76 So. 638 | Miss. | 1917
delivered the opinion of the court.
Albert Clark and others filed a bill in the chancery court of Kemper county against Mandy Clark, alleging that Nero Clark, deceased, departed this life intestate seised
The defendant, Mandy Clark, denied that the complainants were the only heirs of Nero Clark, but admitted the kinship set out in the bill of complaint, admits that Nero Clark was the owner of the land described, but denied that the complainants were his heirs in the sense of inheriting the property, and avers that she is the sole heir of the said Nero Clark. She denies that she was ever lawfully married to Daniel Savior, but asserts that she was lawfully married to Nero Clark. The bill was not sworn to, and did not waive answer under oath, and the answer was sworn to. Subsequent to the filing of the answer the defendant filed an amended answer and cross-bill. In this amended pleading she charges that at the time she and Daniel Savior undertook to marry the said Daniel Savior had. a living wife from whom he had not been divorced, and that this was not known to the defendant, and that as soon as she found out she was not legally married, she quit the said Daniel Savior.
The complainant proved by witnesses the ceremonial marriagte between Daniel Savior and Mandy Burrage, now Mandy Clark, who is the defendant and appellant in this cause. The defendant proved by a nephew of Daniel Savior that Daniel Savior was married in Leake county to a woman named Martha, and that he and Martha were recognized as husband and wife in the community in which they lived, and by the friends and relatives of Dan
We do not think it necessary to go into a consideration or discussion of the conflicting presumptions that would arise from these multitudinous marriages, but we think the proof shows without contradiction that Daniel Savioi had a living wife at the time of the alleged marriage with Mandy, and that there was no divorce from such wife. It follows that he was not capacitated to enter into a marriage with Mandy, and that the alleged marriage between him and Mandy was void. This being true, it was not necessary for Mandy to procure a divorce from Daniel to make her marriage with Nero Clark valid, as she and Nero Clark were legally married and were recognized as husband and wife in the community where all the parties lived, for a period of about ten years.
We think her marriage with Nero Clark was valid on the proof in this record, and that the chancellor erred in decreeing the property to the complainants and in canceling the claim of appellant to the estate of Nero Clark. The judgment is therefore reversed, and the bill of complaint dismissed. '
Reversed and dismissed.