206 Ill. 288 | Ill. | 1903
In its opinion deciding this case the Appellate Court say:
“The principal and controlling question, presented by the briefs of counsel and the oral arguments of the cause, is as to whether said Nellie M. and Frank E. Land were lawfully married during the lifetime of the former, and, if they were, then the decree is correct. * * * It is apparent from the evidence she (Nellie M. Land, formerly Nellie M. Tuttle,) began the divorce proceedings, which resulted in the decree mentioned, for the purpose of marrying said Frank; and it seems a fair and reasonable inference from the evidence that she intended, when she procured the divorce, to marry him and pursue thereafter a different and respectable life, and did so, as the evidence tends to show, from the time they commenced to live at the Park avenue house until Land failed in business, about two years afterwards. There is no evidence, which has been called to our attention, or which we have been able to discover, of any divided reputation as to the relations between said Nellie and Frank while they lived at the Park avenue house. On the contrary, during the whole of this period their ostensible relation was that of husband and wife, they being known as such among friends and acquaintances; and he introduced and spoke of her as his wife, and she introduced and spoke of him as her husband. During this period, and as late as the year 1891, Nellie M. Land, by that name, signed and acknowledged divers conveyances of real and personal property to different persons, and received conveyances under that name, in some of which she is described as the wife of Frank E. Land, and in others Frank E. Land is described as her husband.
“On February 3, 1889, she procured a judgment in the name of Nellie M. Land against Frank E. Land, a written satisfaction of which she acknowledged on January 30, 1891, before a notary public, under the same name. Under date of January 15, 1894, she executed her last will, under which the appellants in this case claim their rights, by the name of Nellie M, Land.
- “The clear preponderance of the evidence is, that the said Nellie.and Prank fully believed, on April 14, 1887, that she had been divorced from- said Tuttle, and that they in good faith intended, by virtue of said marriage ceremony, to contract a legal marriage, and would have done so but for the fact that her decree of divorce had not been entered of record. It does not appear that during her lifetime either she or said Prank had any knowledge that .the divorce decree had not been entered at the time of the marriage ceremony. ■ He testifies that he did not know of that fact until after her death.
“By decree of the county court appellant William B. Land was, February 3, 1883, upon the petition of Nellie M. Tuttle and Ralph S. Tuttle, legally adopted under the name of William Bliss Tuttle, by which name he seems to have been known and called up to the time the said Nellie M. and Frank E. Land began living together as husband and wife. Prom that time he became and was known and called William B. Land.
“It is claimed on behalf of appellants, and numerous authorities are cited in support of the contention, that said Nellie did not become the lawful wife of said Prank, mainly because of the fact that, at the time of the marriage ceremony, her divorce decree from Ralph S. Tuttle had'not been entered—that this attempted marriage was void, and, being void, their subsequent life, as is shown by the evidence, was not such as to create a valid common law marriage. Especial reliance is placed upon the case of Cartwright v. McGown, 121 Ill. 388, in which the court uses "the following language: ‘Where both parties are married in the honest belief, founded on an apparently good reason, that they are capable of entering into the marriage contract, when in fact one of them is not, if they continue to cohabit as man and wife after the removal of the impediment to their-lawful union, the law will presume a common law marriage by the acts of the parties, in the absence of any evidence to prevent such presumption. In such a cáse there are many strong and cogent reasons for presuming a new marriage after the removal of the impediment, even though the parties may not have known of its removal. There the cohabitation, in ignorance of facts rendering it illegal, is not to be regarded as meretricious or criminal until the parties have knowledge of such facts. Their purpose in such a union is honorable marriage, which the law favors, and not mere illicit intercourse. ’
“It is argued that there was no ‘honest belief, founded upon an apparently good reason,’ using the language of the Supreme Court, on the part of those parties for believing at the time of the marriage ceremony a divorce from Tuttle had been granted—that they should have looked to the court record instead of relying upon what the judge said, and the publication of the daily press. We think the parties were justified, under the circumstances above detailed, in believing that the divorce had been granted, and therefore the Cartwright case is not controlling.
“We are also of opinion that the contention of appellants’ counsel, that their cohabitation was illicit in its inception, is not supported by the evidence, and, therefore, what was said in the Cartwright case in that regard does not avail appellants.”
The Appellate Court, in its said opinion, makes reference to the case's, decided by this court, of Robinson v. Ruprecht, 191 Ill. 424, and Manning v. Spurck, 199 id. 447, and then proceeds as follows:
“In the last case cited [Manning v. Spurck, supra,] the court in its decision makes reference to both the Carttoright and Robinson cases, and makes use of the language quoted below, which, considered with reference to the facts of the case at bar, is controlling and decisive. The court say: ‘The petitioner in this case presents a much stronger and more meritorious case than was made in that one [referring to the Robinson case]. She has been guilty of no wrong or immorality, and did not enter into an adulterous and meretricious relation with James Selby. It is beyond question that there never was a doubt in her mind as to the propriety or legality of her relation to him, and that she was wholly innocent of any intent to do wrong. * * * It is probably a safe rule tó say that, if parties to a marriage, in the beginning, desire and intend marriage in good faith, as a matter of fact, but an impediment exists, and the desire and intention continue after the impediment is removed, and the parties continue in the relation of husband and wife and cohabit as such, it is sufficient proof of a marriage. It cannot be doubted that both James Selby and Sarah Jane Selby believed, at the time of this marriage, that he had been divorced from her. It is not reasonable fo suppose from the manner in which the parties lived, the prominence of James Selby as a well known citizen and the presence of his former wife in the same city, that he willingly incurred the risk of a criminal prosecution with knowledge, in fact, that the divorce was void. It is true that a relation which is illicit and meretricious in its inception is presumed to continue of the same character, and there must be evidence in such a case that there has been a change, and the relation has become matrimonial in intent and character. In this case, the original relation between these parties was not meretricious in its inception, which means merely lustful and pertaining to the character of prostitution. It is not possible to conceive that they intended anything except marriage when it was solemnized at Quincy, and from that time to the death of James Selby. When he procured the decree of divorce in Allen county, Indiana, it was not done with any intention of entering into any relation with the petitioner. Eight years elapsed between the divorce and their marriage, during which time there was "no relation between them, and there is no evidence that they even met during that time. There was no necessity of any change to a new relation after the death of Sarah Jane Selby, and there necessarily could not be any such proof from the fact that there was never any question of the legality of the marriage. It was not necessary, as it was in Robinson v. Ruprecht, supra, to prove that the cohabitation had lost its lustful character and become matrimonial in character. The relation of the parties after the impediment was removed by the death of Sarah Jane Selby was matrimonial in fact, as it had been in the honest belief and intent of the parties before that time. We think that the evidence proves a common law marriage, and that the master and chancellor were rig'ht.in their conclusion that the petitioner was the wife of James Selby at the time of his death.’
“It seems to us unnecessary, in view of the decision in the Manning casa, which is so closely analogous in its facts to this case, to discuss the other claims of counsel or the application of the various other authorities referred to by him.
“We are of opinion that the evidence in that regard shows that said Nellie and Frank intended, at the time of the marriage ceremony, to enter into the marriage relation, and having lived together continuously as husband and wife for two years after the entry of the decree of divorce in favor of said Nellie from said Ralph S. Tuttle, it cannot be said that their relation was meretricious, but it was matrimonial in character; that, as soon as the impediment against said Nellie’s entering into the marriage contract was removed by the divorce, their relation became, as is said by the court in the Manning case, ‘matrimonial in fact, as it had been in the honest belief and intent of the parties before that time. ’
“We think the evidence clearly sustains the decree of the chancellor, and it is therefore affirmed.”
We concur in the views above expressed by the Appellate Court, and adopt the same as the opinion of this court. Accordingly, the judgment of the Appellate Court is affirmed.
Judgment affirmed.
