Boatman v. Curry

• Decision Date: 31 July 1857
• Citation: 25 Mo. 433
• Parties: BOATMAN et al., Respondents, v. CURRY, Appellant.
• Court: Missouri Supreme Court

25 Mo. 433

BOATMAN et al., Respondents,

v.CURRY, Appellant.

Supreme Court of Missouri.

July Term, 1857.

1. The fact that an instrument, the foundation of an action, is not filed with a justice of the peace, is no ground for dismissing the suit; at most, such failure is a ground for a continuance.

2. A wife may, when she becomes discovert, affirm and ratify a deed made by her during coverture.

3. Though, in a suit in behalf of persons claiming to be husband and wife, to recover rent of the wife's land alleged to be due, it is competent for them to prove the marriage by evidence of cohabitation and by general reputation, yet the defendant may show that the alleged marriage is illegal and void.

Appeal from Kansas City Court of Common Pleas.

This was a suit instituted by John Boatman and Elizabeth, his wife, before a justice of the peace, to recover $40, the rent of a farm for six months. The cause was taken by appeal by the defendant, Curry, to the Kansas City Court of Common Pleas. The account filed before the justice was as follows: “Oliver P. Curry to John Boatman and Elizabeth Boatman, Dr. To one-half year's rent of farm, at $80 per year--$40.” Before the trial the defendant moved to dismiss the cause because it was founded on a certain lease which had not been filed with the justice before process was issued. This motion was accompanied by proof that the same motion had been made before the justice and had been overruled. The court overruled the motion. The plaintiffs “proved by several witnesses,” says the bill of exceptions, “that plaintiff, Elizabeth Boatman, some time about the 12th day of April, A. D. 1856, and whilst the wife of one George Daniels, leased in writing to one Sylvanus Crow certain premises formerly occupied by the said George Daniels and the said Elizabeth during the time they lived together, and which continued to be used and occupied occasionally by said George Daniels after the commencement of a suit by him against the said Elizabeth for a divorce. Plaintiff further proved that said lease was produced by plaintiffs on the trial before said justice, but that since said trial it had been lost or mislaid. Plaintiffs were then permitted to prove the contents of said lease without being required to prove the execution thereof, to which defendant objected; to which action of the court, in overruling said objection and admitting said evidence, defendant, by his attorney, excepted. Plaintiffs then proved by a witness, T_______n, that defendant, on one occasion, some time in April, A. D. 1856, and after he had taken possession of said premises, said he owed Mrs. Daniels some rent, but did not state the amount. Plaintiffs proved by another witness, Casside, that defendant told him that the defendant held the premises, and that he stood in Crow's shoes under Crow's bond, and that he had paid Crow forty dollars. Plaintiffs proved by one Matthews the contents of said lease, and that the amount of rent thereon stipulated to be paid by Crow to Mrs. Daniels was the sum of eighty dollars per annum, and that the place was worth one hundred and twenty dollars per annum. There was no evidence of any contract between plaintiffs, or either of them, and defendant, respecting the use and occupation of said premises. Before any evidence was offered by plaintiffs, defendant made to said court and jury a special denial of the marriage of plaintiffs, and of their right to maintain this action as husband and wife. The court permitted plaintiffs to prove a general reputation of their marriage, and that they lived together as husband and wife, to which evidence defendants objected, and to which action of the court, overruling the objection and admitting said evidence, defendant excepted. Plaintiffs made no further proof of their marriage. It appeared in evidence that the said Elizabeth, who sues herein by the name of Elizabeth Boatman, is the same Elizabeth Daniels who leased said premises to said Crow, and from whom the said George Daniels subsequently procured a divorce. Defendant then offered in evidence a certified copy of the record of a judgment of said court, rendered on the 19th day of July, A. D. 1856, in a certain cause between the said George Daniels as plaintiff, and the said Elizabeth Boatman, one of the present plaintiffs, then Elizabeth Daniels, as defendant, divorcing the said George Daniels from the said Elizabeth Daniels. To the introduction whereof plaintiffs objected for irrelevancy. Defendant then stated to the court its supposed relevancy and purpose thereby to prove, 1st, the coverture of plaintiff, Elizabeth Boatman, at the time of the leasing by her to said Crow; and, 2d, her incapacity to marry again for the space of five years from the said 19th day of July, A. D. 1856, the date of said judgment of divorce. The court sustained plaintiff's objection to the introduction of said judgment for irrelevancy and excluded the same from the jury; to which opinion and action of the court, in sustaining said objection and excluding said...