Red Eagle v. Cannon
| Decision Date | 08 January 1949 |
| Docket Number | 33524. |
| Citation | 208 P.2d 557,201 Okla. 511,1949 OK 5 |
| Parties | RED EAGLE et al. v. CANNON et al. |
| Court | Oklahoma Supreme Court |
Rehearing Denied May 10, 1949.
Second Petition for Rehearing Denied June 21, 1949.
Error from District Court, Osage County; William M. Thomas Assigned District Judge.
Action to vacate judgment by May Rusk Red Eagle, Osage Allottee No 10, and others, against Joseph Cannon, and others. From a judgment for the defendants, the plaintiffs appeal.
Affirmed.
Syllabus by the Court.
1. Under the laws of the State of Texas a common law marriage exists when a man and woman enter into an agreement to become husband and wife, and in pursuance of such agreement live together and cohabit as husband and wife, and hold each other out to the public as such. Such agreement may be express or implied. An express agreement is where the parties expressly agree. An agreement is implied where the conduct of the parties with reference to the subject matter is such as to induce the belief in their minds that they are entering into the marital relationship.
2. Deeds executed by a man and woman at a time when they are living together and cohabiting, which deeds recite that such man and woman are husband and wife, and are acknowledged by each, are solemn admissions or declarations of the fact that they are husband and wife, and constitute direct evidence that they are married at that time.
3. Record examined, and held, that the finding of the trial court that at the time Rachel B. Atkins entered into marital relations with Albert J. Fierro she was the common law wife of another man, and that by reason thereof her marriage to Fierro was invalid, and its further finding that the subsequent marriage of Fierro to Mo-se-che-he without obtaining a divorce from Rachel B. Atkins was valid, are not clearly against the weight of the evidence.
Worten & Worten, of Pawhuska, and N.E. McNeill, of Tulsa, for plaintiffs in error.
L. R Stith, of Fairfax, John L. Arrington, of Pawhuska, George F. Short, and Welcome D. Pierson, both of Oklahoma City, and Hamilton & Kane, of Pawhuska, for defendants in error, Hum-pah-to-kah, Osage Allottee No. 70, and others.
H. P. White, of Pawhuska, for defendant in error, Joseph Cannon, and the Estate of E-ne-op-pe.
Henry R. Duncan, of Oklahoma City, and Hook & Thomas, Inghram D. Hook and Harry L. Thomas, all of Kansas City, Mo., for defendant in error, Albert J. Fierro.
This is an action of equitable cognizance brought by plaintiffs May Rusk Red Eagle, Bessie Crawford and Victor Griffin Red Eagle, against L. A. Binkley, administrator, and others as defendants, to vacate a judgment of the County Court of Osage County rendered on September 30, 1935, in a proceeding then pending in that court, styled In the Matter of the Estate of Mo-se-che-he, Osage Allottee No. 34. Plaintiffs are devisees under a will made by Mo-se-che-he, and defendants claim to be heirs of Mo-se-che-he. The county court in the proceeding above referred to held the will of Mo-se-che-he invalid, and that judgment was affirmed by this court in re Mo-se-che-he's Estate, 188 Okl. 228, 107 P.2d 999, the basis of the judgment, and the decision affirming it, being that the will had been revoked by the subsequent marriage of Mo-se-che-he to Albert J. Fierro, alias Jack Rogers, on May 19, 1934.
After the decision of this court affirming the judgment of the county court had been handed down plaintiffs, on March 24, 1943, filed the present action to vacate the judgment on the ground of fraud in the procurement thereof. Defendants demurred to the petition, which demurrers were sustained by the trial court, but that judgment was reversed by this court in Red Eagle v. Cannon, 198 Okl. 330, 177 P.2d 841. After the reversal issues were joined by the parties and the cause was tried to the District Court of Osage County, which made findings of fact and conclusions of law; denied the relief sought by plaintiffs, and rendered judgment in favor of defendants. Plaintiffs appeal.
At the trial of the case plaintiffs contended, and produced evidence tending to prove, that after the decision of this court affirming the judgment of the county court, plaintiffs discovered that Albert J. Fierro, alias Jack Rogers, had entered into a valid marriage in the State of Texas with one Rachel B. Atkins prior to his marriage to Mo-se-che-he, and that the marriage between Fierro and Rachel B. Atkins was valid and subsisting at the time Fierro married Mo-se-che-he, since Fierro had never been divorced from Rachel B. Atkins prior to such marriage. They alleged that Fierro fraudulently concealed this prior marriage from the county court, thus perpetuating a fraud upon the court which justified the vacating of the judgment. Defendants contended, and produced evidence tending to prove, that prior to the last mentioned marriage between Albert J. Fierro and Rachel B. Atkins, which was the third marriage between those parties, Rachel B. Atkins had entered into a valid common law marriage in the State of Texas, with one Ford A. Schmitz, and that such common law marriage had never been dissolved at the time of the last marriage between Fierro and Rachel B. Atkins. They contended that therefore, because of such prior common law marriage, Rachel B. Atkins was not competent to enter into a valid marital relationship with Albert J. Fierro on July 10, 1931, the date of said marriage; that therefore Albert J. Fierro was not legally married to her, and was in no wise disqualified to contract a legal marriage with Mo-se-che-he on May 19, 1934.
The trial court, in the instant case, found as a fact that there was a common law marriage between Rachel B. Atkins and Ford A. Schmitz in 1930, which had never been dissolved by annulment or divorce at the time of the purported marriage of Albert J. Fierro and Rachel B. Atkins on July 10, 1931, and that the evidence was not sufficient to establish that the marriage of Jack Rogers, alias Albert J. Fierro, to Mo-se-che-he on May 19, 1934 was void, and the court upheld said marriage as valid.
It thus appears that the decisive question presented for determination is whether the finding of the trial court that there was a valid common law marriage between Rachel B. Atkins and Ford A. Schmitz in the year 1930, which had not been dissolved by annulment or divorce at the time of the marriage of Albert J. Fierro and Rachel B. Atkins on July 10, 1931, is or is not clearly against the weight of the evidence. Plaintiffs assert and here contend that that finding is clearly against the weight of the evidence. Defendants contend to the contrary.
The evidence bearing upon the question of whether or not Ford A. Schmitz and Rachel B. Atkins were common law husband and wife at the time of her third marriage to Albert J. Fierro consists, for the most part, in the testimony of Rachel B. Atkins. She gave her testimony in a deposition taken in June, 1943, at Tampa, Florida, at which time she was married to a man named Canteli. In this deposition she testified that she and Ford A. Schmitz had never been married, and that she did not get a divorce from him for that reason. It is quite possible, however, that in so testifying she was referring to a ceremonial marriage, which admittedly was never performed between her and Schmitz. This for the reason that when asked specifically if she and Schmitz ever had an agreement under the terms of which she was to take him as her husband and he would take her as his wife, she said, 'We just took it for granted'. Asked further if she and Schmitz ever talked about it, she said: . She testified that Schmitz divided his time between Dallas, where his family lived, and San Antonio where she lived, and that upon occasions when his brothers and sisters in Dallas would call her, advising her that Schmitz was drunk and not behaving well, she would go to Dallas and bring him back to San Antonio. She testified that she was running a roadhouse and part of the time two roadhouses in or near San Antonio, and that Schmitz operated a slot machine in one of these roadhouses and sold whiskey, and that she and Schmitz divided the profits. She also testified that she bought him cars, and gave him money upon numerous occasions, and that he lived with her in such relationship from about the 8th of January, 1930, until sometime in September, 1930, when he abandoned her and returned to Dallas.
Albert J. Fierro testified that after his third marriage to Rachel she repeatedly, when angry, informed him that she had been married to Schmitz, and that Schmitz was her husband, and that upon one occasion upon returning to her home after a week's vacation he found Schmitz in the house, and that Schmitz then claimed to be her husband.
In support of their contention that a common law marriage existed between these parties, defendants introduced in evidence an application to remove disabilities of marriage filed in the District Court of Bexar County, Texas, on November 29, 1930, by Rachel Schmitz, which recited that Rachel was the wife of Schmitz, having been married to him on January 8, 1930; and that she was about to inherit separate property in her own right, being a portion of the estate of Ida von Blucher, who had died in Germany; that she had been permanently abandoned by her husband, and prayed that the court make an order granting her permission to make all the necessary conveyances, powers of attorney, releases and other instruments as might be necessary in settling up the estate of Ida von Blucher, without her said husband joining therein. This application was sworn to by Rachel. Upon this application the District...
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