Jackson v. Phalen

Decision Date14 November 1911
PartiesMARY A. JACKSON et al. v. RICHARD PHALEN et al., Appellants
CourtMissouri Supreme Court

Appeal from Iron Circuit Court. -- Hon. Joseph J. Williams, Judge.

Affirmed.

George Safford for appellants.

(1) When, in an action at law, equitable questions are interposed, the entire case is thereby converted into a suit in equity, and will be so regarded, both in the trial court and on appeal. Durfee v. Moran, 57 Mo. 375; Saving Inst. v. Collonious, 63 Mo. 295; Allen v Logan, 96 Mo. 597; McCullum v. Boughton, 132 Mo. 621; Swon v. Stevens, 143 Mo. 392; Lewis v Rhodes, 150 Mo. 501; Ridgeway v. Herbert, 150 Mo. 612. (2) While it is true that in equity cases where the evidence consists wholly or almost entirely of parol evidence, the Supreme Court will defer somewhat to the finding of the chancellor, no such rule obtains in cases in which the evidence consists of records, writings, or depositions. Allen v. Logan, 96 Mo. 598; Lovitt v. Russell, 138 Mo. 481; Swon v. Stevens, 143 Mo. 396. (3) The relation arising from a lawful marriage between competent parties is presumed to continue until substantial evidence is offered tending to show that such relation has been terminated, either by the actual or presumed death of one of the contracting parties or by divorce. 5 Cyc. 700; State v. Melton, 120 N.C. 591; Whalen v. State, 12 O. Cir. Ct. 584; Clark v Cassidy, 62 Ga. 408; Eriskine v. Davis, 25 Ill. 251; Ellis v. Ellis, 58 Iowa 720; Cruize v. Billmire, 69 Iowa 397. (4) An honest and reasonable belief on the part of the contracting parties that Brainard was then dead would relieve the transaction of its criminal aspect, but leave the second marriage void. State v. Stank, 9 Ohio Dec. 8; Reg. v. Tolson, 23 Q. B. D. 168; Reg. v. Moore, 13 Cox C. C. 544; Reg. v. Horton, 11 Cox C. C. 670; Reg. v. Turner, 9 Cox C. C. 145; People v. Mayer, 8 N.Y. St. 256; Reynolds v. United States, 98 U.S. 145. (5) Where the relation between a man and woman cohabiting is shown in the first instance to have been meretricious, the presumption arises that their relation has continued to be of such character. 22 Am. and Eng. Ency. Law, 1240; Turton, 3 Hag. Ecc. 350; Carotti v. State, 42 Miss. 334; Cargile v. Wood, 63 Mo. 501; Smith v. Smith, 4 Paige, 432; Imboden v. Trust Co., 111 Mo.App. 235.

N. A. Mozley and Ralph Wammack for respondents.

(1) Where a legal marriage is shown and that subsequently one of the parties to the marriage intermarried with another, the presumption of law is, that the former partner is dead or that the former marriage was dissolved by divorce, and the burden is on the party asserting the illegality of the subsequent marriage to show that the party to the former marriage was alive at the date of the subsequent marriage, and if alive that there was no divorce, and this, even though it requires the proof of a negative. In such case the presumption of innocence is stronger than the presumption that a legal marriage relation once entered into is presumed to continue. There is a very strong presumption in favor of the legality of a marriage regularly solemnized. Rather than hold a second marriage invalid, and that the parties have committed a crime or been guilty of immorality, the courts have often indulged in the presumption of death in less than seven years, or, where the absent party was shown to be alive, have allowed a presumption that the absent party has procured a divorce. A more correct statement, perhaps, would be that the burden is cast upon the party asserting guilt or immorality to prove the negative -- that the first marriage had not ended before the second marriage. Maier v. Brock, 222 Mo. 74; Johnson v. Railroad, 203 Mo. 381; Klein v. Laudman, 29 Mo. 259; Hunter v. Hunter, 111 Cal. 261; Schuchart v. Schuchart, 61 Kan. 597; Boulden v. McIntire, 119 Ind. 574; Johnson v. Johnson, 114 Ill. 617. (2) When a marriage has been regularly solemnized, 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 will be presumed to be valid until the contrary is shown. Megginson v. Megginson, 14 L.R.A. 540; Cartwright v. McGowan, 121 Ill. 388; Thomas v. Thomas, 124 Pa. St. 646; Ward v. Dulaney, 23 Miss. 410. (3) To stigmatize a mother and to deprive a child of its birthright are matters of the gravest importance and should not be done, except upon clear and unequivocal testimony of such force as to leave no reasonable doubt. Kraus v. Kraus, 98 Mo.App. 427. (4) The law presumes legitimacy and not illegitimacy. After a lapse of many years and when the parties are dead, legitimacy will be presumed on very slight proof. Johnson v. Johnson 30 Mo. 81.

BOND, C. Roy, C., concurs.

OPINION

BOND, C. --

This action is to quiet title to certain lands which belonged to Joseph C. Howell at the date of his death. The plaintiffs are the subvendees of Sobrina Howell, who elected as the widow of Joseph C. Howell to take one-half of his estate in lieu of dower. At the time of the death of Joseph C. Howell he also left surviving him a little boy, Howard Russell Howell, whom he and said Sobrina Howell had reared and treated as their child, and asserted that he was born about two years after a marriage ceremony between them. After the death of Joseph C. Howell, this child died leaving no issue, and the said Sobrina Howell claimed the balance of said lands as the heir of said boy. She sold the lands to plaintiff. She also administered on the private estate of said Joseph C. Howell, and received from one of the defendants, Thomas Howell, as administrator of the estate of a partnership between himself and said Joseph C. Howell, the balance due on final settlement of the partnership estate.

The defendants are Thomas Howell, the brother and partner of Joseph C. Howell, deceased, and his children, and one Phalen, to whom said Thomas Howell gave a deed to certain of the lands; whereupon plaintiffs filed this suit against said Phalen as defendant. The said Thomas Howell and his children were subsequently made co-defendants.

The answer of the defendants avers that Sobrina Howell was not the legal wife of Joseph C. Howell, and that the boy, Howard Russell Howell, was neither their offspring nor adopted by them, and that plaintiffs acquired no title as grantees of Sobrina Howell; that defendants are the next of kin and sole heirs of Joseph C. Howell, whose title to said lands was cast upon them by descent.

A reply was filed containing a general denial and alleged also matters of estoppel, and prayed affirmative equitable relief. A demurrer to the reply being overruled, the cause was submitted to the court without a jury.

On the trial the following facts were undisputed: A certificate of the marriage of Wm. Brainard and Sobrina Russell on the 29th of November, 1865, in Benton county, Missouri; a certificate of the marriage of Joseph C. Howell and Sobrina Brainard on the 26th of October, 1875, at Kansas City, Missouri; a certificate of the election in writing on the 29th of March 1888, of Sobrina Howell as the widow of Joseph C. Howell, deceased, and mother of his son, Howard Russell Howell, then living, to take a child's part of the lands of said Joseph C. Howell; her application on the 5th of January, 1887, for letters of administration on the private estate of said Joseph C. Howell, stating, under oath, that she was his widow, and, together with said Howard Russell Howell, was his heir; that letters of administration as prayed were granted to said Sobrina Howell; that two allowances, $ 200 and $ 300, respectively, were made to her as widow by the probate court on February 3, 1887, and on the 26th of April, 1887; that said Sobrina Howell as guardian of said Howard Russell Howell suggested his death on the 28th of January, 1889, and was ordered to make distribution of his estate; that defendant Thomas Howell, surviving partner of J. C. Howell, as administrator of the partnership estate paid over certain of said assets to Sobrina Howell, as shown in his final settlement on the 25th of November, 1889; that deeds covering all the lands claimed by Sobrina Howell were made, first, of the half belonging to her as widow; and, second, of the remaining half coming to her as the mother of Howard Russell Howell upon his death; that by subsequent deeds all of said lands were conveyed to plaintiffs; that Howard Russell Howell died without issue before Sobrina Howell, and that she subsequently died; that J. C. Howell was the common source of the titles claimed by the respective parties to this suit; that the defendants are Thomas Howell, the brother, and other collateral kindred of Joseph C. Howell, and the grantees of defendant Thomas Howell; that unless the widow and child, recognized as such by Joseph C. Howell at his death, bore relations to him, then he died without direct descendants. As to this question, the plaintiffs adduced other evidence than that heretofore stated, which tended to prove that after Joseph C. Howell moved to Cape Girardeau and Stoddard counties and up to his death in December, 1886, he at all times and in every manner acknowledged Sobrina Howell to be his wife, and the boy, Howard Russell Howell, to be his child by her as his wife; that he showed great affection for said child, and, when dying, besought his brother, Thomas Howell, who was his partner in the stave business, to do the right thing by his wife and child in "straightening up the business," which defendant Thomas Howell promised to do; that the witness who gave this testimony further stated defendant Thomas Howell called on her and sought to prevent her from so testifying; that on the 26th of June, 1891, in a suit of Thomas Howell v. ...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT