4 N.Y. 230, Clayton v. Wardell

Citation:4 N.Y. 230
Party Name:CLAYTON and wife v. WARDELL and others, executors, &c.
Case Date:December 01, 1850
Court:New York Court of Appeals

Page 230

4 N.Y. 230

CLAYTON and wife


WARDELL and others, executors, &c.

New York Court of Appeal

December 1, 1850

Page 231


C. W. Sanford, for appellants.

E. Sandford, for respondents.


The sole question in this case is, whether the mother of Catharine Ann Clayton, at the time of her intermarriage with George Messerve, was, in fact, the wife of Richard

Page 232

Schenck. It is not pretended that there is any proof of the solemnization of such prior marriage--nor is such proof necessary. A valid marriage may exist without any formal solemnization. By the ancient common law of England, marriage, being regarded as a sacrament, must, to be valid, have been celebrated in facie ecclesie.But since the reformation, it has been regarded as a civil contract. And like every other contract, all that is necessary for its validity is the deliberate consent of competent parties entering into a present agreement to take each other for husband and wife. The policy of such a rule may, perhaps, be questionable. The facility with which the contract may be made, where this rule exists, contrasts most singularly with its indissolubility, when made. Indeed, in England itself, this common law rule has not existed for nearly a century. By the marriage act of 1754, all marriages, not celebrated according to the form prescribed by that act, are declared void. But in this state the common law rule exists; and whatever may be thought of its wisdom, the existence of the marriage contract is a fact which may be proved, like any other fact, either by positive evidence of the agreement, or by evidence from which it may be inferred. The sanctions with which religion has, in this and every other civilized country, invested this contract, are not a matter of civil cognizance. The only difference between a marriage celebrated by a formal ceremony, and one not so celebrated, is that, in the former case, the regular celebration is conclusive evidence of the mutual consent requisite to the validity of the marriage, while in the latter it is competent to rebut the proof of the marriage by other evidence.

In the case before us, it is not claimed that there is any direct evidence of actual marriage. For the want of such proof recourse has been had to secondary and presumptive evidence. It is attempted to establish the marriage between Schenck and the mother of Mrs. Clayton by evidence of cohabitation; of acknowledgment of a marriage; of the reception of the parties, as husband and wife, by their relatives and friends; and by proof of common reputation.

From the testimony introduced for this purpose I think the

Page 233

following facts appear: that Schenck, being the reputed father of a child with which Sarah Maria Youngs, the mother of Mrs. Clayton, had become pregnant, was, on the 22d of November, 1822, arrested as such putative father, under the provisions of the bastardy act, and entered into the usual recognizance to answer to the charge, and that no further proceedings were ever had thereon; that in the early part of May, 1823, Sarah Maria was delivered of a child, which lived about eleven months, and then died; that after the birth of the child, and while it lived, Schenck, for some part of the time at least, cohabited with Sarah Maria, who lived with her mother; that it was understood, among the relatives and friends of Schenck, that they were married, and Sarah Maria was received by them as his wife, and the child as his child; that very soon after the death of the child, as early at least as the summer following, Schenck ceased to cohabit with Sarah Maria, and in June, 1825, an instrument was executed between them, in which they are described as husband and wife, and by which they mutually agreed to a separation. This instrument purports to have been executed by Schenck and Sarah Maria his wife, and also by Joseph List, as the friend of Sarah Maria, who covenanted to indemnify Schenck against any liabilities on her account. In respect to this instrument it may be worthy of notice that it purports to have been executed by both Sarah Maria and List, by making their mark, and that Wood, the subscribing witness who was examined, testified that he had no acquaintance with the parties who executed the paper, nor sufficient recollection of them to know them if he should see them. The witness was but 15 years old at the time the instrument was executed. The handwriting of Sylvanus Mott, the other subscribing witness, was proved, and it was also proved that he was dead. The instrument, the day after it was executed, was left by Schenck with his sister, for preservation.

The principal witnesses relied upon to establish the marriage were Mrs. King and Ida Schenck, both sisters of Schenck. The other testimony on the same side is chiefly upon the question of reputation. Mrs. King and Ida Schenck lived together. The

Page 234

former testified that she first heard of the marriage of her brother at the funeral of another brother, which was on the 22d of February, 1823; that when the child was two or three months old, her brother and his wife came to her house and brought the child with them. This was the first time she had seen her brother's wife, and until then she did not know that her brother lived with Sarah Maria at her mother's. It does not appear that Schenck ever paid any thing for the board of himself, or his wife, or that he ever in any way contributed to her support. On the contrary, it is proved that as well after the birth of the child as before, the alledged wife supported herself, by making segars; that when the child was a few weeks old Mrs. List, the mother's sister, took the child to church and had it christened; and that when it died her husband paid its funeral expenses. Two sisters of Sarah Maria, and John Watson and his wife, also relatives of the family, all testify that they never heard her called by any other name than that of Youngs before her marriage with Messerve. This marriage took place within a month of the time when the articles of separation are alledged to have been executed. She was married by the name of Sarah Maria Youngs. At the time of this marriage she was but sixteen or seventeen years old.

These are the principal facts and circumstances in the case, and the question is, whether they warrant the legal presumption of a marriage between Schenck and Sarah Maria Youngs.

It was insisted upon the argument that, as the effect of establishing the marriage with Schenck, must be to prove the mother of Mrs. Clayton guilty of the crime of bigamy, such marriage can only be established by direct proof. But I am not prepared to concur in this position. I know it has been said, that upon a charge of bigamy, a marriage in fact, as distinguished from the acknowledgment and cobabitation of the parties, must be proved. ( Morris v. Miller, 4 Burr. 2057; Fenton v. Reed, 4 John. 52; The People v. Humphrey, 7 id. 314; The State v. Roswell, 6 Cowen, 446.)But this rule, even in the case of bigamy, is far from being well established. What weight the evidence of the admission and acts of the

Page 235

party accused is to have in establishing the fact of a marriage, must depend very much, of course, upon the peculiar circumstances of the case. But I am unable to see why it should be necessary to prove...

To continue reading