Murray v. Scully

Decision Date02 June 1914
PartiesEDITH MURRAY v. E. ANGELA SCULLY, Appellant
CourtMissouri Supreme Court

Appeal from Bates Circuit Court. -- Hon. C. A. Calvird, Judge.

Affirmed.

Thomas J. Smith for appellant.

The court erred in refusing to admit in evidence the record of the marriage of Thos. J. Fry, the former husband of the plaintiff, to L. J. Farris, and the other evidence offered by defendant tending to show the fact of said marriage, and that they lived together openly as man and wife in Bates county Missouri, from the time of said marriage in 1891 until his death in 1906 as tending to show that Thos. J. Fry had been divorced from the plaintiff, and if divorced, necessarily, on account of her fault, the presumption of innocence of Fry of the offense of polygamy being stronger than the presumption that the plaintiff, having been once married to the defendant, remained his lawful wife. Waddingham v Waddingham, 21 Mo.App. 609; Johnson v Railroad, 203 Mo. 381; Maier v. Brock, 222 Mo. 74.

W. O. Atkeson and Silvers & Silvers for respondent.

(1) When the plaintiff showed her marriage to T. J. Fry, that he was seized of an estate of inheritance in the land, during the marriage, and that he died in 1906, she made a prima-facie case. It then devolved on the defendant to show that her right of dower had been lost. Cozier v. Hinchey, 143 Mo. 203. (2) To show that plaintiff's right of dower had been barred, the defendant relied solely upon an effort to prove that Fry had been married a second time in 1891. Proof of this fact, defendant maintained, would raise a presumption that the first marriage, with plaintiff, had been dissolved. But it would not raise the presumption that his wife was the guilty party. To defeat plaintiff's claim of dower, it devolved on the defendant to show not only that Fry had been divorced from her, but that in the divorce proceeding the plaintiff was adjudged the guilty party. Hunt v. Thompson, 61 Mo. 148; White v. Ingram, 110 Mo. 483; Scales v. Scales, 65 Mo.App. 292.

BROWN, C. Blair, C., concurs.

OPINION

BROWN, C. --

This action was instituted in the circuit court of Bates county, Missouri, in the fall of 1909, for the admeasurement of dower and assessment of damages for its alleged withholding, in the south half of the southwest quarter of section 26, and the south half of the southeast quarter of section 27, and the northeast quarter of section 34, and the northwest quarter of section 35, all in township 40, range 30, in Bates county, Missouri. The plaintiff filed an amended petition at the February term, 1910, on which the case then went to trial. In this she stated that she was lawfully married to Thomas J. Fry, and that during the said marriage he was the owner and seized and possessed in fee simple of said land, and that she had never joined in any conveyance of, nor otherwise released her dower in the same. That afterwards, in the State of Colorado, she procured a decree of divorce from said Fry on account of his fault, and an order of the court therein changing her name to Edith Murray; and on December 4, 1894, said Fry made a deed conveying his interest in said land to the defendant. That he died in 1906. She asked that her dower be assigned and for all proper relief. The defendant answered denying all the allegations of the petition except that Thomas J. Fry did own some interest in the land; that he conveyed that interest to defendant by deed in fee simple, with covenants of general warranty of seizin and for further assurance; and that he died. She also stated:

1. That Thomas J. Fry and John Fry, Jr., his brother, were partners and at the time the former conveyed the land to defendant it was being used and held as partnership property, and was so recognized by them prior to the time of his alleged marriage to plaintiff; that while it was so held and used by them F. C. Ferrell recovered judgment against them in the Jackson County Circuit Court, under which the land was all sold, and purchased by S. S. Mathews, to whom the defendant paid $ 4197.58 in satisfaction of his claim on account of the title acquired through said purchase, and as a part of the purchase price of the land from Fry.

2. That Thomas J. Fry acquired the land from his mother, Maria S. Fry, in 1885, and to secure a portion of the purchase price made a deed of trust to secure the payment to her of $ 9000, ten years thereafter, with six per cent interest per annum, which recited that the debt so secured was for the purchase price of said land; which the defendant was compelled to and did pay at the time of her purchase.

3. That she also paid $ 61.39 in taxes which were a lien on the land when she purchased it.

That all these sums were paid by her in good faith without any knowledge or information that plaintiff had or claimed any right or interest in the land.

"That prior to the time of the marriage of Thomas J. Fry to Lydia Fry, who joined with him in the deed to defendant, he was lawfully divorced from the plaintiff herein for her fault, if in fact he was ever lawfully married to her."

A reply denied all the affirmative allegations of the answer. On the trial before a jury it was developed in evidence and undisputed, that the plaintiff, whose name was Missouri J. Porter, was married to Thomas J. Fry, March 16, 1882, and lived with him as his wife on the tract of land in controversy for about eighteen months and to the winter of 1883, during which time one child was born of the marriage who resides in Longmont, Colorado, where the plaintiff, at the time of the trial, had been teaching for eighteen years as principal of a ward school. Plaintiff left her husband in the winter of 1883, and has not remarried, but since going to Colorado in 1885 she has been known both there and in her old home in Bates county, as Edith Murray, which name she adopted at that time.

The record shows that upon her cross-examination as a witness she produced and identified a document marked "Exhibit A." She was then asked upon cross-examination the following question: "Are you the Missouri J. Fry who brought in this court a suit for divorce against Jeff Fry?" The plaintiff's attorney objected on the grounds that there was no evidence that any such suit had been brought and that it was incompetent and irrelevant. The defendant's attorney then made the following statement:

"I have two reasons, and one is I want it for the purpose of the identification of this witness as to whether or not she is the same party; and we want to prove that along about 1883 or 1884 suit was brought in this court, which was pending, heard, and adjudicated against her; and that will be for the purpose further along of basing an objection to this decree that is offered (Exhibit A) to show where the jurisdictional fact occurred; to show that the court out there was without jurisdiction, and therefore was without power to render any judgment."

The court said: "For the present I am inclined to think that the objection is good." To which ruling the defendant excepted. The record does not further disclose what was in the Exhibit A referred to. The plaintiff was then identified by witnesses, including the recorder of deeds of Bates county, who produced the record of her marriage to Thomas J. Fry. Upon the cross-examination of the same witness the defendant offered the record of the marriage of Thomas J. Fry, Butler, Bates county, to Mrs. L. J. Farris of the same place, on November 24, 1891. The plaintiff objected to the evidence as incompetent, irrelevant and immaterial; and because this marriage constituted no defence to plaintiff's action for dower. Defendant's counsel then explained as follows: "My purpose is this: that the plaintiff in this case will absolutely fail to show that she was ever divorced from T. J. Fry. We offer to show here that this same T. J. Fry was in this county on the date named here, the 24th day of November, 1891, married to Lydia J., or Lydia I., or L. I. Farris; that from or after that date he continued to live with her in this county and she was known and recognized as his wife, and he as her husband. And this we think is competent especially under the case of Waddingham v. Waddingham, reported, I think, in the 24th Mo. App., as tending to show a divorce of T. J. Fry from the plaintiff in this case, on the ground of presumption of innocence." Plaintiff's counsel then made the further objection that if Fry was divorced, defendant had it within her power to bring the record to show that he was the innocent and injured party, and his subsequent marriage was not the best evidence nor evidence of that fact. The court said: "I do not see how presumption of the lawfulness of his second marriage should affect or raise the presumption that he was the innocent and injured party, so as to deprive his former wife of dower rights. The objection will be sustained for the present. It may be that it can be made relevant, but I do not know finally. I cannot admit it on that ground on the presumption of innocence because it does not prove that he is the innocent and injured party." The defendant excepted. The plaintiff then offered, from the records, deeds showing the title of Thomas J. Fry through mesne conveyances from one Robert T. Richardson and his possession thereunder, all of which was admitted by the court against the objection of defendant made on the following ground: "I understand there is no such thing as showing title by adverse holding or title by possession or anything of that kind until you first show the title has emanated from the general government." The defendant duly excepted.

These deeds show the Richardson title through John P. Huston and wife and William McNeilly to have passed to John Fry and...

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