Casley v. Mitchell

• Citation: 96 N.W. 725,121 Iowa 96
• Parties: SUSANNA CASLEY v. B. F. MITCHELL, Appellant
• Decision Date: 06 October 1903
• Court: United States State Supreme Court of Iowa

96 N.W. 725

121 Iowa 96

SUSANNA CASLEY v. B. F. MITCHELL, Appellant

Supreme Court of Iowa, Des Moines

October 6, 1903

Appeal from Calhoun District Court.--HON. S. M. ELWOOD, Judge.

THE plaintiff alleges that she is a resident of St. Just, in the county of Cornwall, England, and that she was there married to John Casely in February, 1863; that some years after said marriage her husband deserted her without cause, and removed to the United States, where he assumed the name of John Wallace; that under such assumed name he acquired the title to, and became the owner of, certain real estate in Calhoun county, Iowa which he afterwards conveyed to the defendant's grantor; that since such conveyance the said John Casley, alias John Wallace, has died, and that she is his widow, and entitled to one third in fee simple of the real estate of which he was seised during his life, and that she has made no relinquishment or conveyance of such interest; that the defendant holds the title to said land through a deed from her husband, as aforesaid. Plaintiff prays that her title be established, in accordance with the facts pleaded. There was a trial to the court, and a decree for the plaintiff, from which the defendant appeals.

Affirmed.

O. J Jolley and E. C. Stevenson for appellant.

W. E Gray and M. W. Frick for appellee.

OPINION

SHERWIN, J.

The first question for determination, in the logical order of events, is whether the record shows by competent evidence the marriage of the plaintiff to John Casley, as alleged by her. We are abidingly convinced that it does. Record evidence of marriage is not necessary, and it may be proved by any kind of evidence, whether direct or circumstantial. State v. Williams, 20 Iowa 98; State v. Wilson, 22 Iowa 364; 19 Am. & Eng. Ency. Law (2d Ed.) 1197, and cases there cited. Greenleaf on Evidence (13th Ed.) section 461. The testimony of the witness Nicholas, who married the plaintiff's sister, and who was at her father's home when she and Casley returned from their marriage at the parish church, shows that they immediately afterwards commenced living together, and so continued for several years and that three or four children were born to them, and is alone sufficient to establish the marriage.

The parish register of St. Just is also competent evidence of the marriage. It is a record of marriages, baptisms, and burials, required by the law of England, and the entry therein was made by the then vicar in the usual course of business. Greenleaf on evidence, supra; Abbott's Trial Evidence, sections 43, 44; 19 Am. & Eng. Ency. Law 1202; Blackburn v. Crawford, 70 U.S. 175, 3 Wall. 175 (18 L.Ed. 186).

That the John Casley who was married to the plaintiff in 1863 is the identical person who became the owner of the property in question under the assumed name of John Wallace does not admit of doubt, and, indeed, is not seriously questioned. Some four years after his marriage to the plaintiff, John Casley left his wife and St. Just, for the purpose of seeking employment elsewhere. For some three months thereafter the plaintiff received letters and remittances from him, but thereafter heard nothing from him, and for many years did not know of his whereabouts. John Casley went to Germany after he had abandoned the plaintiff, and there he assumed the name of John Wallace, and was married under that name in 1873. After his second marriage, he removed to the northern part of England, where he and his new wife, Elizabeth Wallace, lived eight or ten months, and from there they came to the United States, locating first in Pennsylvania. In 1875 Casley came to Iowa and the year after his second wife joined him here. In 1877 they removed to Colorado, where they resided about a year, and from there they came back to Iowa where they lived together as husband and wife until the death of Casley in December, 1898. During all of this time he went under the assumed name of John Wallace, and acquired and held property in that name. There is no evidence in the record tending to show that he at any time or place procured a divorce from the plaintiff. She did not procure one from him nor did she have any notice or knowledge that he had procured, or attempted to procure, a divorce from her. Neither did the plaintiff have knowledge that Casley had again married. No presumption that Casley obtained a divorce from the plaintiff before or after his marriage in Germany can be indulged, and the case of Blanchard v. Lambert, 43 Iowa 228, and later cases based upon facts similar thereto, are not controlling here. In the Blanchard Case, Mrs. Blanchard had been married to one Musgrave before her marriage to Blanchard. She and Musgrave separated in 1858, and both thereafter lived for...