Others v. Barron

• Decision Date: 30 November 1856
• Docket Number: No. 135.,135.
• Citation: 20 Ga. 702
• Parties: Andrew Park and others, plaintiffs in error. vs. James F. Barron, defendant in error.
• Court: Georgia Supreme Court

20 Ga. 702

Andrew Park and others, plaintiffs in error. vs. James F. Barron, defendant in error.

No. 135.

Supreme Court of the State of Georgia

NOVEMBER TERM, 1856.

In Equity, in Jones Superior Court. Decision by Judge Hardeman, April Term, 1856.

This bill was filed by the administrator of A. Barron for interpleader and direction upon the following facts: James Barron intermarried and was divorced from his first wife, at her instance, he being the "guilty party." He afterwards intermarried again, his first wife being still alive. By both, he had children. The issue of the first marriage claimed the whole estate, contending that the second marriage was void, and the issue thereof bastards.

The Court held the children to be legitimate and entitled to inherit equally with the children of the first marriage.

This decision is assigned as error.

Poe & Grier, for plaintiffs in error.

Adams, for defendant in error.

By the Court.— McDonald, J., delivering the opinion.

James Barron having been the party whose improper or criminal conduct authorized the divorce, was prohibited frommarrying, by the Act of the General Assembly of 1806, during the life of the woman from whom he had been divorced. (Cobb\'s New Dig. 225.) By marrying the second time, the said party being in life, he subjected himself to the pains and penalties enacted against bigamy. Id. The second marriage is not declared by that Act to be void; but whether it be void or not, the party offending against the provisions of the Statute was indictable, and he could not defend by showing the dissolution of the first marriage.

His offense was bigamy, but not bigamy as defined in the Penal Code; for the marriage having been dissolved, he had no wife; so that on the second marriage he had not a plurality of wives. Yet, if he had been indicted and the State bad proved the first marriage, and that the woman to whom he was united in marriage was still living, and then the second marriage, a case of bigamy would have been made out, against which the defendant could not have been permitted to prove the divorce dissolving the first marriage.

But what is the status of the issue of this last marriage" Are they legitimate or illegitimate?

The offspring, in a contest for their civil rights, are not estopped from showing the dissolution of the first marriage. They do not occupy the position of their criminal parent. They may prove the dissolution of the first marriage, and if it is of any advantage to them, they may claim it. The Act, for the violation of which their father might have been punished, does not declare this second marriage void; and independent of the light thrown upon the subject by subsequent legislation, it might be well maintained, perhaps, that the taint of bastardy does not attach to them.

By the divorce, the first marriage was totally dissolved; the husband was, in fact, left without a wife; he was of full age and able to contract; he was not deficient in mental capacity; and it is not a fair inference that the Legislature did not intend to involve in his difficulty a confiding woman and innocent offspring, by declaring a marriage void which he might subsequently enter into? By Statutes of England, persons within certain degrees of kindred were prohibited from marrying; and yet, marriages between such persons were not void, but voidable, and if not avoided during the lives of the parties, the issue was legitimate, and the Common Law Courts would prohibit the Ecclesiastical Courts from proceeding to call the marriage in question after the death of either of the parties, because of its tendency to bastardize and disinherit the issue. (Shelford on Mar. and Divorce, 163, 484.) Barron, whose misconduct led to the divorce, was prohibited from marrying, under a penalty; but the marriage is not declared void by the Act which prohibited him from marrying. Persons within the degrees of kindred in which marriages are prohibited in England, intermarrying, violate a public law; and yet, the marriage is valid until set aside, and the issue of such a marriage are legitimate, unless it is annulled. In that case, both parties must be in fault. They must both know that they are doing an act which, by the law of the land, they are forbidden to do. That is not necessarily the case in a marriage where one of the parties has been divorced.

The first marriage Act in England was the Act of 26 George 2d. That Act was never of force in this country. It expressly provides that it shall not extend to marriages solemnized beyond seas. There is a marked difference between that Statute and our own, as respects the solemnization of marriages. That Act not only inflicts a most severe penalty on persons who solemnize marriages contrary to its provisions, but it also declares all marriages thus solemnized void. Our Statutes inflict a penalty, but do not declare the marriage void. (Cobb's New Dig. 282, 818, 819.)

For obvious reasons connected with the welfare of society, the law is more tender of nuptial contracts than ordinary contracts which relate merely to property and the ordinary dealings among men. Marriage contracts are, by the Common Law, excepted from the rules which govern ordinary contracts. By the Common Law, an idiot might contract marriage, and the marriage of an idiot or lunatic was consid-ered valid, (I Roper on Hits, and Wife, 339.) The learned annotator on Lord Coke\'s first Institute remarks, that "before the Act of 15 Geo. 2 c. 30, there could be no doubt as to the validity of the marriages of lunatics, where it could be clearly proved that they were married in their lucid intervals. One should think there could be as little room to doubt their incapacity of contracting marriage whilst...