Waddingham v. Waddingham
| Decision Date | 19 April 1886 |
| Citation | 21 Mo.App. 609 |
| Parties | WILLIAM WADDINGHAM, Respondent, v. PAULINA WADDINGHAM, Appellant. |
| Court | Kansas Court of Appeals |
APPEAL from Audrain Circuit Court, HON. ELIJAH ROBINSON, Judge.
Reversed and remanded with directions.
The case and facts are stated in the opinion of the court.
W. W FRY, for the appellant.
I. The weight of the evidence is entirely with the appellant. The only evidence of alleged marriage with Gavin is presumptive evidence from uncertain representations and cohabitation illicit in character, for a brief time, thirty years ago and, giving force to the evidence, the weight of evidence is with appellant.
II. Like, as if charged with the crime of bigamy, appellant here is presumed innocent. That is, the presumption is in favor of the last marriage, and sustains it, and the cohabitation and relation of appellant and Gavin (even if satisfactorily proven, as it is not), is presumed to have been concubinage, in favor of appellant and every presumption sustains the present marriage with respondent, until the contrary is proved beyond a reasonable doubt. Clayton v. Wardell, 4 N.Y. 230; O'Bryan v. O'Bryan, 13 Mo. 19; Klein v. Landman, 29 Mo. 259; Armstrong v. Hodges, 2 B. Mon. (Ky.) 70; 2 Greenl. Evid., sect. 49; Case v. Case, 17 Cal. 598. A fact must be established by the same evidence, whether it is to be followed by a criminal or civil consequence. Lord Mellville's Case, 29 Howell's State Trials, 549 and 764; Lawson on Presumptive Evid. 436; Bish. Crim. Proced., sect. 1046. In cases of conflicting presumptions on the subject of marriage, that in favor of innocence must prevail. Tyler on Infancy and Coralem, sects. 641 and 617, and cases; Sensor v. Bower, 1 Penn. and W. R. 450. The presumption of innocence will prevail against the presumption of life, the presumption of marriage, the presumption of chastity. Lawson on Presumptive Evidence, 447-452, and cases cited.
III. After positive proof of marriage de facto with respondent the law will not presume a former marriage from proof of cohabitation and representations, but requires positive, direct proof of such former marriage before the latter will be annulled. Harris v. Harris, 8 Brad. Surr. N.Y. 57; Chapman v. Cooper, 5 Rich. (S. C.) 452; Chamberlain v. Chamberlain, 71 N.Y. 423; Klein v. Landman, 29 Mo. 259; Jones v. Jones, 45 Md. 144; Hirtchens v. Kimmel, 31 Mich. 126; Case v. Case, 17 Cal. 598; 2 Greenl. Evid. (1 Ed.) sect. 461.
IV. Traditionary and hearsay evidence to prove a marriage is never received except from necessity, and is only prima facie evidence at best. Chamberlain v. Chamberlain, 71 N.Y. 423. If the actual fact of a marriage is proved, as introducing either one of two cohabitations, it will not be invalidated by the evidence of another cohabitation. 1 Bishop Marr. and Div. (6 Ed.) sect. 442-446; Ib. sects. 272-274.
V. Cohabitation and reputation are, at best, only presumptive proof of marriage, and the absence of either destroys even that proof. No matrimonial cohabitation has, in this case, been proven, nor reputation in the family of either party, or among people who had an opportunity to know, nor of the mode of life for the past thirty years, such as would furnish even presumptive proof of marriage. Cargile v. Wood, 63 Mo. 501; Blackburn v. Crawford, 3 Wallace (N. S.) 175; Klein v. Landman, 29 Mo. 259.
VI. Whatever proof of cohabitation there is in the case is illicit, and such, even if suspiciously illicit, will not be taken as proof of marriage, even though the parties held themselves out as husband and wife, but the law will require proof of actual marriage. Blackburn v. Crawford, 3 Wallace (N. S.) 176. Under such circumstances the law makes no presumption. Without concomitant facts, an irregular cohabitation and the parties' reputation are of no avail to prove a marriage. Cargile v. Wood, 63 Mo. 501; Johnson v. Johnson, 1 Dessans 595; 1 Bishop on Marr. and Div. (6 Ed.) sects. 268-276.
VII. Where marriage is inferred from cohabitation, the presumption may be destroyed by subsequent and long continued separation of the parties. The separation in this case has been forty years. 2 Greenl. Evid. (4 Ed.) sect. 464; Yardley's Estate, 75 Pa.St. 207; Williams v. Williams, 46 Wis. 464.
VIII. In nullity suits on charge of a former marriage, the proof of such former marriage should be primary evidence, and the admissibility, if secondary, is very doubtful. And admission of husband of former marriage is not competent. Bishop on Marr. and Div. (6 Ed.) sect. 265; Patterson v. Gaines, 6 Harr. (N. S.) 550; Gaines v. Relf, 12 Harr. (N. S.) 472.
W. O. FORRIST, also, for the appellant.
I. The gist of plaintiff's action is the existence of a former legal marriage. Such must be shown by direct and primary evidence alone. Roscoe Crim. Evid., sect. 316; Langtry v. State, 30 Ala. 536; Wharton Crim. Evid. (8 Ed.) sect. 171; 2 Bishop Marr. and Divorce (6 Ed.) sects. 270, 265, 269. The same rule applies in proceedings for divorce as in criminal proceedings. 2 Bishop Marr. and Div. (6 Ed.) sects. 265, 270.
II. The general rule that in actions of this nature the marriage may be inferred from the cohabitation of the parties, is not applicable here. In the absence of criminative proof, it is never to be supposed, as a matter of legal presumption, that a person has violated the criminal law; and the presumption in favor of innocence is not confined to proceedings instituted with a view of punishing the offence, but holds in all suits where it comes collaterally in question. Case v. Case, 17 Cal. 598; Fuller v. Fuller, Ib. 665. Besides, the presumption arising from cohabitation, etc., is met by a like and stronger presumption arising from the cohabitation, etc., under the second marriage, and hence the presumption of innocence must prevail.
III. There was no legal proof of the alleged prior marriage. Mere living together for any length of time, however great, as man and woman, is not cohabitation within the rule. The living together must be as husband and wife. Tyler on Infancy and Coverture, sect. 640. And cohabitation and reputation must both exist before even the presumption can be raised. Cargile v. Wood, 63 Mo. 12; Ib. 572.
W. H. KENNAN and MACFARLANE & TRIMBLE, for the respondent.
I. By the laws of both Missouri and Michigan marriage is regarded as a civil contract, so far as validity in law is concerned. Rev. Stat. Mich. (1846) sect. 2, ch. 83; Rev. Stat. Mo. 1855, sect. 1, ch. 108, and so in the subsequent and prior revisions from 1835 to 1879 inclusive. Dyer v. Brannock, 66 Mo. 391; Brinkly v. Brinkly, 50 N.Y. 184.
II. The evidence introduced proving cohabitation of defendant with Gavin as man and wife, their reputation as such among their neighbors, their conduct and acknowledgments, their reception in their respective families as man and wife, and the declaration or admission of defendant, was admissible, and sufficient to prove her former marriage with Gavin. And neither record evidence, nor testimony of witnesses present at the nuptials was necessary. Northfield v. Veershire, 33 Vt. 112; Morndell v. Morrison, 25 Pa.St. 327; Donnelly v. Donnelly, 8 B. Mon. (Ky.) 113; Formshill v. Murray, 1 Bland Ch. (Md.) 479; Clayton v. Wardell, 4 Comstock (N. Y.) 243; State v. Libby, 44 Me. 428; Williams v. State, 54 Ala. 132; O'Neale v. Commonwealth, 17 Gratt. (Va.) 582; Squire v. State, 46 Ind. 459; State v. McDonald, 25 Mo. 174; State v. Meyer, 13 Mo.App. 596.
III. There is no evidence in this case tending to show that the cohabitation of Gavin and defendant was illicit in its origin, so the cases cited are not applicable.
IV. Prior marriage, undissolved, is a civil disability which prevents any subsequent union during the life of both parties, and renders such second marriage absolutely void ab initio. 1 Bishop Marr. and Div. ch. 15; Ibid, sect. 105; 3 Phillips on Evid. (4 Am. Ed.) 568; Tyler on Infancy and Coverture, sect. 638; sect. 3266, Revised Statutes. Therefore, if the marriage between the plaintiff and defendant be void, by reason of a prior marriage, then no marital rights accrued to, and no marital obligations were imposed upon, either party. The marriage would be void. 2 Bishop on Marr. and Div. sects. 690, 369, and 376.
V. Neither could she, in that event, have any dower in his estate, no claim upon him for her support and maintenance, either prior, or subsequent to a decree of validity, and no right to alimony, for none of these marital rights can arise out of a marriage, which is, in law, no marriage.
VI. The evidence certainly shows that defendant and Gavin were at least received and recognized by their respective families as man and wife, and her letters and declarations are in the nature of admissions to the same effect.
VII. From either of these facts a marriage may be inferred, and, surely, from all of them, it should be inferred. In answer to all this we have simply a general denial. The issue of illicit cohabitation is not even an issue; the inference is not sought to be avoided; the facts are simply denied. Then, if these facts were true, the legal inference must follow that they were, in fact, what they appeared to be--man and wife. In such case it follows, of necessity, that the subsequent marriage to the plaintiff was no marriage, and is absolutely void ab initio.
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