Davis v. Whitlock

• Decision Date: 16 December 1911
• Citation: 73 S.E. 171,90 S.C. 233
• Parties: DAVIS v. WHITLOCK.
• Court: South Carolina Supreme Court

73 S.E. 171

90 S.C. 233

DAVIS v. WHITLOCK.

Supreme Court of South Carolina

December 16, 1911

Appeal from Common Pleas Circuit Court of Cherokee County; J. W. De Vore, Judge.

Action by Wylie S. Davis against Araminta Whitlock, alias Araminta Davis. From a judgment for plaintiff, defendant appeals. Reversed, and complaint dismissed.

Otts & Dobson, for appellant. J. E Boggs, for respondent.

WOODS J.

This action by the plaintiff to have his marriage with the defendant declared null rests on the allegation that the defendant's former husband, William Whitlock, was living at the time of her attempted marriage with the plaintiff that the defendant concealed the fact of her first marriage from the plaintiff, and that he was ignorant of its existence until just before the commencement of this action.

The facts, which are in the main undisputed, we find to be as follows: The defendant, whose maiden name was Araminta Lockhart, married William Whitlock and lived with him for about two years, when he abandoned her and went away. The first year of their residence was spent at Whitlock's home near Jonesville, the second about 20 miles away, near Gaffney. In 1873, having heard nothing of Whitlock since his departure, defendant married one Joe Terry. Six months later Terry, in turn, deserted her, and has never been heard of since. In the early part of 1879 defendant married A. H Wood, with whom she lived until his death in 1881. Finally she married the plaintiff on May 8, 1887, having first met him at Central, S. C., where she was conducting a boarding house in 1886. They lived at Central for 12 or 14 years, then went to Atlanta for two years, and finally returned to Cherokee county, where they resided until the separation in 1907, a few days before this action was brought. The evidence as to Whitlock's movements after he abandoned his wife is very indefinite. His cousin, Munro Whitlock, testified that he came back to Jonesville in 1874 or 1875 for a short while. About 1886 he came home once more, but soon wandered off. A year or two later he returned again, and remained until his death in October, 1895, though during this time he went away for short intervals. Defendant testified that she had not seen or heard of Whitlock during all these years from 1868, and that she received about 1901 her first intimation that he had come back to South Carolina, and, after living here for some time, had died in 1895. It appears that plaintiff and defendant lived agreeably together from the time of their marriage, until a few years before their separation, when plaintiff took to drink, and when under its influence he was abusive of defendant, for which cause she left him. He admits that up to a few years before the separation she was a faithful and dutiful wife. She admits that, when she married him, she did not know whether Whitlock was dead or alive, and that she made no inquiry about him, and that she did not tell plaintiff of her marriage either to Whitlock or to Terry, saying: "He never told me of his past life, and I never told him of mine. He never asked me." The couple are now between 65 and 70 years of age. During their life together by their joint efforts and industry they accumulated about $2,500 worth of property, real and personal, the title to which is in plaintiff.

The special referee to whom the issues of law and fact were referred found that as Whitlock was alive at the date of the marriage, and as no effort was made by defendant to ascertain whether he was dead or alive, the presumption of his death, which would arise from seven years absence unheard of by her after reasonable diligence and inquiry to ascertain if he were alive, could not avail to sustain her marriage with plaintiff, though she entered into the contract in good faith, and he held the original marriage void. But he held further that, the parties having lived together as man and wife and recognized each other as such for more than 10 years after the death of Whitlock, which removed the only impediment to a valid marriage between them, that was sufficient to establish a common-law marriage, notwithstanding the invalidity of the original contract.

The circuit court concurred in the former, but overruled the latter, conclusion, and held that the original marriage, being void, could not be validated by ratification, and that the relation of the parties to it was therefore adulterous, and that the relation would be presumed to continue until changed by the mutual consent of the parties. Therefore the cohabitation of the plaintiff and defendant subsequent to the death of Whitlock, without any new agreement, would he referred to the original unlawful relation, and could not afford ground for inferring a subsequent valid marriage. Therefore the marriage was adjudged to be null and void.

The jurisdiction of the Court of Common Pleas to declare a marriage void was not called in question in the court below, nor in this court; but, since the court of equity in Mattison v. Mattison, 1 Strob. Eq. 387, 47 Am. Dec. 541, decided in 1847, and Bowers v. Bowers, 10 Rich. Eq. 551, 73 Am. Dec. 99, decided in 1857, held that such jurisdiction was denied to the courts of this state, we shall first endeavor to show that changes in the constitutional and statute law of the state have destroyed the force of these cases, and that jurisdiction to declare marriages void ab initio has been conferred on the courts of common pleas.

The Civil Code of 1902 contains the following provision as section 2661: "All marriages contracted while either of the parties has a former husband or wife living, shall be void: Provided, that this section shall not extend to a person whose husband or wife shall be absent for the space of seven years, the one not knowing the other to be living during that time; nor to any person who shall be divorced, or whose first marriage shall be declared void by the sentence of a competent court." This law first appears in the Revised Statutes of 1873, and is found in the Codes of 1882 and 1893. A similar provision as to the absence for seven years is found in the act of 1712 (2 Stat. 508), but that related only to exemptions from criminal prosecution, and conferred no civil rights. Section 2658 of the Civil Code expressly forbids marriage between persons sustaining to each other any of the close relationships therein set out, and so makes all attempts to contract such marriages of no effect. Section 2664, taken from the statute passed in 1879 (17 Stat. 3), enacts that any "marriage or attempted marriage" between a white person and a person of the Indian or negro race shall be "utterly void and of none effect."

Here are three statutes of the state declaring that no ceremony and no attempted contract of marriage can have the effect of establishing the relation of husband and wife between persons of the status and the classes mentioned in the statutes. There are no limitations except those contained in the proviso to section 2661. It makes no difference if the persons undertaking to contract marriage were not aware of the disability, and so were innocent of any intention to violate the law, or that they have cohabited together as man and wife. Their status is that of unmarried persons and their cohabitation unlawful. Do not such statutes necessarily carry with them the right to persons affected by them to have their status under them adjudicated by the courts? Or are we forced to the conclusion that, in cases of doubt, innocent persons must remain all their lives in uncertainty whether they are married or single, whether it be duty or a crime to discharge the obligations incident to the marriage relation? The evils to society as well as the hardship to individuals which would result from a denial of the power of the courts to determine these questions are manifest. No less manifest would be the incongruity and reproach to the law of holding that, if in the course of the life of the individuals concerned or after their death it should happen that in any contest over property the validity of the marriage should incidentally arise, the court could declare the marriage void under the statute law of the state, but could never adjudicate the question in a direct proceeding which would determine not only all property rights, but the many other marital rights recognized by the law, and so important not only to the individual, but to society. We think it can be made manifest on both principle and authority that such incongruity in the law does not exist, and that the court of common pleas has jurisdiction to decide in a direct proceeding that what purported to be a marriage was and remains in fact a nullity, and that neither party acquired any marital rights thereunder. There ought to be no doubt of the proposition that, when the legislative department of the government enacts a law, it is not necessary to provide that the Courts shall have jurisdiction to determine any substantial controversy between individuals that may arise under that law. Such jurisdiction is necessarily implied. Indeed, it seems clear that it would be beyond the power of the lawmaking body to deny to the citizen the right to have adjudicated substantial claims or obligations arising under the statute law of the state. As soon as a statute is enacted, the judicial power attaches to it, and every citizen who has a controversy with respect to a substantial legal claim arising thereunder has a right to invoke the judicial power in the assertion of rights. Not only does this conclusion result from the essential qualities and relations of legislative and judicial powers, and the right of the citizen to invoke the judicial power, but it is directly and clearly expressed in the provision of the Constitution that "all co...