44 Ind. App. 51 | Ind. Ct. App. | 1908
This was a suit by appellants, the brothers and sisters, and the children of deceased brothers and sisters, of Eliza A. Yeoman, to quiet title to eighty acres of land in Elkhart county, Indiana. Francis A. Benham, defendant in the original suit, filed an answer and a cross-complaint, praying that his title to the land in question be quieted. Appellees were substituted as the sole heirs of said Francis A. Benham.
Judgment was rendered against appellants in the original suit, and they filed a motion for a new trial as of right. After the granting of such new trial, but before a time therefor was set, appellants filed an affidavit for a change of venue from the county and from the judge, but their motion was denied, an exception being duly reserved.
At the close of appellants’ evidence, upon motion by appellees, the court directed the jury to return a verdict for appellees. Such verdict was returned, and it was decreed thereupon that appellants take nothing, and that appellees’ title to said land be quieted.
The errors assigned are: (1) Sustaining appellees’ mo
By a written stipulation the parties admitted, for the purpose of trial: “That Sarah Morse of Angola, Indiana, if present in court at such trial, would testify in said cause under oath, and say that she knew said decedent, Francis A. Benham, and knew where he resided from and after May 20, 1875, until he began to reside in Elkhart, Indiana, about twenty-five years ago, where he resided until his death, and that he resided in Angola, in Steuben county, Indiana, from May 20, 1875, up to the time he began to reside in Elkhart, Indiana, all of which shall be admitted and read in evidence on the trial of the above entitled cause.
“Dated January 8, 1906.”
The following oral statement as evidence was also made before the court and jury: ‘ ‘ That the land described in the complaint was owned, in fee simple, by Eliza Benham on the date of her death, April 20, 1904, and that she had owned the tract of land since the year 1880; that at the time of her death she left no father, no mother, no child, and no descendant of any child surviving her; that the plaintiffs comprise all of her brothers and sisters and the children of the deceased brothers and sisters of Eliza A. Benham; that the defendants are the only children and heirs-at-law of Francis A. Benham, deceased; that Francis A. Benham died on November 19, 1905; that he was married to Hannah Benham in 1848, in New York; that in 1865 they moved to Bronson, Branch county, Michigan, where they lived together as husband and wife until 1875; that they separated some time in 1875, and never lived together after that as husband and wife; that Francis A. Benham went from Bronson to Angola, Indiana, in the year 1875, and was married to Eugenie L. Morse on May 25, 1875, and that they lived together as husband and wife in Angola and Elkhart, Indiana, until
In the case of Davis v. Mercer Lumber Co. (1905), 164 Ind. 413, at page 425, the court said: “It is a settled rule in this State that the right of the court to direct a verdict, as it did in this case, can only be upheld where, after a consideration of all the evidence most favorable to the plaintiff, together with all the reasonable and legitimate inferences which a jury might have drawn therefrom, it can be said that the evidence is clearly insufficient to establish one or more facts essential to the plaintiff’s right of action.” Citing Purcell v. English (1882), 86 Ind. 34, 44 Am. Rep. 255; Gregory v. Cleveland, etc., R. Co. (1887), 112 Ind. 385; Wolfe v. McMillan (1889), 117 Ind. 587; Diezi v. Hammond
From the facts-herein stated, it could not be said that the evidence was insufficient to support such a finding.
When the facts show that an apparently lawful marriage was in fact an illicit relation in its beginning, the rule, as quoted in Williams v. Williams (1879), 46 Wis. 464, at page 480, is: “ ‘ A cohabitation illicit in its origin is presumed to be of that character, unless the contrary be proved, and
In the same case, at page 478, the court said: “It would require much less proof to satisfy either a court or jury that there was a marriage in fact between persons in good repute, and as to whom there was no obstacle to marriage, when the proof of marriage depended upon the fact of cohabitation as husband and wife, and the recognition of each other as such, than when it appeared affirmatively that one or both of the parties claiming a marriage, upon like proofs, were at the time of the commencement of the cohabitation incompetent to contract marriage. And this would be especially so, if it were shown that the party claiming such marriage had full knowledge, at the time of the commencement of such cohabitation, that he or she was incompetent to contract a lawful marriage with the other party. The fact appearing that such party unlawfully commenced the cohabitation, would be strong evidence that he or she would not hesitate to continue such unlawful conduct after the disability had been removed. ’ ’
The rule of presumption set forth is well supported. Foster v. Hawley (1876), 8 Hun 68; Cartwright v. McGown (1887), 121 Ill. 388, 12 N. E. 737, 2 Am. St. 105; Spencer v. Pollock (1892), 83 Wis. 215, 53 N. W. 490, 17 L. R. A. 848; Appeal of Reading Fire Ins., etc., Co. (1886), 113 Pa. St. 204, 6 Atl. 60, 57 Am. Rep. 448; Hunt’s Appeal (1878), 86 Pa. St. 294; Barnes v. Barnes (1894), 90 Iowa 282, 57 N. W. 851; Edelstein v. Brown (1904), 35 Tex. Civ. App. 625, 80 S. W. 1027; Williams v. Williams, supra.
The actions and conduct of the parties were the same subsequent to the granting of the divorce as prior thereto. Eliza A. Yeoman had no reason to think that a new contract was necessary, for the reason that her relationship with Francis A. Benham was due to a marriage entered into in the belief that it was a valid and subsisting marriage. Why should she be presumed to have done a thing the necessity of which had never been made known to her ? But as for Francis A. Benham, it is an admitted fact that personal service was had on him in the bringing of the divorce action. The excuse of ignorance is not open to him, or those claiming through him. Yet, in the face of that knowledge, he continued his conduct and actions just the same as before. It would be a legitimate inference that he intended the relationship to continue the same as before the divorce. There was no overt act or expression on his part'showing any change of the relation between himself and Eliza A. Yeoman, which flowed from the void contract of marriage.
The facts admitted are sufficient to warrant the presumption that no valid marriage was ever consummated between the parties to the ceremony, and therefore the court erred in directing a verdict for appellees.
The objection is also made that the court erred in refusing to grant appellants a change of venue.
Therefore the rule must be construed as not applying to motions for change of venue made within due time after the cause has been remanded for new trial.
For these reasons the cause is reversed, with instructions to sustain the motion for a new trial, and for further proceedings not inconsistent with this opinion.
Judgment reversed.