121 Ark. 361 | Ark. | 1915
(after stating the facts.)
The burden ¡of proof is upon the person attacking the validity of 'a marriage.
Bishop says: “Every intendment of the law is in favor of matrimony. When a marriage has been .shown in evidence, whether regular or irregular, 'and whatever the form of the proof, the law raises -a strong presumption of its legality; not only casting the burden of the proof on the party objecting, but requiring him throughout, ¡and in every particular, plainly to make the fact appear, against the constant pressure of this presumption, that it is illegal and void. ¡So that it cannot be ¡applied like ordinary questions of fact, which are independent of this ¡sort of presumption. ’ ’ 1 Bishop, Marriage and Divorce, Sec. 956; Halbrook v. State, 34 Ark. 518.
So strong is this presumption and the law is so positive in requiring the party who asserts the illegality of ¡a marriage to take the burden of proving it, that such requirement obtains even though it involves the proving of a negative, and ¡although it is shown that one of the parties had contracted a previous marriage, and the existence of the wife or husband of the former marriage at the time of the second marriage is- established by proof, it is not sufficient to overcome ¡the presumption of the validity of the second marriage, the law presuming rather that the first marriage has been dissolved by divorce, in order to ¡sustain the second marriage: Schmisseur v. Beatrie, 147 Ill. 210; Pittinger v. Pittinger, 89 Am. St. Rep. 193, and authorities cited in note; Potter v. Clapp, 96 Am. St. 322; Boulden v. McIntire, 12 Am. St. Rep. 458; Smith v. Fuller, 16 L. R. A. (N. S.) 98, and authorities in note, page 106; Howton v. Gilpin, 24 Ky. Law Rep. 630, 69 S. W. 766.
■She adduced no other proof of the invalidity thereof than her own statements, except the testimony of the clerk of the divorce court in the county in which Lexington, Ky., is situated, that he was unable to find .after a careful examination of the records, any record of a divorce obtained in a suit of Elizabeth Condon v. John Condon, during the years about the time she stated she made application for, and understood ia divorce had been granted to her.
The copy of the letter which she stated was written by her husband’is physician for him, containing a statement that he “had not procured a divorce etc.”, was incompetent and entitled to no weight whatever, the letter not having been shown to. have been .signed by him nor written by his authority and was the veriest hearsay. Her own statement of her actions in attempting to procure a .divorce well nigh established the fact that she had done so in accordance with her statement to her former husband that she had obtained a divorce, and her subsequent conduct in marrying Merrill, and it is barely overcome by the statement of the clerk of the divorce court at Lexington, Ky., since it was not definitely shown ¡that her suit for divorce bad been brought in that county and there is no proof whatever that her first husband bad not obtained a divorce from her. His conduct in the making of deeds, and affidavits reciting that he was a single man and Ms statements that such was the fact to the people /among whom he lived, with the testimony that he seemed elated upon his return from one visit to the East and stated that he was now divorced ■and was “free and straight,” all indicated that he had, /and supported the presumption to that effect.
The proof is not sufficient to overturn the second marriage, wMch is presumed to be legal.
The finding of the 'Chancellor was not warranted by the testimony and the decree is reversed /and the cause remanded with directions to dismiss the complaint for want of equity.