Womack v. Tankersley

• Decision Date: 13 December 1883
• Citation: 78 Va. 242
• Parties: WOMACK AND ALS. v. TANKERSLEY AND WIFE.
• Court: Virginia Supreme Court

78 Va. 242

WOMACK AND ALS. v. TANKERSLEY AND WIFE.

Supreme Court of Appeals of Virginia.

December 13, 1883

Appeal of William Womack, and William Davis, and Mary L. (formerly Mary L. Womack), his wife, from decree of circuit court of Halifax county, rendered in November, 1880, in the suit of William Tankersley and Martha F. (formerly Martha F. Womack) his wife, complainants, against the appellants.

The object of the suit was the partition of a tract of land whereof Charles H. Womack died intestate. Appellants, William Womack and Mary L. Davis, were the children of the intestate by his first marriage. Martha F. Tankersley was the child of the intestate by Martha J. Boothe, and the issue was, were the parents lawful man and wife. The circuit court decided that they were such, and from its decree the children by the first wife obtained an appeal to this court.

Opinion states the facts.

John W. Riely and Carrington &amp Fitzhugh, for the appellants.

H Edmunds and W. W. Henry, for the appellees.

OPINION

RICHARDSON, J.

The sole question for determination in this case is, whether or not Charles H. Womack, the father of the appellants, William Womack and Mrs. Mary L. Davis, was married to Martha J. Boothe, the mother of the female appellee, Mrs. Martha F. Tankersley.

Marriage is a civil contract, and its existence may be shown like that of any other fact. The production of the marriage registry, or certificate, or of a person present at its celebration, is not absolutely necessary. In a criminal prosecution the acts and admissions of the prisoner, coupled with cohabitation and recognition, is sufficient evidence of the marriage to procure his conviction. Warner's Case, 2d Va. Cases, 95; Oneal's Case, 17 Gratt. 582.

The admissions, however, must not be casual, but deliberate. Such admissions of a prior marriage in another State, are sufficient evidence of such marriage, without proving the marriage to have taken place agreeably to the laws of that State. Such admissions and acts are competent evidence not only of the fact of the marriage, but also of its validity, under the " lex loci contractus. " Rex v. ____ of Brampton, 10 East R. 282; Hemmings v. Smith, 4 Douglas R. 33; 3d Waterman's Archbold, 613; and Bird's Case, 21 Gratt. 800.

And the same authorities establish that in all cases where the issue is the existence of the fact of the marriage, the rule of evidence is the same in civil as in criminal proceedings. Such evidence, being clearly competent, it is for the tribunal, whether, judge or jury, deciding the issue upon the facts, to render its decision upon the weight of the evidence. And the appellate court will not overturn the decision thus arrived at, except in cases of manifest error or misconduct. The judgment of a court of competent jurisdiction will always be presumed to be right; and a party in an appellate court alleging error must show the error, else the presumption in favor of its correctness will prevail Broom's Legal Maxims, 946 (marginal); Harman v. City of Lynchburg, 33 Gratt. 37. Applying these well-settled principles to the facts of the case under consideration, the solution of the question involved is easy.

C. H Womack and Willis Boothe, the father of Martha J. Boothe, resided within a few miles of each other, in the county of Pittsylvania, and were on familiar terms. The county of Pittsylvania borders on the State of North Carolina. About the year 1857, C. H. Womack married Mary Boothe, an elder daughter of Willis Boothe. By her he had two children, the appellants, William Womack and Mary L., the wife of the appellant, Wm. Davis. His wife dying, the war breaking out, C. H. Womack becoming a soldier in the Confederate army in June, 1863, in company with John S. Boothe, his fellow-soldier and brother-in-law, without leave left their company, came to the county of Pittsylvania, spent one month, and during that furlough, without leave, visited at the home of his dead wife's father, where dwelt his little children, asked Tobiatha, his mother-in-law, for the hand in marriage of her younger daughter, Martha; was refused on account of the pendency of the war; asked her sister, Missouri to accompany him and Martha when they went away to be married; she declining, C. H. Womack and Martha got ready and left; were gone ten days; on their return, they both said they had been...