Barfield v. Barfield

| Ala. | Nov 15, 1903

McCLELLAN, C. J.

There can be no'doubt-that plaintiff’s marriage with Barfield was against the proliition and subjected her to the penalty provided by section 4-JOG of the Code. She, in other words, was guilty of a felony in entering into the marriage with Barfield. The nian Sellers was alive when she married Barfield — is yet, for that matter — -and then was her former husband within the letter and meaning of the statute; and the fact that he had obtained decree of divorce from her, which provided for his manwing again, and that he had remarried prior to lrer marriage to Barfield constitutes no defense to her; the decree in question, while dissolving the bonds of matrimony between her and Sellers, not having provided that she could marry again. I-Ier case is not within the exception provided in section 4407 to the operation of section 4406, and the provision of the exception in section 4407 demonstrates, if anything further -were needed to that end, that her marriage to Barfield was within the inhibition and subjected her to the penalty of section 4406 of the Code.

The. effect and operation of the provision on this subject in section 1488 of the Code, is to prohibit husband and wife against whom divorce is decreed from marrying again unless the decree, or a subsequent decretal order allows such remarriage. Section 4406 declares it a felony for such party to many in the abseiice — section 4407 —of a direction in the decree or in a subsequent decretal order that, he or she may marry again. In this case the divorce was decreed against this plaintiff. The decree of divorce did not direct that she might marry again. No such direction has been made by any subsequent order of the court. Her subsequent marriage to Barfield was unquestionably void. She did not become his wife and was not his wife at the time of his death. She was, therefore, not entitled to dower, or io homestead and personal exemptions as his widow, and she had no title to the property of Barfield’s estate for the alleged conversion of which this action is brought.

The hardships of the application of these principles of law under ihe facts in this case are great and grievous indeed, but we, of course, cannot look to them. Ita lar scripta- cst.

The circuit court properly gave the general charge1 for the defendant.

Affirmed.

Si-iabpio, J., dissenting.