Clayton v. Clayton

• Decision Date: 01 December 1878
• Citation: 4 Colo. 410
• Parties: CLAYTON et al. v. CLAYTON, HEIR, etc.
• Court: Colorado Supreme Court

4 Colo. 410

CLAYTON et al. v. CLAYTON, HEIR, etc.

Supreme Court of Colorado

December, 1878

Appeal from District Court of Gilpin County.

EJECTMENT-Declaration ordinary form claiming as heir at law; plea, general issue. On the first day of March, A. D. 1867, James W. Clayton procured summons to be issued out of the office of the clerk of the district court of Gilpin county, against Sarah A Clayton, his wife, on a bill for divorce. The respondent was a non-resident, and on the same day the summons was issued it was returned non inventus by the sheriff. The complainant thereupon procured an order of notice by publication requiring the respondent to appear and answer at the ensuing April term. On the fourth day of April the bill was taken pro confesso, and reference to the master ordered to take proof. On the twenty-sixth day of June following, it being one of the days of the April term, the report of the master was filed, and on that same day a decree was signed granting a divorce in accordance with the prayer of the complainant's bill. The only witness produced before the master, as appears from the report, was the complainant, who being duly sworn, testified:

'My name is James W. Clayton, and I am the complainant in this cause; reside in Nevada, in Gilpin county, Colorado Territory; the defendant, Sarah A. Clayton, and I were married on the 3d day of May, A. D. 1855; I have resided in this, Gilpin county, since the summer of 1860; the defendant came to this county with me in April, 1862, and resided here with me until the fore part of October of the same year, and the defendant being dissatisfied with the country, I took her back to Illinois in October, 1862; she did not seem more dissatisfied with the country than any other; she has since October, 1862 (except a short time spent in Eastern Ohio) resided in the State of Illinois; two years ago the spring last past, I was in Illinois, where the defendant resides and asked her to come to Colorado Territory and live with me and she refused so to do, and still continues to live separate and apart from my house; I have always been able and willing to provide and furnish the defendant with a good and comfortable home, and supply and furnish the same in a comfortable manner and always did while the defendant lived with me, provide a comfortable house and home for her, and in all respects provided her from the day of our marriage, until she neglected to live with me, with all the necessaries and comforts of life, and in all respects treated her in a kind, considerate manner, as a husband should treat a wife.'

At the April term, A. D. 1876, the appellee as the heir at law of James W. Clayton, commenced this action in ejectment in the district court of Gilpin county, against Sarah A. Clayton, administratrix, and James Clark administrator, of the estate of James W. Clayton, deceased, to recover possession of a certain lode claim, mill site and other property, in Nevada mining district. On the trial in the district court, the first witness, A. M. Jones, called on behalf of the plaintiff, testified as to the possession of James W. Clayton in his life-time, of the property in dispute, and that he knew Sarah A. Clayton, the plaintiff, 'James W. Clayton's first wife.'

The plaintiff then offered in evidence the Master's report, containing the deposition of James W. Clayton, as above set forth. The defendants objected and alleged as the grounds of their objection, that the statements of Clayton could not bind them, the defendants, and that, if the plaintiff put in part, she must put in the whole record and testimony; the objection was overruled and the defendants excepted. After reading the Master's report, the witness Jones was recalled and testified: 'I know the Sarah A. Clayton spoken of in this testimony, who lived with James W. Clayton in 1862, called his wife. She lived with him. I lived within two hundred or three hundred feet of them.'

Question-'Did Mr. Clayton call her his wife?'

To this question defendants objected, because it was 'not the proper way to prove that the plaintiff was ever the wife of James W. Clayton.' The court overruled the objection and the defendants excepted.

Answer-'He called her his wife. I was in the house frequently. They had one child, which they treated as their own child. Mr. Clayton is reported to have been killed down the Platte.'

The plaintiff then called James Clark, who testified:

'I am, I suppose, one of the defendants. I knew James W. Clayton in his life-time. Mrs. Clayton and myself are the administrators of his estate. I knew the mill site occupied by him in his life-time. He occupied it from 1860 until he was killed in 1874. He also occupied all the property described in the declaration as being on the American Flag lode, for same length of time. Myself and Mrs. Clayton are now exercising acts of ownership over the property; have done so since our appointment in December, 1874. I know Sarah A. Clayton, the plaintiff, his first wife, but not very well. Saw her a few times; saw her and Mr. Clayton at his house. I think they had one child.' Defendants objected to statement of witness that he 'knew Clayton's first wife, this was not the way to prove the marriage.'

George K. Sabin was called for the plaintiff, and testified: 'I knew James W. Clayton and Sarah A. Clayton. I lived in Nevada from 1860 to 1865.'

Cross-examined: 'I do not know what you mean by the first and second Mrs. Clayton. I know the present Mrs. Clayton, one of the defendants. Mr. Clayton treated her as his wife. I have been at their house often since he was married to the present Mrs. Clayton, defendant. He was living with her at the time of his death. They lived together until he was killed.'

The defendants here admitted the locus in quo to be as laid in the declaration, and the plaintiff rested. Defendants then moved the court for a nonsuit 'because plaintiff has not proved that she was the wife of James W. Clayton in his life-time, and because the proof was not sufficient to maintain the case on her part.'

The court overruled the motion, to which the defendants excepted.

The defendants, to maintain the issue upon their part, then offered in evidence the decree of divorce rendered on the 26th day of June, 1868, between James W. Clayton and the plaintiff.

The plaintiff objected, 'because the court that rendered this decision had no jurisdiction of the person of Sarah A. Clayton, and the record so shows, and the decree for that reason is absolutely void, and furnishes no protection to the defendants in this cause, and they must first show what proceedings were instituted to show upon what this decree is based.' The objection was sustained, and the defendants excepted. The defendants then offered the record in evidence, beginning with the summons, to the introduction of each part as offered, the plaintiff specifically objected, the objections were sustained and exceptions reserved by the defendants. The defendants then offered in evidence the following certificate:

'GOLDEN CITY, C. T., Sept. 3, 1868.

This certifies that I this day joined in matrimony James W. Clayton and Sarah A. Slate, both of Colorado.

Signed,

B. R. VINCENT, P. E. Denver Dist.'

And properly certified as being recorded in book N, page 4, records of Jefferson county, November 20, 1868, under the hand and seal of the county clerk of said county, to which plaintiff objected and the court sustained the objection; the evidence was excluded and defendants excepted.

The plaintiff made no objection that it was not the original, and admitted that B. T. Vincent was authorized to perform the marriage ceremony, and that the above-named Sarah Slate is one of the defendants herein, now called Sarah A. Clayton and that she and James W. Clayton lived together as man and wife to the time of his death; also, that James...