Chamberlain v. Chamberlain

• Decision Date: 23 January 1905
• Citation: 68 N.J.E. 414,59 A. 813
• Parties: CHAMBERLAIN v. CHAMBERLAIN.
• Court: New Jersey Court of Chancery

59 A. 813

68 N.J.E. 414

CHAMBERLAIN

v. CHAMBERLAIN.

Court of Chancery of New Jersey.

Jan. 23, 1905.

Bill by Mary Chamberlain against Stroud H. Chamberlain. Heard on bill, answer, replication, and proofs. Decree advised for complainant.

Peter McGinnis and John M. Ward, for complainant.

Elmer King, for defendant.

STEVENSON, V. C. (orally). This bill is filed under the twentieth section of our divorce act by Mary Chamberlain against Stroud H. Chamberlain, who she alleges is her husband charging that he has abandoned her and neglected and refused to support her, and praying for the statutory relief afforded in such a case. The answer contains an attempt, as I recall it, to answer the charges of misconduct set forth in the bill of complaint, but sets up as a complete defense —and this is the only defense which is supported by proof so as to call for consideration —that the defendant is not the husband of the complainant, and therefore is not liable to the statutory action, and is not liable to discharge the common-law duty which a husband owes to the wife in respect of support.

The brief for the defendant, which is very voluminous and discusses a large number of cases, presents at the start the following as the history of the case: "William Tissell and Mary Walsh (Mary Walsh being now the complainant, Mary Chamberlain) were married March 29, 1871. William Tissell left Mary Tissell and went to St. Louis, and thence to Oak Grove, Texas, March 12 or 15, 1877. About July, 1877, a letter was received by Mary Tissell from William Tissell. Mary Tissell, under the name of Mary Walsh, was married to Stroud H. Chamberlain April 4, 1880. Mary Chamberlain, under the name of Mary Tissell, filed a petition for divorce in this court, sworn to by her, May 8, 1880, and decree of divorce granted thereon June 30, 1881. From time of marriage to Stroud H. Chamberlain in 1880, both lived and cohabited together as man and wife until defendant left her, in March, 1903. There was no issue born of the marriage. Both complainant and defendant believed the first husband, William Tissell, was dead until after these proceedings (that is, the proceedings in this present suit) were instituted, when that he was alive was discovered by the defendant. William Tissell, the first husband, was, at the time of the filing of the bill and the hearing of this case, living at Oak Grove, Texas."

The foregoing extract which I have read from defendant's brief states the leading facts. The intention undoubtedly is to state, in accordance with the proofs, that both the complainant and the defendant at the time of their attempted marriage, April 4, 1880, had been informed and verily believed that the complainant's first husband, William Tissell, was dead, and that they both held such belief continuously until after this suit was commenced. I will add here that the affidavit of a man, purporting to be the affidavit of William Tissell, the complainant's first husband, sworn to in Texas—an ex parte affidavit—was admitted by stipulation as evidence in the cause, to have the same force as a deposition of the affiant taken de bene esse. There was no objection made to the use of the affidavit as evidence, it being apparent that the affiant was not within the reach of the process of the court at the time of the hearing. This affidavit is signed by a person calling himself William Tissell, and the signature indicates that the affiant was an illiterate person. The complainant testified that when her first husband left Paterson, being at that time perhaps about 40 years of age, he could neither read nor write. There were other circumstances which perhaps cast some slight doubt upon the affidavit of this man William Tissell—which perhaps create or sustain some slight doubt as to whether the William Tissell who signed this affidavit was the William Tissell who left Paterson in 1877. The affidavit apparently was prepared in New Jersey, and sent to Texas to be signed. The testimony of the complainant, which was not objected to, showed that notice of the pendency of the divorce suit was given by mail, and that the notice was returned in the envelope in which it was mailed, and this original envelope was put in evidence in this cause. The affidavit of this William Tissell states, in substance, that he received notice of the suit by mail. I do not think, however, as the case stands, that the proposition is open to dispute that, in point of fact, the complainant's first husband was living when this ex parte affidavit was made. I shall deal with the case upon that supposition.

We nave, then, the case of a man and woman who undertook to enter into the marriage relation with each other on April 4, 1880, both parties believing in good faith that they were competent to enter into that relation—that each of them had the capacity to marry the other—while in fact one of the parties, the complainant, the woman, was under a disability on account of her having a husband then living. These two parties, entertaining such belief, were married by a clergyman in the city of Brooklyn, and thereupon began living together as man and wife, and continued to cohabit as man and wife, holding themselves out to the world as married, each recognizing the other as his or her lawful spouse, for a period of 23 years. The proofs, I think, indicate that, before the complainant undertook to marry the defendant, she went, with his knowledge, to counsel, and instructed him (the counsel) to institute a divorce suit against her former husband, William Tissell, whom she believed to be dead. Without waiting, however, to obtain the decree which was subsequently obtained, divorcing her from Tissell on the ground of desertion, she undertook to enter into the marriage relation with the defendant Both parties appear to have had full knowledge of all the facts. The complainant relied upon the statements of two persons to the effect that Tissell was dead. The affidavit of one of these persons, George B. King, has been put in evidence by consent. This witness testifies that he went to Texas in the spring of 1880, and, at the request of the complainant, made inquiries for Tissell; that he made such inquiries, but discovered nothing about Tissell's whereabouts; and that when he came back he told the complainant that he could not find Tissell, and he must be dead. The complainant testified also that one Pierson Vreeland, now deceased, a former resident of Paterson, and a man of substance and good repute, upon his return from a journey assured her that he had learned in Texas that Tissell was dead. The complainant testifies that she informed the defendant of what Mr. Vreeland had stated to her. Mr. Vreeland was the former employer of the defendant, and evidently a friend or friendly acquaintance of both parties. The defendant, so far as his testimony shows, made no effort to inquire from Mr. Vreeland, as he might have done—to question him about the extent of his investigations in Texas, and the source of his information in regard to Tissell's death. Both of these parties acted upon this hearsay evidence, and appear to have acted in good faith. It is important to note that there is no suggestion that the complainant made any intentionally false or fraudulent statement to induce the defendant to marry her. Apparently the defendant had open to him all the sources of information which the complainant had in regard to the question whether Tissell was dead or not.

After the decree of divorce had been obtained In June, 1881, the complainant and defendant were living together, and some question was raised among the women who were living in the same boarding house, or living near these parties, in regard to Mrs. Chamberlain's status. The complainant was then known, and had been known and always was known after her marriage in April, 1880, as Mrs. Chamberlain, and was regarded as the defendant's wife. Without undertaking to state the testimony of the complainant and the defendant and the two women who were called as witnesses in regard to the matter, I think I can state the substance of what is proved when I say that the defendant exhibited the decree of divorce which the complainant had obtained from Tissell, in order to stop all gossip in regard to his relations with the woman who passed as his wife. He gave the most positive assurances to the complainant in the presence of these witnesses that the complainant and himself were legally married—that she was his lawful wife—and he evidently referred to the decree of divorce as establishing the legality of the relation which he apparently sustained to the complainant. It does not appear that the defendant allowed either of these two women to learn that the date of the divorce was over a year later than his attempted ceremonial marriage with the complainant. It may be that the defendant recognizing the difficulty of establishing the lawfulness of his marriage by proving the death of Tissell, adopted the more convenient expedient for satisfying the scruples of his neighbors which was afforded by the decree of divorce. Unless these neighbors knew the dates of both the marriage ceremony and the divorce, the defendant's bold production of the decree of divorce would naturally be accepted as absolute proof of the lawfulness of his relations with the complainant, while the mere statement that it had been reported that Tissell died in Texas at some time within the three years preceding the marriage would have been regarded by these worthy people as a very doubtful warrant for so early a remarriage by Tissell's wife. The complainant testifies that the reason why she got the divorce was because it was suggested that it would be convenient in case she or Mr. Chamberlain, her husband, should thereafter acquire property. There are indications also that one object of the decree of divorce was to establish the legality of the relations of these two parties in case the unexpected event should...