Rayl v. Rayl

• Decision Date: 01 December 1900
• Citation: 64 S.W. 309
• Parties: RAYL v. RAYL.
• Court: Tennessee Supreme Court

Page 309

64 S.W. 309

RAYL v. RAYL.

Court of Chancery Appeals of Tennessee.

December 1, 1900.

Appeal from chancery court of Davidson county; H. H. Cook, Chancellor.

Bill by Joseph S. Rayl against Ida L. Rayl for divorce. From a decree granting the divorce, but denying a division of the property, defendant appeals. Affirmed.

Hardin Leech and W. D. Covington, for complainant. Maurice Glick, for defendant.

BARTON, J.

This is a divorce suit in which both parties seek a divorce, and a bill and cross bill are filed. The complainant alleged that the parties were married on March 20, 1899, in the city of Cincinnati, Ohio; that at the time of their marriage the defendant was the wife of Edward Freeney, who was living, and known to be so to her; and that the former marriage was in full force and effect. The bill also alleges that both parties are residents of this state, and have been all their lives. It further alleges that the defendant had been guilty of adultery with one Rich, and that she was at the time of the filing of the bill living with Rich, as his mistress, in the city of Nashville. The prayer of the bill is, in the first instance, that the marriage solemnized between the complainant and the defendant on March 20, 1899, be decreed null and void on account of the former marriage existing at that time, or, if that be not done, for a divorce on the ground of adultery. The defendant answered, denying the charges of the bill, except admitting the marriage, but saying that, if the charges of the bill as to adultery were true, the complainant had condoned the same. The answer averred that her former husband, Freeney, was dead at the time of her marriage with Rayl, denied that the marriage with Freeney was in force when she married Rayl, and denied that, in any event, she knew Freeney was alive at the time, if he was. She also filed a cross bill, in which she charges Joseph S. Rayl with adultery with six parties whom she names, and with others not named; charges that she left him because he compelled her to live in and keep a house of ill fame. She seeks a divorce and alimony, and also sets out claims to certain personal property. These claims will be more specifically stated hereinafter. Proof was taken and the cause heard, and the chancellor decreed that the marriage between the parties was void on account of the subsisting marriage of the defendant with one Freeney, from whom she has not been divorced; the chancellor decreeing that the defendant did not have any cause to believe said Freeney dead. After decreeing that the marriage was null and void, the decree adjudicates that the bonds of matrimony subsisting between the parties be dissolved, and that the complainant be absolutely divorced from the defendant. The decree further states that whatever property rights the parties may have, growing out of their relations as husband and wife, they can settle them as they deem best. The chancellor decreed the costs arising under the cross bill against the cross complainant, and the costs arising under the original bill against the original complainant. From this decree the defendant, Ida L. Rayl, prayed and perfected an appeal, and has assigned errors.

We do not find it necessary to consider the assignment of errors in the order made. The case, we think, may be more briefly disposed of. The parties were married, as stated, in Cincinnati, Ohio, on March 20, 1899. The defendant, Ida L. Freeney, or Rayl, as she now calls herself, had been married to one Edward or Edmond H. Freeney; this marriage having occurred on January 14, 1894. The defendant claims that Freeney abandoned and deserted her on March 10, 1894, and that he had been absent ever since that date up to the time of her marriage to Rayl, a period of more than five years; and she claims not to have heard directly from him after the first week of his absence, and that she had reason to believe, and did believe, at the time of her marriage with Rayl, that he was dead, and she insists that she is now so informed. It is insisted by her counsel, however, in addition, that, Freeney having been absent for more than five years prior to her marriage, the marriage was, in law, dissolved, and she was at liberty to marry, unless she knew at the time of her marriage with Rayl that Freeney was alive. The language of the Code upon this subject is that among the causes of divorce is that either party has knowingly entered into a second marriage, the other still subsisting. Section 2438 of the Code provides that "a second marriage cannot be contracted before the dissolution of the first, but the first shall be regarded as dissolved for this purpose if either party has been absent five years and is not known to the other to be living." Now, the insistence is that, when five years' absence has been established, in all cases the dissolution of the marriage between such parties is legally presumed, unless it shall be made affirmatively to appear that the party who marries or desires to marry actually knows that the absent party is living, and that the burden is upon the party to have a second marriage annulled on account of an existing previous marriage to show affirmatively knowledge on the part of the defendant at the time of the second marriage that the absent husband or wife was living. We find it unnecessary to decide the legal question thus presented, for although it is contended that the proof in this case does not show that the defendant, Ida L. Rayl, knew that her former husband, Edmond Freeney, was living at the time of her marriage to Joseph S. Rayl, and, indeed, that she swears and that the weight of the proof is, that she at least believed him to be dead, we find that after her marriage to the complainant, and on May 15, 1899, she filed a bill in the circuit court of Knox county, Tenn., seeking a divorce, against her husband Edward H. Freeney. In that bill she alleges their marriage on January 14, 1894; that he had abandoned her on March 10, 1894; that about a month after his departure she was informed that he had gone to South America, "where," in the language of the bill, it is stated "he still resides." And the bill continues: "So far as your petitioner is informed and believes, and she therefore charges, he is a nonresident of the state of Tennessee." This bill was sworn to by her. And, although she states that the complainant in this case procured the filing of this bill, yet she admits swearing to the same. So we have her own sworn statement, made after her marriage with Rayl, that her first husband was living and residing in South America. Whatever the facts in regard to this may be, her sworn statement in that case is binding upon her, and she cannot be heard now to dispute this allegation; and this shows that she knew or believed Freeney to be then living. We therefore find as a fact that at the first of her marriage with Rayl there was a subsisting marriage with her former husband in full force and effect, and that she knew or believed that husband to be living. The legal effect of this course is that the alleged marriage with Rayl was, in effect, no legal marriage, but was null and void, and complainant is entitled to have the fact so decreed. As to the other grounds of divorce alleged by him, he does not prove that he was free from like fault. On the contrary, the evidence shows him to have been guilty of adultery with other women. So far as the cross complainant seeks a divorce and alimony from the complainant, it is sufficient to say that, while the evidence shows him to have been guilty of adultery, there is no doubt left as to her guilt upon this same point, as it clearly and satisfactorily appears that she left Rayl in order to become the mistress of one Rich, and we are satisfied from the evidence that at the time of the filing of her bill she was living with him in this capacity; and the chancellor was therefore clearly in no error in dismissing her bill so far as it sought a divorce or alimony from Joseph S. Rayl. See, also, last part of this opinion.

The defendant, however, in her fifth assignment of errors, alleges that the chancellor erred in refusing to adjudge the property rights of the parties. Upon this point, as above seen, the decree of the chancellor was that whatever property rights the parties might have, growing out of their relations as man and wife, they could settle among themselves as they deem best. As thus stated, we think the chancellor's decree was erroneous. In the first place, having correctly...