Pigford v. Ladner

• Decision Date: 18 April 1927
• Docket Number: 26425
• Citation: 112 So. 785,147 Miss. 822
• Court: Mississippi Supreme Court
• Parties: PIGFORD v. LADNER et al. [*]

112 So. 785

147 Miss. 822

PIGFORD v. LADNER et al. ^[*]

No. 26425

Supreme Court of Mississippi

April 18, 1927

Division A

Suggestion of Error Overruled June 6, 1927.

APPEAL from chancery court of Pearl River county HON. GEORGE W CURRIE, Special Chancellor.

Suit by Horace E. Ladner and others against A. A. Pigford. Decree for complainants, and defendant and cross-complainant appeals. Affirmed.

Decree affirmed.

Mayson & Kelly, and Wells, Stevens & Jones, for appellant.

I. There was no presumption of death. Cunningham was known to be living in 1888 and lived at Walters' place near Sandersville in 1885. Moreover, in 1900 he instituted a suit for divorce himself. Dearman told Mrs. Cunningham in the fall of 1886 that he had seen Cunningham. If there ever was a presumption of death at any time, it was overthrown by the positive testimony of the witnesses, many of whom testified on behalf of the appellees. We, therefore, submit that the appellees cannot invoke the provisions of section 648, Code of 1880, section 1737, Code of 1891, section 1914, Code of 1906, section 1574, Hemingway's Code.

II. Mrs. Cunningham having a living husband, her marriage to Jonathan Ladner was unlawful and void. Section 1156, Code of 1880.

III. Did Cunningham conceal himself in the state? The learned chancellor found that it did not appear that his wife actually knew that Cunningham boarded at Walters', near Laurel, in 1885, 1886 and 1887 or that he lived with his sister and her husband, Mr. and Mrs. E. A. Woulard, at Sandersville, and that was in effect concealing himself in the state.

He was not concealing himself and before the death presumption statute could be indulged, there must be evidence of diligent inquiry at the place of the person's last residence in this country and among his relatives and among others who would probably have heard of him if living. 2 Greenleaf on Evidence, 278f; Policeman's Benevolent Ass'n v. Ryce, 104 A. S. R. 190, 213 Ill. 9, 72 N.E. 764; Miller v. Sov. Camp Woodmen of the World, 28 L. R. A. (N. S.) 178; Modern Woodmen v. Gordon, 2 L. R. A. (N. S.) 809.

IV. The ceremonial marriage of the parties in 1891 does not help the appellees' cause any. Code of 1880, section 1156.

The parties must be able to contract: Carson v. Carson, 40 Miss. 349; Rundle v. Pegran, 49 Miss. 751; Blanks v. So. Ry. Co., 82 Miss. 703, 35 So. 570; Clark v. Clark, 115 Miss. 726, 76 So. 638; Thompson v. Clay, 120 Miss. 190, 82 So. 1; 26 Cyc. 836; Smart v. Whaley, 6 S. & M. 308.

If a marriage is unlawful at its inception, it continues to be so: Blanks v. So. Ry. Co., 82 Miss. 703, 35 So. 570.

If it be suggested that section 1156 was omitted from the subsequent codes, still the rule is that the marriage under consideration could not be legalized by the repeal of a prohibitory statute: 26 Cyc. 869; Richards v. City Lbr. Co., 101 Miss. 678, 57 So. 977; 8 Cyc. 1022; 26 Cyc. 865-68.

An act void cannot be made valid by matter subsequent: Harris v. McKissick, 34 Miss. 464; 26 Cyc. 867; Anding v. Levy, 57 Miss. 51; Blanks v. So. Ry. Co., 82 Miss. 703, 35 So. 570.

V. There was no common-law marriage and if there was, it was not retroactive. Thompson v. Clay, 120 Miss. 190, 82 So. 1; 26 Cyc. 836.

VI. Certificates showed that Mrs. Ladner never obtained a divorce. We have shown by certificates from the clerks of the chancery court of Jasper, Jones, Wayne, Marion and Lamar counties that neither Mrs. Cunningham nor Mr. Cunningham ever instituted a divorce proceeding against the other in any of those counties between the years 1880 and 1901. These certificates were introduced in evidence without objection, but the court in its findings of fact decided that they were not broad enough because: "A suit might have been instituted under an assumed name and culminated in a divorce; or that there might have been a proceeding which did not appear of record." Answering the first reason, we say that if either obtained a divorce from the other under an assumed name, it would be void because it would be a fraud on the jurisdiction of the court. As to the other reason: Courts of record can speak only through their records and if there is no record of any proceeding, such imaginary or supposed proceeding does not exist. Thompson v. Clay, 120 Miss. 190, 82 So. 1.

VII. Appellant's proof in this trial obviates the objections pointed out by this court in the first reversal.

Wm. A. Shipman, for appellees.

There is only one material issue presented by this appeal: The legitimacy vel non, of the appellees. If the facts and circumstances, aided by the presumptions of law, establish the legitimacy of the appellees, then it necessarily follows that the court below correctly decided the case.

I. Ceremonial Marriage. I believe the ceremonial marriage celebrated August 2, 1891, between the parents of appellees to be valid. The presumption is that a divorce was obtained by one or the other of the spouses before Mrs. Cunningham contracted the marriage with Jonathan Ladner. From the time of the separation to the date of the marriage with Ladner was almost ten years. During all that time the places of residence of the wife are fully shown by the evidence; two years with her father's family in Jasper county and nearly six years with them in Purvis, Lamar county, then a part of Marion county. No record of any divorce suit that might have been filed by her in the counties in which she resided can be shown. It does not follow, however, that she did not file such a suit, for it may well be that such a suit could have been filed in a county where Cunningham was found at some time in the period between March, 1882, and August, 1891. The finding of fact by the chancellor is that "E. M. Cunningham, at some time after he separated from his wife in 1882, went to Sandersville in Jones county, where he boarded with his sister, Mrs. E. A. Woulard and her husband, but it is not certain what years they were."

From March, 1882, to the spring of 1885, three years, nobody appears to have known of the whereabouts of E. M. Cunningham. No news was received of him after January or February of 1886, until he apparently returned from Dallas, Texas, and instituted the divorce proceedings in the latter part of 1900, a period of fourteen years or more. Surely, Mrs. Cunningham had ample time and opportunity to have secured a divorce. The burden of proving that she did not do so is upon the appellant, and he utterly failed. The fact that a short time before her marriage to Ladner the mother of appellees received news of the death of her first husband, which it is fully shown she believed, does not even tend to weaken this presumption. The general rule is stated in 38 C. J. 1328-30, notes 86-93 and authorities there cited. This court is in absolute accord with the general rule. See: Hull v. Rawls, 27 Miss. 471; Spears v. Burton, 31 Miss. 547; A. & V. Ry. Co. v. Beardsley, 79 Miss. 417, 30 So. 660; Aldridge v. Aldridge, 116 Miss. 385, 77 So. 150; Hickman v. Hickman, 126 Miss. 469, 89 So. 6; McAllum v. Spinks, 129 Miss. 237, 91 So. 694; Ladner v. Pigford, 103 So. 218.

It does not necessarily follow, nor is it reasonable to infer that during the three years immediately following his abandonment of his wife in 1882, that Cunningham remained in Wayne county, or that he was in Jones, Jasper, Marion, Lamar, or Pearl River counties; nor can it be presumed that after his second submergence in February, 1886, until his reappearance in December, 1900, that he was residing in any one or all of those counties. Ample was the time for either party to have secured a divorce elsewhere than in any one of said counties.

"In order to sustain the validity of a second marriage, the law will presume a divorce from a former spouse." A. & V. Ry. Co. v. Beardsley, 79 Miss. 417, 30 So. 660, citing Goodwin v. State, 72 Ind. 113, 37 Am. Rep. 144; Boulder v. McIntyre, 119 Ind. 574, 21 N.E. 445; Hull v. Rawls, 27 Miss. 471; Spears v. Ruston, 31 Miss. 547; Ry. Co. v. Beardsley, 79 Miss. 417, 30 So. 660; Colored Knights of Pythias v. Tucker, 46 So. 51; Sullivan v. Grand Lodge (Miss.), 52 So. 360; Howard v. Kelly (Miss.), 71 So. 391; Allen v. McIntosh Lbr. Co. (Miss.), 77 So. 909; Hickman v. Hickman (Miss.), 89 So. 6; McAllum v. Spinks, 91 So. 694; Ladner v. Pigford, 103 So. 218; 18 R. C. L., section 39, page 416; Blanchard v. Lambert, 43 Iowa 228; Carroll v. Carroll, 120 Tex. 731; Pittenger v. Pittenger, 28 Colo. 308, 89 A. S. R. 193; Smith v. Tuller (Iowa), 16 L. R. A. (N. S.) 98; and many other cases.

The presumption that before her ceremonial marriage on August 2, 1891, the mother of the appellees procured a divorce from her first husband is equivalent to the testimony of a competent, truthful, intelligent, and fully informed witness, testifying to the fact that such a divorce was in fact obtained. The burden of overcoming this presumption, or evidence, is upon the party asserting the invalidity of the second marriage. Has the appellant met and overcome this presumption by his proof? We say no.

OPINION

COOK, J.

This is a suit for the partition of certain lands which were owned by Jonathan Ladner, deceased, at the time of his death. The appellees are children of a second marriage of Jonathan Ladner, and the appellant claims by purchase from the children of Ladner by his first marriage, and the issue presented by the pleadings is whether or not the second marriage of Jonathan Ladner was valid. This case was before this court at the March, 1925, term, on appeal from a decree dismissing the complainants' bill, rendered on bill answer, cross-bill, and proof, and the decree was reversed and the cause remanded, the ground of the reversal being the failure of the proof to show the invalidity of Ladner's second marriage. The...