125 Va. 295 | Va. | 1919
after making the foregoing statement, delivered the following opinion of the court.
The assignments of error raise the questions which will be considered and passed upon in their order as stated below.
1. Does the preponderance of the evidence in the cause establish that there was a valid marriage of Arthur Reynolds and his reputed wife, the adult appellee, under the statute law of New Jersey?
As said by this court in Womack v. Tankersley, 78 Va. 242:
“* * * Such admissions of a prior marriage in another State are sufficient evidence of such marriage, without proving the marriage to have taken place agreeably to the laws of the State. Such admissions and acts are competent evidence not only of the fact of marriage, but also of its
The case quoted from was a civil case, being a suit for partition of real estate, and involved the question of the legitimacy of the plaintiff. The only evidence to prove the marriage of her father and mother was that the father asked for the mother in marriage, and, being refused, requested a sister to accompany them when they went away to be married, and the sister declining to go, they went away from home to be married; were gone ten days; on their return, they both said they had been married in the adjoining State of North Carolina; they cohabited as man and wife a few days until the return of the father to the Confederate army, and were recognized as such by the immediate family; the father being wounded in battle, died about a month thereafter, without ever returning home; the following February the mother gave birth to the plaintiff; the mother was thereafter recognized as the widow of the deceased soldier by her immediate family and by the Confederate military authorities, from whom, as such widow, she drew rations, and 'the plaintiff was from her birth recognized as the legitimate child of her father by such immediate family. "But á brother of her deceased mother appeared as a witness in the case, and, as said in the opinion of the court, testified “to facts, in the most positive manner, which, if true, fixed upon his aged mother the crime of perjury, and upon his dead sister the character of a public prostitute, and úpori his own niece * * * the stigma of illegitimacy. His testimony is not only positive that there was no such
This court, in such case, affirmed the decree of the court below, holding that the proof established that the marriage, which took place in another State, was a legal marriage.
On the whole, we are not satisfied that there is any error in the decree under review upon the question we have under consideration.
Again, in Shipman v. Fletcher, 91 Va. 487, 22 S. E. 463, this court said: “The judgment of a court of competent jurisdiction is entitled-to great weight. It is always presumed to be right until the contrary is shown.”
The question under consideration must, therefore, be answered in the negative.
Having reached this conclusion, it becomes unnecessary for us to consider the question of whether there was a common law marriage in the case under review, or whether if there was it would be recognized under the laws of this State.
But two questions remain for our consideration.
This question must be answered in the negative.
The cases of Bowden v. Parish, 86 Va. 67, 70, 9 S. E.
We deem it sufficient to say with regard to these matters that, if there was any existing charge upon the real estate in the will mentioned or any lien thereon in favor of or belonging to these appellees, they have not as yet asserted any such claim in their pleadings in the cause..
Under section 2564 of the Code as amended (4 Pollard’s Code, p. 415), such appellees may yet assert any claim or lien upon the land they may have, if any, and if established, the proceeds of sale for partition may be applied thereto.
There was no error in the decree under review in that it did not go outside of the issues in the cause to protect rights of parties thereto asserted in argument, but not in the pleadings therein. The jurisdiction of the court below was limited to the issues made by the pleadings, and the same is true of our jurisdiction on appeal.
For the foregoing reasons, we are of opinion to affirm the decree complained of.
Affirmed.