Williams v. Williams
| Decision Date | 25 March 1879 |
| Citation | 1 N.W. 98,46 Wis. 464 |
| Parties | WILLIAMS v. WILLIAMS |
| Court | Wisconsin Supreme Court |
APPEAL from the Circuit Court for Kenosha County.
Judgment reversed and cause remanded for a new trial.
John T Fish, for appellant:
1. The instructions given by the court upon the subject, and its refusal of those asked by defendant, gave the jury to understand that proof of marriage by cohabitation as husband and wife, acts and declarations of the husband recognizing her as his wife, and conduct of the parties, was sufficient although they should find that no legal marriage was ever solemnized or contracted between them. In other words, the court substituted evidence of marriage for marriage itself. The charge leaves out all question as to the reputation of the parties. To establish marriage by circumstantial evidence, proof that the plaintiff, during the cohabitation was of good repute in the community, was indispensable, as appears by all the authorities cited on the other side. Mere proof that the parties resided together as husband and wife and that the reputed husband, by acts and declarations, recognized the other party as his wife, is not conclusive of a marriage in fact; though, where the rights of third parties are concerned, as where one, on the faith of the conduct of the alleged husband, has furnished the alleged wife with necessaries, such conduct may create an estoppel. The instruction also ignores the question whether the parties were reputed to be husband and wife in the community where they resided; though that is an essential element in the proof, as appears from all the cases cited for the respondent. And the law is, that the inference of marriage arising from cohabitation and repute is rebutted by showing that the cohabitation was illegal at its commencement. Williams v. The State, 44 Ala., 24; Physick's Estate, 2 Brewster (Pa.), 179; Bicking's Appeal, id., 202; Hunt's Appeal, 10 Ch. L. N., 384; The Accounting in Christie's Estate, 1 Tucker (N. Y. Surr.), 81; In the matter of Angevine's Estate, id., 178. 2. A decree of divorce by a competent court, having jurisdiction of the parties, is conclusive as to the status of those parties at the time of the rendition of such decree. 2 Bish. on M. and D., 4th ed., §§ 264, 362, 754--5, 765; Freeman on Judgments, § 313; Bigelow on Estopp., 144; Story's Conflict of Laws, §§ 200-230, 597; 1 Greenl. on Ev., § 554; 2 id., § 461; Hood v. Hood, 110 Mass., 463; Burlen v. Shannon, 3 Gray, 387; Smith v. Smith, 13 id., 209; Dorsey v. Dorsey, 7 Watts, 350; Jackson v. Astor, 1 Pinney, 157, 158; Vilas v. Reynolds, 6 Wis. 214, 228; Amory v. Amory, 26 id., 152.
J. V. Quarles, for respondent:
1. There was no error in refusing defendant's instructions as to proof of marriage. (1) The first of these would have restricted the inquiry to a marriage "solemnized," i. e., performed with solemn or ritual ceremonies. The second is faulty because it refers only to a marriage solemnized or contracted "after November, 1870," and not after the divorce spoken of. 1 Bishop on M. & D., § 508. Besides, the word "actual" might well have misled the jury to believe that what is called a marriage in fact or ceremonial marriage, was intended. The word is so often used by legal writers in this sense, that it is a question whether it has not acquired this technical meaning. The third instruction was merely equivalent to saying that if the jury found that the evidence did not prove a marriage, then the evidence was insufficient to substantiate it. This was a mere truism, the refusal to give which could be no error (Burns v. Elba, 32 Wis. 605); yet it might have served as a trap for the jury. (2) It is not disputed that, by the common law and by the law of this state, a marriage per verba de proesenti is valid. Proof of any facts or circumstances from which marriage may be inferred, is admissible. Such facts and circumstances were in evidence, and their proper weight was attributed to them in the instruction given; and there is no ground for saying that the court mistook evidence of marriage for marriage itself. But it is a fact that the best authorities fail to distinguish between these circumstances used as evidentiary facts, and as constituting marriage itself. 1 Bishop on M. & D., § 508. And it is difficult to see why continued acts and declarations should not be considered, not only as implying consent, but as consent itself. (3) It is claimed that the inference of marriage arising from cohabitation or repute is rebutted by showing that the cohabitation was illegal in its commencement. But this must depend upon the circumstances of the case. Here the plaintiff and Lewis Williams, Sr., cohabited together as husband and wife down to the time of his death; during all this time, by his acts and declarations, he held her out as his wife; they visited his acquaintances and relatives as married people, and were everywhere received as such; they joined in a conveyance of land; they evinced fully their intention and desire to live together in actual lawful marriage; and they had come together in the first instance, not as deliberately choosing concubinage, but under a marriage properly solemnized. If persons under a disability come together intending and choosing illicit commerce, it may be that no presumption that they have changed their minds arises from a continuance of the relation after the impediment is removed; though there are authorities against this position. But it would be contrary alike to reason and authority, to hold that a similar rule would obtain where the intention and choice of the parties were manifestly innocent. The better authority is, that, under the circumstances present in this case, a marriage may be inferred after the removal of the disability, even though the facts indicate that no formal consent was ever afterwards interchanged. 1 Phillipps on Ev. (C. H. & E.'s notes), 631; 1 Bishop on M. & D., §§ 506, 508, and cases there cited; Jackson v. Claw, 18 Johns., 347, 350; Fenton v. Reed, 4 id., 52, 54; Rose v. Clark, 8 Paige, 574, 580 et seq.; In re Taylor, 9 id., 611, 614 et seq.; Physick's Estate, 4 Am. Law Reg., N. S., 418, 430; McReynolds v. State, 7 id., 736, 740; Holabird v. Ins. Co., 12 Am. Law Reg., N. S., 566, 568; Wilkinson v. Payne, 4 Durnf. & E., 468; Lyle v. Ellwood, 11 Moak's Eng. R., 702, 710-12, and note; De Thoren v. Att'y Gen., 17 id., 72, 75, 77, 80. 2. The judgment divorcing plaintiff from Jones is not conclusive as to the validity of her marriage to Jones. Plaintiff is not bound by that judgment as against defendant, unless defendant and all the world are also estopped by it; for estoppels must be mutual, and one party cannot take advantage of any judgment unless he also is bound thereby. Co. Litt., 251a; Lansing V. Montgomery, 2 Johns., 382; Bouv. Law Dic., "ESTOPPEL." Unless, therefore, the decree of divorce conclusively established the validity of the marriage to Jones as against the whole world, it is not conclusive as against plaintiff in this action. Some citations are made from text writers which seem to sustain the position that the decree is conclusive upon that point (2 Bishop on M. & D., §§ 264, 362, 754, 755, 765; Bigelow on Estoppel, 144); but it is believed that no adjudication here or abroad can be found to sustain it, and that either the somewhat ambiguous language of those writers has been misapprehended by counsel on the other side, or that the statements of those writers are founded on misapprehension of the decisions. The judgment in the divorce action was simply that the said marriage theretofore existing, etc., be and the same was thereby dissolved. There was a finding, indeed, that each and every allegation of the complaint was true; but the finding cannot enlarge the effect of the judgment. A judgment of divorce cannot in terms affirm the marriage, or be a direct adjudication on its validity; for its sole function is to dissolve it. True, the marriage must have been proved and found before a judgment of divorce could properly be rendered; but a judgment "does not conclude any third person in reference to the facts which it necessarily affirms or denies." "The sentence, to have this effect, must of course be a direct adjudication upon the specific fact of the marriage, or its dissolution; and a finding which might be inferred argumentatively would be attended with no such results." 2 Bishop on M. & D., § 745. If, for example, adultery were the only cause for which divorce could be granted, then the judgment of divorce would affirm the adultery as necessarily as it would the marriage; yet no one would claim that it was conclusive of the party's guilt in another action. The true rule seems to be, that the judgment of divorce is conclusive only as to the status conferred thereby, i. e, that after divorce all persons are estopped from denying the freedom of the parties from matrimonial obligation to each other. 1 Greenl. on Ev., § 525; Burlen v. Shannon, 3 Gray, 387, 389. The rule and its reasons are stated in 2 Phillips on Ev. (C., H. & E.'s notes), * 74: "The state or legal character conferred on a person by the ecclesiastical courts shall give him certain rights and subject him to certain liabilities." We find accordingly that it is the sentence alone which can have this effect. The examples given illustrate the extent of the rule. "Letters of administration are conclusive that the person therein appointed administrator is such." Again: "Where the object of the suit has been directly to deprive a person of the legal character of husband or wife . . . the sentences of nullity of marriage, or of divorce, appear to have the effect of establishing conclusively the state and legal character of parties, for and against all persons." That is, the act of the court is...
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