Smith v. Fuller

Citation138 Iowa 91,115 N.W. 912
PartiesSMITH v. FULLER ET AL. (FOUR CASES).
Decision Date07 April 1908
CourtUnited States State Supreme Court of Iowa

OPINION TEXT STARTS HERE

Appeal from District Court, Pottawattamie County; N. W. Macy, Judge.

Action in equity to establish plaintiff's dower in certain lands, of which one Frank Smith died seised. The trial court dismissed plaintiff's petition, and she appeals. Reversed and remanded.

See 108 N. W. 765.

Jacob Sims, for appellant.

Turner & Cullison, W. H. Killpack, and Ira R. Stitt, for appellees.

DEEMER, J.

One Frank E. Smith at one time owned the lands in controversy. He sold a tract to defendant Richards in the year 1888, and in the conveyance described himself as an unmarried man. In the years 1890 and 1891 he sold tracts to defendant Griffith, his wife, Anna, joining in the conveyance. In the year 1899 he sold other tracts to defendants Fuller and Grobe, and in the conveyance described himself as a widower. Plaintiff claims that she married Smith in the year 1875; that she was never divorced from him, was his lawful widow at the time of his death; and that she never released her dower interest in any of the lands sold by him to the defendants. Defendants claim title under their conveyances from Smith, and deny that plaintiff is Smith's widow. The facts in the case are complicated, and the application of the law thereto of considerable difficulty. It appears that plaintiff was married in April of the year 1872 at Farmington, Iowa, to one Sylvanders. They lived together as husband and wife for three or four months, when Sylvanders left home with the ostensible purpose of going to Burlington, Iowa, on a business trip, and so far as the record shows has never since been heard from. Plaintiff continued to live in Farmington until September, 1875, when she claims to have married Smith, who for a number of years had resided in that vicinity; the marriage, according to her contention, having been solemnized by a justice of the peace at the town of La Grange, in the state of Missouri. On the same day, or very soon thereafter, they returned to Lee county, Iowa, announced their marriage to their friends, and lived together there or in that vicinity as husband and wife for about seven years, excepting one year of that time, during which Smith was absent. The testimony is ample and undisputed that they called themselves husband and wife, and held themselves out to the world as bearing that relation, and on at least one occasion joined as husband and wife in the execution of a mortgage. One child was born of this union. In the year 1882 Smith left, saying that he was going to Council Bluffs; but there is no evidence that he expressed any purpose of abandoning the plaintiff, or that he in any manner denied or repudiated her as his wife. From that time plaintiff claims not to have had any word from him for nearly 20 years, except that she heard and believed that he was dead. Before Frank E. Smith made plaintiff's acquaintance, and during a part of the time while he lived at Farmington, it appears that for a time he lived with a woman called “Net” or “Nettie.” The nature of their relations is not clearly shown, but the testimony is to the effect that some time before Smith met the plaintiff this woman disappeared, having left her then home with a traveling man. Who she was, where she came from, whether married to Smith, and, if married, whether she be dead or divorced, no one professes to know. We believe from the testimony, however, that she lived with Smith as his housekeeper and mistress. Some seven years after Smith left plaintiff on his announced trip to Council Bluffs, plaintiff was married in Lee county, Iowa, to one Dickinson, and with him she lived as his wife until his death in the year 1902. When Smith left plaintiff, he took up his residence in Pottawattamie county, Iowa, where in the year 1889 he married one Ann Norton, with whom he lived until her death. Thereafter he married another woman known as Mrs. Scheyli, with whom he lived until he procured a divorce from her some time prior to the year 1902. In the year 1902, soon after death and the divorce court had released the parties as above stated from their last prior matrimonial entanglements, Smith returned to the plaintiff, and in November, 1902, a marriage ceremony was performed between them, and they lived together until his death put an end to the chapter of their connubial complications. Plaintiff says that the reason that this last marriage ceremony was performed was, because, since their separation she had been married and lived with another man, she thought that, in order to live with Smith again, she ought to be married to him. It is admitted of record that during the period between his separation from plaintiff and their final reunion in 1902 Smith became vested with the title and ownership of the several tracts of real estate involved in these controversies, and made conveyances thereof under and through which the appellees derive their title; and that plaintiff never relinquished her dower right, if any she had, in any part of said property. It is shown, also, that the court records of the counties of Lee, Van Buren, and Pottawattamie, the only counties of which either Smith or plaintiff was a resident, during the period of their separation disclose no decrees of divorce or divorce proceedings between them.

Counsel for defendants very strenuously insist that plaintiff and Smith were never married, in fact; that if they were married in form the marriage was illegal, for the reason that one or both then had a husband or wife living from whom he or she was not divorced; and that plaintiff never in fact became the legal wife of Smith until the year 1902, which was after Smith sold the lands in controversy to the defendants in these actions. It is said that, at the time when plaintiff claims she married Smith, her former husband, Sylvanders, was living and not divorced, and that Smith was then the husband of the woman “Nettie.” The vital questions in the case are: (1) Were plaintiff and Smith ever married prior to November, 1902; and (2) if so, were there any such impediments to the marriage as to make it void? Whether or not there was either a ceremonial or common-law marriage between plaintiff and Smith in the year 1875 at La Grange, Mo., or at any other place, is purely a question of fact. There is no record evidence of any such marriage in Missouri, as claimed by plaintiff; but such testimony is not required to show the marital relation. That may be established by direct testimony of eyewitnesses by testimony of one of the contracting parties, by admissions and confessions of the parties while living together, by testimony as to cohabitation, and repute during the time the parties are living together, and by other recognized legal testimony. Gilman v. Sheets, 78 Iowa, 499, 43 N. W. 299;Kilburn v. Mullen, 22 Iowa, 498;State v. Williams, 20 Iowa, 98;State v. Wilson, 22 Iowa, 364;Drinkhouse's Estate, 151 Pa. 294, 24 Atl. 1083;Hayes v. People, 25 N. Y. 390, 82 Am. Dec. 364;Casley v. Mitchell, 121 Iowa, 96, 96 N. W. 725;Moore v. Heineke, 119 Ala. 627, 24 South. 374;Badger v. Badger, 88 N. Y. 546, 42 Am. Rep. 263;Hager v. Brandt, 111 Iowa, 746, 82 N. W. 1016;State v. Nadal, 69 Iowa, 478, 29 N. W. 451.

The individual members of the court have gone over the record with care, and reach the satisfactory conclusion that plaintiff and Frank E. Smith were married in the year 1875; but it is argued that this marriage was void and of no effect, for the reason that plaintiff was then the wife of Sylvanders, and Frank E. Smith the husband of the woman “Nettie.” In addition to the presumption which obtains in such cases that neither of these parties was guilty of a crime, we are constrained to hold that the woman “Nettie” was never married to Smith, that his relations with her were wholly meretricious, and that these relations never changed. We shall not set out the testimony on this point, as to do so would unduly extend this opinion. No claim is made of any ceremonial marriage, and the testimony is insufficient to show a common-law marriage between them. As to plaintiff, however, there is no doubt that she had been married at the time of her marriage to Smith. There is no showing that she even obtained a divorce from her former husband, and no showing that her former husband, Sylvanders, had obtained a divorce from her. In other words, there is no testimony whatever regarding that matter. Plaintiff lived with Sylvanders but three months, when he left under the circumstances above disclosed, and has not since been heard from. Plaintiff's marriage to Smith was but three years after Sylvanders left, and at that time there was no presumption that he was dead, at least the circumstances are not sufficient to show his death prior to the time of the marriage to Smith. There is, however, as we have said, a presumption in this case that there was no impediment to plaintiff's marriage to Frank E. Smith. This presumption sometimes is of death and sometimes of divorce. In re Edwards, 58 Iowa, 437, 10 N. W. 793; Bishop, Marriage and Divorce, § 457, and cases cited. For the purposes of this case, we may concede that under the showing made there is no presumption that Sylvanders had obtained a divorce at any time, and yet there is a presumption of death where one goes away and becomes lost to all his associates, relatives, and friends for the period of seven years. After the expiration of that period death is presumed; but there is no inference from that fact alone as to the exact time during this seven-year period when the death occurred. Seeds v. Grand Lodge, 93 Iowa, 175, 61 N. W. 411. Where, as here, two presumptions are to be dealt with, the presumption of innocence is the stronger, and it follows that in such cases the presumption that death occurred before the marriage to Smith is the stronger and must obtain. Cooper v. Cooper, 86 Ind. 75;Johnson v. Johnson, 114 Ill. 611, 3...

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