12 N.E. 737 (Ill. 1887), Cartwright v. McGown

Citation:12 N.E. 737, 121 Ill. 388
Opinion Judge:[121 Ill. 395]SHOPE, J.
Party Name:CARTWRIGHT and others v. McGOWN.
Case Date:June 17, 1887
Court:Supreme Court of Illinois

Page 737

12 N.E. 737 (Ill. 1887)

121 Ill. 388

CARTWRIGHT and others



Supreme Court of Illinois

June 17, 1887

Error to Montgomery.

This was a bill filed by William F. Cartwright and others, the brothers, sisters, and mother of Braxton B. Lewis, deceased, and the heirs of his deceased brothers and sisters, for the partition of certain lands of which the said Lewis died seized. The bill is framed on the theory that the deceased left no lawful issue capable of taking from him by inheritance. It appears that Lewis was on April 29, 1841, lawfully married to one Sarah James, in Caldwell county, in the state of Kentucky; that he lived with her there for about one year, when he abandoned her, left Kentucky, and came to this state, where he resided up to the time of his death, which was on January 10, 1868. One child was born of this marriage, which died in infancy on February 26, 1845. The said Sarah filed her bill in the circuit court of Caldwell county against the said Braxton B. Lewis for a divorce, charging desertion for over three years, and defendant's marriage in Illinois, which resulted in a decree of divorce on December 12, 1846. It appears from the records of the Montgomery county clerk's office given in evidence that on December 11, 1843, said Lewis was formally married to one Zerelday Cacey, under a license issued out of the said clerk's office; the ceremony having been performed by one J. W. Woods, a minister of the gospel, who certified to the fact of the marriage. In the license Miss Cacey's name was written 'Seralda Cacey,' and in the minister's certificate 'Serelda Cacey.' Lewis lived with Zerelday as his wife up to the time of his death, and always recognized and treated her as his lawful wife. They had four children born unto them, which Lewis always recognized as his own. Three of these children died in their early infancy and prior to his death. Only one of them, Mary A., survived him. She was born October 31, 1851, and was married to Able A. McGown, February 20, 1868. On January 9, 1870, she gave birth to a son, Oliver F. McGown. She died July 10, 1870, leaving this son as her only heir at law. He died July 10, 1870, leaving his father Able A. McGown his only heir. Zerelday Lewis died intestate February 4, 1885. The bill made Able A. McGown party defendant, charging that he claimed some interest in the premises. He answered the bill, and set up the marriage of Lewis with Zerelday Cacey in Montgomery county, in this state, without stating when it was celebrated; charged the making of valuable improvements by him upon the lands, and the payment of all taxes for more than seven successive years, with possession, and setting up the statute of limitations and laches as a bar to the relief sought. On the hearing upon the pleadings and proofs the bill was dismissed, and the complainants below prosecute this writ of error.

Page 738

[121 Ill. 395]SHOPE, J.

The right to have partition of the lands described in this bill depends upon the fact whether Braxton B. Lewis, at his death, left any lawful issue capable of taking from him by inheritance. He left one child, Mary A.; his other children having died while mere infants. It is not denied by the plaintiffs in error that he was formally married to one Zerelday Cacey, mother of this child, December 8, 1843, in Montgomery county, in this state, under a license issued out of the office of the clerk of the county court of that county, nor that he afterwards lived and cohabited with her as man and wife up to his death, and recognized the issue of such cohabitation as his children; but it is claimed that this marriage was absolutely null and void, for the reason that Lewis had, at the time of its solemnization, a lawful wife then living in Caldwell county, in the state of Kentucky, from whom there was no divorce.

The marriage of a man and woman, when one of them has a husband or wife by a prior marriage who is then living and undivorced, is void, and not merely voidable. Being a nullity, no decree is necessary to avoid the same. Reeves v. Reeves, 54 Ill. 332; Drummond v. Irish, 52 Iowa, 41, 2 N.W. 622; Blossom v. Barrett, 37 N.Y. 434; Janes v. Janes, 5 Blackf. 141; Tefft v. Tefft, 35 Ind. 44; Glass v. Glass, 114 Mass. 563; Martin v. Martin, 22 Ala. 86. [121 Ill. 396] A void marriage is good for no legal purpose, and its invalidity may be shown in any court between any parties either in the life-time of the parties thereto or after their death.

There can be no doubt of the fact of the prior marriage of Lewis to Sarah James, in Caldwell county, Kentucky, and that he abandoned her in less than a year after their marriage, and came shortly after to Montgomery county, in this state, and that such prior wife obtained a divorce from him in the circuit court of Caldwell county, Kentucky, in December, 1846, some three years after his second marriage. The first marriage is satisfactorily shown by the record evidence thereof, and the testimony of many witnesses who were present at its celebration, and knew the parties. Defendant in error contends that the evidence does not sufficiently show that the marriage with Zerelday was in 1843, or at any time prior to the divorce in Kentucky; but that the facts and circumstances are such as to afford presumptive evidence of a common-law marriage after the divorce. The marriage certificate on file in the proper office shows that this marriage was celebrated on December 8, 1843, by one J. W. Woods, a minister of the gospel. The proof also shows that Woods was a minister of the gospel, and that Lewis cohabited with this woman as his wife up to his death, and that she was always reputed to be his wife. No importance is attached to the fact that the woman's name in the marriage license was written 'Seralda,' and in the minister's return thereon 'Serelda.' The evidence shows beyond dispute that Zerelday Cacey was the person named in the certificate of marriage and the license. If this was the only marriage of Lewis, there could be no doubt of the sufficiency of the evidence to establish the same. It could not be invalidated by any mistake in the spelling of a name. Every reasonable and fair presumption will be indulged for the purpose of upholding a marriage, and establishing the legitimacy of the offspring. When the celebration of a marriage is once shown, [121 Ill. 397] the contract of marriage, the capacity of the parties, and in fact everything necessary to the validity of the marriage, in the absence of proof to the contrary,

Page 739

will be presumed. Caujolle v. Ferrie, 26 Barb. 177; Fleming v. People, 27 N.Y. 329; Strode v. Magowan, 2 Bush, 627; 1 Bish. Mar. & Div. § 457; Lawson, Presumptive Ev. 104-107; People v. Calder, 30 Mich, 85; State v. Kean, 10 N.H. 347.

The presumption of the capacity of Lewis to enter into the marriage contract with Zerelday Cacey, December 8, 1843, is overcome by proof of his prior marriage in Kentucky, and that his wife by that marriage was still living and undivorced at that time. This proof established the fact that the second marriage, in 1843, was a nullity, conferring no marital rights whatever. A simple marriage ceremony will not make a man and woman husband and wife. Capacity and consent are absolutely essential, but celebration only contingently so. Thompson v. Thompson, 114 Mass. 566; Merriam v. Wolcott, 61 How. Pr. 377; Rundle v. Pegram, 49 Miss. 751. Nor can sexual intercourse, which the parties know to be contrary to law, form even an element of marriage. Peck v. Peck, 12 R.I. 485; Port v. Port, 70 Ill. 484.

This formal marriage being void, do the facts and circumstances proved create a presumption of a lawful marriage of Lewis and Zerelday after the divorce in 1846? No record of any subsequent marriage has been produced, nor has any witness testified directly as to any such marriage; but it is strenuously insisted that the evidence will justify the court in presuming a common-law marriage of the parties after the impediment to their legal marriage was removed. While our statute prescribes certain formalities to be observed in marriages, and certain steps to be taken to preserve the evidence of their celebration, it does not declare a marriage void which is legal at the common law, merely because not entered into in accordance with its provisions. [121 Ill. 398] Port v. Post, 70 Ill. 484. A marriage is a civil contract made in due form, by which a man and woman agree to take each other for husband and wife during their joint lives, unless it is annulled by law, and to discharge towards each other the duties imposed by law upon such relation. Each must be capable of assenting, and must in fact consent to form this new relation. If a statute forbids the solemnization of marriage without a license, still, in the absence of a clause of nullity, the marriage will be good, though no license was had. 1 Bish. Mar. & Div. § 284. The proof here fails to show any license for the marriage of Lewis after the divorce; but, on the contrary, the clerk of the county court, the keeper of the public records relating to marriages, testified that he had carefully examined those records and failed to find any other marriage license than that issued in 1843.

Nor is there any direct evidence of any marriage of the parties after the divorce, per verba de proesenti, or per verba de futuro cum copula; but the court is asked to infer such a marriage from the long-continued cohabitation of the parties, and their reputation of being married at some time. When the consent to marry is manifested by words de proesenti, a present assumption of the marriage status is necessary. As said in Van Tuyl v. Van Tuyl, 57 Barb. 237: 'As the law stands, a valid marriage, to all intents and purposes, is established by...

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