LATTIE PHILLIPS et al., Appellants, v. DOVIE WILSON et al.
SUPREME COURT OF MISSOURI
April 6, 1923
298 Mo. 186
Division One
2. —————: —————: —————: Evidence Considered. In determining whether there was substantial evidence to support the general finding of the trial court, sitting as a jury in an action at law, just as in considering the verdict of a jury, the appellate court can only consider the evidence of the respondents, and the verbal evidence of appellants admitted to be true, and their undisputed record evidence; and the weight and credibility of appellants’ evidence was for the trial court.
3. MARRIAGE: Without Divorce: Voidable: Legitimacy of Children. Although a marriage may be unlawful, because the man had a living wife at the time, from whom he was not divorced, if the woman married in good faith believing that death or divorce had removed all obstacles to the marriage, such marriage is deemed voidable only, and not void, and the children of such marriage are legitimate, and may inherit, as legal heirs, from their parents.
4. —————: —————: —————: Belief That Man Had Been Divorced: Evidence. Testimony by the woman, at the time an ignorant country girl eighteen years of age, that the man, aged forty-seven, whose former wife was her aunt and whom she knew to be living, but who had separated from him, assured her that he was “loose” from his said former wife and was free to enter into common-law marriage with her, and that she believed his statements and agreed to marry him upon such assurance, is in effect testimony that she believed that divorce had dissolved his former marriage, and that he was free to marry her; and being a respondent in this action at law, her testimony must be assumed to be true, and therefore it must be ruled that she acted in good faith, and that her children by him during their subsequent marital relations are legitimate.
6. —————: —————: Consideration of Contrary Evidence. On appeal from a judgment in an action at law, in which no instructions were asked or given, appellants’ verbal testimony tending to prove that there had been no divorce of respondent‘s husband from a former wife, prior to his marriage to her, cannot be considered, but only the testimony of respondents will be considered, which, in this case, standing alone, shows a valid common-law marriage by reason of the woman‘s belief that he had been divorced from his former wife and her entrance in good faith into marital relations with him and the continuous uniform claim and repute of one another as husband and wife.
7. —————: —————: Subsequent Marriage of First Wife: Affidavit. A ceremonial marriage of the man‘s former wife, two years after she and he had separated, rаises a strong presumption that she was at the time divorced from him, and is substantial evidence to support a finding that there was a valid common-law marriage between him and respondent; and an affidavit attached to the marriage certificate of said former wife with her second husband to the effect that she was then single and unmarried, even if not otherwise competent, not being objected to in the appellate court, is material evidence of said fact.
8. —————: —————: —————: Remarriage: Dower: Incompetent Evidence on Appeal. Both the man and his first wife having married other spouses and the presumption being that their marriage was dissolved by divorce, the burden is on her, in her claim for dower in his real estate, to show either that there was no divorce or a divorce in her favor.
Appeal from Butler Circuit Court.—Hon. Almon Ing, Judge.
AFFIRMED.
Gregory & Holtzendorff, Cope & Tedrick and E. G. Hammons for appellants.
Henson & Woody for respondents.
(1) Where a marriage is contracted between a man and a woman, either ceremonial or common law, the presumption obtains that their conduct was in conformity to law, until the contrary is shown, and the burden is on the person asserting the contrary. Maier v. Brock, 222 Mo. 74; Jackson v. Phalen, 237 Mo. 142; Nelson v. Jones, 245 Mo. 579; Murray v. Scully, 259 Mo. 57; Johnson v. Railroad, 203 Mo. 381. (2) To constitute a common-law marriage therе must be (a) a man and a woman competent to contract, (b) they must enter into a contract by which they assume the relation of husband and wife for their joint lives, (c) there must be a consummation of the contract by cohabitation, and (d) they must be reputed generally to be husband and wife. Perkins v. Silverman, 284 Mo. 238; Bishop v. Inv. Co., 229 Mo. 699; Topper v. Perry, 197 Mo. 531; Cargile v. Woods, 63 Mo. 501; Elzas v. Elzas, 171 Ill. 632; Plattner v. Plattner, 116 Mo. App. 405; Davis v. Stouffer, 132 Mo. App. 555. (3) The note and deed of trust executed by Warren Wilson and Dovie Wilson, as also the order of the Probate Court of Butler County denying letters of administration on the estate of Warren Wilson, were competent as proving the marriage between these parties. Bishop v. Inv. Co., 229 Mo. 699; Topper v. Perry, 197 Mo. 531; Plattner v. Plattner, 116 Mo. App. 405. (4) This bеing an action at law, the finding of the trial court, sitting as a jury, is binding upon this court,
SMALL, C.—Ejectment for 171½ acres of land in Butler County.
Answer, a general denial, except admission that defendants are in possession. Further answering, defendants state that they and the plaintiff Luella Williams are the owners in fee simple, subject to the dower interest of defendant Dovie Wilson, of said property. That plaintiffs Lattie Phillips and J. F. Holtzendorff claim adversely, but have no rights in said property; wherefore, defendants pray the court to determine and quiet title between the parties, аccording to the statute in such cases made and provided.
The case was tried before the court without a jury. No instructions were asked or given. The court found a verdict and rendered judgment, that defendants and plaintiff Luella Williams were the owners of the property, as claimed by defendants, and the other plaintiffs had no interest therein.
Plaintiffs duly appealed to this court.
The evidence showed that both parties claimed through Warren Wilson, as a common source of title. He acquired ownership by deed dated March 27, 1902, and recorded March 11, 1904.
Plaintiffs’ evidence tended to show that Warren Wilson moved onto said farm in October, 1902. That he was accompanied by the defendant Dovie Wilson, who lived with him as his wife. That they lived together as husband and wife, and always claimed, privately and publicly, to be husband and wife, and were so reputed generally in said community, from the time they moved there in 1902, until the time of his death in 1915. That when they moved to said farm they had no children, but afterwards five children were born to them, the oldest of whom was eighteen years old at the time of the trial, and the youngest eight years, the oldest being married to Henry
The plaintiff Lattie Phillips testified for plaintiffs, and it was admitted by defendants, that she was married to Warren Wilson in 1895 in Prairie County, Arkansas. That the plaintiff Luella Williams was her daughter, and the daughter of Warren Wilson, as the fruit of that marriage. Said Lattie Phillips then testified: She and her husband, Warren Wilson, lived in Prairiе County, Arkansas, and separated in 1902, when Wilson went to Missouri. The separation took place in June, 1902. Before the separation, Wilson sold all the livestock and personal property he had on the farm; he also took all the household goods, except a sewing-machine, cookstove and some old chairs, which the witness received. He also gave her ten dollars in money, and she went back to reside at her mother‘s home in said county. Wilson realized about nine hundred dollars from the property he sold. Wilson left their home in Arkansas with Samanthia Johnson (defendant, Dovie Wilson). “She is my niece, and I have known her ever since she was a little baby. She has visited with us, but never lived with us. She was at our home when my husband and I separated, and was still there when I came back after my things. There was familiarity between her and my husband before our separation. They were all the time together, off to themselves, always with one another, they were out with each-other. I was away about a week. I was at Little Rock, during the first part of June, staying with my mother; some one stayed with him. She was at my home when I went to my mother‘s, and they stayed there alone until they left in the fall. She was also there when I got back from my mother‘s, although she did not say she was there during my absence. I was never divorced from Warren Wilson, nor was I ever served with process incidental to
On cross-examination, the witness testified: “I was married to J. G. Phillips by a man named Sanders, who was a justice of the peace in Prairie County, Arkansas, in 1904, and have lived with him as his wife ever since. We have lived in Prairie County, Arkansas, in thе same county where Warren Wilson and I lived, since 1904. Warren Wilson and I agreed to separate in May, 1902. I went to my mother‘s at Little Rock to wait on her. I came back and then left again in June. She [defendant, Dovie Wilson] came to our house in February on a visit, and when I went to wait on my mother she stayed there until I came back. The day he took me to the railroad station, he told me that he didn‘t intend to live with me any more, and I went to my mother‘s in Little Rock, as I had no other place to go. He lived there at the same place, where we had both lived, аfter I had gone to live with my mother. That was in the spring of 1902. He left early in that fall, and I only saw him twice before he left. I went there to get what he was to let me have, which was one time, and Samanthia was there with him; and the next time I saw him was just a little while before they left and moved up here. He at that time tried to get my cookstove. A few years ago he came back to Arkansas after some tools and other things I had taken to my mother‘s with me through mistake. He came back after the box of tools, and told me where to send the rest of the stuff, which I shipped to him to Williamsville, Missouri, where he told me. After our separation, when I went back, the defendant, Dovie Wilson, and he were living together, no one else living there with them. Warren Wilson came back on a visit a year or two before he died, and I saw him then. My daughter was married, she was at my house, and he came to see her. He said nothing about his Missouri home. All I knew about his living in Missouri with Dovie Wilson was what her brother told me. She wrote to her brother all the time, He
The deposition of F. L. Grady was taken and read on behalf of the plaintiffs. He testified: That he was County Clerk of Prairie County, Arkansas, and had charge of the marriage records of that county. That such records contain a marriage license of J. Warren Wilson to Lattie Raper. That exhibit “A” attached to his deposition, is a certified copy of that record. Said exhibit “A” contained copies of four separate documents, to-wit: 1st, a marriage affidavit; 2nd, a bond for marriage license; 3rd, a marriage license; and 4th, a certificate of marriage. They showed that on the 8th of September, 1895, there was a ceremonial marriage before a justice of the peace of Prairie County, Arkansas, between J. War-ren Wilson, age forty years, and Miss Lattie Raper, age twenty-six years.
The deposition of G. C. Stock was read by plaintiffs. He testified: That he was chief deputy clerk of the circuit and chancery courts of Prairie County, Arkansas, and as such had charge of the records of said courts. That he examined the divorcе records of said courts, going back over a period of thirty years, and found that no suit was ever instituted for a divorce by Warren Wilson against Lattie Wilson, or by Lattie Wilson against Warren Wilson, and no decree of divorce ever entered, for or against either of said parties, according to the records of said courts. That the chancery court was the court which had jurisdiction in divorce cases.
Several other witnesses, relatives of the parties, testified for plaintiffs: That Warren Wilson and Samanthia Johnson lived a short time together at Wilsоn‘s former home in Arkansas, and then left together.
Allye Macom testified for plaintiffs: “I am deputy circuit clerk of this county (Butler County, Missouri), and as such have charge of the divorce records of the county. I have made an examination of such records
Defendants, to sustain the issues on their part, offered in evidence a certified copy of the marriage certificate of J. G. Phillips and Lattie Wilson, certified by the county and probate clerk of Prairie County, Arkansas, under his hand and official seal. This certificate contained four documents: 1st, an affidavit; 2nd, a bond for marriage license; 3rd, a marriage license; and 4th, a certificate of marriage. It showed a ceremonial marriage before a justice of the peace of Prairie County, Arkansas, on the 11th day of September, 1904, between J. G. Phillips, age fifty, and Mrs. Lattie Wilson, age thirty-eight. The “affidavit of marriage” was as follows:
“CERTIFICATE OF MARRIAGE.
“State of Arkansas, )
“County of Prairie, ) ss.
“Southern District. )“In the office of the Clerk of the County Court of said County.
“Marion Floyd, of the County of Prairie and State of Arkansas, being duly sworn, deposes and says that J. G. Phillips, who has this day applied to me for License of Marriage, and that he has arrived at the age of 50 years and that Lattie Wilson has arrived at the age of 38 years; that they, the parties for whom said application is made, are now single and unmarried, and may lawfully contract and be joined in marrige.
“MARION FLOYD.
“Sworn to and subscribed before me this 10th day of Sept. A. D. 1904.
“EMMET VAUGHN,
“Clerk County Court.
“By JNO. I. BOOE, D. C.”
“Filed 10th day of Sept., 1904. Recorded 10th day of Sept., 1904.
EMMET VAUGHN, Clerk,
“By JNO. I. BOOE, D. C.”
Defendant, Dovie Wilson, testified: “I live in Butler County, Missouri, near Upalika, on the farm owned by Warren Wilson. I live with my children, which are also the children of Warren Wilson. There are only four of them living with me now, as one of them is married and lives with her husband. Warren Wilson died January 25, 1915. Warren Wilson and his former wife separated in April, 1902, and I begun living with him as his wife the first of June, 1902. At the time we begun living together, he and his first wife were living separate and apart. Warren Wilson never made love to me before he and his former wife separated. Neither were there аny intimate relations between us. We did have an agreement to live together as man and wife, so long as we both lived. We made the agreement in June, 1902, and lived together from that time until he died. We occupied the same bed, lived in the same house, and raised a family of five children. I was eighteen years of age at the time of our agreement and knew nothing of legal procedure. I was raised in Prairie County, Arkansas. He told me it was all right, that he was loose from his other wife, and this would be a good common-law marriage, and that it would hold good. I don‘t know whether he ever got a divorce from his former wife or not. I do not know where he was all the time after they separated, and before we settled down and came up here. I don‘t know where he went to, when he first came to Missouri, as I was not with him. Warren Wilson died on the farm where the children and I were living. They had lived with me ever since my husband died, and none of them knew, until this case came up, but what Warren Wilson and I were married by an officer authorized to perform a marriage ceremony and with a regular license.”
On cross-examination, she testified: “My namе in Prairie County, Arkansas, was Dovie Samanthia John-
Plaintiffs then admitted that some eight or ten witnesses offered by defendants would testify, if placed upon the witness stand, that Warren Wilson and Dovie Wilson were known generally in the community in which they lived as husband and wife from the year 1902 until the time of Warren Wilson‘s death, and that they raised this family of five children and were living together at the time of the death of Wilson on this farm. It was also shown that on the 23rd of December, 1914, Warren Wilson and Dovie Wilson made a deed of trust оn said
I. The pleadings in this case are at law. No equitable features are alleged, either in the petition or the answer, and no equitable relief is prayed for. The issues, therefore, are strictly legal. And the case, having been tried by the court, sitting as a jury, we are bound by the decision of the court on the facts, and cannot consider the evidence in the case de novo. [Sawyer v. French, 290 Mo. 1. c. 384-5, 235 S. W. 126; Bank v. Wilson, 222 S. W. (Mo.) 381.]
II. This being a suit at law, and no instructions having been asked or given, the judgment below must be affirmed, if there is any substantial evidence to support it. [Hunter v. Weil, 222 S. W. (Mo.) 472; First Natl. Bank v. Wilson, 222 S. W. (Mo.) 381; Railroad v. So. Ry. News Co., 151 Mo. 1. c. 380-1; Sutter v. Raeder, 149 Mo. 1. c. 307.]
III. In determining whether there is such substantial evidence, this court on appeal can only consider the evidence of the respondents, and verbal evidence of the plaintiffs admitted to be true, and the undisputed record evidence of the plaintiffs, because it was the province of the lower court, sitting as a jury, to pass upon the weight and credibility of the verbal testimony given by the witnesses for plaintiffs, and that court having found against them, we are concluded by that finding, the same as if the finding had been made by the verdict of a jury. [Sawyer v. French, 290 Mo. 1. c. 388, 235 S. W. 126.]
V. Is there any substantial evidence, in this case, that Dovie Wilson, at the time she says she entered into the common-law marriage with Warren Wilson, supposed or believed in good faith, that he was divorced from his former wife? She says he told her that he was free or “loose” from his former wife, and could еnter into a lawful common-law marriage with her, although he never told her that he was divorced from his former wife, or that she was divorced from him. She was but an ignorant country girl at that time, about eighteen years old, and he was forty-seven years of age. She says she believed that he was free to marry her, as he said he was; if so, assuming that she knew the law, she must have believed that divorce had separated him from his first wife, although he did not say so in so many words. If this be true, which we must assume, she acted in good faith in entering into such marriage, and her children are legitimate. [Stripe v Meffert, supra; also, Nelson v. Jones, 245 Mo. 579, оpinion by LAMM, J., where the facts were very similar to the facts before us.]
VI. Furthermore, the law, in the absence of testimony to the contrary, presumes from the mere fact that Warren Wilson and Dovie Wilson entered into the mar-
But on this appeal, inasmuch as no instructions were asked or given, we cannot consider appellants’ verbal evidence tending to prove there had been no divorce, but we can only consider the testimony of respondents (Paragraph 3, supra) which, standing alone, shows a valid common-law marriage by reason of the long, continuous cohabitation, and uniform claim and repute and holding out of each other by Warren Wilson and Dovie Wilson as husband and wife. [Nelson v. Jones, supra.]
Besides, the affidavit attached to the marriage certificate of Lattie Phillips with her second husband made in 1904 states that she was then single and unmarried. This affidavit, even if not otherwise competent evidence, not being objected to in this court, is to be considered as material evidence of the facts therein stated on this appeal. [Sawyer v. French, 290 Mo. 1. c. 385-6 et seq.]
Indeed, the ceremonial marriage of Lattie Wilson and J. G. Phillips in 1904, of itself, raises a very strong presumption, that she was at that time divorced from Wilson, her first husband. [Maier v. Brock, 222 Mo. 74, and other cases cited, supra.]
So that, there was substantial evidence to support the finding of the lower court, that there was a valid common-law marriage between Warren Wilson and Dovie Wilson, and that their children were legitimate.
VII. Both Warren Wilsоn and his first wife, Lattie, having remarried, and the presumption being that their first marriage was dissolved by divorce, the burden is upon her, when she claims dower in his estate, to show either there was no divorce or a divorce in her favor. This, she has not done under the only evidence we can consider in the record
Finding no reversible error in the judgment below, it is affirmed. Lindsay, C., concurs; Brown, C., not sitting.
PER CURIAM:—The foregoing opinion by SMALL, C., is adopted as the opinion of the court. All of the judges concur.