Nelson v. Jones

Decision Date14 December 1912
PartiesNELSON et al. v. JONES et al.
CourtMissouri Supreme Court

The father of the child in question by his alleged second marriage had previously married, and he and his wife parted and lived apart. It was not shown that either of them procured a divorce, but he afterwards ran away with another woman, and they subsequently came back to the neighborhood where his former wife resided and to her knowledge lived together openly and notoriously as man and wife and discharged all of the duties of that relation toward each other until he died. Rev. St. 1909, § 342, provides that the issue of all marriages "decreed null in law or dissolved by divorce shall be legitimate." Held, that the word "decreed" was substantially equivalent to the word "deemed," which was used in the statute as it formerly stood, and, under the statute as construed, the children begotten by the husband of his alleged second wife were legitimate.

Graves and Woodson, JJ., dissenting.

In Banc. Appeal from Circuit Court, Pemiscot County; Henry C. Riley, Judge.

Action by Addie Nelson and another against Talitha Jones and others. From a judgment for plaintiffs, defendants appeal. Reversed and remanded for decree as directed.

Ward & Collins, of Caruthersville, for appellants. Arthur L. Oliver, of Caruthersville, for respondents.

LAMM, J.

In November, 1906, plaintiffs sued to try and to determine title to 77.15 acres of land in Pemiscot county, described by metes and bounds in the petition, and lying on the state line. From a judgment for plaintiffs, defendants appeal.

John Jones was the common source of title. His first wife was Emma Perry. By her he had a daughter, Addie, now intermarried with Nelson, her coplaintiff. Some two years after the birth of Addie, John and Emma separated, and Emma (while John was yet alive) married Luther Brown, a minister of the gospel. Afterward she died. John (it is claimed by defendants and denied by plaintiffs) married Lizzie C. Harrington during the life of his first spouse. Afterwards John was killed. Defendants Talitha, Josie, and George Jones are his infant children by her. After John's death, Lizzie C. intermarried with her codefendant, William Chism. All parties live in Arkansas.

The main issues threshed out below were divorce, marriage, and bastardy. The pleadings, proofs, and admissions are such that (unless Addie is estopped to claim an exclusive title) she inherits the land if she be the only legitimate child and sole heir of John Jones. Contra, if the infant defendants are his legitimate children, then Addie inherits only an undivided one-fourth and they the remaining three-fourths. So, if Lizzie C. was lawfully married to John Jones, she is endowed. If, however, she was not, then she is not. There was another issue, viz.: It is alleged in the answer that Addie and the defendants (as joint plaintiffs) brought a suit against one Briggance (the source or character of Briggance's title does not appear) to determine title in 1906 to the same land in the Pemiscot circuit court; that such proceeding ripened into a decree vesting the title out of Briggance and into them; and that defendants, at the instance and by the procurement and acquiescence of plaintiff Addie, were put to such efforts, trouble, outlays, and expense in and about that proceeding as raised an estoppel, wherefrom they pleads estoppel in aid of their title. By replication Addie admits such Briggance suit, but pleads her minority by way of avoiding the force of the estoppel.

The cause was tried to the court, and, though instructions were asked for defendants, yet the nature of the relief sought, together with the issue of estoppel raised by the answer and the form of the judgment, put the case, we think, in equity. We have been inclined to view suits to determine and decree title as of equitable cognizance except where the issues are so framed by the pleadings as to make the proceeding a lawsuit. There is nothing in the pleadings in this case showing either party entitled to a jury. In this view of it, we shall review the facts and determine the case on our own estimate of them, giving to the court below the proper advantage of position in weighing oral testimony. The facts are these: Mississippi county, Ark., is just across the line from Pemiscot county, Mo. About 1886 there lived on the North Chickasawba in said Mississippi county John Jones and Emma Perry. About 1886 or 1887 they were married by a justice of the peace. Their families lived not a great ways apart, and both the Perrys and the Joneses were farmers. After his marriage John cropped in the neighborhood for four or five years. As said, some two years after Addie was born John and Emma separated. There lived not far away one Harrington. Harrington had a daughter, Lizzie C. Emma Jones and Lizzie Harrington were "girls together," and, though Harrington moved about a good deal, yet the young women knew each other pretty well. Whether it was John or Emma at fault in the separation does not appear. The best we can make out is that their ways parted about 1891. They never lived together as husband and wife thereafter, or in any wise recognized any conjugal duty to each other. She returned to her father's house with her baby, and John raised a crop and stayed in the neighborhood with his acquaintances for a time variously estimated at from four to eight months, when, to use the phrase of the witnesses, he "ran away" with Lizzie Harrington.

Miss Harrington's sister "ran away" at the same time with one Reece. They one and all floated in a dugout or canoe from North Chickasawba to a place or creek called "Marked Tree," there took a train to West Memphis, there crossed the Mississippi river, and went on to Bolivar county in the state of Mississippi. On the way to Bolivar county, they stopped at a way station, according to Lizzie's account, and both these runaway couples there hastily married; a man officiating who "looked like" a minister, and there is faint evidence of a "license." Reece did not testify, and his whereabouts are unknown. Lizzie's sister did not testify. She seems to have afterwards married a man named Scallion, but, whether she is living or dead, Lizzie said she did not know. After several months Jones and she come back to Yarbro, Mississippi county, Ark., hard by North Chickasawba, and there, all the testimony shows, they lived together and held each other out as man and wife in the face of all men and to the knowledge of their old acquaintances and kinsfolk. She was thenceforward known as Mrs. Jones. Not far away at the time lived Emma, the first wife, and the testimony tends to show she knew they were consorting publicly together as man and wife and holding themselves out as such. After one or two years they moved a little ways north just over the state line into Missouri, about 10 miles from Yarbro and North Chickasawba, and settled on the farm in question which Jones then bought. While at Yarbro he got his child, Addie, and kept her in his family. While not quite clear, yet we gather, when Jones made that move, he took Addie with him and kept her there at his new home with his putative new wife until he was killed on June 2, 1896. At their new home in Pemiscot county, as in their old in Mississippi county, Ark., John Jones and Lizzie lived continuously, openly, and habitually as man and wife, the neighborhood recognized...

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