Clark v. Clark

• Decision Date: 12 November 1917
• Docket Number: 19649
• Citation: 76 So. 638,115 Miss. 726
• Court: Mississippi Supreme Court
• Parties: CLARK v. CLARK ET AL

76 So. 638

115 Miss. 726

CLARK v. CLARK ET AL

No. 19649

Supreme Court of Mississippi

November 12, 1917

Division B

APPEAL from the chancery court of Kemper county, HON. A. Y WOODWARD, Chancellor.

Bill by Albert Clark and others against Mandy Clark. From a judgment for complainants, defendant appeals.

The facts are fully stated in the opinion of the court.

Judgment reversed, and bill dismissed.

G. J Rencher and Geo. Butler, for appellant.

J. H. Daws and W. C. Well, for appellee.

OPINION

ETHRIDGE, J.

Albert Clark and others filed a bill in the chancery court of Kemper county against Mandy Clark, alleging that Nero Clark, deceased, departed this life intestate seised and possessed of certain property in Kemper county, and that the complainants were brothers and sisters and descendants of brothers and sister of Nero Clark, deceased. They allege that the defendant, Mandy Clark, is claiming an interest in the said lands by virtue of the pretended marriage to the deceased, Nero Clark, and aver that such pretended marriage was void because the defendant, Mandy Clark, at the time of the ceremonial marriage with Nero Clark was lawfully married to Daniel Savior by virtue of a valid and ceremonial marriage, and prayed for an order of court canceling the claim of Mandy Clark as to the land and for an order of sale of the land for division among the complainants.

The defendant, Mandy Clark, denied that the complainants were the only heirs of Nero Clark, but admitted the kinship set out in the bill of complaint, admits that Nero Clark was the owner of the land described, but denied that the complainants were his heirs in the sense of inheriting the property, and avers that she is the sole heir of the said Nero Clark. She denies that she was ever lawfully married to Daniel Savior, but asserts that she was lawfully married to Nero Clark. The bill was not sworn to, and did not waive answer under oath, and the answer was sworn to. Subsequent to the filing of the answer the defendant filed an amended answer and cross-bill. In this amended pleading she charges that at the time she and Daniel Savior undertook to marry the said Daniel Savior had a living wife from whom he had not been divorced, and that this was not known to the defendant, and that as soon as she found out she was not legally married, she quit the said Daniel Savior.

The complainant proved by witnesses the ceremonial marriage between Daniel Savior and Mandy Burrage, now Mandy Clark, who is the defendant and appellant in this cause. The defendant proved by a nephew of Daniel Savior that Daniel Savior was married in Leake county to a woman named Martha, and that he and Martha were recognized as husband and wife in the community in which they lived, and by the friends and relatives of Daniel Savior; that such marriage between Daniel Savior and Martha occurred some time after the surrender, or close of the late Civil War, and that some time thereafter Daniel Savior got into some trouble with the white people in his community and left the county. The witness, who was a nephew of Daniel Savior, also left the county with his family and moved into Winston county. He testifies that his uncle, Daniel Savior, visited him subsequent to such date and subsequent to the date which it was charged he was married to Mandy, the appellant, and that at the time of such visit his Aunt Martha, wife of Daniel was still living. The children of Daniel Savior and the...