Ladner v. Pigford

• Decision Date: 23 March 1925
• Docket Number: 24779
• Citation: 103 So. 218,138 Miss. 461
• Court: Mississippi Supreme Court
• Parties: LADNER et al v. PIGFORD. [*]

103 So. 218

138 Miss. 461

LADNER et al v. PIGFORD. ^[*]

No. 24779

Supreme Court of Mississippi

March 23, 1925

Division B

MARRIAGE. Every reasonable presumption indulged in favor of ceremonial marriage; divorce presumed in favor of validity of ceremonial marriage; presumption of validity prevails over presumption of life; on proof of ceremonial marriage, proof that former husband procured divorce after second marriage of wife does not overcome presumption that timely divorce was obtained.

Where a marriage is contracted ceremonially, every reasonable presumption will be indulged in favor of its validity. The court will presume a divorce in favor of the validity of the marriage where there was a former marriage existing where there is no proof showing that a divorce was not obtained. The presumption of validity in favor of the second marriage so contracted will prevail over the presumption of life also. Where the proof shows such marriage duly solemnized, proof that the husband by the first marriage procured a divorce after the second marriage of the wife will not be sufficient to overcome the presumption that a divorce was obtained where the proof is silent as to whether the wife had or had not procured such divorce. A. & V. Ry. Co., v. Beardsley, 79 Miss. 417, 30 So. 660, 89 Am. St. Rep., 660, and other cases cited.

HON. T P. DALE, Chancellor.

APPEAL from chancery court of Pearl River county, HON. T. P. DALE Chancellor.

Suit by Horace E. Ladner and others against A. A. Pigford, in which defendant filed a cross-bill. From a judgment for defendant, complainants appeal. Reversed and remanded.

Judgment reversed and cause remanded.

W. A. Shipman, for appellants.

There is only one material issue presented on this appeal: The legitimacy vel non of the appellants. If the facts and circumstances, aided by the presumptions of law, establish the legitimacy of the appellants, then it follows necessarily that the court below was in error in deciding the case adversely to the appellants. We believe the ceremonial marriage celebrated between the parents of the appellants to be valid as such. There is no intention on the part of appellants to take any issue on the fact of the first marriage.

The presumption is that the wife obtained a divorce before contracting the marriage with Jonathan Ladner. From the time of the separation to the date of the marriage with Ladner was about ten years; surely she had ample time and opportunity to have secured such a divorce. The burden of proving that she did not do so is on the appellee, and this he utterly failed to do. The fact that she received news of Cunningham's death just a short time before her marriage to Ladner does not even tend to weaken this presumption. A leading case in this state, which is in accord with the general rule and great weight of authority, is that of A. & V. Co. v. Beardsley, 74 Miss. 417, 30 So. 660. See, also, Goodwin v. Smith, 72 Ind. 113, 37 Am. St. Rep. 144; Boulden v. McIntyre, 119 Ind. 574, 21 N.E. 445; Hull v. Rawls, 27 Miss. 471; Spears v. Burton, 31 Miss. 547; Colored Knights of Pythias v. Tucker, 46 So. 51; Sullivan v. Grand Lodge (Miss.), 52 So. 360; Beanett v. State (Miss.), 56 So. 777; Howard v. Kelly (Miss.), 71 So. 391; Allen v. McIntosh Lbr. Co. (Miss.), 77 So. 909.

All of the authorities are in agreement on the proposition and in holding that the fact of the record of an undefended divorce proceeding is no evidence that a marriage between the parties ever occurred. We submit the same to be true relative to an undefended divorce proceeding, that such a record is no evidence that no divorce had been obtained by one of the parties contracting a second marriage. Hickman v. Hickman, (Miss.), 89 So. 6; Aldridge v. Aldridge, 116 Miss. 385.

General Rule. The law and public policy favor marriage, and when the celebration is once shown, the contract of marriage, the capacity of the parties, and, in fact, everything necessary to the validity of the marriage, in the absence of proof to the contrary, will be presumed. This presumption of legality is one of the strongest known to the law, especially where the legitimacy of children is involved; for the law presumes morality and not immorality, marriage and not concubinage, legitimacy and not bastardy. 18 R. C. L., sec. 39, p. 416; Gaines v. New Orleans, 18 L.Ed. (U.S.) 950; Hunter v. Hunter, 111 Cal. 261, 52 Am. St. Rep. 180; Pittenger v. Pittenger, 28 Colo. 308, 89 Am. St. Rep. 193; Jones v. Gilbert, 135 Ill. 27, 25 N.E. 566; State v. Wothingham, 23, Minn. 528; Johnson v. Johnson, 30 Mo. 72, 77 Am. Dec. 598; Haynes v. McDermott, 91 N.Y. 451, 43 Am. St. Rep. 677; In re Estate of Megginson, 21 Ore. 388, 28 P. 388.

Again, the general rule may be stated thus: If it is shown that a party to a marriage has contracted a previous marriage, and that his or her former spouse is still living, this does not destroy the prima-facie validity of the second marriage. In such case it is presumed that the first marriage has been dissolved by divorce, and the burden to show that it has not rests on the person seeking to impeach the last marriage, notwithstanding he is thereby required to prove a negative. Here the presumption of the continuance of the first marriage is made to yield to the presumption in favor of the validity of the second marriage and the innocence of the parties to it. Boulden v. McIntyre, supra; Blauchard v. Lambert, 43 Iowa 228; Carroll v. Carroll, 120 Tex. 731; Hull v. Rawls, supra; Spears v. Burton, supra; Railway Co. v. Beardsley, supra (cited and followed in all later Miss. cases); Schimmesseur v. Batrie, 147 Ill. 210; Pittenger v. Pittenger, supra; Erwin v. English, 61 Conn. 502; Wenning v. Teeple, 144 Ind. 189, 41 N.E. 600; Tuttle v. Raish (Iowa), 90 N.W. 66; Waddington v. Waddington, 21 Mo.App. 609; Hadley v. Rash, 21 Mont. 170, 69 Am. St. Rep. 649; Goldwater v. Burnside, 22 Wash. 215, 60 P. 409; Bull v. Bull (Tex. Civ. App.), 68 S.W. 727; Murchison v. Green, 128 Ga. 339, 11 L. R. A. (N. S.) 702; Johnson v. Johnson, 114 Ill. 611, 55 Am. St. Rep. 883; Smith v. Fuller (Iowa), 16 L. R. A. (N. S.) 98; See also, Case Notes: 14 L. R. A. 540; 72 Am. St. Rep. 562; Howard v. Kelly, 111 Miss. 285, 71 So. 391, which is cited, approved and followed in later cases, see, 85 So. 75, and 89 So. 7.

The usual presumption of law is that a fact continuous in its nature, such as marriage, continues 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 is not equal in probative force to the presumption of the legality of the second marriage. 18 R. C. L., sec. 40, pp. 416-417; Smith v. Smith, 1 Tex. 621; See, Case Note, 19 Am. St. Rep. 409; Railway Co. v. Beardsley, supra; Col. K. of P. Lodge v. Tucker, supra; Howard v. Kelly, supra; Aldridge v. Aldridge, supra; Allen v. McIntosh, supra; McCallum v. Spinks, supra.

Where it appears that the parties of a former marriage were alive at the time of a subsequent marriage of one of them to another person, it will be presumed that there has been a divorce before the second marriage. 18 R. C. L., sec. 41, p. 417; Goset v. Goset, 112 Ark. 47; Shepard v. Carter, 86 Kan. 125, 38 L. R. A. (N. S.) 568; Schaffer v. Richardson, 125 Md. 88, 1915-E L. R. A. 186; See Case Note, 57 Am. St. Rep. 456; 89 Am. St. Rep. 199; 18 R. C. L., sec. 43, pp. 418-19; Potter v. Clapp (Ill.), 96 Am. St. Rep. 322; Railway Co. v. Beardsley, supra; Col. K. of P. v. Tucker, supra; Howard v. Kelly, supra.

Nowhere in the record is it shown that the mother of the appellants failed to obtain a divorce from Cunningham before her marriage to Ladner. In the absence of such negative proof the presumption of a divorce becomes and is conclusive. This presumption is put into operation by virtue of the law itself, and is not dependent in any wise upon the allegations contained in the pleadings.

C. G. Mayson, for appellee.

Brief not available to the reporter.

OPINION

ETHRIDGE, J.

Appellants filed a bill for the partition of lands against the appellee setting up in their bill that they were the children of Jonathan Ladner, and were each entitled to an undivided one-twelfth interest in certain lands described in the bill. Complainants further alleged that their father, Jonathan Ladner, had nine sons and daughters by a previous marriage, and that petitioners were the children of his second marriage. Complainants further alleged that the defendant had acquired title of the nine children of Jonathan Ladner by his first marriage either by direct or mesne conveyances.

The defendant answered the bill, denying that complainants were entitled to an undivided interest in said lands, asserting that he, the defendant, was the exclusive owner thereof. Defendant further alleged by way of cross-bill that a partition suit was filed for division by the heirs of Jonathan Ladner, and that said lands were sold to one T. H Davis, who in turn conveyed to the defendant. Defendant further alleged in his cross-bill that complainants were not the legal heirs of Jonathan Ladner; that as a matter of fact the mother of complainants undertook to contract a marriage with Jonathan Ladner, but that same was illegal and void; that she had previously contracted marriage with one E. M. Cunningham in Jasper county, Miss., in the year 1876, and had lived with Cunningham as his wife until the year 1881, when she abandoned Cunningham and refused further to live with him; that thereafter, on the 1st day of August, 1891, she undertook to contract a marriage with Jonathan Ladner in Marion county, Miss., now Lamar county, at Purvis; that on the 25th day of October, 1900, said Cunningham instituted proceedings...