Dyer v. Brannock

• Decision Date: 31 October 1877
• Citation: 66 Mo. 391
• Parties: DYER et al., Plaintiffs in Error, v. BRANNOCK et al.
• Court: Missouri Supreme Court

66 Mo. 391

DYER et al., Plaintiffs in Error,

v.BRANNOCK et al.

Supreme Court of Missouri.

October Term, 1877.

Error to St. Louis Court of Appeals.

The case is reported in 2 Mo. App., 432. Ejectment to recover several lots in the city of St. Louis. The opinion states the case.

Pope and Randall for plaintiff in error.

1. There was a marriage between Wilson and Sarah Ann Adams in 1824, unless the evidence proves a marriage between Wilson and Jane Collins in 1819. If the latter marriage is proved, then the former is “deemed null in law,” but under the statute the issue is nevertheless legitimate. Lincecum v. Lincecum, 3 Mo. 441; Stones v. Keeling, 5 Call 143; Graham v. Bennett, 2 Cal. 506; Johnson v. Johnson, 30 Mo. 72; Buchanan v. Harvey, 35 Mo. 276.

2. Though the evidence may not prove a marriage in 1819 between Wilson and Jane Collins, yet there is proof of a marriage between them in 1830, which was valid though not solemnized according to the statute. Burns' Ecc. Law, title marriage, 488; Morris v. Miller, 1 Wm. Bl. 632; 4 Burr. 2057; St. Devereux v. Much Dew Church, 1 Wm. Bl. 367; State v. Britton, 4 McCord 256; Jackson v. Winne, 7 Wend. 47; Fenton v. Reed, 4 Johns. 52; Taylor v. Robinson, 29 Me. 323; 2 Greenl. Ev. §§ 460, 462; 2 Stark. Ev. 939; 1 Phil. Ev. (4 Am. Ed.) 631; Richard v. Brehm, 73 Penn. St. 140; Bissell v. Bissell, 55 Barb. 325; Claytonv. Wardell, 4 N. Y. 230; Boatman v. Curry, 25 Mo. 433; Grotgen v. Grotgen, 3 Bradf. 373; Tumalty v. Tumalty, Ib. 369; 2 Dane's Abridg. 297; Cargile v. Wood, 63 Mo. 501.

3. A marriage in Missouri in 1830 was valid if had by the mutual present consent of two competent persons, made in good faith and followed by cohabitation, without the addition of any prescribed formalities, and may be shown by such evidence as proves that such a marriage actually exists. Dalrymple v. Dalrymple, 2 Hagg. Con. 61; 1 Bl. Com. 433, 440, note 26; Taylor on Civil Law, p. 301. et seq.; 2 Dane's Abr. 290, 297; Read v. Passer, 1 Esp. 213; Leader v. Barry, Id. 353; Lindo v. Belisario, 1 Hagg. Con. 216, 230; Hayden v. Gould, 1 Salk. 119; McAdam v. Walker, 1 Dow 148, 181, et seq.; King v. Brampton, 10 East. 282; Bunting v. Lepingwell, 4 Coke 29; Holt v. Ward, 2 Strange 937; Burns' Ecc. Law, title marriage 457; Queen v. Millis, 10 Cl. & F. 534, 703, 785; Latour v. Teesdale, 8 Taunt. 837; Scrimshire v. Scrimshire, 2 Hagg. Con. 395; Fenton v. Reed, 4 Johns. 52; Nathan's Case, 2 Brews. (Penn.) 149; Ferrie v. DuLux, 3 Bradf. 151; Cheseldine v. Brewer, 1 H. & McH. 152; Carijolle v. Ferrie, 26 Barb. 177; Van Tuyl v. Van Tuyl, 57 Barb. 235.

4. The doctrine has become established that a marriage good at the common law is good notwithstanding the existence of any statute on the subject, unless the statute contains express words of nullity. Bishop on M. & D., 1 Vol., § 283; 2 Greenl. Ev., §§ 460, 462; Ferrie v. DuLux, 3 Bradf. 151; Reeves' Dom. Rel., 196, 200, 290; 2 Kent's Com., 90; Pearson v. Howey, 11 N. J. 12, 19; Londonderry v. Chester, 2 N. H. 268; Rodebaugh v. Sanks, 2 Watts (Penn.) 9; Parton v. Hervey, 1 Gray 119; Milford v. Worcester 7 Mass. 48, 55; Carmichael v. State, 12 Ohio St. 553; Physick's Estate, 4 Am. Law Reg. (N. S.) 418; Senser v. Bower, 1 Penn. 432, 450; Cargile v. Wood, 63 Mo. 501.

5. There is not, and never has been, a statutory provision in Missouri, making void a marriage not conforming to the statutory provision for solemnizing marriages.

6. The plaintiffs were precluded by the life estate from an immediate right of entry or right of action, and their rights did not accrue to them, and the statute did not run against them, until the termination of this estate. It was suspended as to them during the existence of the life estate. Angell on Lim., (5 Ed.,) § 483, p. 483; Carr v. Dings, 54 Mo. 95; Salmon v. Davis, 29 Mo. 176; Marple v. Meyers,12 Penn. St. 122; Clark v. Vaugham, 3 Conn. 191; Heath v. White, 5 Conn. 228; Jackson v. Schoonmaker, 4 Johns. 390; Jackson v. Sellick, 8 Johns. 262; Jackson v. Johnson, 5 Cowen 74; McCorry v. King, 3 Humph. 267; Guion v. Anderson, 8 Humph. 298, 324; Miller v. Ewing, 6 Cush. 34; Tilson v. Thompson, 10 Pick. 359; Wells v. Price, 9 Mass. 508.

Cline Jamison & Day for respondents.

1. It is not contended that any marriage was ever solemnized between Collins and Wilson at any time, as required by statute laws in force during the times they lived and cohabited together. They were both of the age of consent; they claimed to have contracted and cohabited together during life; but the testimony of Collins herself furnishes positive proof that no ceremony of any kind, as required by law, was ever had between them, so that this cannot be inferred or presumed to have been a marriage as a matter of inferential proof from the way they treated each other or their child, Cynthia Elizabeth, who is claimed to be the offspring of this commerce.

This marriage is neither a legal marriage, nor is it a marriage “deemed null in law.” It is simply no marriage at all, nor do we see how it can be claimed that its offspring can inherit the lands of Wilson, the father, if he had any at the time of his death. Our claim is, that this pretended marriage is either a good and valid marriage, or it is no marriage at all; if good and valid, then it could only be dissolved by death or divorce. If it be no marriage, then it cannot be a marriage “deemed null in the law,” as that phrase in the statute has a legal signification, and comprehends that class of marriages duly solemnized in accordance with the requirements of the law; but, owing to some defect, disability, or deceit of one or both of the parties to the contract, the law deems the marriage null and void, but respects the innocent issue as legitimate. This law was designed to protect the issue of bigamous and polygamous marriages, or marriages that may have been solemnized between parties disabled by law from marrying each other. It is plain the Legislature has never gone so far as to permit parties to enter into the married relation in this State without complying with the law of ceremonies. Nor have our courts ever undertaken to legitimize the product of illicit commerce of the sexes, no matter how able or willing they were to contract marriage with each other, unless that contract was entered into under the forms required by the statute. Under this view, Wilson and Collins were not married. Their connection with each other was illicit. The offspring was a bastard. There was no marriage, and they were liable to a criminal prosecution under the statutes in force at the time.

2. If it be held that marriage could be entered into without solemnization, then the plaintiffs have no title to the land, as this doctrine necessarily conveys with it the need of a judicial divorce to absolve Wilson from this marriage before he would be capable of entering into a lawful marriage with Sarah Ann Adams, and the issue of that cohabitation would be rendered incapable of transmitting an inheritance to its bigamous father. In this case the child of Wilson and Adams could inherit from both parents, but neither parent could inherit from the bigamous child. Guardians of the Poor v. Nathans, 2 Brewer (Pa.) 149.

3. This action is barred by the statute of limitations, because more than three years elapsed after the death of Cynthia Elizabeth Dyer before this suit was begun. Wag. Stat., § 4, p. 916; Smith v. Burtis, 9 Johns. 181; Demarest v. Wynkoop, 3 Johns. Ch. 129; Doe, etc. v. Jesson, 6 East 80; Bush v. Bradley, 4 Day 298; Bunce v. Wolcot, 2 Conn. 27; Doe v. Jones 4 T. R. 300; Stowell v. Zouch, Plowd. 353.

NAPTON, J.

The two principal questions involved in this case, are: First, whether the observance of the statutory forms prescribed for the celebration or solemnization of marriages, under our territorial government in 1819, or subsequently under the State government in 1830, was essential to a valid marriage; and second, the construction of our statutes of limitation, as applied to the facts in evidence.

In order to show the pertinency of the instructions to the evidence submitted, we will here state the main facts which that evidence tended to establish; whether to the satisfaction of the jury or not, it is not important to inquire.

The land in controversy is a part of the Motard tract, which passed at an early date to Culver Adams, and through him to his three children, David, James and Sarah Ann Adams, and upon a partition in 1838, the one-third which had belonged to Sarah Ann was set apart to the unknown heirs of Zachariah Wilson, from whom the plaintiff claim.

Zachariah Wilson was a river pilot in 1819, and one Mrs. Collins, a widow, at that time kept a boarding house in St. Louis. There was evidence to show that Wilson and Jane Collins, the daughter of Mrs. Collins, and then about 19 years old, on the 24th August, 1819, about 10 o'clock at night, declared their intention, in the presence of the mother and brothers of Jane, and several boarders who were present, to live together as husband and wife. There was no magistrate or other person authorized by the statutes of the Territory to celebrate marriage rites present on the occasion, but they stood up on the floor of the sitting room, or most public room in the house, side by side, with joined hands, and it was announced to those present by the mother or brother of Jane, that she and Wilson had agreed to marry, to which they both assented by an inclination of the head. They then retired to a bedroom and cohabited together as man and wife for three weeks. When Major Long reached St. Louis on his expedition to the Rocky Mountain, Wilson joined the expedition. The result of this cohabitation was a daughter named Cynthia Elizabeth, from whom plaintiff's title is derived.

It was understood, on the departure of Wilson, that Mrs. Collins should take care of Jane, and that he would, when opportunity presented, remit some money to support her during his absence, which he occasionally did....