Harper v. Fears

• Decision Date: 08 January 1934
• Docket Number: 30967
• Court: Mississippi Supreme Court
• Parties: HARPER v. FEARS

151 So. 745

168 Miss. 505

HARPER v. FEARS

No. 30967

Supreme Court of Mississippi

January 8, 1934

Division B

1 MARRIAGE.

Law presumes divorce in favor of marriage, duly performed, of person who had previously been married.

2 MARRIAGE.

Where first wife, not having heard directly from separated husband for more than seven years, remarried, and husband after her remarriage also remarried, first wife could not set up illegality of husband's second marriage in suit involving right to his estate.

HON. T PRICE DALE, Chancellor.

APPEAL from chancery court of Covington county HON. T. PRICE DALE, Chancellor.

Suit between Mrs. Ray D. Harper and Mrs. Belle Fears, involving the right to the estate of James Fears, deceased. From a decree dismissing the claim of Mrs. Ray D. Harper, she appeals. Affirmed.

Affirmed.

W. U. Corley, of Collins, for appellant.

If it is conceded that a person attacking a marriage on the ground that a former spouse of one of the parties is living, must show that the first marriage has not been dissolved, still he is not required to make plenary proof of such negative, averment. It is enough that he introduces such evidence as, in the absence of all counter evidence, affords reasonable ground for presuming the allegation true. When this is done the onus probandi is thrown on his adversary.

Schmisseur v. Beatrie, 147 Ill. 210, 35 N.E. 525.

This question of presumption is one, in cases like the one at bar, not to be held to any strict rule of evidence. Every case must be held to its own facts. The presumption of law, carries no degree of proof, but only establishes on whom the burden shall lie.

Colored Knights of Pythias v. Tucker, 46 So. 51; 16 Cyc. 936.

The law in so far as appellant was concerned presumed Jas. T. Fears was dead after seven years from 1909, or 1911; she married seven years later, as she had a right to do. Mrs. Fears, the appellee, had a right to assume Mrs. Harper was dead, when she married the deceased; if not, then she certainly had that right of presumption after seven years; but both presumptions must yield to facts. Jas. T. Fears was not dead during the right of presumption of Mrs. Harper, and Mrs. Harper was not dead during Mrs. Fears right of presumption, so both yield to facts.

Ruth L. Bertrand, of Hattiesburg, for appellee.

There can be no contention that the burden was strictly upon the appellant to prove by direct testimony that the marriage was never dissolved.

Darrow v. Darrow, 78 So. 383.

Learned counsel for appellant made much of the testimony of Mrs. Belle Fears, in which she admits that her husband had advised her that he had been previously married, but stated further that his wife was dead. The name of his first wife as given by him was not Hattie Weeks Fears, but another name. The presumption is that the first Mrs. Fears, deceased (and there is no evidence in this record to show that that wife was Hattie Weeks Fears), did in fact and in truth die, and there is no evidence to the contrary.

E. L. Dent, of Collins, for appellee.

At common law the rule was that a presumption of death arose from an unexplained absence of seven years, and this is the rule which prevails in nearly all jurisdictions.

17 C. J., page 1167; New York Life Ins. Co. v. Brane, 112 Miss. 828, 848, 73 So. 806; Learned v. Corley, 43 Miss. 687, 283 S.W. 330.

Even if the court should believe that both claimants married the same party, there is no proof that he did not get a divorce. We understand the presumption to be that he did get a divorce, just as he was presumed to be dead, and this presumption makes the second marriage valid just the same as the presumption of death, until it is overcome by competent proof.

Williams et al. v. Lee, 94 So. 454.

A marriage duly proved will be presumed valid, although a former husband of the woman may be still living, and the burden of proof is upon the party asserting the invalidity of the marriage to prove that there has been no divorce of the former marriage.

McAllum et al. v. Spinks et al., 91 So. 694, 129 Miss. 237; Aldridge v. Aldridge, 116 Miss. 385, 77 So. 150; A. & V. Railroad Co. v. Beardsley, 30 So. 660, 79 Miss. 417; Yates v. Houston, 3 Tex. 433; Spears v. Burton, 31 Miss. 547; Hull v. Rawls, 27 Miss. 471; 38 C. J. 1328.

The usual presumption of law is that a fact continuous in its nature, such as a marriage, continuous after its existence is once shown, but the presumption in favor of the validity of a marriage attaches with full force to the latest marriage, and the presumption of the continuance of the first marriage, based upon the naked fact that it was solemnized, is not equal in probative force to the presumption in favor of the legality of the subsequent marriage.

18 R. C. L., page 416, paragraph 40; 18 R. C. L., page 420.

OPINION

Ethridge, P. J.

This is an appeal from a chancery court decree involving the right to the estate of James Fears, deceased.

The appellee, Mrs. Belle Fears, was married to the said James Fears in August, 1918, and as a result of said marriage there are three children. James Fears had formerly been married to Mrs. Ray D. Harper, having married her in 1907. Shortly afterwards, they separated, and she last heard of him directly in 1909, after which time she never had any further correspondence with him. In 1911, she received a telegram from his sister stating that he was dead. Not having heard from him as living since 1909, and relying on the truthfulness of the telegram, on January 3, 1917, the appellant, Mrs. Ray D. Harper, married one Nesbitt, lived with him a short time, divorced him (he is now living), and then married Ray D. Harper, he being now deceased. She did not know of the marriage of James Fears to the appellee until she learned through proceedings of the Veterans' Bureau of the death of James Fears in 1932. She herself never secured any divorce from Fears, but, as stated, believed him to be dead. About one year after Mrs. Harper married Nesbitt, James Fears married the appellee, Mrs. Belle Fears.

The record does not disclose all the places that James Fears may have lived, but he appears to have been a World War veteran, and to have lived in different states at different times, and otherwise his place of residence is not disclosed. Both marriages contracted by Fears took place in Texas, and after his last marriage to Mrs. Belle Fears they came to Mississippi and lived together as husband and wife for many years, having three children. There was a certificate introduced in the record showing the issuance and recordation of a marriage license for the celebration of the marriage of Mrs. Belle Fears and James Fears, which license was not produced, having been sent to the Veterans' Bureau in proof of the appellee's right to the funds due under such Bureau, or from the government.

After learning of the death, in 1932, of the said James Fears, Mrs. Ray D. Harper set up a claim to his estate, claiming to be his wife. It appears from the record that she had filed a bill for divorce shortly after his disappearance, but the bill was dismissed for want of prosecution, and no decree of divorce was rendered therein.

Mrs. Belle Fears stated that James Fears told her in 1918 that Mrs. Ray D. Harper had died prior to the marriage of Mrs. Belle Fears and James Fears, and that she married relying upon this information.

The chancellor dismissed the claim of the appellant, Mrs. Ray P. Harper, and, from his decree this appeal is prosecuted.

We have held in numerous cases that the law presumes a divorce in favor of a marriage duly performed. Pigford v Ladner, 147 Miss. 822, 112 So. 785, and Ladner v. Pigford, 138 Miss. 461, 103 So. 218, and cases therein cited. In the report of the case in 147 Miss. 822, 112 So. 785, it was held that to overcome the presumption of a prior divorce in favor of validity of ceremonial marriage, where the woman had previously been married to a man living at the time of her second marriage--in view of Code 1906, section 1677 (Hemingway's Code...