Madison v. Steckleberg

• Decision Date: 01 April 1924
• Docket Number: Case Number: 14969
• Citation: 1924 OK 378,224 P. 961,101 Okla. 237
• Parties: MADISON v. STECKLEBERG, Adm'r. et al.
• Court: Oklahoma Supreme Court

1924 OK 378

224 P. 961

101 Okla. 237

MADISON v. STECKLEBERG, Adm'r. et al.

Case Number: 14969

Supreme Court of Oklahoma

Decided: April 1, 1924

Syllabus

¶0 1. Marriage--Bigamous Marriage--Unlawful Cohabitation.

An attempted marriage between a man and woman who has a living undivorced husband is bigamous and a continued cohabitation is unlawful.

2. Marriage--Presumption of Legality--Burden of Proof.

The burden is upon the person who asserts the illegality of a marriage to prove such illegality, and where a second marriage is shown as a fact, a strong presumption exists in favor of its legality, which is not overcome by mere proof of a prior marriage and that the wife had not obtained a divorce before her second marriage. The party attacking such second marriage has the burden of showing that neither party to the first marriage had obtained a divorce

3. Same--Presumption of Removal of Obstacles to Second Marriage.

The presumption of removal of prior obstacles in support of a marriage has the effect of placing the burden of proof on the party attacking the marriage to prove that neither party to the first marriage had procured a divorce, but, where evidence is introduced on either side tending to prove that neither party to the prior marriage had procured a divorce, the presumption disappears and the question then becomes one of fact to be decided in the light of all the circumstances and the reasonable inferences from them.

4. Same--Evidence--Shifting Burden of Proof.

Where a marriage is attacked, because one of the parties thereto had a living undivorced spouse at the time of such marriage, the burden of proof is upon the party attacking the subsequent marriage to prove that neither of the parties to the prior marriage had been divorced, but when one of the parties to the prior marriage testifies that she had never procured a divorce and that her former husband had never sued her for a divorce, and where it appears that both parties to the prior marriage had at all times been residents of the state of Oklahoma, such testimony is sufficient to overcome the presumption and to shift the burden of proof to the other party to introduce evidence showing that a divorce had been granted to one of the parties to the former marriage, and, in the absence of such proof, the finding of the trial court sustaining the second marriage is clearly against the weight of the evidence.

Error from Superior Court, Okmulgee County; J. H. Swan, Judge.

Action by Wm. Steckleberg, administrator, and another, against Cokey Madison. From an adverse judgment, defendant brings error. Reversed.

E. T. Noble and S. L. O'Bannon, for plaintiff in error.

R. C. Allen, S. W. Rose, and Robert R. Smith, for defendants in error.

COCHRAN, J.

¶1 This action was instituted by Wm. Steckleberg, administrator of the estate of Jesse Davis, deceased, and Leah Stidham against Cokey Madison, for the purpose of quieting title to certain land situated in Okmulgee county, Okla., being the allotment of Jesse Davis, a Creek Indian. Jesse Davis died intestate April 4, 1922, leaving surviving a child, Cokey Madison, nee Davis. Leah Stidham claimed an interest in the land of the deceased, as a niece. Milea Tiger filed an intervening petition, claiming an interest in the land as the surviving wife of Jesse Davis. The trial court found that Milea Tiger was the surviving wife of Jesse Davis and Cokey Madison was his surviving child, and each was entitled to a portion of said lands, and rendered judgment awarding to each an equal share of the estate. From the judgment so rendered, Cokey Madison has appealed.

¶2 It is conceded by the attorneys for Milea Tiger that there was never a ceremonial marriage between Jesse Davis and Milea Tiger, but it is contended that they were married in accordance with the common law. The plaintiff in error contends that the facts are not sufficient to show a common-law marriage between Jesse Davis and Milea Tiger, and further contends that the parties were not capable of entering into a valid marriage, because, at that time, Milea Tiger had a living undivorced husband. The testimony is sufficient to show a valid common-law marriage between the parties, unless said parties were incapable of entering into the marriage contract by reason of Milea Tiger having a living undivorced husband. This alleged common-law marriage took place in 1917, and is controlled by the rule announced in Webster v. Webster, case No. 11882 (not yet officially reported), [decided September 25, 1923, pending on rehearing], in which it is said:

"An attempted marriage between a man and woman who has a living undivorced husband is bigamous, and a continued cohabitation is unlawful."

¶3 The testimony discloses that Milea Tiger was first married to Taylor Taylor a number of years ago, the exact time not being fixed and thereafter she was married to Ledke Tiger. The exact date of the last marriage is not fixed, but it was consummated about ten years ago. Both Taylor Taylor and Ledke Tiger are still living. The defendant in error relies upon the rule announced in Jones v. Jones, 63 Okla. 208, 164 P. 463, as follows:

"The burden is upon the person who asserts the illegality of a marriage to prove such illegality, and where a second marriage is shown as a fact, a strong presumption exists in favor of its legality, which is not overcome by mere proof of a prior marriage and that the wife had not obtained a divorce before her second marriage. The party attacking such second marriage has the burden of showing that neither party to the first marriage had obtained a divorce."

¶4 To the same effect are the following cases: Chancey v. Whinnery, 47 Okla. 272, 147 P. 1036; Hale v. Hale, 40 Okla. 101, 135 P. 1143; Cox v. Cox, 95 Okla. 14, 217 P. 493; Brokeshoulder v. Brokeshoulder...