Hess v. Pettigrew

• Decision Date: 01 March 1933
• Docket Number: No. 56.,56.
• Citation: 261 Mich. 618,247 N.W. 90
• Parties: HESS v. PETTIGREW.
• Court: Michigan Supreme Court

261 Mich. 618

247 N.W. 90

HESS

v.PETTIGREW.

No. 56.

Supreme Court of Michigan.

March 1, 1933.

Appeal from Circuit Court, St. Clair County, in Chancery; Fred W. George, Judge.

Suit for annulment of marriage by Henry Hess against Alice Pettigrew wherein defendant filed a cross-bill. From a decree in favor of plaintiff, defendant appeals.

Reversed and rendered.

Argued before the Entire Bench.Robert M. Soutar, of Port Huron (James A. Muir, of Port Huron, of counsel), for appellant.

Gordon E. Tappan, of Port Huron, for appellee.

FEAD, Justice.

In 1904, defendant was ceremonially married to John H. Howe at Paisley, Scotland. They had a son. They separated in 1906 and defendant cared for the son until 1911, when, because she was unable to longer support him, he was returned to the father. In 1912, defendant moved to Canada. In 1914 she came to Port Huron, in 1919 met plaintiff, and they engaged in a ceremony of marriage performed by a clergyman. They lived together happily until about 1930, when difficulties arose. On or about April 21, 1931, they separated and plaintiff filed bill for divorce, defendant answering and filing cross-bill. Later the bill was dismissed and May 21, 1931, plaintiff commenced this suit for annulment of marriage. He had decree.

Howe had obtained a divorce from defendant in Scotland in 1922 on substituted service. Neither party hereto knew of the divorce until the day this bill was filed. Defendant claims she told plaintiff of her former marriage before their ceremony in 1919, that she did not know her status, and some weeks later he told her he had investigated and found that Howe had obtained a divorce. Plaintiff danied any knowledge of defendant's marriage to Howe until the day he commenced this suit. The court found with plaintiff on the issue. While we may accept such finding because plaintiff and defendant were the only witnesses and the issue rested on their veracity, the proof was not conclusive. Plaintiff's claim as to the manner in which he discovered the former marriage is not free from suspicion. The parties visited in Scotland in 1924. Plaintiff testified they saw a man on the street whom defendant said was her brother and a hard drinker and she urged plaintiff to leave lest the man solicit him for money to buy liquor. Plaintiff said the incident of the bibulous gentleman occurred to him after he had filed suit for divorce, seven years later, aroused his suspicion that defendant had been married before, he wrote the American Consul at Glasgow for information, and, on receiving copy of the decree, changed his action to annulment. Defendant denied the incident. Plaintiff's account leaves a lurking suspicion that he knew of the former marriage before suing for divorce and changed his attack for fear of the hazards of that suit.

After leaving Scotland, defendant heard nothing directly or indirectly about Howe, except that on her visit to Scotland in 1924 her brother told her Howe had moved away some years before. Assuming that defendant did not tell plaintiff of her former marriage before they contracted the ceremony in 1919, nevertheless it does not appear that she contracted marriage with plaintiff, knowing she was incompetent to do so, although she was careless in failing to ascertain the facts.

The parties agreed in their testimony that no ceremony or agreement of marriage in words occurred after the Howe divorce. The marriage in 1919 being void ab initio, Comp. Laws 1929, § 12723, the question is whether a common-law marriage resulted after the Howe divorce from the acts and conduct of the parties. Plaintiff's claim is that there was no present taking of each other as husband and wife after the divorce, with knowledge of the prior marriage and divorce, and intentional purpose to establish a new relationship, and, therefore, they did not marry.

Marriage is a civil contract but it is not a pure private contract. It is affected with a public interest and by a public policy. The status of children, preservation of the home, private morality, public decency, and the like afford ample grounds for special treatment of marriage as a contract, by statute and decision. In recognition of its public and social nature, courts have cast about it the protecting mantle of presumptions, sustaining validity of marriage, said to be the strongest known to the law. Doertch v. Folwell Engineering Co., 252 Mich. 76, 233 N. W. 211. Any rule concerning it must favor the validity of an intended marriage if it may be done without violence to the essentials of the civil contract.

While there is some difference of reasoning and ruling, the decided weight of authority is that where parties engage upon a contract of marriage, which is void because one has a living lawful spouse, which is unknown to one or both, uninterrupted cohabitation and reputation after removal of the impediment will produce a valid common-law marriage although the fact of the impediment or of its removal may not have been known to either. The principal reasons upon which the rule rests are that the initial relationship was intended to be matrimonial, not illicit, and consent to present marriage evidenced by the ceremony continues from day to day and becomes effective as a present taking in marriage on removal of the impediment. 38 C. J. 1297; 18 R. C. L. 436; 3 L. R. A. (N. S.) 244, note; L. R. A. 1915E, 91; Smith v. Reed, 145 Ga. 724, 89 S. E. 815, L. R. A. 1917A, 492;Johnson v.Wolford, 117 Ohio St. 136, 157 N. E. 385;Cameron v. Cameron, 105 W. Va. 621, 143 S. E. 349;Sims v. Sims, 122 Miss. 745, 85 So. 73;...