Lorimer v. Lorimer

• Decision Date: 18 September 1900
• Citation: 83 N.W. 609,124 Mich. 631
• Court: Michigan Supreme Court
• Parties: LORIMER v. LORIMER et al.

83 N.W. 609

124 Mich. 631

LORIMER v. LORIMER et al.

Supreme Court of Michigan

September 18, 1900

Error to circuit court, Wayne county; Joseph W. Donovan, Judge.

Ejectment by Emily Lorimer against David Lorimer and others. From a judgment in favor of claimant, defendants bring error. Reversed.

Grant J., dissenting in part.

James H. Pound, for appellants.

Flowers & Molony, for appellee.

MOORE J.

This is an action of ejectment brought by the plaintiff, who claims to be the widow, by virtue of a common-law marriage, of Thomas Lorimer, deceased. From a verdict in her favor the defendants, who represent the estate of Thomas Lorimer appeal. It is the claim of defendants that the testimony construing it most favorably for plaintiff, does not show a marriage between the parties, and that the court should have directed a verdict in favor of defendants for that reason. The plaintiff was sworn as a witness. Her testimony shows that prior to 1882 she was a woman of the town, and that Lorimer had illicit relations with her. She says, in substance, that in 1882 Mr. Lorimer said that he was tired of the way in which they were living, and proposed that they should live together as husband and wife, to which she assented. She says that no marriage ceremony was performed but that they lived together as husband and wife, she keeping the house, and he furnishing it, until the time of his death, in 1895; that they regarded each other as husband and wife; and that Mr. Lorimer from that time introduced her as his wife, and they both treated each other as husband and wife. Many witnesses were sworn whose testimony tended to corroborate her in relation to the manner in which they lived, and the representations made by Mr. Lorimer as to their relations. Testimony was introduced on the part of the defense tending to show that plaintiff up to the time of the death of Mr. Lorimer went by the name of Belmore, and was so known in the city directory; that she took a deed of land in that name, and signed a conveyance not long before the death of Mr. Lorimer by the name of Belmore; that Mr. Lorimer, who dealt largely in real estate, described himself in the various conveyances he made as a bachelor.

It is insisted on the part of the defendants that the relationship was simply one of concubinage; citing Clancy v. Clancy, 66 Mich. 202, 13 N.W. 889. It was long ago decided in this state that a marriage ceremony was not necessary to constitute a valid marriage. In Hutchins v. Kimmell, 31 Mich. 126, Justice Cooley, speaking for the court, said: 'But, had the supposed marriage taken place in this state, evidence that a ceremony was performed ostensibly in celebration of it, with the apparent consent and co-operation of the parties, would have been evidence of a marriage, even though it had fallen short of showing that the statutory regulations had been complied with, or had affirmatively shown that they were not. Whatever the form of ceremony, or even if all ceremony was dispensed with, if the parties agreed presently to take each other for husband and wife, and from that time lived together professedly in that relation, proof of these facts would be sufficient to constitute proof of a marriage binding upon the parties, and which would subject them and others to legal penalties for a disregard of its obligations. This has become the settled doctrine of the American courts, the few cases of dissent or apparent dissent being borne down by a great weight of authority in favor of the rule as we have stated it. Fenton v. Reed, 4 Johns. 52; Jackson v. Winne, 7 Wend. 47; Starr v. Peck, 1 Hill, 270; Rose v. Clark, 8 Paige, 574; In re Taylor, 9 Paige, 611; Clayton v. Wardell, 4 N. Y. 230; Cheney v. Arnold, 15 N.Y. 345; O'Gara v. Eisenlohr, 38 N.Y. 296; Pearson v. Howey, 11 N. J. Law, 12; Hantz v. Sealy, 6 Bin. 405; Com. v. Stump, 53 Pa. St. 132; Newbury v. Brunswick, 2 Vt. 151; State v. Rood, 12 Vt. 396; Northfield v. Vershire, 33 Vt. 110; Duncan v. Duncan, 10 Ohio St. 181; Carmichael v. State, 12 Ohio St. 553; State v. Patterson, 24 N.C. 346; Town of Londonderry v. Town of Chester, 2 N. H. 268; Keyes v. Keyes, 2 Fost. (N. H.) 553; Bashaw v. State, 1 Yerg. 177; Grisham v. State, 2 Yerg. 589; Cheseldine's Lessee v. Brewer, 1 Har. & McH. 152; State v. Murphy, 6 Ala. 765; Potier v. Barclay, 15 Ala. 439; Dumaresly v. Fishly, 3 A. K. Marsh. 368; Graham v. Bennet, 2 Cal. 503; Case v. Case, 17 Cal. 598; Patton v. Philadelphia, 1 La. Ann. 98; Holmes v. Holmes, 6 La. 463; Hallett v. Collins, 10 How. 174, 13 L.Ed. 376.' In Peet v. Peet, 52 Mich. 464, 18 N.W. 220, it was said: 'But an actual ceremony of marriage is not essential to the establishment of the relation of husband and wife. It is sufficient that a man and woman of due competency, and in respect to whom no impediment exists, consent to take each other as husband and wife, and actually cohabit as such. The case of Hutchins v. Kimmell, 31 Mich. 126, determines this for this state, and refers to many decisions in other states to the same effect.' See People v. Girdler, 65 Mich. 68, 31 N.W. 624. In Williams v. Kilburn, 88 Mich. 279, 50 N.W. 293, the wife, pending a suit for divorce, but before decree, married again. After the decree was obtained, the parties agreed that they should live and cohabit together as man and wife, and did so, though no marriage ceremony was again performed. The court said: 'The facts set forth show that after plaintiff obtained her divorce it was agreed that they should live and cohabit together as man and wife, which they continued to do for three years thereafter. The formal marriage ceremony may be treated as evidence, with what subsequently occurred, of the nature of the relation which they assumed and occupied. These facts establish a valid marriage, and plaintiff's rights grow out of that relation. Hutchins v. Kimmell, 31 Mich. 126; Peet v. Peet, 52 Mich. 464, 18 N.W. 220. Her remedy is that of a married woman against a deserting husband.' See also, People v. Loomis, 106 Mich. 250, 64 N.W. 18; People v. Seaman, 107 Mich. 348, 65 N.W. 203. The testimony was conflicting, but we think there was sufficient of it to justify its submission to a jury.

It is claimed that the judge did not properly instruct the jury in relation to what was sufficient to constitute a valid marriage. He used the following language in his charge to the jury: 'This plaintiff comes before you, in court, claiming to be the lawful wife of the late Thomas Lorimer. On her is the burden of proof of showing that she is the lawful wife, there being no marriage certificate and no marriage ceremony. On her is the burden of showing that her mind and the mind of Thomas Lorimer once met,--met at the time that she said that they agreed to take each other for husband and wife, and to live in relations as such; that they made a bargain about it. And, in stating that, I say, if they did in their minds fully meet,--if they did come to a full understanding,--and you should find that, then, under the law of this state, they were married. That is the whole test of the matter.' We think this charge was too restricted, and that it was not cured by any other portion of the charge. Our courts have gone a good way to sustain the validity of a marriage where an agreement to live and cohabit together as husband and wife has been made and acted upon. But at no time had it been said that, in the absence of a valid marriage ceremony, a simple agreement to live together, even though the parties intended to carry out the agreement, is sufficient to constitute a valid marriage, unless acted upon by living together and cohabiting as husband and wife.

The plaintiff was allowed to testify in relation to matters that were equally within the knowledge of Mr. Lorimer, and it is said that this is contrary to the provisions of section 10,212, Comp. Laws. Counsel for plaintiff say 'This section of the statute has been repeatedly construed by this court, and it has uniformly been held that the testimony of the parties to the litigation is competent in suits of this nature, where the estate itself cannot be depleted or increased by the result of the litigation, and where the claim made is not one against the estate, but is a controversy between the heirs themselves. The judgment in this case does not affect the estate proper, but simply determines who are the heirs of Thomas Lorimer, deceased. There was no error committed in the admission of the testimony of the plaintff. Brown v. Bell, 58 Mich. 58, 24 N.W. 824; McClintock's Appeal, 58 Mich. 155, 24 N.W. 549; Lautenshlager v. Lautenshlager, 80 Mich. 285, 45 N.W. 147; Lake v. Nolan, 81 Mich. 115, 45 N.W. 376; McHugh v. Fitzgerald, 103 Mich. 21, 61 N.W. 354; City of Marquette v. Wilkinson (Mich.) 78 N.W. 474, 43 L. R. A. 840.' We do not think that this claim can be sustained. The defendants are either the heirs at law of Thomas Lorimer, deceased, or are tenants under the administrator of his estate. The property in controversy belongs to the estate of Mr. Lorimer. The plaintiff claims the right to the possession of the property by virtue of her contract of marriage with Mr. Lorimer, about which he must have had as much knowledge as she possessed. If she had presented a claim for services as housekeeper for the time which she lived with him, there could be no question but that she would be incompetent to testify as to what the contract was. Campau v. Van Dyke, 15 Mich. 380; Cook v. Stevenson, 30 Mich. 242; Van Wert v. Chidester, 31 Mich. 207; Schratz v. Schratz. 35 Mich. 485; Hart v. Carpenter, 36 Mich. 402; Harmon v. Dart, 37 Mich. 53; Howard v. Patrick, 38 Mich. 795; Eccard v. Brush, 48 Mich. 3, 11 S.W. 756; Foster v. Hill, 55 Mich. 540, 22 N.W. 30; Pendill v. Neuburger, 67 Mich. 562, 35 N.W. 249; Taylor v....