Chamberlain v. Chamberlain

• Decision Date: 27 November 1905
• Citation: 62 A. 680,68 N.J.E. 736
• Parties: CHAMBERLAIN v. CHAMBERLAIN.
• Court: New Jersey Supreme Court

62 A. 680

68 N.J.E. 736

CHAMBERLAIN

v. CHAMBERLAIN.

Court of Errors and Appeals of New Jersey.

Nov. 27, 1905.

(Syllabus by the Court.)

Appeal from Court of Chancery.

Bill by Mary Chamberlain against Stroud

H. Chamberlain. Decree for plaintiff (59 Atl.

813), and defendant appeals. Affirmed.

Elmer King, for appellant Peter J. McGinniss and John M. Ward, for respondent.

GARRETSON, J. The complainant filed her bill against the defendant under the twentieth section of the divorce act, alleging that her husband has left her and refuses to support her, and praying for support and maintenance.

The only defense which it is necessary to consider is that the defendant is not the husband of the complainant, and therefore is not liable to support her. The complainant, under her maiden name of Mary Walsh, married William Tissell March 29, 1871. William Tissell left Mary Tissell March 12 or 15, 1877, and went to St Louis, and thence to Oak Grove, Tex. 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, by a clergyman in the city of Brooklyn. On May 8, 1880, the complainant under the name of Mary Tissell filed a petition for divorce upon the ground of desertion against William Tissell, and decree was granted thereon June 30, 1881. Prior to the marriage of the complainant and defendant, in 1880, they both believed that William Tissell was dead, and they continued in that belief until after the present suit was instituted, when there was evidence to show that he was still alive. If William Tissell was alive in April, 1880, when the complainant was married to the defendant, that marriage was invalid. When the impediment of her former marriage was removed by the decree of divorce, then the complainant might legally become the wife of the defendant. The complainant testified that, while she believed Tissell was dead when she married Chamberlain, she procured the divorce from Tissell for the reason that she and Chamberlain talked of getting a little property, and she was afraid that something might occur that might do harm in that way. After the complainant and defendant were married in 1880, they lived together as husband and wife until the separation which occurred shortly before the commencement of this suit. Each supposed that the relationship between them was lawful and that of husband and wife. He addressed her and introduced her as his wife. She addressed him and introduced him as her husband. They gave a mortgage upon property of the defendant June 25, 1885, in which she is described as his wife and which she acknowledged as his wife. From the time of the marriage, in 1880, to the commencement of the suit, it was the intention of both the complainant and the defendant, as they state, that their relations should be lawful, and not meretricious. They were by law, meretricious, however, down to the time of the divorce of Tissell, because of Tissell living; but, the impediment which rendered them meretricious having been removed and the lawful intent still continuing, it would be unjust not to give that intent effect if possible.

In connection with the intent of both parties as admitted by them,...