120 S.W. 1167 (Mo. 1909), Maier v. Brock

Citation:120 S.W. 1167, 222 Mo. 74
Opinion Judge:WOODSON, J.
Party Name:BARBARA MAIER, Appellant, v. T. W. BROCK et al
Attorney:Henry Leist and Thomas & Hackney for appellant. McReynolds & Halliburton for respondents.
Case Date:July 01, 1909
Court:Supreme Court of Missouri

Page 1167

120 S.W. 1167 (Mo. 1909)

222 Mo. 74



T. W. BROCK et al

Supreme Court of Missouri, First Division

July 1, 1909

Appeal from Jasper Circuit Court. -- Hon. Hugh Dabbs, Judge.


Henry Leist and Thomas & Hackney for appellant.

(1) The trial court erred in holding that a divorce between plaintiff and her husband should be presumed on account of subsequent marriages under a different name. The court erred in holding that plaintiff could not recover. The presumption of a valid marriage springing from the proof of the three marriage ceremonies performed in America is rebutted by the proof that the marriage with plaintiff is valid, that she was still living and had been true to her marital vows, and that the first marriage had not been dissolved in the jurisdiction where she lived. 8 Ency. Evidence, 464; Cole v. Cole, 153 Ill. 585; Gilman v. Sheets, 78 Iowa 499; Barnes v. Barnes, 90 Iowa 282; Ellis v. Ellis, 58 Iowa 720; Williams v. Williams, 63 Wis. 58, 89 Am. St. Rep. 206. (2) In addition to showing that plaintiff was never divorced from her husband in Germany, that she never heard of any divorce, that she never gave him any cause for any divorce, which facts would repel the presumption that subsequent marriages were valid simply by reason of the marriage ceremony being performed, the proof showed that the delinquent husband had gone to parts unknown in America and had changed his name; and in each of his subsequent marriages and the proceedings affecting the marriages in America, he studiously concealed his true name by which he married plaintiff but used the assumed name. The fact of the changing of the name and concealing his true name would, when added to the other facts above referred to, overcome the presumption of a divorce. He was not, while in America, assuming the attitude of a free man, but was hiding his identity to escape the obligations which he had assumed when he married plaintiff. Under such circumstances there can be no presumption arising from his three subsequent marriages that he was ever divorced from plaintiff. Casley v. Mitchell, 121 Iowa 96; Cozier v. Hinchey, 143 Mo. 203; Green v. Green, 126 Mo. 17. (3) Under the statutes of the State of Missouri in force at the time that plaintiff's husband acquired this property, an alien could purchase and hold real estate in Missouri, and the wife of an alien previous to said time was held entitled to dower. Stokes v. O'Fallon, 2 Mo. 32; Green v. Green, 126 Mo. 17. An alien may take by descent. Burk v. Adams, 80 Mo. 504. And under the law as it exists in Missouri to-day, aliens shall be capable of acquiring, by devise or descent, real estate in this State, and of holding, devising or alienating the same. R. S. 1899, sec. 4762. Sec. 4764, R. S. 1899, expressly provides that the prohibition of this section shall not apply to cases in which the right to hold or dispose of lands in the United States is secured by existing treaties to the citizens or subjects of foreign countries, which rights so far as they may exist by force of such treaties shall continue to exist as long as such treaties are in force. Article 2 of the treaty of 1844, concluded between the United States and the Kingdom of Wurtemberg (see compilation of treaties in force, prepared under Act of July 7, 1898, Washington Government Printing Office 1899, page 656), is as follows: "Where on the death of any person holding real property within the territories of one party, such real property would, by the laws of the land, descend on a citizen or subject of the other were he not disqualified by alienage, such citizen or subject shall be allowed a term of two years to sell the same -- which term may be reasonably prolonged, according to circumstances -- and to withdraw the proceeds thereof, without molestation and exempt from all duties of detraction." It is held in Wunderly v. Wunderly, 144 Ill. 40, that the treaty with Wurtemberg was not abrogated by the absorption of that State into the German Empire, and is, therefore, still operative; that the treaty is the law of the land superior to any law which the Legislature could pass; that like any other law its construction and application to particular questions are questions for the courts; that the clause "which term may be reasonably prolonged according to circumstances" means nothing more than that in cases where the circumstances are such as to make it reasonable that such aliens, in order to preserve their rights, should have further time in addition to the term of two years in which to sell their interest in the lands, such further time as may be reasonable under the circumstances shall be allowed; that the treaty should be construed to give it practical effect rather than to make it ineffectual; that the treaty of December 11, 1871, between the United States and the German Empire merely recognizes existing treaties between the United States and certain of the German States which became parts of the German Empire. See also: Scharpf v. Schmidt, 172 Ill. 255; Haunstein v. Lindham, 100 U.S. 483; Wilson v. Wall, 6 Wall. 83. (4) There is no pretense in this case that Josef Maier was in fact ever divorced from plaintiff, and to require plaintiff to search the records of every court of every State in the United States and every Territorial court and the courts of Germany and other countries, to show that there was no record of such a divorce, would be without reason and would work injustice. Besides, it cannot be conceived that a man who had changed his name and was hiding his identity under an assumed name would be applying to any court for a divorce under his true name.

McReynolds & Halliburton for respondents.

(1) (a) Two of the marriages showing a strict compliance with the laws of Missouri, the burden is on plaintiff to prove no divorce was ever obtained by Joseph G. Meyer, and such proof must be made by evidence strong, distinct, satisfactory and conclusive. The fact that Barbara Maier had never obtained a divorce and had never heard of her husband obtaining one and that no divorce was obtained in Jasper county, Missouri, is not sufficient. Johnson v. Railroad, 203 Mo. 386; Klein v. Landman, 29 Mo. 259 (is leading case on question); Waddingham v. Waddingham, 21 Mo.App. 609; Franklin v. Lee, 62 N.E. 78. (b) "As invalidity of marriage cannot be established like any other question of fact, as every presumption must be overcome by satisfactory proof, the burden of proof is always on the party attacking the validity of the marriage." Johnson v. Railroad, supra; Leech v. Bank, 99 Mo. 684; Patterson v. Gaines, 6 How. (U.S.) 550; King v. Twyning, 2 Barn. & Ald. 386; Rex v. Harborne, 2 Ad. & El. 540; 1 Bishop, Mar. & Div., sec. 547; In re Davis's Estate (Pa.), 54 A. 475; Franklin v. Lee, 62 N.E. 78; Railroad v. Beardsley, 79 Miss. 417; Senge v. Senge, 106 Ill.App. 140. (c) Every intendment of the law favors matrimony. As is often said, the law presumes morality, not immorality; marriage, not concubinage; legitimacy, not bastardy. When a marriage in fact has been shown, the law raises a presumption that it is valid and casts the burden on him who questions it to establish its invalidity. This is a presumption of more than ordinary strength. It is one of the strongest known to the law. Pittinger v. Pittinger (Colo.), 89 Am. St. Rep. 193; Lampkin v. Traveler's Ins. Co., 11 Colo.App. 249; 2 Nelson on Divorce and Separation, sec. 580; Teter v. Teter, 101 Ind. 129; Johnson v. Johnson, 114 Ill. 611; Erwin v. English, 61 Conn. 502; U. S. v. Amador (N. M.), 27 P. 488; Holbrook v. State, 34 Ark. 511; Cooper v. Cooper, 86 Ind. 75; Franklin v. Lee (Ind.), 62 N.E. 78; LeBrun v. LeBrun, 55 Md. 496; Senser v. Bower, 1 P. & W. 450; Thomas v. Thomas (Pa.), 17 A. 182. (d) If it is shown that a party to a marriage has contracted a previous marriage and that his or her former spouse is still living, this has been held not to destroy the prima-facie validity of the second marriage. In such cases it has been presumed that the first marriage has been dissolved by divorce, and the burden to show that it has not rests on the person seeking to impeach the last marriage, notwithstanding he is thereby required to prove a negative. Here the presumption of the continuance of the first marriage is made to yield to the presumption in favor of the validity of the second marriage and of the innocence of the parties to it. Pittinger v. Pittinger, supra; Erwin v. English, 61 Conn. 502; Schmisseur v. Beatrie (Ill.), 35 N.E. 525; Winning v. Teeple (Ind.), 41 N.E. 600; Tuttle v. Raish (Iowa), 90 N.W. 66; Railroad v. Beardsley, 79 Miss. 417; Hadley v. Rash, 69 Am. St. 649; Goldwater v. Burnside (Wash.), 60 P. 409; Bull v. Bull (Tex.), 68 S.W. 727; Johnson v. Railroad, supra. (2) (a) The fact that Barbara Maier never resided in the United States, even though her husband may have been a naturalized citizen of this country, makes her an alien. Secretary Olney, Opinion, Senate Document No. 83, 1st Session, 54th Congress; Ruckgaber v. Moore, 104 F. 947; Pequigirst v. Detroit, 16 F. 211; Comitis v. Parkerson, 56 F. 556; Citizenship in the United States (Van Dyne), chap. 3, title "Naturalization by Marriage," pp. 139-142; U. S. Marshal v. Fanchant, 65 C. C. A. 1, 130 F. 839. (b) An alien widow is not entitled to dower under the common law, even though her husband was a natural born or naturalized citizen. Scribner on Dower, pp. 151, 152, secs. 3, 4; 2 Bishop, Married Women, secs. 506-510; Alsberry v. Hawkins (Ky.), 33 Am. Dec. 546; Shanks v. Dupont, 3 Pet. (U.S.) 242. (c) Stokes v. O'Fallon, 2 Mo. 32, was relied upon by appellant in the lower court. The act upon which the Stokes Case is bottomed is not in force since Missouri became a State, and there was no such provision in our statute of Descents and Distributions at the time of Meyer's death, the law in force at that date governing. Carey v. West, ...

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