Parkinson v. Mills

• Decision Date: 04 March 1935
• Docket Number: 31139
• Citation: 172 Miss. 784,159 So. 651
• Court: Mississippi Supreme Court
• Parties: PARKINSON v. MILLS

159 So. 651

172 Miss. 784

PARKINSON v. MILLS

No. 31139

Supreme Court of Mississippi

March 4, 1935

Division A

APPEAL from the chancery court of Harrison county HON. D. M RUSSELL, Chancellor.

Suit by Emma P. Mills, guardian of William E. Parkinson, non compos mentis, against Eleanor Wilson Seay Parkinson for annulment of marriage. From a decree for complainant, defendant appeals. Affirmed.

Affirmed.

F. W Elmer, Jr., of Biloxi, and Gex & Gex, of Bay St. Louis, for appellant.

We submit that there never has been a legal guardian appointed in this cause and the record so showed it to such an extent that if this had been a suit that could have been filed by the guardian for herself it should not have been entertained.

The right of a chancery court to confine persons of unsound mind to asylums, imprisonment, etc., and to appoint a guardian over them is all statutory and is governed by sections 4576, 4577 and 4578, of the Mississippi Code of 1930.

Duke v. State, 57 Miss. 229.

The court erred in finding that it could proceed in the said cause for the annulment of a personal contract without the parties before it.

Griffith's Chancery Practice, sections 127 and 128; Gillespie v. Hauenstein, 72 Miss. 838; Rembert v. Key, 58 Miss. 533; 38 C. J. 1353, sec. 127; 32 C. J. 778, secs. 611, 612 and 613; Dixon v. Gries, 39 P. 857; O'Shea v. Wilkinson, 30 Pa. 588.

The insane litigant being the real party in interest in the absence of statute providing otherwise, the suit or action should generally be brought or defended in his own name.

32 C. J., sec. 616; West v. West, 90 Ala. 458; Dixon v. Cardozo, 106 Cal. 506, 39 P. 857; Riggs v. Zaleski, 44 Conn. 120; Hutchins v. Johnson, 12 Conn. 376, 30 Am. Dig. 622; Crane v. Anderson, 3 Danna. 119; Healy v. Boston El. R. Co., 235 Mass. 303, 126 N.E. 379; Taylor v. Lovering, 171 Mass. 303, 50 N.E. 612; Lombard v. Morse, 155 Mass. 136, 20 N.E. 205; Gibson v. Schull, 251 Mo. 480, 158 S.W. 322; Reed v. Wilson, 13 Mo. 29; Burnett v. Bookstaver, 10 Hun. 461; McKillip v. McKillip, 8 Barb. 552; Lane v. Schermerhorn, 1 Hill 97; Arnold v. Townsend, 14 Phila. 216; Hamilton v. Colwell, 10 R. I. 39; Flynn v. Hancock, 80 S.W. 245.

The court erred in decreeing the marriage void ab initio, when the statutes of the state of Mississippi provided that insanity at the time of the marriage is a cause for divorce.

Griffith's Chancery Practice, page 589; Dunlap v. Fox, 2 So. 169; Parkhurst v. McGraw, 24 Miss. 134; Carter v. Eastman-Gardner Co., 95 Miss. 651, 48 So. 615; Hall v. Thompson, 1 S. & M. 443; Cooperative Oil Co. v. Greenwood Agency Co. et al., 148 Miss. 536; Ellis v. Ellis, 119 So. 304; White v. Williams, 159 Miss. 732; Dimplel v. Wilson, 68 A. 561; Shelby v. Shelby, 61 A. 142; Brown v. Westbrook, 27 Ga. 102; Johnson v. Johnson, 157 S.E. 689; Gregorson's Estate, 116 P. 60.

The court erred in finding, without any evidence before it, that the marriage was procured by fraud, or that the defendant knew that Parkinson had any property at the time of the marriage.

The court erred in refusing to allow attorney fees in this matter, the marriage not having been void ab initio.

Simms v. Simms, 122 Miss. 745.

W. H. & Robt. H. Powell, of Canton, for appellee.

If there be a special objection to the bill such as a misjoinder of plaintiffs (and we say suit in name of guardian instead of Parkinson by his guardian), which can only be noticed by special demurrer, the Supreme Court is not disposed to consider it unless made in the court below. Such matters when pointed out in the chancery court are amendable.

Hamilton v. Mississippi College, 52 Miss. 70; Section 391, Code of 1930; Griffith's Chancery Practice, sections 102, 103, 104, 105 and 108; 20 Cyc. Law & Procedure, page 908.

The bill charges both fraud and mental incapacity, and the court below had complete power to try the case and render the decree complained of.

Section 1414, Code of 1930; Wilson v. Wilson, 104 Miss. 350; Ellis v. Ellis, 152 Miss. 842; Mackey v. Peters, 22 App. D. C. 341; Wiser v. Lockwood, 42 Vt. 720.

A voidable marriage is valid for all purposes until avoided or annulled, and it cannot be attacked collaterally, but only in a direct proceeding during the lifetime of the parties.

18 R. C. L. 447, sec. 77; 2 Schoula on Marriage and Divorce (6 Ed.), page 1372.

The parties being alive, this suit was filed to annul a voidable pretended marriage, and the court had full jurisdiction to render the decree.

White v. Williams, 159 Miss. 737; Antoine v. Antoine, 132 Miss. 442.

The burden was upon the appellant, defendant below, to destroy the presumption which is against her, that there was no legal marriage, and if there was no legal marriage, she had no marital rights and no grounds upon which to predicate any claim for compensation to sustain her alleged rights in a suit for annulment of the alleged marriage contract.

If the proof shows that Parkinson was habitually insane before marriage then the presumption is that he was insane at the time of his marriage and he must show sanity.

Smith v. Smith, 47 Miss. 217; 9 R. C. L., pages 288, 289, 290, 291 and 407; White v. Williams, 159 Miss. 732-40, 132 So. 573; Wilson v. Wilson, 104 Miss. 350; Harrod v. Harrod, 1 Kay & J. (Eng.) 4.

To render a person mentally incompetent to contract marriage it is not necessary that the mental defect should be such as entirely to dethrone his reason or amount to an entire want of reason.

Turner v. Meyers, 1 Hag. Cons. (Eng.) 414; Portsmouth v. Portsmouth, 1 Hag. Ecc. (Eng.) 355; Hancock v. Peaty, L. R. 1 P. & D. (Eng.) 335; Pyott v. Pyott, 90 Ill.App. 210, 191 Ill. 280, 61 N.E. 88; Browning v. Reane, 2 Phill. Ecc. (Eng.) 69.

It seems that the best accepted test as to whether there is mental capacity sufficient to contract a valid marriage is whether there is a capacity to understand the nature of the contract and the duties and responsibilities which it creates.

Hunter v. Edney, 10 P. D. (Eng.) 93; Jackson v. Jackson, P. (Eng.) 308; Rawdon v. Rawdon, 28 Ala. 565; Bishop on Marriage and Divorce, sec. 127; Browning v. Reane, 2 Phill. Ecc. (Eng.) 69; Smith v. Smith, 47 Miss. 211; Kern v. Kern, 51 N.J.Eq. 574, 26 A. 837; 1 Bishop on Marriage and Divorce, sections 599-601; Turner v. Meyers, 1 Hag. Cons. 414; Orchardson v. Cofield, 171 Ill. 14; Goodheart v. Ransley, 11 Ohio Dec. 655, 28 Cinc. L. Bul. 227; Wood v. State, 58 Miss. 743.

One who was habitually insane prior to the making of a contract must prove that he was sane at the time of the contract, and the proof of lucid intervals must be as strong as that required to show insanity and must go to the state and habit of the mind and not to an accidental conversation or behavior on a particular occasion.

Ricketts v. Jofleff, 62 Miss. 440; Ford v. State, 73 Miss. 734; Smith v. Smith, 47 Miss. 217; Mullins v. Cottrell, 41 Miss. 293; 8 Encyc. of Evidence, page 483, citing Nonnemacher case, 159 Penn. 634; 7 Encyc. of Evidence, pages 453-7; Moore v. Com., 92 Ky. 630, 18 S.W. 833; Wright v. Jackson, 59 Wis. 569, 18 N.W. 486; Prinsep. & East India Co. v. Sombre, 10 Moore P. C. 232; Snooks v. Watts, 11 Beav. (Eng. ) 105.

General mental derangement being established, the party alleging sanity must prove it.

7 Encyc. Evidence, pages 456-8; Hoge v. Fisher, Pet. CC. 163, 12 Fed. Cas. No. 6585; Francis v. Wilkinson, 147 Ill. 370, 35 N.E. 150; Lilly v. Waggoner, 27 Ill. 395; Titcomb v. Vanlyte, 84 Ill. 371; Metts case, 91 Ill. 39; Greenwade v. Greenwade, 43 Md. 313; Pennell v. Cummings, 75 Maine, 163; Terry v. Buffington, 11 Ga. 337; Haynes v. Swann, 6 Heiskel (Tenn.) 560; People v. Thurston, 2 Park. Crim. N. Y. 49; 7 Encyc. of Evidence, pages 464, 472, 473, 475; In re Carmichael, 36 Ala. 514; State v. Hayden, 51 Vt. 296.

It has been held that an inquest on a writ of lunacy is only presumptive evidence of insanity previous to the date of the finding, but conclusive after the inquisition. Likewise, a letter of guardianship is prima facie proof of insanity, and in some instances it has been held conclusive.

7 Encyc. of Evidence, pages 477, 478, 479.

While we have said before it is not necessary to cite authority to sustain our assertion, that points not raised in the court below, cannot be raised or considered in the Supreme Court for the first time, we will at the risk of being tedious cite the following:

Trenholm v. Miles, 106 Miss. 467; Huston v. King, 119 Miss. 348; Burroughs Land Co. v. Murphy, 131 Miss. 527; Noxubee County v. Long, 141 Miss. 72; DeLavel Separator Co. v. Cats, 142 Miss. 379; Mitchell v. Finley, 161 Miss. 528.

Argued orally by W. J. Gex, Sr., for appellant, and by W. H. Powell and Robert H. Powell, for appellee.

OPINION

McGowen, J.

Mrs. Emma P. Mills, guardian of William E. Parkinson, non compos mentis, filed this bill in the chancery court of Madison county, Mississippi, against Mrs. Eleanor Wilson Seay Parkinson, praying for an annulment of a marriage existing between William E. Parkinson and the appellant. Appellant appeared in that court and moved to dismiss for want of jurisdiction in that county, and averred that the marriage status existed and that she lived in Harrison county. She prayed either that the bill be dismissed, or that the cause be transferred to Harrison county. Upon the hearing of the motion the court ordered the cause transferred, which was accordingly done. Mrs. Parkinson appeared in the chancery court of Harrison county, filed a demurrer to the bill, which was overruled, and then filed answer, and upon the pleadings and proof the court annulled the marriage.

The gravamen of the bill was to the effect that a marriage ceremony had been fraudulently procured by appellant with the non compos mentis in order to obtain an interest in...