140 S.W. 879 (Mo. 1911), Jackson v. Phalen

Citation:140 S.W. 879, 237 Mo. 142
Opinion Judge:BOND, C. --
Party Name:MARY A. JACKSON et al. v. RICHARD PHALEN et al., Appellants
Attorney:George Safford for appellants. N. A. Mozley and Ralph Wammack for respondents.
Judge Panel:BOND, C. Roy, C., concurs. Roy, C., concurs. Per Curiam. --
Case Date:November 14, 1911
Court:Supreme Court of Missouri

Page 879

140 S.W. 879 (Mo. 1911)

237 Mo. 142



RICHARD PHALEN et al., Appellants

Supreme Court of Missouri, Second Division

November 14, 1911

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


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...

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