Cargile v. Wood

Decision Date31 October 1876
Citation63 Mo. 501
PartiesCHAS. CARGILE, et al., Respondents, v. WALTER H. WOOD, et al., Appellants.
CourtMissouri Supreme Court

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 undertakes to consider the fact of cohabitation and birth, stripped of the attendant circumstances which clearly indicated their character. It is liable to the further objection that it imputes to mere cohabitation a legal result which only follows cohabitation and reputation of marriage. (Commonwealth vs. Stump, 53 Penn. [St.] 132; Brinkley vs. Brinkley, 50 N. Y. 197; Blackburn vs. Crawfords, 3 Wall. 175; Clayton vs. Wardell, 4 Const. 236; Bishop on Mar. & Div. § 438; Letters vs. Cady, 10 Cal. 537; Gaines vs. New Orleans, 6 Wal. 642; Bicking's Appeal, 2 Brews. 202.)

III. The court properly refused appellants' instruction as asked, and gave it after inserting the words “and were so reputed;” that is, were reputed to be man and wife. According to the authorities cited the court was right in inserting these words. The instruction was wrong, for the reasons already given regarding the second instruction, and the court did right in refusing it as asked, and appellants cannot complain of it as given, as the error was in their favor and for their benefit.

IV. The law of Missouri requires a ceremonial marriage. The legislature of Missouri, the only power in the State that can make and declare its laws, have so declared. We have on this subject a clear legislative construction of our then existing laws by which all courts are bound. (Sess. Acts 1865, p. 68.)

WAGNER, Judge, delivered the opinion of the court.

This was a suit in partition brought by Chas. Cargile and eight others against Walter H. Wood and five others of his brothers and sisters, for the partition of lands in Jackson county and Kansas City.

The petition alleged that Augustus Cargile died on the 10th day of December, 1862, intestate, seized of the property, and that the plaintiffs and defendants were his brothers and sisters, and descendants of such brothers and sisters, and that they were his only heirs at law.

Afterwards Robert H. Kilgore and several other parties, who were the brothers and sisters and descendants of other brothers and sisters of Cynthia Kilgore, who, they alleged, was the wife of Augustus Cargile, were made defendants, and filed their answer admitting the death of Augustus Cargile, but they denied that he died leaving as his only heirs the original plaintiffs and defendants in the suit, and alleged that the said Augustus and Cynthia, his wife, died about the same time, leaving as their only heir at law one infant child named Catharine, begotten of the bodies of said Augustus and Cynthia during their marriage; that said child died shortly thereafter, and then allege the relationship of the defendants and their interests in the property.

The reply to the answer denied that Augustus Cargile had any lawful wife. On the trial before a jury the Court submitted the following issue: “It is admitted by the pleadings that a child was born of the said Augustus and said Cynthia, and the only question for the jury to determine in this cause, is the following: Were the said Augustus and Cynthia lawfully married to each other prior to the birth of said child, Catharine?” The defendants objected to the issue as framed, but the court overruled the objection, and then held and ruled that the burden of proof devolved upon the defendants, to which ruling they excepted.

The evidence shows that at, and prior to, 1853, Augustus Cargile and Cynthia Kilgore lived in the State of Georgia; that the Kilgores lived on the lands of Cargile, and that Cynthia taught a school at Cargile's house, he being at that time a widower About the time above stated Cargile and Samuel Kilgore, a brother of Cynthia's, left Georgia and went to Kansas, and in 1854, Cargile went back to Georgia and got Cynthia and took her to Kansas. Shortly after this he again went to Georgia and brought the father of Cynthia and other members of the family and some other persons, called a colony. Cargile and Cynthia and Samuel Kilgore remained for some time in Kansas, where he was selling a lot of goods. In 1855, Cargile bought the tract of land in Jackson county now in...

To continue reading

Request your trial
69 cases
  • Hollinghausen v. Ade
    • United States
    • Missouri Supreme Court
    • July 19, 1921
    ... ... Bourne, 185 P. 496. (b) The evidence upon ... the issue of marriage was insufficient. Perkins v ... Silverman, 223 S.W. 901; Cargile v. Wood, 63 ... Mo. 514; State v. Cooper, 103 Mo. 273; Williams ... v. Williams, 259 Mo. 552, 169 S.W. 619; Bishop v ... Brittian Inv. Co., ... ...
  • Johnston v. St. Louis & San Francisco Railroad Company
    • United States
    • Missouri Court of Appeals
    • July 12, 1910
    ... ... 64. Where a ... status or condition is shown to exist, it will be presumed to ... continue until the contrary is shown. Cargill v ... Wood, 63 Mo. 501; Diel v. Stegner, 56 Mo.App ... 535. The defendant did not produce as a witness, Reed, the ... colored porter on its porter on its ... ...
  • Saucer v. Kremer
    • United States
    • Missouri Supreme Court
    • March 5, 1923
    ...that such possession ceased. A fact once proved to exist, the law will presume its continuance. Janssen v. Stone, 60 Mo.App. 402; Cargile v. Wood, 63 Mo. 501. (4) the evidence shows that the parties plaintiff and defendant have a common source of title, then irregularities in conveyances pr......
  • Heger v. Bunch
    • United States
    • Missouri Supreme Court
    • December 31, 1928
    ...229 Mo. 699, 129 S.W. 668; Williams v. Williams, 259 Mo. 242, 168 S.W. 616; Perkins v. Silverman, 284 Mo. 238, 223 S.W. 895.] In Cargile v. Wood, 63 Mo. 501, l. c. 513, we "Where parties have cohabited together and held themselves out as man and wife, and there are circumstances from which ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT