Opinion
August Term, 1859.
The statute expressly makes it a felony for the offending party to marry after a divorce, "his or her former wife or husband being alive," and such marriage is null and void.
It was Held, therefore, that the administrator of a husband, who had married a woman so offending, could not recover of her, property, given to her during the existence of such unlawful marriage.
ACTION of REPLEVIN for a slave, tried before MANLY, J., at the Fall Term, 1858, of Wilkes Superior Court.
Mitchell, for the plaintiff.
Boyden and Barber, for the defendant.
The following facts were agreed on, and submitted for the decision of the Court.
In 1831, the defendant intermarried with one Chapman Duncan, and lived and cohabited with him until 1835, when a petition was filed by him against her, and a divorce a vinculo, matrimonii obtained, and the marriage declared null and void, she being the offending party. In 1842, the said Chapman being, then, and still living, the rites of matrimony were solemnised between the defendant and the plaintiff's intestate, John, J. Bryan, and they continued to live together as man and wife, and were regarded as such by the community in which they lived, and particularly by Delphia Bryan, the mother of the plaintiff's intestate, until his death in January, 1857. J. J. Bryan and the defendant lived near Mrs. Delphia Bryan, and they cultivated her land and superintended her business. On the 20th of January, 1854, Mrs. Delphia Bryan made the following deed of gift: "I, Delphia Bryan, of the county of Wilkes, and State of North Carolina, for and in consideration of the love and respect I have for my daughter-in-law, Nancy Bryan, and for services rendered me and my family, have this day given to the said Nancy and her bodily heir, or heirs, a certain negro boy, named York, aged about three years; the said boy to descend to her heirs after the death of said Nancy and my son, John J. Bryan. And I hereby constitute and appoint my son, Larkin Bryan, the trustee, to see this deed of gift carried into effect. This 20th of June, 1854."
Signed, DELPHIA BRYAN, [ seal.] Test,
B. P. MARTIN."
And the same was duly proved and registered. J. J. Bryan and Nancy Bryan took possession of York, and held him under the above deed, until the death of the former.
The plaintiff, James Calloway, became the administrator of John J. Bryan, at February County Court of Wilkes, and shortly thereafter demanded the possession of the said slave from the defendant, and upon refusal, brought this suit. The question was submitted with an agreement, that in case the Court should be of opinion with her, a judgment should be rendered for a certain amount of damages in favor of the defendant, (the slave having been taken out of her possession and delivered to the plaintiff,) but to be discharged by the delivery of the slave to her; or in case the opinion of the Court should be in favor of the plaintiff, then a judgment should be rendered against the defendant for a penny and the costs.
His Honor gave judgment for the defendant, from which the plaintiff appealed.
The point presented in this case is precisely the first that was ruled in Williams v. Oates, 5 Ire. Rep. 535. It was discussed very fully for plaintiff, and the Court has, therefore, carefully reconsidered it; but without any change of opinion. The statute expressly makes it a felony for the offending party to marry after a divorce, and a felony constituted by a second marriage, "his or her former wife or husband being alive." So that, the inference is irresistible, that the first marriage is continued, after a divorce, as an impediment to another marriage by that party. In other words, the decree for the divorce does not, and cannot, confer a capacity on the party, in fault, to contract a second marriage. The policy of the provision is obvious, being to shut out all temptation to a married person, who is not satisfied with an existing marriage, and wishes to form another, to offend, so as to bring about a divorce on that account, and thus put it in his or her power to effect the purpose, he or she had in view. It may work a hardship in a particular case, and even expose such a party to the danger of committing adultery; but that particular evil is of no signification, when compared with the general mischief of allowing all persons, by acts of impurity of their own, to free themselves from the ties of marriage, and acquire the capacity of forming a connection more agreeable. Such a license would sap the foundations of the most important domestic relation, on which the harmony, respectability and welfare of families, and the public virtue mainly depend. The Court, therefore, unanimously affirms the reasoning and resolution of Williams v. Oates, and holds that this marriage was void, and that no civil rights accrued to either party under it.
A distinction was taken between that case and this, that there, the woman, whose second marriage was illegal, claimed to affirm it, and gain rights of property under it; whereas, here, the wife is the one to disaffirm her second marriage. But the distinction makes no difference, because that which is void in law, concludes no one. Accordingly, it was held in Irby v. Wilson, 1 Dev. and Bat. Eq. 568, upon a bill by the husband's next of kin against his administrator, and supposed widow, that the defendants might set up the nullity of the marriage as a bar to any share of property, alleged to have belonged to the wife at the marriage, and to have vested in the husband, upon his marriage with a woman, whose first husband was still living. And in Gathings v. Williams, 5 Ire. Rep. 489, the general doctrine is laid down, that a marriage, during the subsistence of a prior marriage, is absolutely void, and that no civil rights of any kind arise out it.
PER CURIAM, Judgment affirmed.