Askew v. Dupree

• Decision Date: 31 March 1860
• Citation: 30 Ga. 173
• Parties: ASKEW. v. DUPREE.
• Court: Georgia Supreme Court

30 Ga. 173

ASKEW. v. DUPREE.

Supreme Court of the State of Georgia

MARCH TERM, 1860.

In Equity, in Pike Superior Court. Decision by Judge Cabaniss, November Term, 1859.

James F. Dupree and his wife, Uriah E. Dupree, filed their bill in equity against Uriah Askew, for an account of the estate of Mrs, Dupree in defendant's hands, as her guardian, and also to recover the remainder of her distributive share of the estate of her deceased father, in the hands of defendant, as administrator. The bill alleged the marriage of complainants, and the right thereby of said James F., by virtue of said marriage to recover and receive the estate and amount belonging to and due his wife.

To this bill the defendant pleaded in abatement, that complainants were not man and wife, and they were misjoined as complainants. That they were never lawfully married; that the pretended marriage between them was solemnized by A. Buckner, as a minister of the Gospel, but that said Buckner was not at the time of the solemnization of said pretended marriage, a minister of the Gospel of any Christian order or denomination, and was not clothed with any ministerial powers or functions, but had long before that time, to wit: at the August Conference in the year 1855, of the Griffin Baptist church, been deposed from the ministry of said church, and his credentials as such surrendered, cancelled and revoked, and said Buckner excommunicated from said church, by means whereof he became and was totally disqualified to perform marriage rites and ceremonies, and that said marriage was null and void.

To this plea complainants demurred'. The court sustained the demurrer, and held the plea insufficient in law.

To which decision counsel for defendant excepted, and assigned the same as an error.

It may be proper to add, that the marriage between complainants was solemnized 25th Dec, 1855, and that a marriage license had been taken out dated 24th Dec, 1855, and upon which was endorsed the following, viz.:

"I certify that Mr. J. F. Dupree and Miss U. E. Askew were duly joined in matrimony by me, this 25th day of December, 1855.

(Signed) "A. Buckner, M. G."

GrEEn & Stewart, for plaintiff in error.

Peeples & Cabaniss, Doyae & Campbell, contra.

By the Court.—Lumpkin, J., delivering the opinion.

As an act of justice to the ability and research of Judge Cabaniss, I have determined to publish his opinion in this case without alteration or abridgement. It is entitled to be preserved in a permanent form, as a monument of the learning and industry of that most excellent man and magistrate.

Says the judge:

"The bill is filed by James F. Dupree and his wife, Uriah E. Dupree, against Uriah Askew, to recover the amount due said Uriah E. Dupree from said Uriah Askew, as her guardian; also, the remainder of her distributive share of the estate of her deceased father, now in the hands of the defendant as his administrator. The bill alleges the marriage of the complainants, and the consequent right of James F. Dupree, by virtue of their intermarriage, to recover and receive the amount due his wife.

"To this bill the defendant has filed a plea in abatement, and for cause of plea says that said bill of said complainants ought to be abated and dismissed, because he says that said complainants were not in terms of the law, in such cases made and provided, duly and legally married as set forth and alleged in said bill, and that the said James F. Dupree is not, and never has been legally the husband of the said Uriah E., and therefore is not entitled to have or maintain the said suit as co-complainant with the said Uriah E. for the re-covery of any of the matters or things set forth in said bill. "And the defendant further says, that the pretended marriage between the said complainants, James F. Dupree and Uriah E. Askew, was pretended to have been solemnized by one A. Buckner, as a minister of the Gospel, when he, the said Buckner, was not then and there a minister of the Gospel of any Christian order whatever, and was not in any way clothed with the power of ministerial ordination, but was long before that time, to wit: at the August Conference in the year 1855, of the Griffin Baptist church, required to render up to said church his credentials, as a minister of the Gospel, which he then and there did, which said credentials were then and there cancelled, revoked and annulled, and the said A. Buckner then and there excommunicated from said church, by means whereof the said A. Buckner became, and was totally disqualified to perform marriage ceremonies. All of which matters and things the defendant doth aver to be true, and pleads the same in abatement of said bill, and demands, the judgment of the court, whether he ought to make any answer to said bill of complaint.

"To this plea the complainants have demurred, and the question for the determination, of the court is, admitting the facts set forth in the plea to be true, is the marriage of the complainants valid? Admitting that A. Buckner at the time he performed the marriage ceremony between James F. Dupree and Uriah E. Askew was deprived of his functions as a minister of the Gospel, and was excommunicated from the church of which he had previously been a member, is the marriage of the parties valid and binding according to law? Do they legally bear and sustain to each other the relation of husband and wife? If yea, the complainant, James F. Dupree, has the right, by virtue of his intermarriage with Uriah E. Askew, to recover and receive whatever amount is due her from her guardian, and the administrator of her deceased father. If he has not been lawfully married to her, and is not her husband, he has no such right of recovery.

"The sole question, then, made by the plea and the demurrer thereto, is the validity of the marriage between the complainants.

"Another question which was discussed by counsel, both for complainants and defendants in the argument before the court, viz.: whether A. Buckner was a minister of the Gospelat the time he performed the marriage ceremony, is not legitimately made by the plea and demurrer.

"The plea alleges that he was deprived of his ministerial functions—was excommunicated from, the church of which he had been a member; that he was" required to surrender up his credentials as a minister of the Gospel, which he did, and therefore they were cancelled, revoked and annulled. The demurrer, admitting these facts to be true, ends that question. According to facts admitted to be true, he was not then and there a minister of the Gospel.

"His authority to act as a minister of the Gospel was derived from the church of which he was a member at the time of his ordination, and when that authority was revoked and taken from him, he ceased to be a minister.

"Such are the facts alleged in the plea; their truth is admitted by the demurrer, and the conclusion follows as a matter of course.

"But the true question in this case, and one of no small magnitude and importance, is this: Is a marriage when the ceremony is performed by an unauthorized person, valid and binding in law?

"Let us, in the first place, ascertain the legal principles which are involved in this question. And the first, and the foundation of all the rest, is that marriage is a civil contract. It is so defined in all the elementary works, and in the two most generally approved and used in this country—Black-stone's and Kent's Commentaries; and it is so defined by judges learned in the law in decisions pronounced by them.

"Sir William Scott who was not surpassed for learning and ability by any judge who ever presided in any of the courts in England, in one of his best considered and most elaborate opinions, Dalrymple vs. Dalrymple, 4 Eng. Bed. Rep. 485, has exhausted the learning on this subject. He says, 'Marriage, in its origin, is a contract of natural law'—'in civil society, it becomes a civil contract, regulated and prescribed by law, and endued with civil consequences.'

"Perhaps the most accurate definition of marriage is found in Bishop on Marriage and Divorce, sec. 29.

"The word marriage is used to signify either the act of entering into the marital condition, or the condition itself. In the latter" and more frequent legal sense, it is a civil status, existing in one man and one woman, legally united for lifefor those civil and social purposes, which are based in the distinction of sex. Its source is the law of nature whence it has flowed into the municipal laws of every civilized country, and into the general law of nations. And since it can exist only in pairs, and since no persons are compelled, but all who are capable are permitted to assume it, marriage may be said to proceed from a civil contract between one man and one woman of the needful physical and civil capacity.\'

"Again, in Sec. 31, he says: 'though marriage, in law writings is generally denominated a contract, yet it is said to be more than a contract, and to differ from all other contracts.'

"In accordance with this is Judge Story's view of marriage in his Conflict of Laws. In Sec. 200 he says: 'Marriage is not treated as a mere contract between the parties, subject as to its continuance, dissolution and effects to their mere pleasure and intentions. But is treated as a civil institution, the most interesting and important in its nature of any in society.'

"Again, in a note to Sec. 108, he says: 'I have throughout treated marriage as a contract in the common sense of the word, because this is the light in which it is ordinarily viewed by jurists, domestic as well as foreign. But it appears to me to be something more than a mere contract. It is rather to be deemed an institution of society, founded upon the consent and contract of the parties; and in this view it has some peculiarities in its nature, character, operation and extent of obligation, different from what belongs to ordinary contracts.

"That eminent jurist, whose opinion has already been quoted, in an elaborate...