Miller v. Sutherland

Decision Date03 April 1957
Docket NumberNo. 9558,9558
Citation131 Mont. 175,309 P.2d 322
PartiesJ. H. MILLER, Plaintiff and Respondent, v. Eva E. SUTHERLAND, Defendant and Appellant.
CourtMontana Supreme Court

Jess L. Angstman, Morrison & Ettien, Havre, for appellant.

Jess L. Angstman, J. Chandice Ettien, Havre, argued orally for appellant.

DeKalb, Dockery & Symmes, Lewistown, for respondent.

Weymouth D. Symmes and H. Leonard DeKalb, Lewistown, argued orally for respondent.

HARRISON, Chief Justice.

Respondent brought this action to quiet title to certain described real property. By answer appellant denied the allegations of the complaint except that respondent was the owner and in possession of the real estate, and alleged that appellant asserted an inchoate right of dower in the real property because she was the wife of the respondent. In addition, the answer sets up a cross-complaint containing two causes of action; first that the appellant was the common-law wife of the respondent; and second that respondent and appellant had entered into an agreement by the terms of which each agreed to devise and bequeath to the other one-third of all the property owned by them through the execution of mutual wills.

Trial was had before the court which entered judgment and decree quieting the respondent's title in the lands and dismissing the two causes of action pleaded in the cross-complaint on the merits. Appellant appealed from this judgment and contends that the court erred in finding and decreeing that appellant was not the wife of the respondent.

Appellant and respondent became acquainted in 1928, and respondent commenced an active courtship. During the month of June, 1932, appellant returned to Montana from California and arrived at Livingston. There she called the respondent at his ranch near Windham, Montana, by phone and told him she would be his. Arrangements were made to meet at Billings, Montana, in the same conversation. Appellant testified that in the Northern Pacific Depot at Billings, Montana, she had laid down to rest on a couch, fell asleep, and that she was awakened by the respondent who leaned down and kissed her. A conversation then followed in which the appellant and respondent orally agreed to be man and wife. This alleged oral agreement was denied by the respondent. The parties then went to Gage Hotel in Billings, registered as man and wife, and that night, according to the appellant's testimony, the marriage was consummated. At this time restpondent was sixty years of age, appellant thirty-two.

Following this, the parties went to the respondent's ranch where during that summer they occupied separate bedrooms. While respondent's son and daughter were on the ranch during that summer appellant did not represent to them that she was respondent's wife. That fall appellant applied for and received a position as teacher in the Tonnetti School under the name of Eva E. Sutherland. She represented herself as a single woman to the students, parents, school board and county superintendent. Appellant in succeeding years followed employment as a schoolteacher in various schools in Montana and at Baker, Oregon, and in every instance represented herself as a single woman. Appellant asserted that by an agreement with the respondent she was to keep her maiden name in all her business dealings, and also that during the years immediately following her purported marriage it was difficult for a married teacher to get a position. During the summer vacation periods she returned to the ranch.

The respondent, as soon as his fall work was completed, would go to a community in the vicinity of where appellant was teaching and secure a tourist cabin, motel, or other living quarters, and appellant would visit with him over the week-ends, usually from Friday evening to either Sunday night or Monday morning.

There is no question but during all the years up until July 21, 1949, the respondent was greatly enamored with the appellant, and as he testified he would have married her at any time during that period, but the appellant always refused, stating it was against her religious scruples to marry when her divorced husband was still alive.

In registering at hotels, tourist camps or other living quarters while away from the ranch, appellant and respondent stated they were husband and wife. On such occasions they did not visit much with other people. At Cut Bank, Montana, and at Baker, Oregon, appellant represented the respondent as her father. Respondent wrote many letters to the appellant in which he referred to her as his wife, but which letters were always addressed to her as 'Eva E. Sutherland'. He testified this was merely a way of showing his love for her.

Numerous greeting cards carrying 'to my wife' or similar designations in print, and some to the same effect in writing, were received in evidence. These were admittedly sent by respondent to appellant over the years here involved, and in all cases they were addressed to Eva E. Sutherland.

A will purportedly executed by respondent dated January 7, 1936, refers to appellant in this language: '* * * and to the person known as Eva Sutherland * * * and I further state that Carl, Vivian and Helen [being the children of respondent] shall show every consideration, to be kind and just to my Eva, known to you as Eva Sutherland, for I love her dearly.'

In 1942, the parties executed mutual wills in which they referred to each other as husband and wife. The respondent testified that he did not authorize such a designation and that he did not read the will after its preparation.

Letters written by appellant in 1947 and 1948 to respondent read 'Dear Pal' or 'Dear'. Nowhere in any letter introduced does appellant refer to respondent as her husband.

A policy of insurance on the life of appellant, issued September 23, 1944, wherein her name is carried as Eva E. Sutherland, states that she is a divorced woman.

Appellant's voting registration card, executed on May 23, 1944, was signed Eva E. Sutherland, but she had it changed by adding the name Miller after the primary in 1952.

Appellant considered Windham, Montana, as her home, and she testified that at no time while living there in the summers of 1932 to 1944 had she ever introduced Mr. Miller as her husband to any friend of hers who came to the ranch. She further testified that she did not recall ever, prior to 1948, introducing Mr. Miller as her husband to any friend of hers.

Appellant testified the purported marriage was concealed part of the time. The part of the time it was not concealed was when, as she termed it, they were living their normal lives as man and wife in cabins, and she was not in the business world.

Turning to the testimony of witnesses from the locality of Windham, we find the postmaster testifying that to his knowledge appellant never, during all this period of time prior to 1949, received any mail addressed to her as Eva Miller.

A neighbor testified that during all this period of time appellant never went by the name of Eva Miller.

An employee on the ranch in the years of 1931 and 1935 testified that he saw appellant on the ranch. He stated she occupied a seprate bedroom, was introduced as Miss Eva Sutherland, and she never represented herself as Mrs. Miller. While he further testified that the appellant and respondent acted like a married couple, he admitted their conduct in 1935 was no different than it had been in 1931 when appellant was likewise on the ranch, and which admittedly was before the purported marriage took place.

A long-time friend of the respondent testified that he visited the ranch in the midle thirties with his wife and family, and appellant was not known to him as Eva Miller, and that she never told him she and respondent were married, nor did they ever refer to themselves as husband and wife. He presumed they were married.

Another neighbor testified that he was acquainted with both parties, and that neither of them had ever represented to him that they were man and wife.

An employee on the ranch off and on for about twelve years testified they slept in separate bedrooms, and that he never addressed appellant as Eva Miller, but had addressed her as Eva and as Miss Sutherland.

Another employee who went to work on the ranch in 1945 testified that at the time of her employment, respondent introduced her to appellant as 'her boss', but never introduced her as Mrs. Miller. She testified they occupied the same bedroom, and it was her impression that they were a married couple.

Another employee testified that when they first came to the ranch they occupied the same bedroom for a few nights and after that they had separate rooms. She testified that appellant told her that she had never married respondent because it was against her religion to do so as long as her first husband was alive. She presumed they were married. She stated she always called appellant Mrs. Miller, but the appellant told her not to call her Mrs. Miler but to call her Eva. On cross-examination she admitted when first employed the respondent told her that he was a widower.

Another witness who had lived in the Windham community since 1915 stated she had from time to time visited with the appellant and that she knew her as Miss Sutherland. On one occasion appellant had told her she was married, but this was since 1949, after the break-up between appellant and respondent.

It appeared from the record that on or about the 21st day of July, 1949, the appellant and respondent had a discussion with regard to respondent conveying to appellant certain land, which appellant insisted that respondent should do, and which the respondent refused to do. This resulted in a break-up of the relations which had continued over a period of seventeen years. The parties thereafter went their separate ways.

Our statute with regard to marriage is R.C.M.1947, § 48-101, which provides:

'Marriage is a personal relation arising out of a civil contract, to...

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