Gamble v. Rucker

• Citation: 137 S.W. 499
• Parties: GAMBLE et al. v. RUCKER et al.
• Decision Date: 29 April 1911
• Court: Tennessee Supreme Court

Page 499

137 S.W. 499

GAMBLE et al. v. RUCKER et al.

Supreme Court of Tennessee.

April 29, 1911.

Appeal from Chancery Court, Lauderdale County; Jno. S. Cooper, Chancellor.

Action by Lucinda Gamble and others against Clary Rucker and others. From the decree, an appeal was taken. Decree rendered as stated, and cause remanded for further proceedings.

W. S. Lynn, for complainants. McKinney & Pierson, for defendants.

NEIL, J.

The bill was filed by the children of Sam Rucker (colored), deceased, born by his first wife, Martha, against Clary Rucker, the wife of a second marriage, now his widow, and the children of that marriage. It was alleged that the second marriage was void, because made during the lifetime of the first wife. The complainants therefore claim the land of their deceased father as his only heirs at law. The defendants deny that Sam Rucker was ever married to the mother of complainants, and insist that defendant Clary was the only wife that Sam Rucker ever had. We think the weight of the evidence is that the deceased was lawfully married to Martha Rucker. The only question left is whether Sam and Martha had been divorced before he intermarried with Clary. Martha was still living at the date of the second marriage.

The rule upon this subject is that, where a marriage has been regularly solemnized, the law will presume that it was valid, and will cast upon those asserting its invalidity the burden of showing the fact. This is true when it is asserted against such marriage that it was entered into pending a valid prior marriage. If the former spouse be living, the law, in cases involving the settlement of property rights, will presume that one or the other party to the former marriage had procured a divorce before the second marriage was entered into. The burden is upon the person attacking the validity of such marriage to show that there was no such divorce. This may be shown, and generally should be shown, by evidence that the records of the courts had been searched where such divorce decree or judgment should be found, if in existence at all, and that they show no such entry. The fact may also be shown by other direct evidence, and by circumstances; but the evidence should be cogent and convincing, since, in the interests of social order, the presumption in favor of the marriage is very strong, and the pressure of that presumption is felt at every stage of the inquiry. 1 Bishop, Mar. & Div. § 457; Megginson v. Megginson, 21 Or. 387, 28 Pac. 388, 14 L. R. A. 540, and note; Smith v. Fuller, 138 Iowa, 91, 115 N. W. 912, 16 L. R. A. (N. S.) 98, and note; Sloan v. West, 50 Wash. 86, 96 Pac. 684, 17 L. R. A. (N. S.) 960. And see, Scott's Adm'r v. Scott (Ky.) 77 S. W. 1122; Bouldin v. McIntire, 119 Ind. 574, 21 N. E. 445, 12 Am. St. Rep. 453; Parsons v. Grand Lodge A. O. U. W., 108 Iowa, 6, 28 N. W. 676; Alabama & V. Ry. Co. v. Beardsley, 79 Miss. 417, 30 South. 660, 89 Am. St. Rep. 660; Potter v. Clapp, 203 Ill. 592, 68 N. E. 81, 96 Am. St. Rep. 322; In re Rash's Estate, 21 Mont. 170, 53 Pac. 312, 69 Am. St. Rep. 649; In re Thewlis' Estate, 217 Pa. 307, 66 Atl. 519; Lyon v. Lash, 79 Kan. 342, 99 Pac. 598; Maier v. Brock, 222 Mo. 74, 120 S. W. 1167, 133 Am. St. Rep. 513; Wingo v. Rudder (Tex. Civ. App.) 120 S. W. 1073.

There is no testimony in this case that the court records of Lauderdale county, where Sam Rucker and Martha, his former wife, resided until they died, had been searched to ascertain whether they contained anything concerning a divorce between these parties. The only evidence...