85 So. 73 | Miss. | 1920
Lead Opinion
delivered the opinion of the court.
This is a suit begun by the appellant, the husband,- for the purpose of having his marriage with the appellee declared void, or, if that cannot be done, for a divorce,
The bill of complaint alleges that the marriage of the appellant to the appellee is void for the reason that at the' time it was solemnized the appellee had a living husband. The appellee’s motion for alimony pendente lite was heard by the court below on the testimony of herself alone in support thereof and on the testimony of the appellant alone in opposition thereto. From their testimony it appears that they agree upon the following facts: They were married at Orownpoint, Ind., in October, 189®, and that the appellee had been formerly married to one Perrin, who was then living; that in 1902 the appellee sued for and obtained a divorce from Perrin in the city of Chicago on the ground of desertion; that the appellant and the appellee lived together as, and were considered by themselves and the public to be, husband and wife for about twenty-five years, twelve of which, immediately preceding the year 1918', were spent by them in the state of Mississippi; that in October, 1918, this suit was begun by the appellant. It does not appear where the appellant and the appellee lived after their marriage at Crownpoint; Ind., until they came to 'Mississippi. The validity of the divorce granted the appellee in Chicago is not questioned by tbe appellant, but, on the contrary, he alleges it in his bill of complaint and filed a copy of it as an exhibit thereto.
The appellee testified that after Perrin deserted her Jae wrote to her, stating that he had obtained a divorce, and that she could marry again if she so desired; that she believed this to be true and informed the appellant prior to their marriage that she had been divorced from her former husband; that in 1902 Perrin came to see her and suggested that they obtain a divorce, the expense of which would be defrayed by him; that she informed the appellant thereof, and that he raised no
The appellant testified that the appellee told him at the time of their marriage that her former husband was dead, but that some months thereafter, he having become suspicious of the truth of that statement, she told him that she had been divorced from Perrin; that he did not discover that this was not-true and that the appellee obtained a divorce from Perrin in 1902 until some time during the year 1918. On cross-examination he admitted that she might have told him in 1902 of her intention to obtain a divorce from Perrin; that he did not recall her having told him, but would not swear that she had not. In answer to the question, “You won’t say that you did not have that information?” he replied, “I might have; you understand one is information and one is knowledge.”
Marriage being the foundation of the husband’s obligation to support his wife (McFarland v. McFarland, 64 Miss. 449, 1 So. 508), the correctness vel non of the decree of the court below awarding the appellee alimony pendente lite depends upon whether or not it appears from the testimony, at least prima facie, that the appellee is the lawful wife of the appellant (Reed v. Reed, 85 Miss. 126, 37 So. 642).
The marriage of the appellee to the appellant in 1893 at Crownpoint, Ind., being void for the reason that she was then the wife of another, the question for decision is whether or not their relations after the appellee obtained the divorce from Perrin in 1903 has resulted in a common-law marriage. _
Proceeding now to set forth the reasons for the opinion of Judges Stevens, Cook, and Smith, two questions arise. First, is a common-law marriage valid in Mississippi? and, second, does the evidence- disclose a common-law marriage between the parties hereto?
Prior to the Code of 1802 a common-law marriage was undoubtedly valid in this state, and such a marriage is expressly recognized by section 3249, Code of 1906 (section 2556, Hemingway’s Code). As this statute appears in the Code of 1892:, as section 2864 thereof* it is as follows:
“A marriage shall not be contracted or solemnized unless a license therefor shall first have been duly issued, and such license shall be essential to the validity of a marriage.”
But when brought forward in the Code of 1906 as section 32491 (Hemingway’s Code, section 2556), the following language was added thereto:
“But no irregularity in the issuance of or omission in the license shall invalidate any marriage, nor shall this section be construed so as to invalidate any marriage that is good at common law.”
The two provisions of this statute seem to be in conflict, but, if the two methods therein dealt with by which the bonds of matrimony may be entered into are kept in mind the seeming conflict will disappear. The first of these methods is a ceremonial marriage solemnized pursuant to a license obtained therefor, which marriage will be valid and binding, although not followed by co
In most of the states where a common-law marriage is recognized such a marriage may be formed merely by the the use of words of present assent, per verba prcesenti, though not followed by cohabitation, but the common-law marriage referred to in the statute here in question must, of course, be held to be suich as this court had recognized prior to the statute’s enactment; in other words, the statute deals with the common law of the state of Mississippi.
This court has not heretofore expressly decided that' a common-law marriage is authorized by the statute hereinbefore set forth, but that such a marriage is so authorized seems to have been assumed in Thompson v. Clay, 120 Miss. 190, 82 So. 1, and to hold otherwise would be in effect to rewrite the statute under the guise of judicial construction and to eliminate therefrom the provision recognizing common-law marriages, which provision the legislature manifestly intended to be effective.
It is not clear, or at least we will assume that it is not, from the appellee’s testimony, that she and the appellant entered into a new marriage agreement after she obtained the divorce from Perrin, but no such new agreement was necessary, for the reason that her marriage with the appellant in Indiana was entered into by both of them, according to her testimony, which the court evidently accepted as true, in good faith, under the belief that her marriage with Perrin had been dissolved, and after its dissolution in 1902 they, the appellant and
“Their conduct towards each other in the eye of the public (after the removal of the impediment to their marriage taken in connection with their previous association, was equivalent! in law to a declaration by each that they did, and during their joint lives were to, occupy the relation of husband and wife.” Traverse v. Reinhardt, 205, U. S. 423, 27 Sup. Ct. 563, 51 L. Ed. 865.
^There has been considerable discussion as to whether a new marriage agreement must be entered into upon the removal of an impediment to a valid marriage of persons cohabiting as husband and wife. The cases dealing therewith seem to be divided into three classes, as will appear from a collation thereof in note to Turner v. Williams, 3 A. R. C. 165, and 18 R. C. L. 436. The first class, which seems to be in the majority, holding that no such new agreement is necessary in any case; the second, that no such new agreement is necessary where the marriage void because of an impediment thereto was contracted in good faith; and the third, and this class seems to be in the minority, that such new agreement is necessary in all cases
The majority rule is thus aptly and concisely set forth in 1 Bishop on Marriage, Divorce, and Separation, 422:
“If the parties desire marriage, and do what they can to render their union matrimonial, yet one of them is under a disability, as where there is a ipxior marriage undissolved, their cohabitation, thus matrimonially meant, will in matter of law make them husband and wife from the moment when the disability is removed; and it is immaterial whether they knew of its existence, or its removal, or not.”
The principle underlying the decision of Howard v. Kelly, 111 Miss. 285, 71 So. 391, Ann. Cas. 1918E, 1230, would seem to require this court to align itself with those courts deciding the first of these classes of cases,, but
That it does not appear from the evidence where the parties hereto lived after the rendition of the decree divorcing the appellee from Perrin until they came to Mississippi, which seems to have been in the year 1906, is of no consequence, for the reason that, whether or not their relations resulted in a valid marriage in any state in which they may have lived after the rendition of the Perrin divorce decree and 'before they came to Mississippi their conduct towards each other here, “taken in connection with their previous association, was equivalent in law to a declaration by each that they did, and during their joint lives were to, occupy the relation of husband and wife.” Travers v. Reinhardt, 205 U. S. 423, 27 Sup. Ct. 563, 51 L. Ed. 865.
Affirmed and remanded.
Dissenting Opinion
(dissenting).
I am unable to agree that the Chancellor’s order was right in ordering temporary alimony upon the record before us. I have several reasons, but will first address my views to the two propositions discussed in the opinion of the Chief Justice: First, is a common-law marriage valid in Mississippi? and, second, does the evidence disclose a common-law marriage between the parties?
In order to discuss this question properly, it will be necessary to refer to the statutes upon that subject. Section 3245, Code of 1906 (section 2552, Hemingway’s Code), provides that marriage licenses shall be granted and issued by t]ie clerk of the circuit court of the county
“License Essential. — A marriage shall not he contracted or solemnized unless a license therefor shall first have been duly issued, and such license shall he essential to the validity of a marriage. But no irregularity in in the issuance of or omission in the license shall invalidate a.nv marriage, nor shall this section he construed1 so as to invalidate any marriage that is good at common law. ”
Other sections require the circuit clerk to' procure marriage records and. keep separate records of white and colored races; Construing these statutes together, it is manifest that the legislature intended to keep a public fie cord of each marriage entered into in any county, and the importance of such records cannot well he overestimated. Prior to 1892 there was no such section as 324.9. Code of 1906 [section 2556. Hemingwav’s Code). In 1892 for the first time the Legislature en'acted a statute making a license essential to the validity of a m'arriage, this section reading
The words in this section “unless the license shall first have been duly issued” caused some persons to be apprehensive as to the construction that might be placed upon these words. Other sections prescribed how the license should be issued, and it was feared that it might be held on construction that the language “duly issued” would make a literal compliance with the statute mandatory. So the latter part of the section as now written was added, expressly providing that: “No irregularity in the issuance of or omission in the license shall invalidate any marriage, nor shall this section be construed so as to invalidate any marriage that is good at common law.”
It is a familiar rule of construction that a statute will be so construed as to give effect to every part of it. If the opinion of the chief justice and those concurring therein is correct, no effect whatever can be given to the first part of the section, and especially that clause which says, “and such license shall be essential to the validity of the marriage.” This clause is absolutely written out of the book of three judges of this court. A statute should not receive such construction as would render any of its provisions vain and useless. Martin v. O’Brien, 34 Miss. 21; Fitzgerald v. Reed, 67 Miss. 473, 7 So. 341; Koch v. Bridges, 45 Miss. 247; Swann v. Buck, 40 Miss. 268; Adams v. Y. & M. V. R. R. Co., 75 Miss. 275, 22 So. 824.
Taking the entire statute together and giving effect to each of its provisions, it is impossible for me to reach a conclusion in harmony with the opinion of the chief justice. Manifestly the purpose of the amendment in 1906 was to prevent mere’irregularities in the ceremonial part of a marriage from avoiding the mar
The clause of the statute under review, “nor shall this section be construed so as to invalidate any marriage that is good at common law,” clearly refers to the ceremonial part of a marriage and to marriages already solemnized. This construction would make the statute harmonious, to preserve all of the essential-features of the- entire section and harmonize with the general legislative policy indicated by a consideration of the whole chapter on marriage. What reasoning mind can attribute to the legislature the purpose, to require a marriage under a license to go through a process of ceremony, a solemn return, and a, recordation of the whole subject if the mere unexpressed agreement or mere living together as man and wife will suffice to satisfy the law. No possible public good can result from such a construction, but, in my view, the gravest mischief will follow the construction attempted to be placed upon the statute. ' Under the ,common law of marriage no record need be made, and notwithstanding the possible secrecy of a marriage would make void any subsequent marriage. The evil of the common-law system was that it placed in the power of unscrupulous persons to appear upon the scene and prove a secret common-law marriage after a person’s death when in the very nature of things it was impossible for the rightful heirs and wife to disprove such contentions. In many cases property was taken from the rightful heirs and rightful wife, and all of the penalties of dishonor and bastardy were inflicted upon the helpless children.
I see no reason for permitting a marriage to be solemnized or entered into clandestinely and secretly. I cannot understand why any person desiring to enter into the marriage state should object, or not be required, to make some record thereof. No person, however righteous, can be sure that after his or her death tbe earnings of his lifetime will go to those for whom it was intended, nor can he be sure that it may not be swept away from them by unscrupulous persons and perjured testimony which it would be utterly impossible to successfully refute or contest.
On the second proposition, as' to whether there was an agreement sufficient to constitute a common-law marriage, I am unable to agree that there was. The appellee’s testimony on this point is wholly insufficient to show a common-law marriage according to the laws of this state after the removal (if there was a removal) of the impediment of the former marriage.
The testimony by Mrs. Sims in substance stated:
“That her first husband came to see her in 1902, some nine years' after her alleged marriage with Sims, and asked her to go down with him to get a divorce to make everything safe.
“Q. T)id you tell Mr. Simls about that? A. Yes, sir.
“Q. That was in 1902? A. Yes, sir.
“Q. What did he say? A. He didn’t say anything about it. He asked who was going to pay the expenses, and I told him that my first husband was. Í went down, and when it was all over I met Mr. Sims, and we went to lunch together, and he didn’t say anything about it. because I thought he was a gentleman.
“Q. Did Mr. Sims continue to live with you as your husband after this divorce was granted in 1902'? A. Yes, sir.
In Thompson v. Clay, 120 Miss. 190, 82 So. 1, in the second headnote it is said: “Where both parties knew at the time of an attempted marriage that the mían had a living undivorced wife, their relation was illegal in its inception, and it must be presumed, in the absence of proof to the contrary, that such illegal relation continued after the death of the legal wife as before, since the change from an illegal to a legal relation in such cases requires more than a mere continuance of living tog-ether after the removal of the obstacles to marriage.”
In Blanks v. Southern Ry. Co., 82 Miss. 703, 35 So. 570, it was held that a married woman cannot contract a common-law marriage, and that cohabitation, however long continued, between a married woman and an unmarried man, will not ripen into a common-law marriage, although from the beginning they agreed to be husband and wife and constantly claimed and held themselves out to the world to be married to each other.
In Floyd v. Calvert, 53 Miss. 37, and in Rundle v. Pegram, 49 Miss. 751, it was held that Constitution 186Í9, article, 12, section 22, providing that persons living together as husband and wife at the time of the adoption of the Constitution should to be held to be husband and wife; that this section does not impose a marriage upon anyone except those who are willing- and consenting to- and actually cohabiting1 in, the relation of husband and wife and accepting and recognizing each other as husband and wife. It did not intend to sanctify the marriage relation between a man and woman because they were cohabiting together as man and wife, although such living tog-ether may have extended through many years, and although it may have been public and no
The attempted distinction between the case before us and Thompson v. Clay, supra, is fanciful rather than substantial. In that case it appeared from the agreed statement of facts that Ben Clay legally married Polly Johnson in 1890 and they lived together as man and wife for some years and separated. Polly moved to Sharkey county and lived there until her death, August 29, 19131 In the meantime Ben Clay had married in Washington county to Virginia Clay, and from November 30, 1901, until Ben Clay died in January, 1916, they lived together as man and wife; in other words, after the death of the first wife and after the impediment was fully removed, Ben Clay and Virginia Clay lived together as husband and wife, but the court held that that did not constitute a common-law marriage.
In Clark v. Clark, 115 Miss. 726, 76 So. 638, this court held that a man already married and not divorced cannot marry another, and a purported marriage between them
Judges Hodden and Sykes: agree with -me on the two propositions above announced.
There are other reasons, however, appearing from the record, though not raised by counsel, but which go to the validity of the alleged divorce that in my personal opinion avoids the divorce. The other j'udgeg do not care to take up and consider this proposition at this time, but, as the chancellor’s order is involved, and he has not rendered a final decision in the matter, I desire to call attention to them. It appears from Mrs. Sims’ testimony that she was married at Oownpoint, Ind., about 1889 to a man named Perrin, and that he deserted her in Indiana and went over into Illinois. She remained in Indiana until 1893, when she entered into an ostensible marriage with Sims. She says that in 1903 her first husband came to see her and suggested that they get a divorce in order to keep matters straight, he to.pay the expense thereof, to which she agreed, and that she went with him to Chicago and filed a proceeding in divorce and got a decree, which was introduced in evidence in the case. In this: decree her first husband, Perrin, was defendant, and she was complainant. It was obtained by them agreeing with each other that a divorce should be procured, and the defendant paid the expense thereof. It was a patent fraud upon the
‘ ‘ The proceedings shall he had in the county where the complainant resides, biut process may be directed to any county in the state.”
Paragraph 2, same page, reads as follows: “No person shall be entitled to a divorce in pursuance of the provisions of this act, who has not resided in the state one whole year next before filing his or her bill or petition, unless the offense or injury complained of wa.s committed within this state, or whilst one or both of the parties resided in this state.”
This statute has been held by the Illinois supreme court to be jurisdictional. Spangler v. Spangler, 191 Ill. App. 28; Albee v. Albee, 43 Ill. App. 370; People v. Beattie, 137 Ill. 553 (27 N. E. 1096, 31 Am. St. Rep. 384). In the sixth syllabus to this last decision the rule is stated as follows:
“Where a wife seeks a divorce from her husband in this state for cruelty or desertion committed outside of this state, she must show that she has resided in the state one whole year next before the filing of the bill. Without the jurisdictional fact — one year’s residence in the state — all proof of cruelty or desertion in another state becomes wholly immaterial and Worthless.”
Quoting the statute above set out at page 569i of 137 Ill., at page 1101 of 27 N. E. (31 Am. St. Rep. 384), the court says:
“Therefore, where a wife seeks a divorc from her husband in Illinois for act of cruelty which have been
In Hamilton v. Hamilton, 89 Ill. 349, the court held a contract void made between husband and wife in settlement of alimony though there was no agreement that there would be no defense to the suit; the court stating that it would encourage collusion, and that divorce could not be g-ranted under the laws of that state where there was collusion between the parties. So also Danforth v. Danforth, 106 Ill. 603, People v. Case, 241 Ill. 279, 89 N. E. 638, 25 L. R. A. (N. S.) 578, and Belz v. Belz, 33 Ill. App. 105, where the same doctrine is announced.
It further appears from the bill and the testimony in this easel that the parties moved to Mississippi after the alleged divorce in Illinois and prior to the amendment to the Code in 1906. The wife testified that she lived in Meridian about twelve years, and that she had moved from Mferidian about two years prior to the time of the trial, and the plaintiff’s bill showing that they moved to the city about fourteen years before the filing of the bill, which wak filed October 9, 1919', which would make the removal be in October, 1905.