McCord v. McCord

114 P. 968 | Ariz. | 1911

DOAN, J.

(After Stating' the Facts as Above).- — -As it is conceded that a lawful marriage was consummated between the appellant and McCord in 1861, the disposition of the property must be based upon the fact, or supposition, of the dissolution of that marriage by divorce, upon the validity of such divorce, if found or presumed, or if such divorce is not found or presumed to be valid, upon the estoppel of the appellant by reason of her acts, conduct, or silence during the time intervening between her separation from McCord in 1876 and his death. The decision of the lower court was couched in the following language: “In this ease the burden of proof to overcome such direct testimony as there is with respect to a divorce, and to overcome the presumption of a divorce between the plaintiff and M. H. McCord, arising from the second marriage, is upon the plaintiff in the action. While plenary proof by the plaintiff to show that the first marriage had not been dissolved is not required, yet the proof to be adduced by her must be such evidence as affords reasonable grounds for believing such dissolution not to have taken place. It is my opinion that the plaintiff under the evidence and circumstances in the ease has failed to meet the burden upon her, and that she has failed to show such a legal right to the property sought to be recovered as to entitle her to the relief asked for. Judgment will be entered for the defendant.”

Appellant concedes the general rule that “where a first lawful marriage is proven, and a second marriage ceremony is also established, that there is a presumption of fact that the parties to the original marriage must have been divorced, on the grounds of presumption of innocence on the part of the parties consummating the second marriage, and that the burden of proof is on the plaintiff in this ease to overcome such presumption.” She contends, however, that she is not required to give plenary proof in order to overcome said presumption, and urges that the evidence in this case has been sufficient to rebut the said presumption and shift the burden to the defendant to establish by competent testimony the fact of the divorce.

• It would appear from this concession of the appellant and the decision of the lower court that we need go no further. The nonexistence of a divorce is a negative averment, and it is the general rule that a party is not required to make plenary proof of such negative averment. It is enough that he introduces such evidence as, in the absence of all counter-testimony, will afford reasonable grounds for presuming that the allegation is true, and, when this is done, the onus proVandi will be thrown on his adversary. In this case the lower court decided that this has not been done, and therefore gave judgment for the defendant. This judgment was reached after considering the entire evidence in the ease. The court in its decision recognized the rule that plenary proof was not required, and gave judgment for the defendant because of the failure of plaintiff to overcome the presumption of the divorce, or, if the divorce was taken as proven, to overcome the presumption of its validity. It is clearly a judgment based upon the weight and effect of the evidence as determined by the court that heard the testimony and saw the witnesses on the stand. It has been so repeatedly decided by this court that an appellate court will not consider the weight of evidence when there is any substantial evidence to support the verdict of a jury or the finding or judgment of a trial court that it is unnecessary to cite authorities in support of such rule.

The appellant has stated that this appeal is one of law alone, but asks that a careful perusal of all the testimony contained in the abstract be made. We have, in compliance with her request, carefully examined all of the evidence in the case, oral and documentary. We have likewise examined the authorities cited, so far as we have been able to obtain them. We have failed to find in any of the cases cited anything to warrant us in setting aside the finding of the lower court. The appellant in the lower court testified that she received a summons in a divorce suit; that some weeks afterward she went to her former home and her husband refused to receive her; that, after she had broken into the house, they had a conversation; she does not give in evidence any of the conversation further than to say that he then told her that he was going to leave her and marry another woman; that he threw in her lap a paper, saying it was a divorce, and that she did not look to see whether it was or not. She says: “He told me I couid not stay there. I don’t remember the conversation we had at that time, only I know he did not want me to stay there. ’ ’ When asked if McCord told her he was going to marry another woman, she says: “I think he told me he was going to marry her.” When asked: “Did he tell you that then?” She replied: “I presume he did. I don’t remember distinctly whether he did or not.” When asked by the court, “When he threw that paper in your lap, what did he say about it?” she answered, “He said that was a divorce.” By the Court: “I don’t understand whether you thought that was a divorce then, or that he was going to be divorced.” She answered: “That that was the divorce.” She and her children returned to Shawano, where they afterward lived until after McCord’s death. She appears to have never openly or publicly questioned the validity of that divorce during the thirty years that followed. She permitted McCord to marry twice, without apprising either of the innocent women or the public at large that there was any question about the validity of the divorce, and now, after his lips have been sealed, and there. is no one other than herself that has the means of ascertaining the validity of this divorce, she comes into court and questions its validity, without any evidence that she has any further knowledge in regard thereto than she had on the day when it was given her. She does not produce it in court. She, the only one except the dead man who ever saw it, or could know from what court it emanated, withholds from the court all information that would enable any investigation to be made. She makes the improbable statement that she never read it. It seems very unlikely that a woman would fail to examine a paper of such vital importance to her under such circumstances. If the divorce was invalid, the information in that paper would have enabled her to have set it aside, or at least to advertise its invalidity, and prevent the guilty party from perpetrating a fraud upon an innocent woman, from violating the laws of the land, and imposing upon the public generally. The only evidence we have on this subject is the inference that we may draw that she considered it invalid from the fact that twelve years thereafter, in the heat of a political campaign, McCord was willing to pay her $3,000 as she testified, to keep still, and that she did keep still for that consideration, and never again spoke of it until after his death.

After a thorough examination of all the evidence in the case, I adhere to my first impression, that the finding and judgment of the trial court based thereon, not only cannot be disturbed by an appellate court, but that it is amply sustained thereby. In reaching this conclusion, I considered it immaterial whether the trial court may have held the divorce thus proved by the appellant to be valid, and considered her conduct and acquiescence therein at the time, and her inconsistent declarations and actions now, only as affecting her credibility, or held her to be estopped now to attack an invalid divorce by reason of her silence and acceptance of it as valid during all these years while the rights'.of other parties have intervened, under the rule that “he who is silent when conscience requires him to speak shall be debarred from speaking when conscience requires him to keep silent.” Evans v. Woodsworth, 213 Ill. 404, 72 N. E. 1082; Hammond v. Hammond, 49 Tex. Civ. App. 482, 108 S. W. 1024; Pittinger v. Pittinger, 28 Colo. 308, 89 Am. St. Rep. 193, 64 Pac. 195.

The judgment of the lower court should be affirmed.

CAMPBELL, J. — Mr. Justice DOE and I concur in the affirmance of the judgment in this case on the ground that the appellant under the facts of the case is estopped from asserting her rights as the wife of McCord.

PER CURIAM. — The judgment of the district court is affirmed.

LEWIS, J., deeming himself disqualified, took no part in the determination of this case.