68 N.J. Eq. 414 | New York Court of Chancery | 1905
This bill is filed under the twentieth section of our Divorce act by Mary Chamberlain against Stroud H. Chamberlain, who she alleges is her husband, charging'that he has abandoned her, and neglected and refused to support her, and praying for the statutory, relief afforded in such a case. The answer contains an attempt, as I recall it, to answer the charges of misconduct set forth in the bill of complaint, but sets up as a- complete defence —and this is the only defence which is supported by proof so as to call for consideration — that the defendant is not the husband of the complainant, and therefore is not liable to the statutory action, and is not liable to discharge the common law duty which a husband owes to the wife in respect of support.
The brief for the defendant, which is very voluminous and discusses a large number of cases, presents at the start the following as the history of the case:
‘William 'Tissell and Mary AAralsb [Mary Walsh being now the complainant, Mary Chamberlain] were married March 29th, 1871. William Tissell left Mary Tissell and went to St. Louis, and thence to Oak Grove, Texas, March 12th or 15th, 1877. About July, 1877, a letter was received by Mary Tissell from William Tissell. Mary Tissell, under the name of Mary Walsh, was married to Stroud H. Chamberlain, April 4th, 1880. Mary Chamberlain, under the name of Mary Tissell, filed a petition for divorce in this court, sworn to by her, May 8th, 1880, and decree of divorce granted thereon June 30th, 1881. From time of marriage to Stroud H. Chamberlain, in 1880, both lived 'and cohabited together as man and wife until defendant left her, in March, 1903. There was no issue born of the marriage. Both complainant and defendant believed the first husband, AArilliam Tissell, was dead until after these proceedings [that is, tbe proceedings in this present suit] were instituted, when that he was alive was discovered by the defendant. William Tissell, the first husband, was, at the time of the filing of the bill and the hearing of this case, living at Oak Grove, Texas.”
We have, then, the ease of a man and woman who undertook to enter into, the marriage relation with each other on April 4th, 1880, both parties believing in good faith that they were com
After the decree of divorce had been obtained in June, 1881, the complainant and defendant were living together, and some question was raised among the women who were living in tire same boarding-house, or living near these parties, in regard to Mrs. Chamberlain’s status. The complainant was then known, and had been known and always was known, after her marriage in April, 1S80, as Mrs. Chamberlain, and was regarded as the defendant’s wife.
Without undertaking to state the testimony of the complainant and the defendant and tire two women who were called as witnesses in regard to the matter, I think I can state tire substance of what is proved when I say that the defendant exhibited the decree of divorce which the complainant had obtained from Tissell in order to stop all gossip in regard to his relations with the woman who passed as his wife. He gave the most positive assurances to tire complainant, in the presence of these witnesses, that the complainant and himself were legally married; that she was his lawful wife, and he evidently referred to the decree of divorce as establishing the legality of the relation which he apparently sustained to the complainant. It does not appear that the defendant allowed either of these two women to learn that the date of the divorce was over a year later than his attempted ceremonial marriage with the complainant. It may be that the defendant, recognizing the difficulty of establishing the lawfulness of his marriage by proving the death of Tissell, adopted the more convenient expedient for satisfying the scruples of his neighbors which was afforded by the decree of divorce. Unless these neighbors knew the dates of both the marriage ceremony and the divorce, the defendant’s bold production of the decree of divorce would naturally be accepted as absolute proof of tire lawfulness of his relations with the complainant, while the mere statement that it had been reported that Tissell
When the decree of divorce was obtained in June, 1881, these two parties for the first time became capable of marrying each other. They thought, as they both swear, that they were capable of marriage at the time of the ceremony, April 4th, 1880. That is proved to have been a mistaken belief, but when the decree of divorce was obtained in June, 1881, then they became for the first time capable of entering into the marriage relation with each other. They continued, after the complainant’s disability had been removed, to live as man and wife until March, 1903, a period of nearly twenty-two years. During all that time they treated each other as husband and wife. The proof of continuous, unbroken matrimonial habit and repute is beyond doubt or question. They attended church together; they were received in the little church circle and social circle in which, they moved, where all their friends and neighbors were evidently reputable, respectable people, as man and wife, and, as I have stated, neither of them had a doubt, according to the testimony of both, that they were man’ and wife during all that period. They may have —I may say they did have — a mistaken notion as to the date when their marriage took place, as to the date when the relation of husband and wife began to exist between them. They thought such relation dated from April 4th, 1880; as a matter of fact, it
The controverted question in this case is whether, under the circumstances that I have stated, the relation of husband and wife between these parties was created at any time after the disability of the complainant to contract marriage with the defendant had been removed by the decree of divorce, in June, 1881. In my opinion, upon the facts stated, the relation of husband and wife betwen these parties did begin — was created— at the time when the decree of divorce rendered it possible for them to marry. I am also of opinion that if this first conclusion is erroneous, the relation of husband and wife began to exist a short time after the decree of divorce was obtained, when the defendant assured the complainant that it was not necessary to have any further ceremonial marriage between them — assured her that she was his legal wife; gave her this assurance in tire presence of witnesses, and thereupon, in reliance upon such representations and statements of the defendant, the complainant remained with him, cohabiting with him as his wife from year to year.
Apart from any proof, which perhaps can be derived only from the testimony of the complainant, that there was an attempt made between these parties after the divorce had been obtained to make a formal contract of marriage, and apart, also, from the evidence from the statements proved to have been made by the defendant in regard to his relations with the complainant after the decree of divorce which goes to show an actual consent on his part, concurrent with a similar consent of the complainant, to the establishment of the marriage relation, I think the whole conduct of the defendant, including particularly those statements in reliance upon which the complainant refrained from demanding a second marriage ceremony, and in reliance upon which she continued to live with him as his wife, make out, or would make out, if necessary, an estoppel against the defendant, so that the result would be that the defendant must be held to have intended to be the husband of the complainant, concurrently with a similar intent on her pa'rt to be his wife, whether he had actually such an intent or not.
The case of Collins v. Voorhees, which I have before me, reported in the court of chancery under the name of Voorhees v. Voorhees Executors, 46 N. J. Eq. (1 Dick.) 411, and in the court of errors and appeals in 47 N. J. Eq. (2 Dick.), on p. 315, where the dissenting opinion of Mr. Justice Garrison appears, and on p. 555, where the opinion of the court of errors and appeals appears, through Chief-Justice Beasley, presented these facts: The man Voorhees obtained a fraudulent and void divorce in Connecticut from his wife, who resided in New Jersey. ITe knew that his suit and decree were a gross fraud on his wife and on the court. He exhibited this decree of divorce to a woman in Massachusetts and she, honestly believing that he was lawfully divorced, was publicly married to him in a church, and thereafter continuously, for some years, cohabited with him as his
The court seems, in the opinion, to treat the case as belonging to the same class as the Breadalbane Case, where the relations between the parties — the man and woman — at the start, were known to both to be meretricious.
It has always seemed strange to me that in the opinions of the learned judges in this court, and in the court of errors and
I know of no reason why the doctrine of estoppel in pais should not be applied in dealing with the consent which is necessary — the concurrent consent of a man and woman capable of contracting that the marriage relation shall be established between them. A meeting of minds is necessary, generally speaking, in order to a valid contract, but oftentimes what courts enforce is not the thing which two parties have actually agreed upon; what they enforce is the obligation arising from the consent of one and the estoppel against the other to deny a corresponding consent. Suppose a man takes a woman before a clergyman or a magistrate and undertakes to go through a ceremonial marriage, and instead of answering affirmatively the most important question in the ceremony, answers negatively by adding the word “not” just loud enough for two or three convenient witnesses to hear. To make the case plainer, suppose he adds, between other responses, statements to those witnesses to the effect that the whole proceeding is a sham; suppose he then leads the woman to the church door and abandons her there and states that the whole
I do not think that I ought to hold that the court of errors and appeals meant to exclude the operation of this great equitable doctrine of estoppel from all consideration in determining whether an effective concurrent consent has been given between a man and woman in order to establish the marriage state. It seems to me, if the case settles anything on this subject of estoppel, it establishes sub silentio that the particular facts in that case did not make out an estoppel against Yoorliees.
The third class of cases of the kind to which I have referred embraces those where the disability on the part of one party exists, but is unknown to either, and where both parties in good faith believe that no disability in fact exists, and therefore actually intend to enter into the marriage state. That is this case. In the opinion of Chief-Justice Beasley in the Yoorliees Qase, it is distinctly admitted that in such a case as is now before this court a subsequent removal of the incapacity of one of two parties marks the commencement of a valid marriage between them. He distinguishes such a case as this from the Breadalbme Qase, and the distinction is perfectly plain. Referring to the opinion of Lord Westbury in the Breadalbme Case, the chief-justice uses the following language (I read from ¶. 668) : “He
It seems to me that the distinction which Chief-Justice Beasley so sharply draws between the Breadalbane Case and this Chamberlain Case now before this court is perfectly plain. The strange thing to me, which perhaps may be due to my inability to analyze these cases correctly, is that the great chief-justice should have supposed that the Breadalbane Case and the Voorhees Case are in the same class. In the Breadalbane Case the original purpose of both parties was to live in adultery, covering up their adulterous connection by the false appearance of marriage; in the Voorhees Case the unfortunate woman had no criminal intent, but from the start intended to live in marriage relations with the man who pretended that he could marry her. As I said before, no one suggested that this man Voorhees might or ought to have been held estopped to deny his matrimonial intent at the first moment when the matrimonial intent on his part became possible. In my opinion, there is almost as wide a distinction between the Voorhees Case and the Breadalbane Case as there is between the Breadalbane Case and this Chamberlain Case.
The three classes of cases which I have described seem to me to be essentially distinct from each other. In the first class, of which the Breadalbane Case is the type, both parties know of the impediment; both intend not to marry, but to live in adultery ; both intentionally make a false pretense of marriage before the world in order to conceal their meretricious relation.
In the third class, to which this case and the case of De Thoren v. Attorney-General, L. R. 1 App. Cas. 686, cited by Mr. Justice Garrison in his dissenting opinion, belong, both parties are ignorant of the impediment; both intend in good faith to marry and do not intend to commit adultery; both believe that they are in fact lawfully married, and both make an honest representation to the world to that effect.
In the second class, which is intermediate between the others, and to which the Voorhees Case belongs, one of the two parties is in the situation of both parties in. the Breadalbane Case, and the other party is in the situation of both parties in this Chamberlain Case and the De Thoren Case.
In determining the effect on the status of the parties in each of these classes of cases which is produced by the removal of the impediment while the cohabitation apparently matrimonial con
In this present case the declarations which are proved to have been made by the defendant after the impediment had been removed by the divorce greatly strengthen the presumption that the relations between these two persons after the divorce became lawful relations — matrimonial relations — and not illicit relations, as in fact they had been theretofore. The testimony of the two women to which I have referred makes the case very much stronger tiran if the parties had merely continued together after the removal of the impediment. - These declarations amount to an affirmance in the most solemn manner on the part of the defendant of the lawfulness of the relations existing between himself and the complainant.
If I am right in the view Which I have expressed in regard to the application of the great doctrine of estoppel in cases like this and in eases like the Yoorhees Case, in establishing a lawful marriage by preventing one of the parties from denying that he or she concurrently with the other consented to the establishment of the status of marriage between them, as I think I intimated earlier, there is another ground upon which the marriage between these parties may be restéd. If the marriage should be established for this reason, then, as I said, it would date not from the removal of the disability, but from the time when the
I have perhaps said too much about the doctrine of estoppel in its application to this ease, because, apart from that doctrine, I think the decision of this present case may be rested firmly upon the proposition that the proofs show beyond the shadow of a doubt that from the date of the divorce in this case, which removed this woman’s incapacity to marry, the man and woman lived together as husband and wife, believing that they were husband and wife, consenting that the status of marriage should exist between them, and believing that such marriage status did exist. This, in my judgment, makes a marriage, and it is immaterial whether there was a particular date when some ceremony was pronounced between them or some form of words was employed. It is enough if they concurrently intend that the marriage status shall exist between them and each knows that the other so intends; all the rest is a mere matter of proof.
These people lived together as man and wife in the way I have described for nearly twenty-two years; they then have a disagreement; the husband abandons the wife; this suit is brought; the husband then for the first time learns something which sets him upon an inquiry, and the result is that he finds out that this man Tissell is alive; he finds out that when he thought, and had always thought down to that time, the marriage status was established between himself and the woman whom he regarded as his wife, such status was not in fact — could not have been in fact— established because of the existence of a disability on the part of the woman which at the time he thought did not exist. The defendant does not pretend that he had not, from June, 1881, down to March, 1903, lived with this woman as her husband, and intentionally maintained relations with her which he regarded as lawful marriage relations and were regarded in like manner by her, or that each party did not know how the other regarded those relations. In brief, he does not pretend, nor would the proofs support the pretense, that during all this period these two people were not-concurrently intending 'to occupy the relation toward each other of husband and wife.
In dealing with the subject of estoppel, when applied to the
My conclusion is that the complainant is entitled to a decree which will make tire defendant liable under the statute to provide for her support and maintenance. The abandonment and neglect and refusal to support are proved in this case beyond doubt, and the decision which I have rendered disposes of the only defence which is worthy of consideration.
My recollection is that the parties agreed that if tire decree of the court should be favorable to the complainant, an order of reference should be made to ascertain the amount of the alimony to which she is entitled. I will hear counsel, however, on that matter on settlement of the decree, if they do not agree upon the form of the decree.