Leefeld v. Leefeld

• Decision Date: 31 July 1917
• Citation: Leefeld v. Leefeld, 85 Or. 287, 166 P. 953 (Or. 1917)
• Parties: LEEFELD v. LEEFELD ET AL.
• Court: Oregon Supreme Court

166 P. 953

85 Or. 287

LEEFELD v. LEEFELD ET AL.

Supreme Court of Oregon

July 31, 1917

In Banc.

Appeal from Circuit Court, Josephine County; Frank M. Calkins Judge.

Action by Otis D. Leefeld against Elizabeth M. Leefeld and the State of Oregon. From decree dismissing the suit, plaintiff appeals. Affirmed.

This is a suit by Otis D. Leefeld against Elizabeth M. Leefeld to have a marriage declared void. The defendant, though personally served with summons and a certified copy of the complaint, failed to demur, plead, or answer. Whereupon the district attorney of the proper county appeared on behalf of the state. From the evidence received at the trial findings of fact were made as follows:

"The court finds that the plaintiff and defendant are now and have been inhabitants of the state of Oregon for the period of one year immediately preceding the commencement of this suit; that plaintiff and defendant entered into a marriage at Vancouver, Wash., on or about October 1, 1902; that no children have been born the issue thereof; that plaintiff and defendant are full first cousins; that at the time of said marriage plaintiff and defendant were citizens and residents of Oregon; that they went from Oregon to the state of Washington and contracted said marriage in said last-named state for the purpose of evading the laws of Oregon; and that they each believed that they had thereby contracted a valid marriage, and they thereafter returned to and have since resided in Oregon."

As a conclusion of law the court further found "that said marriage was and is valid."

A decree having been rendered dismissing the suit, the plaintiff appeals.

Oliver S. Brown, of Glendale, for appellant. W. T. Miller, Dist Atty., of Grants Pass, for respondents.

MOORE J. (after stating the facts as above).

No testimony given at the trial has been sent up, and hence the only question to be considered is whether the findings of fact as made support the conclusion of law and the decree based thereon.

Provisions of law applicable to the case at bar are:

"Marriage is a civil contract." L. O. L. § 7016.

"The following marriages are prohibited: * * * (2) When the parties thereto are first cousins or any nearer of kin to each other, whether of the whole or half blood, computing by the rules of the civil law." Id., § 7017.

"If any persons, being within the degree of consanguinity within which marriages are prohibited by law shall intermarry with each other, * * * such persons or either of them, upon conviction thereof, shall be punished by imprisonment in the penitentiary * * * or * * * in the county jail * * * or by fine." Id., § 2098.

"All marriages which are prohibited by law, on account of consanguinity between the parties * * * shall, if solemnized within this state, be absolutely void." Id. § 502.

In McIlvain v. Scheibley, 109 Ky. 455, 59 S.W. 498, which was a suit by an alleged widow to recover dower, the answer substantially averred that the plaintiff was the niece of her deceased alleged husband, both of whom had resided in Kentucky, but, in order to evade the laws thereof prohibiting marriages between persons of that degree of consanguinity, they went to Tennessee for the sole purpose of entering into a marriage contract, setting forth provisions of the Code of the latter state inhibiting marriages between such persons; and that after the ceremony was performed the parties returned to Kentucky, where they were legally domiciled when he died. The plaintiff, renouncing the provisions of his last will and testament in her behalf, undertook to recover the allowance which the law of Kentucky made in such cases out of the lands and tenements of the decedent for her support and maintenance. It was ruled that section 5646 of the Code of Tennessee, interdicting a man from marrying his niece and declaring that any person who should violate such provision would be guilty of incest and punished therefor by imprisonment in the penitentiary, rendered a marriage between such persons void ab initio, and that the woman was not entitled to dower out of the decedent's estate. In deciding that case it is said:

"It is true that the Tennessee statute does not expressly say that a marriage between uncle and niece is void, but it does expressly prohibit such marriages, and provides that persons violating the law shall be guilty of felony, and confined in the penitentiary for a number of years. Hence it seems to us that, taking the statutes relating to such marriages, the necessary meaning and intent were to render such marriages absolutely void. It would be strange, indeed, if a marriage could have any validity, and yet the parties by continuing the marriage relation would be guilty of a felony, and

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