Marre v. Marre

• Citation: 184 Mo. App. 198,168 S.W. 636
• Decision Date: 20 June 1914
• Docket Number: No. 13671.,13671.
• Parties: MARRE v. MARRE.
• Court: Court of Appeal of Missouri (US)

168 S.W. 636

184 Mo. A. 198

MARRE v. MARRE.

No. 13671.

St. Louis Court of Appeals. Missouri.

June 20, 1914.

1. MARRIAGE (§ 60)—ACTIONS TO ANNUL— BURDEN OF PROOF.

In an action to annul a marriage for illegality, defendant had the burden of proving her affirmative defense that the parties were legally married prior to the marriage sought to be annulled.

2. MARRIAGE (§ 60)—ACTIONS TO ANNUL— SUFFICIENCY OF EVIDENCE.

In an action to annul a marriage for illegality, evidence held insufficient to show a valid marriage between the parties prior to the marriage sought to be annulled.

3. MARRIAGE (§ 60)—ACTIONS TO ANNUL— SUFFICIENCY OF EVIDENCE.

In a husband's action to annul a marriage, evidence held insufficient to show such duress on the part of the wife's mother and brother as invalidated the marriage.

4. MARRIAGE (§ 58)—ANNULMENT—GROUNDS —"DURESS."

"Duress," which will invalidate a marriage or other contract, must be fear of that degree of violence threatened or impending, or actually inflicted, which is sufficient to overcome the mind and will of a person of ordinary firmness, and must be exercised and enforced

when the contract is entered into, and a mere apprehension of physical or possible physical injury is not sufficient.

5. MARRIAGE (§ 60)—ACTIONS TO ANNUL— SUFFICIENCY OF EVIDENCE.

In an action to annul a marriage, evidence held insufficient to show by the preponderance thereof that defendant was a negress.

6. MARRIAGE (§ 66)—ANNULMENT—REVIEW—QUESTIONS OF FACT.

On appeal in an action to annul a marriage, the appellate court will weigh the evidence.

7. MARRIAGE (§ 8)—PERSONS WHO MAY MARRY—RACE OR COLOR.

Rev. St. 1909, § 8280, declaring marriages between white persons and negroes absolutely void, has reference to blood or race, and not to color.

8. MARRIAGE (§ 8)—PERSONS WHO MAY MARRY—RACE OR COLOR—"NEGRO."

A "negro," within Rev. St. 1909, § 8280, is a person having one-eighth part or more of negro blood, in view of section 4727, prescribing the punishment for marriages between white persons and persons having one-eighth part or more of negro blood.

9. MARRIAGE (§ 57) — ANNULMENT — EQUITABLE DEFENSES.

An action to annul a marriage is one in equity, and subject to the rule that plaintiff must appear with clean hands.

Appeal from St. Louis Circuit Court; Chas. C. Allen, Judge.

Action by Louis Marre against Agnes E. Nash Marre to annul a marriage. From a decree for plaintiff, defendant appeals. Reversed.

Geo. B. Webster, of St. Louis, for appellant. Hiram N. Moore, of St. Louis, for respondent.

REYNOLDS, P. J.

Plaintiff below, respondent here, instituted his action on March 15, 1911, in the circuit court of the city of St. Louis, praying the annullment of a marriage contracted with defendant, as plaintiff alleged, on November 2, 1908. The grounds upon which he based his right to relief were, first, that the marriage was the result of duress, and, second, that defendant is a negro, while he is a white person.

Defendant answered by a general denial and the plea of a marriage in Illinois on July 3, 1908. This latter averment was met by a general denial in the reply.

The trial before the court resulted in a decree for plaintiff, from which defendant, after timely but unsuccessful motions for rehearing, appealed to this court.

In rendering the decree the learned trial court found that there was no contract of marriage entered into between plaintiff and defendant in the state of Illinois, and that the contract of marriage entered into between plaintiff and defendant in the city of St. Louis, on November 2, 1908, was without the consent and against the will and wishes of plaintiff, and was the result of duress upon plaintiff, and further found that at the time of the contract of marriage entered into between plaintiff and defendant in the city of St. Louis, plaintiff was a white person and defendant was a negress.

The evidence as to the alleged marriage in the state of Illinois rests alone upon the testimony of defendant. This Illinois marriage was pleaded as an affirmative defense by defendant, hence the burden was upon her to prove it, plaintiff denying it in the most positive manner and there being no fact or circumstance tending to prove that it had occurred beyond the fact of cohabitation between the parties after that in this state. We may add that there is no corroborative evidence of defendant even as to the alleged fact of cohabitation as man and wife in this state after the alleged marriage in Illinois. On this issue the finding of the trial court is right.

On the issue of duress, on a very careful reading and consideration of the testimony in the case, we find ourselves unable to agree with the conclusion arrived at by the learned trial court that duress has been proven.

The duress relied upon are threats by a brother of this defendant and by her mother. It appears that defendant had a brother who was mentally unsound and, according to the testimony introduced on behalf of plaintiff, this brother had threatened, on several occasions, that if plaintiff did not marry his sister he would kill him, at the time flourishing a shot gun which defendant says was not loaded, and that these threats were communicated to plaintiff on the Saturday preceding the date of the marriage between the parties in St. Louis. It appears, according to the testimony of plaintiff, that the mother of defendant, an old lady some 66 years of age, on Sunday, November 1, 1908, accosted him on the street and demanded that he come to their house. He at first refused to go. The old lady told him he had better come; that she was not going to hurt him; would swear she would not hurt him or let anybody hurt him. So he went with her to her home. When he got there he was taken into a room where defendant was lying in bed seriously sick; that the mother locked the door and told him that if he did not get a priest and marry her daughter, she would kill him or have her son kill him. These are the threats of the mother, made November 1st, the day before the marriage. It appears that the son referred to was in the house at the time but, according to the testimony of defendant, in charge of an attendant, not in the room with plaintiff and defendant and the latter's mother, and that he had no knowledge of plaintiff's presence at the time; nor does it clearly appear that plaintiff himself knew that this son and brother was in the house at the time. At any rate, the son did not come near the room or into the presence of plaintiff; made no threats of any kind to him personally at that time and, as far as the evidence is concerned, had never made any threats to him personally at any time. As to this imbecile brother, it may be further said that he had been known to carry a shot gun and to fire it off on different occasions, had been several times confined to an asylum and was known in the neighborhood as a quarrelsome, violent man in his talk when he was permitted to come home, but there is no evidence whatever in the case that he had ever harmed anybody, or even made any attack on any one.

These are the threats relied on as constituting duress and as the basis of the claim that the act of consent to the marriage was procured by duress per minas.

It may be said that the mother, in the most positive manner, denied making any threats or locking the door of the room, so that this stands on the uncorroborated testimony of plaintiff himself. It may be further noted that the mother, in confirmation of her denial of locking the room door, testified that the house in which this occurred had but one key and that was to the front door, and that she not only did not lock the door of the room in which the parties were but that they had no lock or key to that door.

We are unable to find any cases in which it is held that acts of this kind constitute duress of such a character as to enable a party to escape from a contract into which he has entered, and the marriage relation, in law, rests on contract. Mere apprehension of physical, or possible physical injury, is not sufficient. It must be fear of that degree of violence, threatened and impending, or actually inflicted, which is sufficient to overcome the mind and will of a person of ordinary firmness. Duress is defined to be:

"A condition which exists where one, by the unlawful act of another, is induced to make a contract or perform or forego some act under circumstances which deprive him of the exercise of free will; a condition of mind produced by the improper external pressure or influence that practically destroys the free agency of a party, and causes him to do an act or make a contract not of his own volition; personal restraint or fear of personal injury or imprisonment; * * * intimidation, or compulsion of another to such an extent and degree as to induce such other person to do or perform some act which he is not legally bound to do, contrary to his will and inclination, * * * or threats of bodily or other harm, or other means amounting to or tending to coerce the will of another, and actually inducing him to do an act contrary to his free will." 14 Cyc. p. 1123.

"Duress per minas exists when a person is induced to perform an act to avoid a threatened and impending calamity." 10 Am. & Eng. Ency. of Law (2d Ed.) p. 324, par. C.

It must be exercised and in force at the time the contract is done or the act entered into. Thus in Holmes v. Hill, 19 Mo. 159, treating of the duress by arrest and imprisonment, it is said (loc. cit. 170):

"If the actions were brought against Hill, in good faith to recover amounts believed to be actually due from Hill, and after the arrest there was no practice nor contrivance to extort from him, or to induce him to execute an obligation or note for more than the plaintiffs then believed to be due, there was no such abuse of the process as would avoid the note or obligation, although it may be shown that he could have defended himself against...