72 P. 1081 | Utah | 1903
after stating the foregoing facts, said:
The only contention in this case is whether, in respect to the plaintiff and defendant, the legal status of marriage arose ■ from the ceremony performed in the Logan Temple. Appellant’s counsel contend that it did not, and in support of that contention claim:
I. That Mary Ann Knell, under and by virtue of the common law, was the legal wife of the defendant at the time of his alleged marriage with the plaintiff, and that the latter is therefore a plural wife.
There was no statute on the subject of marriage in
In the case of Maynard v. Hill, 125 U. S. 190, 210, 8 Sup. Ct. 723, 31 L. Ed. 654, 659, Mr. Justice Field, in the opinion, said: “It is also to be observed that, whilst marriage is often termed by text-writers and in decisions of courts a civil contract — generally to indicate that it must be founded upon the agreement of the parties, and does not require any religious ceremony for its solemnization — it is something more than a mere contract. The consent of the parties is, of course, essential to its existence; but, when the contract to marry is executed by the marriage, a relation between the parties is created which they cannot change. Other contracts may be modified, restricted, or enlarged, or entirely released, upon the consent of the parties. Not so with marriage. The relation once formed, the law steps in and holds the parties to various obligations and liabilities.”
In Randall v. Krieger, 23 Wall. 137, 23 L. Ed. 124, 126, Mr. Justice Swayne said: “Marriage is an institution founded upon mutual consent. The consent
The legal status of marriage' rests solely upon the basis of a civil contract, in which the contracting parties mutually consent and agree to be bound by the “various obligations and liabilities” which by operation of law arise from the relations of the contracting parties upon the consummation of the marriage. One of the essential obligations of a valid marriage contract is
In the case of Hyde v. Hyde, supra, it áppears that the petitioner, Hyde, in 1853, at Salt Lake City, Utah, married Miss Hawkins. Both were members of the Mormon Church, and Brigham Young, president of the church, performed .the marriage ceremony. They cohabited as man and wife in said city until 1856, when Hyde apostatized and went to England. Afterwards his wife was married to Woodmansee and Hyde instituted a suit for divorce in England, and alleged as a ground the adultery of his wife. Both Hyde and Miss Hawkins were single at the time they were married, and polygamy was a part of the Mormon doctrine, atíd was prevalent among the members of that church. Lord Pen-zance, before whom the case was tried, said: “It is necessary to define what is meant by ‘marriage.’ In
In re Bethell, supra, it appears that Bethell, an English subject, married Tepoo, who was a member of a semi-barbarous tribe of the Baralongs. Polygamy prevailed among the members of the tribe, and the marriage was consummated in accordance with the custom, which is as follows: “When the consent of the parents has been obtained, the bridegroom slaughters a sheep, a buck, an ox, or a cow. The head of the animal is taken to the bride’s parents, as also the hide, which is cleaned and softened. They are then considered married, and after the birth of the first child the number of the cattle previously agreed upon is handed over to the wife’s parents.” The doctrine of the case of Hyde v. Hyde was approved iand followed, and Stirling, J., after quoting from that case and from the opinion of Lord Brougham in the celebrated case of Warrender v. War-render, 2 Cl. & F. 532, 533, in which the same doctrine was held, said: “I conceive that, having regard to these authorities, I am bound to hold that a union formed between a man and a woman in a foreign country, although it may there bear the name of a marriage, and the parties to it may there be designated husband and wife, is not a valid marriage according to the law of England, unless it is formed on the, same basis as márriage throughout Christendom, and be in its essence
We are of the opinion that, notwithstanding
2. It is further contended by appellant that, prior to his marriage with the plaintiff, he, on the 10th day of May, 1885, entered into a formal marriage before a justice of the peace with Mary Ann Knell.
While it is clear that there was a formal ceremony
In view of the foregoing testimony, and the fact that at the time the justice performed the ceremony Mary Ann Knell and Mary Roland were his plural wives, and that after the ceremony he continued to cohabit with both as his wives, as he had previously done, it is clear that the ceremony before the justice of the peace was a ruse resorted to for the purpose of disqualifying Mary Ann Knell as a witness, and not with the intention of disturbing his polygamic relations then existing, and refutes the idea that the parties intended to consummate a monogamic marriage.
3. The appellant also contends that he married the plaintiff as a plural wife.
It appears from the evidence that both the
"We are clearly of the opinion that none of the three women mentioned became the legal wife of the appellant, but that their relations to him were those of plural wives, and he did not, therefore,* incur the legal obligations of marriage in respect to either of them. We are, however, of the opinion that he became, and still is,
It is therefore ordered that the judgment be reversed, with costs, and the case remanded, with directions to the court below to dismiss the complaint.