166 P. 47 | Or. | 1917
delivered the opinion of the court.
“When either of the parties to a marriage shall be incapable of making such contract or assenting thereto, for want of legal age or sufficient understanding, or when the consent of either party shall be obtained by force or fraud, such marriage shall be void from the time it is so declared by the decrée of a court having jurisdiction thereof.”
In this state marriage is recognized as a civil contract: Section 7016, L. O. L. Like any other compact a marriage is valid as against him if at the time of its solemnization the party afterwards seeking to have it declared void had mental capacity sufficient to comprehend the nature of the business in which he was engaged and to understand its quality and consequences: Carnagie v. Diven, 31 Or. 366 (49 Pac. 891); Swank v. Swank, 37 Or. 439 (61 Pac. 846); Dean v. Dean, 42 Or. 290 (70 Pac. 1039); Hamilton v. Holmes,
“We had been acquainted quite a little bit. One day I was passing around as usual, and we were talking and she says, ‘Now, Mr. Coleman, you recollect the first time you promised to marry me.’ Well, I didn’t have sense enough and stamina enough to tell her, ‘Now, you sneak off. I never told you I would marry you in my life.’ I think that’s what took place. That is about the first of it.”
He goes on to testify that it was some months after-wards when they were married; that her reading, praying, and talking to him, and paying attention to him had a good effect upon him and that it was not long before she had his confidence and “I couldn’t hardly resent anything that she asked for or talked about.”
He also declared under oath as follows:
“Q. Did you want to get married?
“A. I reckon I did at the time or I wouldn’t have married her.
“Q. You married her because you enjoyed her companionship ?
“A. Yes sir.
“Q. And liked to have her read to you?
“A. Yes sir.
“Q. After you were married, you built two rooms for yourself and your wife?
“A. I built the rooms before we were married, quite a while. * *
*106 “Q. You knew you were married, didn’t you?
“A. Yes sir. *
“Q. Didn’t get interested in anybody else?
“A. No sir.
“Q. You wanted to provide for your wife, didn’t you?
“A. Well, I did, to a certain extent.
“Q. You did that of your own free will?
“A. Yes, nobody hired me to. * *
“Q. What are you bringing this lawsuit for? What is your idea?
“A. To get a divorce.
“Q. Why do you want a divorce?
“A. I don’t want to be husband to a wife, that we don’t live together. I guess I might say I don’t like her and she don’t like me.
“Q. It was suggested that you give all your property to your wife; you have an income now ?
“A. Yes, I have an income.
“Q. How much is your income?
“A. Why, I don’t just exactly remember how many dollars a month, it is.
“Q. Well, about how much?
“A. Well, about in the neighborhood of six hundred dollars a month.
“Q. You have had six hundred dollars a month all the time, haven’t you?
“A. Yes, sir.
“Q. So you didn’t give her everything?
“A. No sir, I did not give her my income.
‘ ‘ Q. And that six hundred dollars a month is an income to come to you as long as you live?
“A. Yes sir. * *
“Q. You have no close relations?
“A. Why, yes. * *
“Q. You have no children?
“A. No sir.
“Q. No brothers?
“A. No sir.
“Q. No sisters?
“A. No sir.
*107 “Q. Tour nearest relation is a nephew?
A. Yes sir.
“Q. You have given him some property that he is to get after your death?
“A. Yes sir.
“Q. You know all about that?
“A. Yes sir.
“Q. There is nobody as near you as your wife? .
“A. My nephew.
“Q. You wouldn’t call your nephew as close to you as your wife, would you? You feel a man ought to provide for his wife ?
“A. Yes sir.
“Q. And that is what you were doing?
“A. Yes sir.
“Q. You felt that you were doing the right thing in providing for your wife?
“A. Yes sir.
“Q. You were satisfied with that transaction until you decided to leave her. Isn’t that a fact?
“A. Yes sir. I decided to sue her for a divorce and I employed Foster, and it has been on hands twelve months, and I aint got no divorce yet.
“Q. You have got tired of waiting and dissatisfied with the length of time ?
“A. It seems that I ought to have it in less than twelve months.
“Q. Did you explain to Senator Wright what you wanted to do when you made the papers out?
“A. I guess I told him enough so that he did it.
“Q. You dictated it to him?
“A. I told him what I wanted him to do.
“Q. It was not until after you decided that you wanted a divorce that you wanted the property back, was it?
“A. Yes, I wanted the property back. * *
“Q. You would be satisfied to provide for your wife?
“A. Yes, I had done that before I decided to leave.
“Q. The reason you wanted your property back was because you decided to leave?
*108 “A. No sir, I didn’t want her to have my property unless she was my wife.”
His physician who had known him for thirty years was asked this question: “He is up to the average for his age in mental ability taking into consideration his intellectual attainments?” to which he replied, “He is fairly average. So far as that is concerned a man of his age always declines mentally.” Other witnesses for the plaintiff were business men who claim that he was not so bright as formerly but still they transacted business with him regularly even up to the time of the hearing.
The defendant stoutly denies having proposed marriage to the plaintiff but contends earnestly that he was persistent in his attentions to her which finally resulted in her consent to become his wife. In this she is corroborated by others residing at the institution. They lived together as man and wife for more than one year. The unchallenged testimony of those who testified for the defendant is to the effect that she was very tender and dutiful to him as a wife. On the other hand he was irascible, irritable, and quarrelsome with other inmates of the Home. The superintendent of the institution, a Mrs. Saylor, testified that she caught him in the act of striking the defendant with his cane and shamed him into an apology for that. After his frequent outbursts of anger he would be very agreeable until the next time he lost his temper, and it was during these benignant moods that he would make his gifts to the defendant.
About the transaction involving the latest disposition of his property, the testimony is to the effect that he had a spell of acute indigestion from over-eating which affected his heart functionally in consequence of which his wife told him that if he had another such
When asked what kind of persuasion the defendant used to get him to marry her, the plaintiff answered:.
“She was kind and good to me, you might say.
“Q. Anything else ?
“A. Why, no.
“Q. You married her because you thought she was kind and good?
“A. Yes sir.
“Q. And that is the only persuasion that she used?
“A. She talked kind to me and respectful until—
“Q. What persuasion did she use to get you to assign to her the Shelton mortgage ?
“A. I don’t recollect.
“Q. Did she use any persuasion to get you to turn over property?
“A. I don’t recollect.
*110 Q. Did she use any persuasion when yon were in Senator Wright’s office to get you to turn over the Biddle property?
“A. No. She talked to me about turning the property over before we started up to Wright’s office.
“Q. What persuasion did she use to get you to do that?
“A. I don’t know as you would call it persuasion. She said if I had another heart trouble, that I would die. That I better turn over the property to her, and I did so.
“Q. You were satisfied with this transaction until you decided to leave her?
“A. Well, I did it.
“Q. You were satisfied with it until you decided to leave her, weren’t you? If you had stayed with her, you wouldn’t care about that?
“A. I decided that I didn’t want to give her a piece of property, in one piece twelve thousand dollars, and in another piece in the neighborhood of a thousand or over.
Q. You changed your mind about it?
A. I changed by mind that I didn’t want to do that.”
These excerpts from the plaintiff’s own statements as a witness show that he well understood what he was about in all the transactions involved and that the defendant did not in any manner coerce or deceive him.
A careful reading of the whole record of the evidence reveals a clear preponderance showing that the marriage was sought by the plaintiff knowingly and understandingly. He was fully aware of the agreement into which he entered and the nature of it. He ratified it by more than a year’s cohabitation with the defendant. He was the dominating character in the matrimonial venture. His business transactions during the time he lived in California show that he was
“Solicitation, importunity, argument, and persuasion are not undue influence, and a contract is not to be set aside merely because the one party has used these means to obtain the consent of the other. Influence*112 obtained by persuasion and argument or by appeals to tbe affections is not prohibited either in law or morals and is not obnoxious even in courts of equity, and may be termed ‘due influence.’ Nor is the case changed because the parties stand in confidential relations to each other. The line between due and undue influence, when drawn, must be with full recognition of the liberty due every true owner to obey the voice of justice, the dictates of friendship, of gratitude, and of benevolence, as well as the claims of kindred, and, when not hindered by personal incapacity or particular regulations, to dispose of his own property according to his own free choice. But on the other hand influence attained by flattery, importunity, superiority of will, mind, or character, which gives dominion over the will of another to such an extent as to destroy free agency or to constrain him to do against his will what he is unable to refuse, is such influence as equity condemns as undue”: 9 Cyc. 455.
The death of the plaintiff has ended the marriage relation and there is nothing in the record justifying the court in canceling the assignment of the contract-mentioned. The decree of the Circuit Court is reversed and one here entered dismissing the suit.
Reversed. Suit Dismissed.