Boulden v. McIntire

• Decision Date: 11 May 1889
• Docket Number: 13,750
• Citation: 21 N.E. 445,119 Ind. 574
• Parties: Boulden et al. v. McIntire
• Court: Indiana Supreme Court

21 N.E. 445

119 Ind. 574

Boulden et al. v. McIntire

No. 13,750

Supreme Court of Indiana

May 11, 1889

Petition for a Rehearing Overruled Sept. 25, 1889.

From the Clinton Circuit Court.

Judgment affirmed.

J. V Kent, J. W. Merritt, M. Bristow, M. B. Beard and A. H Boulden, for appellants.

J. Claybaugh, T. H. Palmer and W. F. Palmer, for appellee.

Coffey J. Mitchell, J., dissents.

OPINION

Coffey, J.

This was an action in the Clinton Circuit Court, brought by the appellee against the appellants to quiet title to the land described in the complaint. The cause was put at issue by the general denial, and a trial by a jury resulted in a verdict for the appellee. A decree was rendered by the court upon said verdict quieting the title of the appellee to the land in dispute.

The appellants assign as error the ruling of the circuit court in overruling their motion for a new trial. The reasons assigned for a new trial were:

1st. That the verdict of the jury is contrary to law.

2d. That the verdict of the jury is contrary to the evidence.

3d. That the verdict of the jury is not supported by sufficient evidence.

It appears from the evidence in the cause, that Horace G. Boulden died, intestate, the owner in fee of the land in dispute, leaving no children, or descendants of children, but leaving a mother, and brothers and sisters. The said Horace G. Boulden was married to Eliza Street, in Clinton county, Indiana, on the 22d day of April, 1879, and he died in 1881, leaving her surviving him. Subsequent to his death she conveyed the land in dispute to Samuel Traver, who conveyed to the appellee in this cause. The appellants are the mother, and brothers and sisters of Horace G. Boulden, and resist the claim of the appellee to this land upon the ground that said Horace was not legally married to said Eliza, she at the time of said pretended marriage having a living husband. There is no conflict in the evidence relating to the marriage of Eliza Street prior to her marriage with Horace G. Boulden. It is shown by the evidence, beyond question, that she was married to Charles Limes, in Fayette county, in the State of Ohio, in the year 1873, and that the said Limes is still living. Indeed, the deposition of Charles Limes is on file in this cause, in which he testifies to the marriage.

It is contended, however, by the appellee, that inasmuch as the presumption of law is against crime, we must presume that Eliza Limes was divorced from her husband, in the absence of some showing to the contrary, and that it was not enough for the appellants to show that she had a living husband at the time of her marriage with Horace G. Boulden, but they must go a step further and show that she had not been divorced.

In the case of Yates v. Houston, 3 Tex. 433, the parties appeared in Texas, as husband and wife, four years after the husband's separation from a former wife. The court held that "The rational presumption, after this lapse of time is, that the former wife was dead. * * The ordinary presumption in favor of the continuance of human life should not, under the facts of the case, outweigh the presumption in favor of the innocence of their cohabitation, and that there was no legal impediment to their marriage."

In the case of Hull v. Rawls, 27 Miss. 471, Mrs. Rawls filed her petition for dower, which was resisted by Hull, the administrator of James C. Rawls, deceased, on the ground that she was not the wife of Rawls, as he had a wife living at the time of his pretended marriage with the petitioner. The proof of the petitioner consisted of the record of her marriage, made in the clerk's office of Kemper county, in that State, showing the marriage was solemnized December 6th, 1848. On the part of the administrator it was proved that in 1844 James C. Rawls was living in Chickasaw county with a woman whom he treated as his wife, and that the parties were recognized as husband and wife in the community, and that Rawls had said at one time, in the presence of petitioner, that his former wife was then living in Georgia. The court said: "Aside from the statement of Rawls, there is nothing in the testimony which raises a suspicion against the validity of the marriage. The fact that the deceased was living in 1844 with a woman, believed to be his wife, is no evidence that she was living on the 6th of December, 1848. The marriage having been solemnized according to the forms of law, every presumption must be indulged in favor of its validity. * * If the former wife had been living in Georgia, as stated by Rawls, she would not necessarily be his wife in a legal sense, for they may have been legally divorced."

In the case of Dixon v. People, 18 Mich. 84, the defendant was indicted for murder, and the prosecution sought to use Harriet Dixon, who claimed to be his wife, as a witness, and to show that she was not his wife, and, therefore, competent to testify, proved to the court that she was married in 1859 to one Phillips, in Livingston county, in that State. The wife was then called, and admitted her marriage to Phillips, but further stated that the last time she saw Phillips was in April, 1860, and had not heard of him since; that in 1862 she saw an account in the newspapers of the death of a man by the name of Phillips, who she supposed to be her husband; that she, believing him to be dead, married the defendant in March, 1865. Under this evidence she was allowed to testify, and the defendant excepted. Upon the point we are now considering the court says: "This evidence made a very clear and strong prima facie case of a valid marriage in good faith with the defendant; since, without reference to the newspaper report, the presumption of innocence--that she would not commit the crime of bigamy by marrying the defendant while Phillips was alive--rendered it obligatory upon the court, in the absence of testimony to the contrary, conclusively to presume the death of Phillips and the validity of the marriage with the defendant."

In the case of Harris v. Harris, 8 Bradwell (Ill.), 57, Harris sought to obtain a divorce from his wife on the ground that she had another husband living at the date of their marriage. The court, in discussing the question now under consideration, said: "When it is shown that a marriage has been consummated in accordance with the forms of the law, it is to be presumed that no legal impediments existed to their entering into matrimonial relations, and the fact, if shown, that either or both of the parties have been previously married, and, of course, at a former time having a wife or husband living, does not destroy the prima facie legality of the last marriage. The natural inference in such case is, that the former marriage has been legally dissolved, and the burden of showing that it has not been, rests upon the party seeking to impeach the last marriage. The law does not impose upon every person contracting a second marriage the necessity of preserving the evidence that the former marriage has been dissolved either by the death of their former consort or by decree of the court, in order to protect themselves against a bill for divorce or a prosecution for bigamy."

In the case of Greensborough v. Underhill, 12 Vt 604, the court says: "Is the intermarriage of Burdick with the pauper, in 1836, rendered illegal and void from the fact of her intermarriage with Hyland in 1834, who, after a short cohabitation with her, absconded and has not since been heard of? To render the second marriage illegal and void, we must presume the continuance of the life of Hyland down to the time of the second marriage; and though, as a general principle, we are to presume the continuance of life for the space of seven years, still, when this presumption is brought into conflict with other presumptions in law, it may be made to yield to them. We are in all cases to presume against the commission of crime, and in favor of innocence; and the result will be, if we suffer this presumption to yield to the other, we, by presumption alone, pronounce the second marriage illegal and void, and the parties guilty of a heinous crime. * * In the case of Rex v. Twining, 2 B. & A. 386, the woman married again within the space of twelve months, after her husband had left the country; and yet the presumption of innocence was held to...