Morrill v. Palmer

• Decision Date: 07 July 1895
• Citation: 68 Vt. 1,33 A. 829
• Parties: MORRILL v. PALMER.
• Court: Vermont Supreme Court

33 A. 829

68 Vt. 1

MORRILL

v. PALMER.

Supreme Court of Vermont. Orleans.

July 7, 1895.

Exceptions from Orleans county court; Tyler, Judge.

Action by Jane D. Morrill against A. W. Palmer for deceit. Judgment for plaintiff, and defendant excepts. Affirmed.

C. A. Prouty and Theophilus Grout, for plaintiff.

Dickerman & Young, for defendant.

TAFT, J. 1. The defendant married Calista Adams in 1856, and cohabited with her at Newport, Orleans county, in this state, until 1859, at which time and place he left her. She continued her residence at Newport, and obtained a divorce in Orleans county, in August, 1862. After the defendant left his wife, in 1859, he went to Massachusetts, resided there for a time, and on the 7th day of November, 1860, a marriage was solemnized between him and the plaintiff at Salem, in that state. Under our statute (R. L. § 2309), and under the laws of Massachusetts, the marriage in November, 1860, was void.

It is insisted by the defendant that the conduct of the parties after the divorce, in 1862, made them legally husband and wife, upon the ground that, although the marriage was not solemnized according to the laws of the place where the contract was made, it constituted what is called a "common-law marriage,"—that is, a consummated agreement to marry between a man and woman per verba de præsenti, followed by cohabitation; and that such common-law marriage was a valid one, under the laws of this state. Such marriages have been held valid in some jurisdictions. The question before us is, are they valid in this state? It is claimed that this court in Newbury v. Brunswick, 2 Vt. 151, adopted the doctrine, and its language lends sanction to the claim. In that case it was held that a marriage contract per verba de præenti was valid. The parties had contracted matrimony in Canada, before a Justice of the peace, who had no authority to solemnize marriages. The legislative assembly of that province afterwards passed an act declaring valid all such marriages which had been theretofore solemnized. The court said it was unnecessary to pass upon the question of what effect the act declaring such marriages valid had upon the case. Although they say there was no doubt but that its effect was to legalize the marriage before the justice to every intent, they held that it was valid from the beginning, as a common-law marriage. We think it must be conceded, and that it is beyond question, that the effect of the act made the marriage a valid one, and therefore the case was correctly decided, the court giving the wrong reason. The case, in another respect, was overruled in Landgrove v. Pawlet, 20 Vt. 309. The question of a common-law marriage is referred to in Northfield v. Plymouth, Id. 582. Although it was not necessary to the disposition of the case, we think the law is correctly stated by Redfield, J., in speaking of certain cases in which the question was involved, who said: "In these and other New York cases stress is laid upon the fact that a marriage per verba de præsenti is valid in that state, and also at the common law if followed by cohabitation. That, I think, could hardly be regarded as law in this state without virtually repealing our statutes upon that subject." It will be observed that in this reference to the question no notice is taken of the prior case of Newbury v. Brunswick, supra.

At the first session of the legislature, in 1779, it was enacted "that common law, as it is generally practiced and understood in the New England states, be and is hereby established as the common law of this state." In June, 1782, it was further enacted "that so much of the common law of England as is not repugnant to the constitution or of any act of the legislature of this state be and is hereby adopted, and shall be and continue to be the law within this state." Although the common law of England was thus early adopted, it did not control a subject regulated by statute, if we had a statute upon the subject. The statute superseded the common law. The reason of the adoption of the common law is seen by the preamble to the act of 1782, in which it is stated that "it is impossible at once to provide particular statutes adapted to all cases wherein laws may be necessary." The subject of marriage was early regulated by statute, and the common law in respect to it was never in force. At the first session of the general assembly, in March, 1778, a bill was pending, for the regulation of marriages, and we infer one was passed. What it was is not known, as the acts of that session are not preserved, but the records of the assembly show that a bill relating to marriages was pending. At the session in February, 1784, the subject of marriage was again considered and regulated. The act required the publication of the intention of the parties and that no persons whatsoever, other than certain officials or ordained ministers of the gospel, should solemnize marriages, nor presume to marry any man and woman. Although the statute did not declare that a marriage solemnized in any other manner than the one required by the statute was void, we think such was the effect. It is clear to us that this is the proper construction to be given the statute, from the fact that marriages celebrated by the Quakers, in a mode not within the statute, were made legal; and this view is also confirmed by the fact that, by statute (now R. L. § 2310), marriages solemnized before a person professing to be a justice of the peace or a minister of the gospel shall be valid, provided the marriage is in other respects lawful, and consummated with the belief on the part of either person that they were lawfully joined in marriage. If a common-law marriage was valid, there was no necessity for such statutes.

We hold, therefore, that what the learned commentator Kent calls the "loose doctrine of the common law" in relation to marriage was never in force in this state. The law is the same in Massachusetts, the place in which the contract was made.

The defendant insists in respect to this marriage that the court should presume it valid, there being no proof that the defendant had not been divorced from his first wife prior to his marriage with the plaintiff, and cites authorities to support such claim. It is probable that, in favor of morality, innocence, and the legitimacy of children, such presumption might be made, nothing else appearing in the case; but it should not be permitted here, for, quoting from the defendant's brief, "the case shows that at that time (the time of the marriage between these parties) the defendant had a wife living." If he had obtained a divorce from her, prior to that time, she was not then his wife, and he had none living. The defendant testified upon the trial, and, if he had been divorced prior to his pretended marriage with the plaintiff, he did not act in good faith to the court in suppressing that fact, and no presumption of the kind claimed should be entertained in his favor. The case shows the defendant testified that when he heard of the divorce, in 1862, "he supposed the divorce made his marriage with the plaintiff legal." It would be inconsistent in connection with this testimony to presume that he had obtained a divorce prior to the one in 1862. The point is evidently an afterthought of the counsel, being added in penmanship to the printed brief, and is not before us, for it was not raised upon the trial below, and is only noticed here to show that we have the point in mind in considering the main question.

No question is made but that the action can well lie if the case is properly established. This would logically result from Pollock v. Sullivan, 53 Vt. 507, in which it was held that an action could be maintained by a single woman against a married man for deceiving her into making a marriage contract.

2. The most important question in this case is that of the statute of limitations. Question is made whether the statute began to run from the commencement of the fraud and the marriage in November, 1860, or from the time the plaintiff discovered the fraud, in April, 1894; and, if the cause of action was complete at the time of marriage, what effect the concealment of the fraud had upon the rights of the plaintiff in respect to the statute of limitations. To determine from what time the statute began to run, it is necessary to consider the cause of action upon which the plaintiff seeks to recover. It is alleged that at the time of, and previous to, the marriage, the defendant represented to the plaintiff that he was a single man, and might lawfully contract said marriage; that, during all the years subsequent to said marriage, he represented to her that at the time of said marriage he was a single man, the marriage a valid one, and the plaintiff in all respects his lawful wife. It is also alleged that the plaintiff relied upon the representations; that they were false, and that she was ignorant of their falsity until suit; that, in consequence of such fraudulent representations, the plaintiff married the defendant, bore him children, rendered him much and valuable service during all the time,—i. e. from November, 1860, until April, 1894,—and assisted him in the accumulation of a large amount of property. It is claimed by the defendant that "this action accrued, if ever, immediately on the performance of the marriage ceremony, November 7, 1860, in Massachusetts." Is this claim correct? It is true, she, at that time, had a cause of action against the defendant, but it was not the one she is now seeking to enforce, which is for his defrauding her out of 33 years of service, and having, as a result of his fraudulent acts, caused her to live for that length of time in a false conjugal position. It is error to assume that the cause of action for these wrongs accrued at the time of the marriage. The representations of the defendant were continuous. He perpetrated a most gross, willful, and deliberate fraud...