Murchison v. Green

• Decision Date: 16 May 1907
• Citation: 57 S.E. 709,128 Ga. 339
• Parties: MURCHISON v. GREEN.
• Court: Georgia Supreme Court

57 S.E. 709

128 Ga. 339

MURCHISON v. GREEN.

Supreme Court of Georgia

May 16, 1907

Syllabus by the Court.

All the presumptions necessary to make a marriage valid attach on proof of a formal ceremony of marriage and cohabitation by the parties under the belief that they were lawfully married and the burden is on those who attack the validity of the marriage to show its invalidity by clear, distinct, positive and satisfactory proof. There is in such case a presumption that the parties had capacity to contract marriage; and this presumption prevails until overcome by proof.

Where the presumption of the validity of a marriage, arising from the performance of a ceremony, conflicts with the presumption of the continued life of a former spouse of one of the parties, if neither is aided by proof of facts or circumstances corroborating it, the presumption of the validity of the second marriage will prevail over the presumption of the continuance of the life of the former spouse.

The amended answer of the defendant set up no defense, and should have been stricken on demurrer.

Error from Superior Court, Houston County; W. H. Felton, Jr. Judge.

Action by one Moore against T. A. Green. Pending the action plaintiff died, and H. Murchison, his administrator, was substituted as plaintiff. Judgment for defendant, and plaintiff brings error. Reversed.

M. G Bayne, for plaintiff in error.

Mathews & Riley, for defendant in error.

COBB, P.J. (after stating the facts).

1, 2. Marriage is favored by the law. Concubinage is odious. When a man and a woman are living together as husband and wife, the law will hold them to be such, even against strong probabilities that they are not. 1 Bish. on Mar., Div. & Sep. § 77. When a marriage has been regularly solemnized, and the parties live together as man and wife, there is a presumption that the parties had capacity to contract the marriage, and of the existence of all other facts necessary to render the marriage valid; and this presumption prevails until the contrary appears. The burden is upon him who attacks the validity of the marriage to show that it is invalid by clear, distinct, positive and satisfactory proof. Megginson's Estate, 21 Or. 387, 28 P. 388, 14 L.R.A. 540. The presumption as to the validity of the marriage can only be negatived by disproving every reasonable possibility. The status of the woman is involved, as well as the legitimacy of the children, and every reasonable presumption must be indulged which will relieve the woman of the charge of being a concubine and her children from being declared bastards. Piers v. Piers, 2 House of Lords Cases, 380; Cash v. Cash, 67 Ark. 278, 54 S.W. 744; Wilkie v. Collins, 48 Miss. 496. If at the time of the marriage one of the parties had a living spouse, of course, the marriage is void. But it is incumbent upon him who attacks the marriage upon this ground to overcome the presumption of its validity, resulting from the solemnization of the marriage ceremony and cohabitation by the parties under the belief that they are lawfully married, and to establish that the former spouse was living at the time that the second marriage was entered into.

As a general rule the law will presume the death of a person after his absence for seven years, when nothing has been heard from him. This is, however, a mere presumption, and may be rebutted by proof. If one enters into a second marriage contract in good faith, honestly believing that the former spouse is dead, by reason of the fact of abandonment and not having been heard from, it is not indispensable that seven years should have elapsed from the time that the spouse was last heard of, in order to establish the validity of the second marriage. While there may be a presumption of life when the period between the time the spouse was last heard from and the second marriage is less than seven years, under such circumstances this presumption of life conflicts with the presumption of innocence which the law raises in favor of the party contracting the second marriage. The presumption that the party contracting the second marriage is innocent of the crime of bigamy is, in such circumstances, stronger than the presumption that the former spouse is in life. Where the presumption of innocence and of the validity of the marriage conflicts with the presumption of life, and neither presumption is aided by proof of facts or circumstances corroborating it, the presumption of the validity of the marriage has generally been held to be the stronger, and to prevail over the presumption of the continuance of the particular life; and this has been held, although the time elapsing between the last knowledge of the former spouse and the second marriage is much less than seven years. The proposition thus stated was laid down by Shope, J., in Johnson v. Johnson, 114 Ill. 611, 3 N.E. 232, 55 Am.Rep. 883, in an opinion where numerous cases are considered and reviewed. In Cash v. Cash, 67 Ark. 278, 54 S.W. 744, the period elapsing between the time the first husband was last heard of and the date of the second marriage was only five years. In Town of Greens-borough v. Town of Underhill, 12 Vt. 604, the period was less than two years. In Wilkie v. Collins, 48 Miss. 496, the period was a little more than two years. In Kelly v. Drew, 12 Allen (Mass.) 107, 90 Am.Dec. 138, only four years had elapsed from the time that the first husband was last heard of. Even in a prosecution...