delivered the opinion of the Court:
The right to have partition of the lands described in the bill, depends upon the fact whether Braxton B. Lewis, at his death, left any lawful issue capable of taking from him by inheritance. He left one child, Mary A., his other children having died while mere infants. It is not denied by the plaintiffs in error that he was formally married to one Zerel•day Cacey, mother of this child, December 8, 1843, in Mont.gomery county, in this State, under a license issued out of the office of the clerk of the county court of that county, nor •that he afterwards lived and cohabited with her, as man and •wife, up to his death, and recognized the issue of such cohabitation as his children; but it is claimed that this marriage was absolutely null and void, for the reason that Lewis had, :at the time of its solemnization, a lawful wife then living in Caldwell county, in the State of Kentucky, from whom there was no divorce.
The marriage of a man and woman, where one of them has a husband or wife by a prior marriage, who is then living and undivorced, is void, and not merely voidable. Being a nullity, no decree is necessary to avoid the same. Reeves v. Reeves,
A void marriage is good for no legal purpose, and its invalidity may be shown in any court, between any parties, either in the lifetime of the parties thereto, or after their death. There can be no doubt of the fact of the prior marriage of Lewis to Sarah James, in Caldwell county, Kentucky, and that he abandoned her in less than a year after their marriage, and came, shortly after, to Montgomery county, in. this State, and that such prior wife obtained a divorce from him in the circuit court of Caldwell county, Kentucky, in-December, 1846, some three years after his second marriage. The 'first marriage is satisfactorily shown by the record evidence thereof, and the testimony of many witnesses who were-present at its celebration and knew the parties.
Defendant in error contends that the evidence does not sufficiently show that the marriage with Zerelday was in 1843, or at any time prior to the divorce in Kentucky, but that the-facts and circumstances are such as to afford presumptive evidence of a common law marriage after the divorce. The-marriage certificate on file in the proper office, shows that this marriage was celebrated on December 8, 1843, by one-J. W. Woods, a minister of the gospel. The proof also shows-that Woods was a minister of the gospel, and that Lewis-cohabited with this woman, as his wife, up to his death, and that she was always reputed to be his wife. No importance is-attached to the fact that the woman’s name in the marriage-license was written “Sera-Ida,” and in the minister’s return thereon “Serelda. ” The evidence shows, beyond dispute, thatZerelday Cacey was the person named in the certificate of marriage and the license. If this was the only marriage of Lewis, there could be no doubt of the sufficiency of the evidence to establish the same. It could not be invalidated by any mistake in the spelling of a name. Every reasonable and fair presumption will be indulged for the purpose of upholding a marriage, and establishing the legitimacy of the offspring. When the celebration of a marriage is once shown, the contract of marriage* the capacity of the parties, and, in fact, everything necessary to the validity of the marriage, in the absence of proof to the contrary, will be presumed. Caujolle v. Ferrie,
The presumption of the capacity of Lewis to enter into the marriage contract with Zerelday Cacey, December 8, 1843, is overcome by proof of his prior marriage in Kentucky, and that his wife by that marriage was still living and undivorced at that time. This proof established the fact that the second marriage in 1843 was a nullity, conferring no marital rights whatever. A simple marriage ceremony will not make man and woman husband and wife. Capacity and consentí are absolutely essential, but celebration only contingently so./ (Thompson v. Thompson,
This formal marriage being void, do the facts and circumstances proved create a presumption of a lawful marriage of Lewis and Zerelday after the divorce in 1846 ? No record of any subsequent marriage has been produced, nor has any witness testified directly as to any such marriage; but it is strenuously insisted that the evidence will justify the court in presuming a common law marriage of the parties after the impediment to their legal union was removed.
While our statute prescribes certain formalities to be observed in marriages, and certain steps to be taken to preserve the evidence of their celebration, it does not declare a marriage void which is legal at the common law, merely because not entered into in accordance with its provisions. (Port v. Port,
In Hantz v. Sealy,
Where parties competent to contract have agreed to marry at some future time, if they have copula, which is lawful only in the married state, in the absence of any evidence to the-contrary they will be presumed to have become actually married by taking each other for husband and wife, and to have changed their future promise to marry, to one of present marriage. In such a case the copula will be presumed to-have been allowed on the faith of the marriage promise, and that .the parties, at the time of such copula, accepted each other as man and wife. (Port v. Port,
The evidence in the record is amply .sufficient to show that Lewis and Zerelday lived and cohabited together as husband and wife for a period of about twenty-five years, and that during all this time he treated her as a man would a wife, and her children as his own, and that they were reputed as husband and wife. But it must be borne in mind that cohab- [ itation and repute do not constitute a marriage, but are only | evidence tending to raise a presumption of marriage, of more i or less strength, according to the circumstances of the case, ; and that the cohabitation must not be meretricious, but mat- ! rimonial, in order to give rise to this presumption. (1 Bishop on Marriage and Divorce', sec. 266.) Where a marriage in . fact is shown by direct evidence, as in this case, there is no necessity for presuming its existence. Presumption must yield to the superior force of direct and positive proof. In this case there was an actual marriage ceremony performed in 1843, by which Lewis and Zerelday were apparently and ostensibly married. Their cohabitation thereafter, and reputation as to being married, might very naturally and properly be referred to the fact of this apparent marriage, there being nothing to indicate to their acquaintances and neighbors that it was void. If no actual marriage ceremony had been shown, the cohabitation and repute proved might be referred to some supposed informal, common law marriage.
This cohabitation and repute is not shown as evidence of the ceremonial marriage in 1843, but of some other kind of marriage entered into some time after the divorce in December, 1846. Is such cohabitation and repute based upon a supposed common law marriage, any more than upon the formal marriage, shown by the records to have been entered into in 1843 ? The habit and repute shown in this case might just as well, and more naturally, arise from the marriage in, 1843. If this evidence could, by any known rule, be so limited as to show a cohabitation and repute from some day after the divorce, when no impediment existed, it might afford evidence of a common law marriage of the parties by their own acts. If the cohabitation and repute were the result of the assumed marriage in 1843, which was void, it was illicit, and not matrimonial, and - no marriage can be presumed from illicit sexual intercourse.
Their cohabitation being meretricious in its inception, at least so far as Lewis is concerned, was it changed by the divorce in Kentucky, and rendered thereafter matrimonial ? This would seem to depend upon the intention of the parties, and the fact whether they had knowledge of the divorce removing the only impediment there was to their marriage. There is no proof in the record that either Lewis or Zerelday had ever been informed of the divorce, or that she ever knew that he had a former wife. Without knowledge of the re-, moval of the impediment they could not have intended a second marriage, or have attempted to enter into another marriage. Courts can not marry parties by mere presump-u tion, without their consent. In the absence of consent, the'' status of marriage is never created by any government. The law compels no one to assume the matrimonial status. Without assent, no statute or constitution can create this relation. (Dickerson v. Brown,
What evidence is there that Lewis ever consented to, or even desired, to change his connection with Zerelday from an illicit to a matrimonial one ? He took no steps to remove the impediment to his marriage with her. The divorce was not sought by him, but was obtained by his former wife in 1846. If he had no knowledge of this divorce, it can not be presumed that he would have married the same woman. If he had notice of the divorce, and desired to change his con- ■ nection with Zerelday into that of marriage, it was an easy matter for him to have had solemnized a legal marriage, or for the parties in some public manner to have indicated an intention to enter into that relation; but this was never attempted.
It may be said that the holding of Zerelday out to the world as his wife, showed a desire to change his connection with her to that of marriage. But little importance can be-attached to this eircumstanc.e, when considered in connection with the other facts of the ease. A concubine is often held out to the world as a wife, to conceal an illicit cohabitation and prevent a criminal prosecution. And in addition to this, if he desired to change his former connection, there was an easy way open to him. The holding of her out as his wife-before the divorce, was a fraud and a deception, and if Lewis; would attempt to deceive the public by creating false appearances prior to December, 1846, why pa ay not his subsequent, acts also have been equally deceptive and fallacious ?
As said before, there is no evidence in the record showing that Zerelday ever knew that Lewis had a wife living at the-time she supposed she married him. She was deceived and imposed upon by Lewis, in his falsely assuming to have capacity to marry her, and in concealing the fact of his prior-marriage to a then living and undivorced wife. Not knowing of the former marriage, she could have had no reason for-desiring a second marriage. If she regarded herself as the, lawful wife of Lewis, it would be a violent presumption toehold that she assented to a second informal marriage. If lshe knew of the prior marriage, then her cohabitation with -Lewis was meretricious in its inception, and could only be changed after the disability of Lewis was removed, and then only by the mutual consent of both. If she had notice of the illegality of her marriage after the divorce, and cohabited with Lewis after that, without a new marriage, it was criminal. If she desired to make her subsequent connection with him lawful, she no doubt would have insisted upon a public or statutory marriage, so as to preserve the evidence of the same. Marriage may be shown by circumstantial as well as by direct evidence. It may, in a proper case, be inferred from continuous cohabitation and repute, when nothing appears to prevent the raising of the presumption created by the proof of these facts. If the cohabitation -was, in its inception, illicit, the presumption of the innocence and morality of the parties is at once rebutted and overcome, and without proof of a change in their relation to each other, it will be presumed that the continuance of the connection of the parties is of the same character. Floyd v. Calvert,
Bishop, in his work on Marriage and Divorce, (see. 506,) says: “If parties come together, intending and choosing an illicit commerce, there being no impediment to marriage, it can not be presumed, without reasons, whatever the law under ■which they live, that they have altered their choice, for a condition of things once shown is presumed to continue; and it can make no difference in this, that an impediment to marriage, existing when the cohabitation began, was afterwards removed. ”
In the State of Mississippi the constitution provided that all persons who have not been married, but are now living together, cohabiting as husband and wife, shall be taken and held, for all purposes in law, as married, etc. The Supreme Court of that State held that where a person claims to be married thereby, there must be some formal and explicit agreement between the parties that they will and do accept-the new organic law as establishing thenceforth between them a new relationship, or there must be such open and visible change in the conduct and declarations of the parties, that an agreement to accept the new law might fairly be inferred. Floyd v. Calvert,
Where both parties are married in the honest belief, founded on an apparently good reason, that they are capable of entering into the marriage contract, when in fact one of them is not, if they .continue to cohabit as man and wife after the removal of the impediment'to their lawful union, the law will presume a common law marriage by the acts of the parties, in the absence of any evidence to prevent such presumption. In such a case there are many strong and cogent reasons for presuming a new marriage after the removal of the impediment, even though the parties may not have known of its removal. There the cohabitation, in ignorance of facts rendering it illegal, is not to be regarded as meretricious or criminal until the parties have knowledge of such facts. Their purpose in such a union is honorable marriage, which the law favors, and not mere illicit intercourse. The fact that Mrs. Lewis had no knowledge of the invalidity of the marriage, and therefore the cohabitation on her part was not criminal, can not validate the assumed marriage, even as to her. If valid as- to her, it must be equally so as to him. A contract not mutually binding, is void for want of mutuality. The most that can be said is, that Mrs. Lewis was not liable to criminal punishment for living with a man she supposed, in good faith, was her husband.
In Randlett v. Rice,
In Harbeck v. Harbeck,
In Appeal of Reading Fire Ins. Co.
It is said that the presumption in favor of innocence, and against immorality and guilt, is so strong as to give rise to the presumption of a marriage. This is so in many cases, but such presumption of marriage will not arise if it will involve one of the parties in guilt,—as, where a man is cohabiting with two women, or where one of the parties is proved to be married to some one else. Williams v. State,
The point is made, that the plaintiffs in error are barred by laches in asserting their rights. The bill was filed March 2, 1885, about seventeen years after the death of Lewis, so that the suit is not barred by the twenty years limitation law. The defendant in error having no color of title, is not in a position to invoke the seven years limitation law. To establish a bar under the limitation law of 1839, the possession and payment of taxes for seven successive years must be under color of title. (Stoltz v. Doering,
The decree of the circuit court will be reversed, and the ' cause remanded.
Decree reversed.