her former husband Foster Jett requested that she return to him in Prentiss. She acceded to this request and went to live with him, later moving all his goods, stock and household equipment to the homestead of Bertha. Shortly after this reunion, Rhodes, the second husband, died, so that without invoking any presumption of a divorce between Rhodes and Bertha, arising out of the fact of a later marriage between Rhodes and another woman, the death of Rhodes freed Bertha of any obstacle which may have existed to the establishment of a matrimonial common-law status. See Howard v. Kelly, 111 Miss. 285, 286, 71 So. 391, Ann. Cas. 1918E, 1230.
Bertha and Foster Jett have lived there together ever since. In 1940, Bertha executed the deed to McClendon, who in turn conveyed the same lands to appellee. In 1944, Bertha and Foster Jett conveyed the identical property, a part of the homestead, to appellants. The chancellor denied relief to complainants and dismissed their bill. Complainants' appeal requires review of the sufficiency of the evidence to establish the common-law marriage between Bertha and Foster Jett.
If a common-law marriage was established, its incidents, including the application of Section 332, would be those evoked by a ceremonial marriage. 35 Am. Jur., Marriage, Sec. 237, p. 339.
On the issue of fact as to the status of their cohabitation as matrimonial, the following testimony is relevant: Their former marriage relationship from which union four children were born, two of whom are still living; the merger of their respective personal properties into a common household support; the attitude of Bertha toward her former status as his wife as being morally and scripturally indissoluble; their actual cohabitation as husband and wife for over fifteen years; and the common repute in the community that they asserted and bore such relationship to each other. For several years prior to the institution of this suit, Foster had been an invalid and Bertha had taken continuous, complete and conscientious care of him. Further details will not be here set out.
Appellee would contradict these convincing circumstances by quoting Bertha as having told her that she and Foster were not legally married, and that she "could get married." This statement is in substance corroborated by McClendon and another witness, the latter, as well as appellee divulging that Bertha asserted that she was staying with Foster because he was the father of her children. The former witness nevertheless conceded that he had always thought them to be married.
We do not find in the testimony any facts inconsistent with the circumstances supporting a finding that the two Jetts had resumed their relationship with matrimonial intent. Nor is our conclusion at variance with any finding of fact by the learned chancellor, who expressed no opinion thereon but simply dismissed the bill. If we should hold appellees to their assertion, unsupported by the record, that the basis of the chancellor's decree was the failure of complainants "to do equity," we would be compelled to advert to the fact that the suit is not by Bertha Jett, who received the consideration for the assailed deeds to McClendon, and to the absence of any legal obligation upon Foster Jett, for whose protection Section 332 was enacted, to pay for the privilege of invoking its provisions. See Woods v. Campbell, 87 Miss. 782, 40 So. 874; Young v. Ashley, 123 Miss. 693, 86 So. 458. Likewise, the decree would be divested of any factual findings whose justification is made an issue by this appeal.
We find no support for the contention that Section 2746, Code 1942, conclusively forbade the contracting of a valid subsequent common-law marriage. The section makes criminal the cohabitation of divorced persons and punishes it as for adultery. Yet, the punishment of unlawful cohabitation eo nomine (Section 1998, Code 1942) has been no obstacle to a bona fide attempt to invest such relationship with the attributes of a recognized matrimonial alliance. Sims v. Sims, 122 Miss. 745, 85 So. 73; 35 Am. Jur., Marriage Sec. 203, p. 312. See also Walker v. Matthews, 191 Miss. 489, 3 So.2d 820. The cited statute does not of course forbid a subsequent ceremonial marriage which carries incidents not at all distinct from common-law marriage. Howard v. Kelly, 111 Miss. 285, 71 So. 391, Ann. Cas. 1918E, 1230.
We are compelled to recognize the status of common-law marriage between Foster and Bertha Jett upon the date of the conveyance of part of the homestead by the wife alone to McClendon. This deed was therefore invalid and conveyed no title. The subsequent conveyance by both parents to appellants is therefore without vitiating incident and must be upheld.
Reversed and decree here for appellants.