49 Miss. 357 | Miss. | 1873
delivered the opinion of the court;
Susan Dickerson and Oliver Dickerson, complainants, filed their bill óf complaint in the chancery court of Coahoma county, in July, 1871, against W. N. Brown and Mary Ann Dickerson, setting forth that the complainants are the children and heirs at law of L. P. Dickerson, deceased, late of said county, who departed this life, February 2,1871, leaving a large real and personal estate, particularly mentioned in the bill; that Mary Ann Dickerson, one of the respondents, is the mother of complainants ; that their father, said L. P. Dickerson, and mother, said Mary Ann Dickerson, “ were never joined in the bonds of matrimony by any ministerial performance of any marriage ceremony, because, at the time
The respondent, Brown, appeared and demurred to the bill, stating the following grounds therefor :
1. The complainants do not show that they are the heirs of L. P. Dickerson.
2. J. 0. Dickerson, referred to in the bill, is a necessary party thereto.
3. Because a discovery is sought before the expiration of six months after the grant of administration.
4. Mary Ann Dickerson is improperly made a party.
The first, second and third grounds of demurrer were sustained, and the bill dismissed. From that decree this appeal is prosecuted. The decree sustaining the demurrer and dismissing the bill, constitutes the basis of error. A somewhat novel case is thus presented, arising out of an anomalous condition, though its solution is regarded as simple. In its consideration, the views of those learned in this branch of the law have conduced to no uncertain or doubtful result.
The American doctrine undoubtedly is, that the relation of husband and wife originates in contract, which, when executed, imposes upon the parties new relations to each other and to the public. In some respects, this contract is unlike all other contracts, particularly in this, that it is indissoluble, save in the mode pointed out by statute. 1 Bishop Mar. and Div., 272. Marriage is hence considered a civil contract. 1 Bish. M. andD., 19 ; and may be entered into by parties of suitable age and mental capacity, by
Repeating the foregoing rule in slightly different language, Bishop, vol. 1, § 289, says: “ No particular form of words, therefore, is essential to the solemnization of marriage, unless the statute not only requires the words to be used, but declares the marriage to be null where they are not used.*’
Referring to statutes requiring a license and other ceremonies, it has been held, that “ these directory provisions, though prohibitory, and even penal with respect to the officers, have not been regarded as affecting the validity of a marriage otherwise legal.’* 1 Bish. M. & D., 284; 17 B. Monroe, 193; 2 Watts, 9; 5 Rawle, 209. And this is believed to be the correct rule.
With reference to the consent necessary to the consummation of marriage, it is said, “ nothing more is needed than that, in language which is mutually understood, or in any mode declaratory of intention, the parties accept of each as husband and wife. And Swinburne lays down the doctrine that, if the words do not of their natural meaning, or by common use, “ conclude matrimony,” yet, if the parties intend marriage, and their intent sufficiently appears, “ they áre inseparably man and wife, not only before God, but also before men.” 1 Bish. M. and D., 229. And this “ consent may be either verbal or written; and where there was no ceremony, but fhe parties merely lived together as husband and wife for many years, they were held to be, in law, married.” Ib., Hicks v. Cochran, 4 Edw. Ch. 107.
Divested of verbiage and figurative language, the bill in this case avers, substantially, the relation between the parents of the complainants of husband and wife, wanting only formal or ceremonial solemnization, a desire for its existence, and rejoicing that the new constitution would legalize their intercourse and legitimatize their children. Mr. Bishop, vol. 1, § 12, says: “The institution of marriage, commencing with the race, and attending man in all periods, in all countries of his existence, has ever -been considered the particular glory of the social system. It has shone forth in dark countries and in dark periods of the world, a bright luminary on his horizon. And but for this institution, all that is valuable, all that is virtuous, all that is desirable in human existence, would long since have faded away in the general retrograde of the race, and in the perilous darkness in which its joys and its hopes would have been wrecked together.” Marriage, then, says Mr. Bishop, is to be cherished by the government, as the first and choicest object of its regard. Pursuing this subject, he states this doctrine: ■“ Therefore, every court, in considering questions not clearly settled or defined in the law, should lean toward this institution of marriage; holding, consequently, all persons to be married, who, living in the way of husband and wife, may
The State, says Bishop, will cause its citizens to assume the matrimonial status only where they consent to assume it. 1 Bish. M. and D., 12. “ We have seen in the foregoing discussions that through all the law of marriage, runs the principle which puts it in the power of parties to assume or not', at their own election, the marriage status, while the status is imposed upon no one who does not accept it voluntarily.” Ib., 121. Indeed, no marriage is valid without consent,
The arguments of counsel embrace a broad field, and discuss numerous points, as might be expected in a new and novel case. The briefs and authorities cited have been examined with care, and the conclusions reached will be presently stated.
The constitutional provision under which this arises is as follows : “ All persons who have not been married, but are now living together, cohabiting as husband and wife, shall be taken and held, for all purposes in law, as married, and their children, whether born before or after the ratification .of this constitution, shall be legitimate, and the legislature may, by law, punish adultery and concubinage.” Const. of Miss., art. 12, § 22.
This provision, in terms, recognizes a distinction betAveea those living together, though unmarried,, yet “as husband and Avife,” without formal solemnization, still, under an.
With the adoption of the present constitution, former impediments to marriage between whites and blacks ceased, so that that question does not enter into the controversy. As a question of policy or propriety, people may differ, but
The labored and able, arguments of counsels, that the provision of the constitution referred to, should be held to apply to the colored population alone, have not been overlooked. They state to us, in support of this construction, as a fact, that, as slaves, informal marriages were universal, resulting in numerous offspring. On the other hand, we were told that cases like the one at bar, were not altogether unfrequent. It is sufficient, that there is one case of this kind, within the plain letter and spirit of the constitution. The provision is plainly for all cases, black, white or mixed, within its plain letter. In effect, this court is asked to declare one rule, or to hold, that we have one constitution for the whites, and another for the blacks, a distinction precluded by recent events.
But, it is questionable, if the statements of counsel are judicially before us; further than that, we have a large colored population, lately slaves, now free, and in all respects equal before the law. It is believed, and so held, that the constitution, in its letter and spirit, applies, and was intended to apply, to all classes, “ without regard to race, color or previous condition of servitude.”
The right of parties in this State to contract marriage, without formal or ceremonial solemnization is understood to be settled beyond question; 12 S. & M., 9; 27 Miss., 783 ; 31 ib., 211; ib., 367; ib., 547; 39 ib., 745; 40 ib., 56; ib., 349; though it is otherwise in some of the States. Dennison v. Dennison, Md. Court of Appeals, 1871. Our statute does not in terms forbid it; and hence, such a marriage is lawful. Cases, supra, and 1 Bish. M. and D., 225, 283, 284.
It is, however, unnecessary to pursue this discussion further It is clearly the theory of the text writers, that the constitutional provision and review, can conclude marriage between those only, who, by agreement, express or implied, had
In the view entertained of the questions involved, and in the present attitutude of this case, it is not material to review at any length, the adjudications on marriage, per verla ele frmenti. These cases are numerous, and many of them are both interesting and novel. Their present consideration might be essential, but for the constitutional provision of our State. Upon the evidence, their examination will very likely become necessary, as it wdll then be more pertinent. As already suggested, the constitution has relieved the legislature and the courts to a great extent, by its primary rule, so that this discussion has in view, mainly, the scope and intent of the organic law, and the indication of rules for its practical enforcement.
The conclusion is, that if these parties were “cohabiting as husband and wife,” at the time of the adoption of the present constitution, and if, with a knowledge of its provisions, they mutually assented to the relation, then their marriage was consummated and their children legitimated. The question involved thus becomes one of fact to be determined accordingly.
The decree is reversed; demurrer overruled; and cause remanded, with leave to answer in forty days from this date.