103 So. 218 | Miss. | 1925
The defendant answered the bill, denying that complainants were entitled to an undivided interest in said lands, asserting that he, the defendant, was the exclusive owner thereof. Defendant further alleged by way of cross-bill that a partition suit was filed for division by the heirs of Jonathan Ladner, and that said lands were sold to one T.H. Davis, who in turn conveyed to the defendant. Defendant further alleged in his crossbill that complainants were not the legal heirs of Jonathan Ladner; that as a matter of fact the mother of complainants undertook to contract a marriage with Jonathan Ladner, but that same was illegal and void; that she had previously contracted marriage with one E.M. Cunningham in Jasper county, Miss., in the year 1876, and had lived with Cunningham as his wife until the year 1881, when she abandoned Cunningham and refused further to live with him; that thereafter, on the 1st day of August, 1891, she undertook to contract a marriage with Jonathan Ladner in Marion county, Miss., now Lamar county, at Purvis; that on the 25th day of October, 1900, said Cunningham instituted proceedings for a divorce *466 against one Ellen Ladner, formerly Ellen Cunningham, who then passed as the wife of Jonathan Ladner; that said bill of divorce was filed and process issued thereon, and at the January term, 1901, of the chancery court, a decree entered dissolving the bonds of matrimony then existing between Ellen Ladner, formerly Ellen Cunningham, and said E.M. Cunningham. It was further alleged that the three complainants to the said bill were born to the said Ellen Ladner, formerly Ellen Cunningham, and Jonathan Ladner between the time of the illegal and void marriage at Purvis in August, 1891, and January 8, 1901, at which time the divorce was granted, and that said issue are illegitimate and incapable of inheriting from Jonathan Ladner. Defendant prayed for a decree canceling the claims of complainants as a cloud upon the title of the defendant and cross-defendant.
Complainants answered the cross-bill and denied that they were illegitimate children of Jonathan Ladner, but admitted the marriage of their mother to E.M. Cunningham prior to her marriage to Ladner, and that she had lived with Cunningham as his wife for several years. But complainants denied that in 1881 their mother had abandoned Cunningham and refused to live with him, but asserted that Cunningham had deserted his wife, their mother, without just cause, leaving her with two small children, and that she neither saw nor heard from said Cunningham for a period of more than seven years after such separation, and that she was informed by a letter received by the mother of said Cunningham that said Cunningham was dead, and complainants asserted that their mother believed and had good reason to believe that such was a fact, and for more than seven years prior to her marriage to Ladner their mother believed that Cunningham was dead.
Complainants further admit that a divorce may have been obtained by said E.M. Cunningham as alleged in the bill, but allege that same was unnecessary, useless, and in no wise affected the status of the parents of the *467 cross-defendants, as they are advised and believe. Complainants further say that, should they be mistaken in the legal effect of said proceedings and alleged decree of divorce, there was no impediment, obstacle, legal or otherwise to the consummation of a valid marriage between their parents, Jonathan and Ellen Ladner, and that thereafter they lived together as man and wife from and after the ceremony of marriage in 1891 to the death of their mother on the 8th day of November, 1906, and that from and after the rendition of the decree of divorce in January, 1901, there was no impediment or obstacle to a valid marriage between their said parents; that matrimonial consent must be presumed to have been interchanged between the said parents upon the removal of said impediment or obstacle, if any such existed; and that their living together after removal of such impediment was a ratification of the former ceremonial marriage.
Both Ladner and his wife by the second marriage were dead at the time the suit here involved originated. Complainants testified that they had seen a letter which was received by their mother stating that Cunningham was dead, and that she had often told them that he had not been heard from, and that he had left her, and that his whereabouts were unknown.
A number of witnesses testified to the ceremony of marriage between Ladner and Mrs. Cunningham. It further appeared that Mrs. Cunningham came into the community early in the 80's with her father, a Mr. Purvis, and lived with him as a member of his family household until her marriage with Mr. Ladner, some ten years after the separation. The proof showed that Mr. and Mrs. Ladner were recognized as people of good character, and that Cunningham's mother and sister lived in the community, and that no one had heard anything as to his whereabouts until his appearance in 1900, except one witness testified that some time in the 80's he saw Cunningham on a train passing through the county, and that *468 Cunningham claimed he was going to attend a camp meeting somewhere in the county.
In 1900 Cunningham reappeared and filed a bill for divorce as alleged in the bill. The record does not show process served on Mrs. Ladner other than the recitals of the decree granting the divorce. The divorce proceedings were introduced, and show that Cunningham filed a bill as a resident and citizen of Dallas, Tex. Depositions were taken of some witnesses who testified that Cunningham and Mrs. Ladner lived together as husband and wife in Wayne county and separated in 1881. It does not show how long Cunningham lived in that county or when he went to Texas. Cunningham's deposition was not taken nor was any showing made as to why it was not obtainable.
We think the record contains enough evidence to make manifest that Mrs. Cunningham, who afterwards married Jonathan Ladner, had not heard from Cunningham and did not know his whereabouts from the time of the separation until his reappearance in 1900, a period of almost twenty years. The record does show that the separation between Cunningham and Mrs. Ladner took place in Wayne county, Miss. There is no evidence whatever that divorce proceedings had not been had in Wayne county, Miss., where the separation took place. All the circumstances and facts tend to show that Mrs. Ladner, in good faith, believed Cunningham was dead, and that he had been absent and unheard from either by her or his mother and sister for more than the statutory period prior to her marriage to Ladner.
In A. V. Ry. Co. v. Beardsley,
In Pittinger v. Pittinger,
In Schaffer v. Richardson,
"The tendency of the courts is to hold the second marriage valid, especially if there is issue which may be bastardized by a contrary holding; and, if the marriage has not been questioned for many years, its validity will not be overcome by the mere proof of a prior marriage. In such case the presumption in favor of innocence, morality, and legitimacy will prevail over the presumption of the continuance of the former marriage, and it will be presumed that the first marriage was not binding at the *470 time of the second. This doctrine is well supported by adjudged cases in many states [citing authorities]. . . .
"Proof of subsequent marriage alone makes out a prima-facie case as to its validity. To overcome this prima-facie case, proof of a former marriage is required, and also evidence from which it may be concluded that it has not been dissolved by death or divorce. Re Colton, 129 Iowa, 542, 105 N.W. 1008;Patterson v. Gaines, 6 How. [U.S.] 550, 12 L.Ed. 553.
"It is said in Wenning v. Teeple,
See, also, Hunter v. Hunter,
In 18 R.C.L., at page 417, in discussing presumptions against impediments of marriage, it is said: "42. The general presumption is that the life of a person continues for seven years after he is last heard from, and that his death is presumed after the lapse of that time, but, where the presumption of the validity of a marriage, arising from the performance of a ceremony, conflicts with the presumption of the continued life of a former spouse of one of the parties, if neither is aided by proof of facts or circumstances corroborating it, the presumption of the validity of the second marriage will prevail over the *471 presumption of the continuance of the life of the former spouse although the full seven years has not elapsed. It has been held that, where a wife is deserted by her husband, and he is unheard of for some time, she is under no duty to ascertain his whereabouts before remarrying. It is the duty of the husband to keep her advised of his whereabouts, and she has a right to believe from his silence for the requisite time that he is dead."
In 18 R.C.L., at page 420, under the heading of "Force of Presumption and Evidence to Overcome It," in the concluding part of section 44, it is said: "Mere proof of a prior marriage and that one party had not obtained a divorce is not sufficient, for the other might have obtained such divorce and left him or her free to contract the second marriage."
In Spears v. Burton,
It was also announced that, where a person has departed from the state and has not since been heard from, the presumption of the law is that he is alive until the lapse of five years, and after that time that he is dead. But the presumption of life, within the five years, is not sufficient to establish the illegality of a second marriage of such person's wife within that time, for that would be to establish a crime by mere presumption of law; and especially ought the second marriage to be deemed legal, when it is attacked after the lapse of twenty years, and during all that time the party has not been heard from.
In Gibson v. State,
"The question upon which this position depends is whether the marriage between the accused and Maria Williams was in law valid, under the circumstances in which it was contracted. It appears by the evidence that her former husband had been absent for more than five years at the time, and had not been heard of during that period; that he had been reported to be drowned, and that the report was believed and acted on in the family connection, and Williams has not since made his appearance, and is not shown to have been alive since his departure; that, under such circumstances, the marriage was celebrated in due legal form. In point of civil rights resulting from the marriage it cannot be doubted that such a marriage would be valid; the former husband not having been proved to be alive after it took place. The right of dower in the wife would have existed, and the offspring of the marriage would have been legitimate and the legal heirs of the father's estate. This results from the presumption of law created by our statute in relation to bigamy, exempting any person from the penalty of the statute who shall contract another marriage after the husband or wife shall have been absent for five successive years, without being known to the person contracting the marriage to be living. . . .
"Where the fact of the celebration of the marriage, and in due form of law, is fully proved in such cases, there appears to be no difference as to its validity, between the civil and criminal consequences which may *473 proceed from it. The question in both respects is whether the parties were competent to contract a legal marriage; and, when the presumption of law exists that the former husband is dead, by reason of his absence for five successive years unheard of, the disability of the party is removed by the legal presumption, and she is competent to contract a new marriage, which is legal and valid to all intents and purposes until the presumption of death be removed by proof that the absent husband was alive at the time of its celebration."
On the record before us we do not think the fact that Cunningham reappeared and filed a suit for divorce would overcome the presumption that Mrs. Ladner prior to her marriage to Ladner had obtained a divorce from Cunningham. The burden of proof was upon the cross-complainant to prove that fact. There was no proof that a divorce had not been obtained in Wayne county where the separation took place, nor in the county where the parties lived. As stated above in the authorities, to prove that one of the parties had not obtained a divorce does not prove that the other has not done so, and, consequently, as announced in the case ofA. V. Ry. Co. v. Beardsley,
We think that the chancellor was in error in holding the marriage invalid, and the judgment will be reversed and the cause remanded for future proceedings in accordance with these views.
Reversed and remanded.
