Opinion
No. 38890.
November 16, 1953.
1. Marriage — attack on ceremonial marriage — burden of proof.
Where in any proceeding the validity of a ceremonial is attacked the burden rests on the party alleging its invalidity to prove it.
2. Marriage — law favors — evidence — required to nullify.
The law favors marriage, and when once solemnized according to forms of law, it will not declare its nullity upon anything less than clear and certain testimony, especially after it has been dissolved by death of one of the parties.
3. Marriage — presumption in favor of ceremonial marriage — essentials of common-law marriage.
Where an alleged prior common-law marriage is interposed for purpose of having declared invalid a ceremonial marriage, there is a strong presumption in favor of the validity of the ceremonial marriage as against the prior alleged common-law marriage, and although the existence of a common-law marriage may be shown by acts and timely declarations of the parties, all the essential elements of such relationship must be shown by clear, consistent and convincing evidence, especially when one of the parties is dead.
4. Marriage — evidence — failed to establish — common-law marriage — ceremonial marriage valid.
In suit involving conflicting claims of ownership to property of decedent, wherein grandson claimed he was sole heir at law of decedent and disputed the claim of purported widow of decedent on the ground that ceremonial marriage entered into between decedent and his purported widow was invalid by reason of an undissolved common-law marriage of widow with another party, evidence failed to establish a common-law marriage between widow and other party, and Court correctly held that at time of decedent's death widow was his lawful wife.
Headnotes as approved by Arrington, J.
APPEAL from the chancery court of Hinds County; J.C. STENNETT, Special Chancellor.
Tighe Barksdale, Jackson, for appellant.
I. That there was never an agreement to become man and wife. Butler's Estate v. McQuarters, 210 Miss. 86, 48 So.2d 617; D'Antonio v. State (Miss.), 191 So. 281; Ridley v. Compton (Miss.), 61 So.2d 341; Rundle v. Pegram, 49 Miss. 751; Sykes v. Sykes, 162 Miss. 487, 139 So. 853; 35 Am. Jur., Marriage, Sec. 207 p. 316; 55 C.J.S., Marriage, Sec. 18(b)2, pp. 841-42; Griffith's Outlines of the Law (Miss.), Chap. 5 pp. 74, 75.
II. That appellee had a living husband at the time she started living with Charlie Shields.
(a) When the common-law marriage between appellee and Shields was proved, then the presumption of the dissolution of the prior marriage should be indulged in favor of the common-law marriage. Howard v. Kelly, 111 Miss. 285, 71 So. 391; In re Marinoni, 177 La. 592, 148 So. 889; Nelson v. Jones, 245 Mo. 579, 151 S.W. 80; Phillips v. Wilson, 298 Mo. 186, 250 S.W. 408; Vaughn v. Vaughn, 195 Miss. 463, 16 So.2d 23; Wallace v. Herring, 207 Miss. 658, 43 So.2d 100; 14 A.L.R. 2d 19; 35 Am. Jur., Marriage, Sec. 192 pp. 303-4; 55 C.J.S., Marriage, Sec. 43 p. 896.
(b) If Ed Armstead died while appellee and Shields were living together as man and wife and they continued to so live thereafter for several months, then the prior impediment had been removed by Armstead's death, and their continuing to live together created the common-law marriage. Johnson v. Johnson, 196 Miss. 768, 17 So.2d 805; Jourdan v. Jourdan, 181 Miss. 176, 179 So. 268; Sims v. Sims, 122 Miss. 745, 85 So. 73; Travers v. Reinhardt, 205 U.S. 423, 51 L.Ed. 865; 27 S.Ct. 563; Wallace v. Herring, supra.
III. That after the relationship between appellee and Charlie Shields was terminated in 1942 that each contracted a ceremonial marriage with other persons.
IV. The finding of fact and the decree based thereon by the Chancellor holding that no common-law marriage existed between appellee and Charlie Shields was contrary to the overwhelming weight of the evidence and testimony. Brock v. Brock, 205 Miss. 66, 38 So.2d 321; Martin v. Martin's Estate, 217 Miss. 173, 63 So.2d 827.
Russell Little, Magee; Barnett, Jones Montgomery, Jackson, for appellee.
I. The findings of the Chancellor on the questions of fact and law were not manifestly wrong. Buchanan v. Hurdle, 209 Miss. 722, 48 So.2d 354; Cowart v. Cowart, 211 Miss. 459, 51 So.2d 775; Hamrick v. Cook (Miss.), 40 So.2d 267; Hays v. Lyon, 192 Miss. 858; 7 So.2d 523; Koenig v. Calcote, 199 Miss. 435, 25 So.2d 763; Perkins v. Morgan, 210 Miss. 297, 49 So.2d 383; Pierce v. Ford, 199 Miss. 168, 24 So.2d 342; Savell v. Savell (Miss.), 49 So.2d 726; Smith v. Smith, 211 Miss. 481, 52 So.2d 1; Stringer v. Craft (Miss.), 55 So.2d 869; Stringer v. Stringer, 209 Miss. 326, 46 So.2d 791.
II. The burden of proof was upon appellant. Fleming v. Fleming, 213 Miss. 74, 56 So.2d 35; U.S. Fidelity Guaranty Co. v. Smith, 211 Miss. 573, 52 So.2d 351; Wallace v. Herring, 207 Miss. 658, 43 So.2d 100; Whitman v. Whitman, 206 Miss. 838, 41 So.2d 22.
III. Irene Warren and Charlie Shields never agreed to be husband and wife. Ridley v. Compton (Miss.), 61 So. 341; 55 C.J.S., Marriage, Secs. 19, 22, pp. 843, 849.
IV. There was no presumption of a valid common-law marriage between appellee and Charlie Shields in this case. Sims v. Sims, 122 Miss. 745, 85 So. 73; Thompson v. Clay, 120 Miss. 190, 82 So. 1; 55 C.J.S., Marriage, Sec. 36 pp. 881-882.
V. In addition to all the valid reasons discussed heretofore, under which the Chancellor held positively that there was no valid common-law marriage between Shields and appellee, the Chancellor said that there were other reasons. Certainly, from a reading of all the testimony in this case, the Court cannot say that the Chancellor was manifestly and clearly wrong.
VI. The original suit in this case was filed for the sole reason of attempting to prove that the property in question was originally purchased jointly by Walter Warren, Sr., and Walter Warren, Jr., and that for that reason appellant owned three-fourths and appellee one-fourth. It is clear from the Record that appellee clearly refuted this contention, and that appellant's father, Walter Warren, Jr., had no claim whatever on the property at the time of his death in 1946. However, this question was rendered moot, as the point was not raised by appellant on appeal.
This suit is before us on appeal from the Chancery Court of the First Judicial District of Hinds County, Mississippi, in which it was held that Waddell Warren, a minor, and Irene Warren owned as tenants in common certain real property situated in the City of Jackson, which was owned by Walter Warren, Sr., at the time of his death. Waddell Warren, appellant, is the grandson of Walter Warren, Sr., deceased, and claims to be the only heir at law of Walter Warren, Sr., and the sole owner of the property. Irene Warren, appellee, claims to be the widow of Walter Warren, Sr., and as such, to be the owner of an undivided one-half interest in the property.
The sole question involved on this appeal is whether or not Irene Warren was the lawful wife of Walter Warren, Sr. The record discloses that the appellee entered into a ceremonial marriage with one Ed Armstead on July 27, 1927, and two children were born of this marriage; that Ed Armstead died sometime during the year 1942 while residing in Alabama, but for some years before his death, the appellee had been living with Charlie Shields. During the year 1942, appellee and Charlie Shields discontinued living together and subsequently each of them entered into a ceremonial marriage, Irene marrying Walter Warren, Sr., on December 2, 1943. She and Warren lived together except for a temporary separation until Warren died intestate on July 17, 1951. The appellant contends that there was a common-law marriage between appellee and Charlie Shields and that because of this impediment, the ceremonial marriage of Irene and Walter Warren, Sr., was invalid.
(Hn 1) The burden of proof was upon the appellant to show the invalidity of the marriage of appellee and Walter Warren, Sr. This Court has held in many cases that where in any proceeding the validity of a ceremonial marriage is attacked, the burden rests on the party alleging its invalidity to prove it. Flemming v. Flemming, 213 Miss. 74, 56 So.2d 35, and authorities there cited.
In Powell v. Powell, 27 Miss. 783, the Court said: (Hn 2) "The law favors marriage, and when once solemnized according to the forms of law, will not declare its nullity upon anything less than clear and certain testimony, especially after it has been dissolved by the death of one of the parties." Again in the recent case of U.S.F. G. Co. v. Smith, 211 Miss. 573, 52 So.2d 351, the Court said: "The existence of a common-law marriage may be shown by the facts and timely declaration of the parties. But `a claim of common-law marriage is regarded with suspicion and will be closely scrutinized. (Hn 3) Thus, in order to establish a common-law marriage, all the essential elements of such a relationship . . . must be shown by clear, consistent, and convincing evidence, especially must all the essential elements of such relationship be shown when one of the parties is dead.' 55 C.J.S., Marriage, Sec. 45, p. 911.
"In a case where an alleged prior common-law marriage is interposed for the purpose of having the court declare invalid a ceremonial marriage, there is a strong presumption in favor of the validity of the ceremonial marriage as against the prior alleged common-law marriage. Whitman v. Whitman, 206 Miss. 838, 41 So.2d 22. In 55 C.J.S., Marriage, Sec. 43, pages 893-894, it is said, `In the case of conflicting marriages of the same spouse, the presumption of validity operates in favor of the second marriage. Accordingly the party attacking the validity of such second marriage has the burden of proving such invalidity, even though it involves the proving of a negative; and the burden of showing a valid prior marriage is on the party asserting it.'"
(Hn 4) The appellant failed to meet this burden of proof. When Charlie Shields and the appellee first began living together, according to Shields' testimony in 1932 or 1934, Ed Armstead was then living, and the proof is insufficient to show that they lived together after the death of Armstead in 1942. The testimony shows that Armstead died sometime during the year 1942, and that appellee and Shields separated sometime during the same year.
The dates of these occurrences were not established by the proof.
We are of the opinion that the chancellor correctly held that the evidence failed to show a common-law marriage between Shields and the appellee, and that at the time of Warren's death, Irene Warren was his lawful wife.
Affirmed.
Roberds, P.J., and Lee, Kyle, and Lotterhos, JJ., concur.