Mcdeed v. Mcdeed

• Decision Date: 31 January 1873
• Citation: 1873 WL 8258,67 Ill. 545
• Parties: JOHN J. MCDEEDv.CLARINDA MCDEED.
• Court: Illinois Supreme Court

67 Ill. 545

1873 WL 8258 (Ill.)

JOHN J. MCDEED

v.CLARINDA MCDEED.

Supreme Court of Illinois.

January Term, 1873.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Macon county; the Hon. A. J. GALLAGHER, Judge, presiding.

This was an action of ejectment, by John J. McDeed against Clarinda McDeed, Gordon McDeed, Eliza McDeed and Albert McDeed, in the circuit court of DeWitt county, and taken by change of venue to Macon county, where a trial was had, resulting in a judgment for the defendants, from which the plaintiff appealed.

The second instruction given for the defendants, referred to in the opinion, is as follows:

“The court further instructs the jury, that every person is presumed to be innocent of crime until there is proof of guilt; and further instructs them, that where any act is required to be done on the one part, so that the party neglecting it would be guilty of criminal neglect of duty in not having done it, the law presumes the affirmative, and throws the burden of proving the contrary--that is, in such case, of proving a negative--on the other side; and therefore, although the jury may believe, from the evidence, that John McDeed was married to Marinda Hollenback in the State of Ohio, and was afterwards married to the defendant, Clarinda McDeed, in the State of Indiana, yet they will presume that the second marriage was innocent and not bigamous or criminal, unless they further believe, from the evidence, that the first marriage was not dissolved by John McDeed avoiding it within the age of consent, or by his obtaining a divorce prior to the second marriage.”

Messrs. MOORE & WARNER, for the appellant.

Messrs. WELDON & BENJAMIN, for the appellee.

Mr. JUSTICE SHELDON delivered the opinion of the Court:

This was an action of ejectment. The controversy is one of heirship, arising as follows:

John McDeed and Marinda Hollenback were married in the State of Ohio on the 10th of October, 1824. About the year 1827, John McDeed left his wife in Ohio and came into the State of Indiana, where he was afterwards married to Clarinda Wiley. McDeed and his wife Clarinda subsequently removed to DeWitt county, in this State, and he acquired the legal title to, and died in possession of the lands in controversy. His first wife, Marinda, was living at the time of his death.

This suit was instituted by John J. McDeed, the son of John McDeed by Marinda McDeed, against Clarinda McDeed and the other defendants, her children, who were in possession of the lands of which John McDeed died seized, claiming that he, the plaintiff, was the sole heir of John McDeed, and as such entitled to the whole of said lands.

The ground on which the defendants attempted to avoid the effect of the first marriage was, that John McDeed, at the time of the marriage, was under the age of 18, the age of consent in Ohio, and that at, or before his arrival at the age of 18, he disaffirmed the marriage by ceasing to cohabit with his wife, and that thereby, under the laws of the State of Ohio, he avoided the marriage.

A verdict and judgment were rendered for the defendants, and the plaintiff has appealed.

It is insisted on, as error, that the court permitted the depositions of Perkins and Bissell, lawyers of the State of Ohio, to be read in evidence to prove a statute of Ohio and a judicial decision under it.

It was undoubtedly error to allow the statute of a foreign State to be proved by parol. But the statute book of Ohio was also introduced in evidence, which obviated the error.

The common law of a foreign State may be proved by parol evidence. The usual course is to make such proof by the testimony of competent witnesses instructed in the law, under oath. As a general rule, “the decisions of courts of justice are the evidence of what is common law.”

In Kingsley v. Kingsley, 20 Ill. 202-3, the following language was held by this court: “Courts have uniformly taken notice of the construction given to foreign statutes by the foreign tribunals; and to enable them to do this, they have always been in the habit of looking to the reports of such tribunals. Whatever the court may take notice of, or may learn from reported decisions, it may also be...