Opinion
02-01-1907
MICK v. MART.
John W. Westcott, for complainant Watkins & Avis, for defendant.
Suit by George C. Mick against Maggie H. Mart to annul a marriage between the parties. Complaint dismissed.
John W. Westcott, for complainant Watkins & Avis, for defendant.
BERGEN, V. C. The defendant was married in 1886 to Joseph S. Mart, and about three months after the marriage they separated, and never thereafter lived together, the defendant returning to Glassboro, and Mart remaining in Hammonton in this state. On December 24, 1888, the complainant and this defendant were married by a minister of the Gospel at Glassboro, where they then resided, and from that time until 1903 they lived together as husband and wife, to whom two children were born—a son now 17, and a daughter 15 years of age. In 1895 Mart, by the decree of this court, based upon her adultery with complainant, was granted an absolute divorce from the defendant. The complainant now files his bill, praying that the marriage between himself and the defendant be annulled, upon the ground that, at the time they were married in 1888, the defendant was a married woman whose husband was then living and undivorced from her.
The defendant admits her previous marriage, and that when she married the complainant in 1888, her husband was living, but testifies that at that time her first husband had left her, and was living at Hammonton, not far from Glassboro; that complainant knew she was married, and that her husband was then alive, notwithstanding which he urged her to marry him, advising her that her marriage was not legal, as she had never lived with her husband, and that she was perfectly free to marry again if she wanted to; that she at first refused, but he continued to press his suit, and, to overcome her reluctance, told her that if she could get a writing from her husband, declaring that he made no further claim to her, she might safely marry complainant, and that it would be good in law; that after much urging on the part of the complainant, she wrote to her husband, and received from him a letter, in which he said that she might go ahead and marry, and that he would never lay a straw in her way; that she read this letter to the complainant, who could then neither read nor write, and gave it to him so that he could "get his own people to see it and read it to him"; that the complainant then insisted that she was free to marry again, and, by coaxing and persuasion finally, induced her to marry him; after which, and until 1903, they lived together as husband and wife. The complainant testified that he had heard some rumors about defendant's former marriage, and insisted that she should, before their marriage, procure from her husband a written statement that he and the defendant were not married; that she agreed to do so, and procured and read to him Mart's letter which, as defendant read it, stated that Mart and the defendant had never been married, and relying upon this information he married defendant supposing she was unmarried. This part of the case rests entirely upon the statements of the defendant and complainant, and in determining which part of this testimony is evidence, I am partially influenced by the appearance of the respective parties and their manner of testifying. That of the defendant was open and candid, carrying with it the conviction that she was speaking the truth, while on the other hand, it was quite apparent that the complainant was not disposed to be frank, but rather endeavoring to conceal everything not necessary to the technical establishment of a prima facie case. What these two witnesses said under oath is testimony, so much of it as impresses my mind as the truth is evidence, and it is by evidence, and not by testimony, that I must be governed in passing upon questions of fact. Applying this rule in determining the disputed questions between these parties, what the wife testifies to my mind accepts as evidence of the truth, while I do not believe the complainant's testimony. The statement of the husband that he did not know of his wife's marriage until 1903, is not entitled to any consideration, for he knew before his marriage, to the defendant in 1888, if we accept his own story, that there was some relation existing between Mart and the woman he proposed to marry sufficient to put him on inquiry, for he knew she was the mother of a child of which Mart was the father, and if he honestly desired to obtain the truth about it, Mr. Mart was only a few miles away, and by an interview with him he could have learned the truth. I am satisfied by the evidence that the complainant knew, at the time he induced this defendant to marry him, that she was a married woman, whose husband was still living, and that under the law of the land she had no right to marry him, and that when he induced her to go before a minister of theGospel, and enter into a ceremonial marriage contract, which he then knew she was not entitled to make, although he had undoubtedly persuaded her that she could lawfully do so, he committed a wrong, not only against this woman, but against society, and that this attempt to obtain a legal nullification of his contract, and to make public the fact that his children—one of whom is a daughter approaching womanhood—were not born in lawful wedlock, ought not to meet the favor, or obtain the assistance of a court of conscience to which all suitors must come with clean hands; and, if no other reason appeared, I should hesitate upon this ground alone to sustain this bill of complaint.
While I am satisfied that this defendant, through her ignorance of the law, did not intend when she married this complainant to enter into an adulterous intercourse with him, nevertheless there existed a legal impediment against the making of this ceremonial contract, known to both parties, and it would be controlled by Collins v. Voorhees, 47 N. J. Eq. 555, 22 Atl. 1054, if no matrimonial contract has been entered into since the obstacle has been removed. In this case all incapacity on the part of the defendant to enter into a matrimonial contract was removed in 1895, when the marriage between the defendant and Mart was dissolved by the decree of this court. From the testimony of numerous witnesses it appears that after the marriage was dissolved, the complainant continued to live with the defendant, treating her as his wife precisely as he had done before 1895. He always spoke of her to their friends and neighbors as his wife, and had his certificates for benefits in all the beneficial orders to which he belonged made payable to this defendant, describing her therein as his wife. He declared the relation existing between them by something more than the continuance of an intercourse that may have been adulterous in its inception, and this course he followed with the knowledge that the impediment which had prevented the defendant from making a valid matrimonial contract with him was removed. The complainant denies that he knew of the divorce at the time the decree was made, but his denial is not supported by the evidence, which leaves no doubt in my mind that, with full knowledge that the defendant had been divorced from her husband, he held her out to the world as his lawful wife, and thus corroborates the defendant in her claim that after this divorce was granted the complainant and defendant entered into a civil contract of marriage. On this point the defendant testified as follows: "Q. Did your husband, George Mick, know that your first husband had secured a divorce from you? A. Oh, yes, sir. Q. When did he first know that? A. He knew it because his lawyer wrote to my husband; that is to George, and told him that he had got a divorce and that he would sell him a copy of it—I think that is the expression he used—for $2. That is as near as I can explain it And he told him that if he was much of a gentleman, he would marry me now. Q. And what did George say to that? A. Well, George said, if we went before 25 preachers it would be all the same. And 1 said, 'George, am I your wife? It frightens me, does this—am I your wife, George?' And he said, 'Yes, you are my wife. Before God, I was his wife.' That is what he said." This conversation between the defendant and the complainant stands uncontradicted, for although the complainant was in court and heard the testimony, he was not called to rebut it. With knowledge that a decree for a divorce had been obtained against her by her husband, founded upon the alleged unlawful intercourse between her and the complainant, this woman's fears and suspicions were aroused lest her marriage to him may not have been lawful, and she appealed to him and received the assurance that she was his wife. That the complainant and defendant had not, in any legal sense, entered into a valid contract by virtue of their ceremonial marriage in 1888, must be declared, under the rule established in Collins v. Voorhees, supra, and continued cohabitation, without other proof of intention to change its illicit character, would not alter the original status of the parties when the impediment was removed. Proof of such change of intention I find in this case. No particular words are necessary to declare or express a change of intention. If from what was said by them it can be gathered that the parties have entered into a contract to live thenceforth as husband and wife, and to abandon the old relation, and substitute therefore a matrimonial status, it will be sufficient. The proofs show that as soon as the complainant and defendant learned that her husband bad divorced the defendant, and at a time when she was free to marry, she said to complainant: "George, am I your wife?" to which he replied, "Yes, you are my wife before God." They were not speaking of the past or future, but of the present. Am I your wife? was the appeal of defendant, and with an assurance from complainant that she then was his wife, what had been before unlawful was abandoned, and thereafter they were living under a new agreement, by the terms of which she became his lawful wife, and was so treated and recognized by complainant from 1895 to 1903, when he abandoned her.
The complainant insists that so much of the defendant's testimony as relates to the new contract should be rejected, because, in her petition for alimony filed in this cause, she stated: "That since said divorce no marriage contract had been entered into between your petitioner and her said husband George W. Mick." If this statement be accepted as expressing the true situation,it would manifestly destroy the defendant's case, but, after a careful examination of all the pleadings and evidence on this branch of the case, I am satisfied that it was an error of counsel in preparing the petition, for defendant's answer "denies that no marriage contract has been entered into between her and the said complainant since the said decree of divorce," and then alleges that while no marriage contract was performed by a minister of the Gospel, or civil officer, a contract was entered into between complainant and defendant, under which their matrimonial relations were continued, and it is impossible to believe that the defendant knowingly made a contrary statement so soon after filing her answer, and one which destroyed the most important part of her defense. The defendant is afflicted with deafness to such an extent that it is impossible to converse with her without the use of an ear trumpet, and to this infirmity may be due the mistake in the petition, or in her ignorance she may have understood it to refer to a ceremonial contract. The statement is not according to the fact, and I am satisfied it was unwittingly made.
The bill of complaint will be dismissed, with costs.