63 Mo. 501 (Mo. 1876), Cargile v. Wood

Citation:63 Mo. 501
Opinion Judge:WAGNER, Judge.
Party Name:CHAS. CARGILE, et al., Respondents, v. WALTER H. WOOD, et al., Appellants.
Attorney:Black & Case, for Appellants. Gage & Ladd, for Respondents.
Court:Supreme Court of Missouri
 
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Page 501

63 Mo. 501 (Mo. 1876)

CHAS. CARGILE, et al., Respondents,

v.

WALTER H. WOOD, et al., Appellants.

Supreme Court of Missouri.

October Term, 1876

Where, in a suit for partition of an intestate's lands by his brothers and sisters, plaintiffs allege that they are his only heirs, and defendants answer that intestate was married to their sister, which plaintiffs denied in their reply, the burden of proof of such marriage is on defendants.

Appeal from Jackson Circuit Court.

Black & Case, for Appellants.

I. The court erred in holding the burden of proof to be on these defendants for two reasons: First, plaintiffs allege that they are the only heirs of Augustus Cargile, and this is denied; and again, because by the pleadings it is admitted that the child was born of the said Augustus and Cynthia.

It is always held that when it is shown that a child was born of the alleged parents, the presumption is that it is legitimate--in favor of innocence--and it devolves upon those who aver illegitimacy to prove it; with much more force does this rule apply when the facts raising the presumption are admitted. ( Carnjolle vs. Ferrie, 23 N.Y. 90-108; Boyer vs. Dively, 57 Mo. 510; Nathan's Case, 2 Brew. 149; Star vs. Peck, 1 Hill 270.)

II. The court should have given defendants' second instruction, for, in addition to the admitted fact of the birth of the child of said parents, it adds the further fact of cohabitation as man and wife, and that such facts raise a presumption of legitimacy, where the parties are all dead, as here, cannot be denied. (See above authorities.)

III. A mutual agreement between a man and a woman to be husband and wife, especially if followed by cohabitation, constitutes a good marriage. ( Rose vs. Clark, 8 Paige Ch. 574; 2 Kent 87; 31 Mich. 127.)

IV. A marriage may be proved from acts of recognition, cohabitation, birth of children and the like; and this even when the parties originally came together under a void contract, and also when the intercourse was at the commencement illicit. ( Rose vs. Clark, 8 Paige Ch. 574; In re Taylor, 9 Paige Ch. 611; Fenton vs. Reed, 4 John. 53; Vincent's case, 60 Penn. St. 239; Physick's case, 4 Am. Law Reg. 419; Nathan's case, 2 Brew. 149; Goodman vs. Goodman, 28 Law J. 745; Grotgen vs. Grotgen, 3 Bradf. 373.)

V. In case of conflicting presumptions on the subject of illegitimacy, that in favor of innocence must prevail. (Senser vs. Bower, 1 Penn. Ch. 450.)

VI. The court erred in adding to defendants' third instruction the words " and were so reputed," for, without such addition, the instructions required the jury to find more facts than the law requires from which a marriage may be inferred. Moreover, by adding the additional fact of reputed marriage, defendants were deprived of the benefit of the leading facts in evidence, and that of repute made the turning point in the case.

VII. Plaintiff's first instruction should not have been given. While in some cases, where the cohabitation was avowedly illicit, and nothing appeared to indicate a change, it is held that the presumption is that the continued cohabitation is illicit, still this instruction makes such a presumption continue, no matter what the evidence is or may be of the character of the subsequent cohabitation.

The third instruction is faulty for a like reason, and for the further reason that it assumes particular dates, and from those dates on excludes entirely from the consideration of the jury all evidence of the cohabitation of the parties and of their treatment of each other, and of their children.

VIII. The instructions given by the court are subject to the same objections as those given at the request of the plaintiff. They also leave the jury to determine what facts, when found, raise a presumption of innocence. The second is so framed as to mislead the jury, and when those and those given at the instance of the plaintiff are taken together, it is difficult for a jury to determine by what rules they are to be guided.

Gage & Ladd, for Respondents.

I. It was an undisputed fact in this case, clearly established by appellants' own evidence, that the connection between Cargile and Cynthia was illicit in its origin, and so continued from 1854 to the date of the indictment in 1859-60; that their apparent matrimonial cohabitation during all that period was in fact meretricious, and that there was no visible change in the nature of that cohabitation at any time after the indictment.

If a court is not permitted to give instructions which leave out of view any portion of the evidence in the case, it certainly cannot be required to give instructions which disregard undisputed, conceded facts.

The court could not then give an instruction in this case which disregarded the above admitted facts. If it be admitted that proof of birth of issue, raises a presumption of their legitimacy; that proof of cohabitation raises a presumption of marriage, and in short, that all things are presumed to have been done rightfully rather than wrongfully; the meaning of this is, that the mere fact of birth and nothing more is presumptive of legitimacy; the mere fact of cohabitation or cohabitation and reputation, raises a presumption of marriage, the mere fact that an act is done raises a presumption that it is done rightfully; it does not mean that birth under circumstances which clearly indicate bastardy is presumptive of legitimacy: it does not mean that cohabitation and reputation, under circumstances which clearly indicate or confess an illicit intercourse, raise the presumption of lawful marriage, nor that the doing of an act which clearly stamps it wrong, authorize a court or jury to declare it rightful; nor can a court, when such facts are shown coupled with such circumstances, separate the fact from the attendant circumstances and draw from it the presumption which would arise were there no such circumstances in the case. A court must then take the whole case--the main fact with all the circumstances--and submit it to the jury.

II. The second instruction asked by appellants' instruction declares that a child born of a cohabitation confessed to be illicit in its origin, and continued in the same way for many years, is to be presumed legitimate. It...

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