The opinion of the court was delivered by
This writ of error brings up for review a judgment of the Supreme Court, affirming a judg
We concur in the view expressed by the Supreme Court that the motion to nonsuit the plaintiff was properly refused, for the reason that there was sufficient evidence offered and received to support the conclusion that the defendant and Josephine Sheika were not husband and wife at the time of the conveyance to them.
It is contended before us that the plaintiff was estopped •to deny that the defendant and Josephine were married at the time of the conveyance to them, for the reason that the recital, or statement, therein that Josephine was the wife of the defendant is binding upon all parties to the deed and their privies. We find nothing in the record, however, to show that any such contention was made before the trial court, or was made the subject of an assignment of error on the review by the Supreme Court. That being so it cannot be considered by us as a ground for reversal.
The conclusion of the Supreme Court that proof of statements testified to have been made by Josephine during her lifetime, not in the presence of the defendant, tending to show that she was not the wife of the defendant at the time of the conveyance to them, and admitted over objection interposed on behalf of the defendant, was competent, we think, is unsound. That the testimony was hearsay goes without saying. The Sn
In the following cases it has been held that where the question for determination is whether a marriage exists or not, the declaration of one of the parties to the alleged marriage, who is since deceased, cannot be received in evidence against the other party, if not made in his or her presence: Hill v. Hill, 32 Pa. St. 511; Hulett v. Carey, 66 Minn. 327, 334; Thompson v. Nims, Executor, &c., 83 Wis. 261; Estate of James, 124 Cal. 653. We think this view the correct one; and because of the illegal admission of the statements of Josephine Sheika tending to show that she was not married to the defendant the judgment must be reversed.
For affirmance—Hone.
For reversal—The Chancellor, Ci-xiee Justice, Garrison, .Reed, Bergen, Voorhees, Minturn, Bogert, Vredenburgh, Vroom, Congdon, JJ. 11.