64 Ga. 662 | Ga. | 1880
A woman who was living with Charles Clark, the plaintiff in error, died, leaving personal property said to be in her own right, and of which he took possession. Cassidy, the defendant in error, who had intermarried with a niece of this woman, by virtue of his wife’s relationship, applied for and obtained letters of administration upon the estate of the deceased, and then brought an action of trover against Clark to recover the property for distribution. The defendant pleaded the general issue, that the property sued for was the defendant’s, that the property sued for was not the plaintiff’s nor that of his intestate; that the plaintiff was not administrator upon the intestate’s estate ; that for moré than four years defendant has been in possession of the property under a claim of .right, and that if plaintiff had cause of action the same was barred.
Upon the trial of the ease the jury returned a verdict for the defendant. A new trial was moved for by the plaintiff on numerous grounds ' named in the record, which was granted by the court, and the defendant excepted. The defendant also requested the court to give certain charges, submitted in writing, to the jury, which were refused, and said refusal has herewith been assigned as error.
We propose to deal with the, questions made by this record so as to settle all the points of law arising therein as far as the same may be practicable.
The theory of the plaintiff below was that the woman Mary C. Shaffer or Clwk, was an unmarried female, and that at her death her property descended to, and was inherited by, Mrs. Cassidy, the wife of the administrator. The theory of the defense was, that she was the wife of Charles
The proceedings of courts ©f record are to be ascertained from the minutes kept by the clerks thereof, signed and approved by the judge; and by the recording of all matters judicially considered, and disposed of by the order or judgment of the court. Whatever, therefore, of judgments or decrees of courts of record which do not legally appear do not legally exist. Hence, in this case the admission of parol testimony to establish a decree was illegal and should
The constitutionality of this act is denied, upon the ground that it is an interference by the legislature with the judicial powers exclusively conferred upon the courts. However this may be, the want of any such decree in the case at bar, makes it unnecessary to declare what was the legislative right upon this subject. The party upon whose rights and disabilities we are passing, not falling within the class of persons named, no one can claim a benefit under its provisions even admitting its constitutionality.
The question of the marriage between the deceased and John A. Shaffer was a question of fact to be ascertained by proofs; if found to be so, then no subsequent marriage could legally take place between heyself and Clark, during the life of Shaffer, unless a divorce was granted her, or him with the removal of her disabilities. It is therefore wholly immaterial, in the absence of such proofs, to inquire whether there was a contract of marriage per verba de futuro, or per verba de presentí, for the want of ability to contract the marriage precludes its possibility either by license, the publication of banns, or actual consummated contract.
Since 1864, to render a marriage valid in this state, it is not necessary that license should be granted, or the banns of the marriage published in a neighboring church, but if the other mode is adopted, and it ever becomes a matter of proof, the fad/wm of such marriage must be clearly established, that is to say, that aet by which a man and woman unite for life, with mutual intent to observe towards society and each other those duties which result from the relation of husband and wife, and actually enter upon and fulfill those duties precisely as they would be fulfilled if solemnized under the other forms of marriage. In the ascertainment of the truth as to such marriages, the jury should be well satisfied that all the elements named in such marriage actually existed, and that it was not merely an illicit and adulterous cohabitation. It was contended on the argument that where parties live together as husband and wife, that the law presumes their relations legal. The.law presumes that every man performs all his legal and social duties, and that he is innocent of any violation of the penal laws of the land. But marriage arises and exists in contract, and it needs to be proved, as other civil contracts where property rights are involved and dependent upon it. This rule is relaxed and presumptions do arise in favor of marriage where parties have lived together in such apparent relation, and after a great lapse of time the offspring thereof are likely to be bastardized. If, however, it should be shown that such relations had their origin in illicit intercourse, no such presumption arises, and to show that it was not continuous requires proof of actual marriage, as before defined.
Judgment affirmed.