Schuchart v. Schuchart

• Decision Date: 10 March 1900
• Docket Number: 11,518
• Citation: 61 Kan. 597,60 P. 311
• Parties: THOMAS SCHUCHART v. AGNES SCHUCHART
• Court: Kansas Supreme Court

60 P. 311

61 Kan. 597

THOMAS SCHUCHART v. AGNES SCHUCHART

No. 11,518

Supreme Court of Kansas

March 10, 1900

Decided January, 1900.

Error from Washington district court; F. W. STURGES, judge.

Judgment affirmed.

E. A Berry, and Gregg & Gregg, for plaintiff in error.

W. W Redmond, and Chas. Smith, for defendant in error.

OPINION

JOHNSTON, J.:

The controversy in this case arises over the title to a quarter-section of land in Washington county claimed by Thomas Schuchart, as the son and only heir of Jacob Schuchart, who died in December, 1896, while the defendant claims the property on the ground that she was the lawful wife, and is now the widow, of Jacob Schuchart, deceased. The decision of the case turns on the point whether Agnes was the wife of Jacob at the death of the latter, and this question was determined in the affirmative by the jury in the trial court. There is no dispute but that Jacob was married early in life to the mother of the plaintiff, but it appears that she died in 1891, leaving him free to contract the marriage relation with another. He undertook to enter into the marriage relation with Agnes, who it appears had been formerly married to one Porteous. There had been a separation between them, and she had not heard from or of Porteous for about seventeen years prior to the time she assumed the marriage relation with Schuchart. Lest he might be still alive, she procured a divorce from Porteous on September 10 1894, in Riley county, where she then resided. Within three months thereafter, and before the decree of divorce became operative and final, she and Jacob Schuchart procured a license to marry and a marriage ceremony in due form was performed by the probate judge of Washington county. The parties overlooked, or were unmindful of, the statute providing that the marriage relation is not effectually dissolved until the expiration of six months from the date of the decree of divorce. The attempted marriage was therefore a nullity. But the contention of the defendant is that, having learned of the limitation of the statute and of the invalidity of the marriage ceremony, they then determined to live together as husband and wife without further ceremony, and thereafter and in good faith did live for years in that relation.

Was there a consensual or common-law marriage? The jury found that there was, and the proof abundantly sustained the finding. It showed that the marital relation was honestly but illegally assumed in the first instance. Agnes was then under a disability, it is true, but, so far as the record shows, both of them were innocent of an intent to transgress the law or to commit a wrong. When they learned of the disability and that it had been removed, the matter of another ceremony was considered and discussed between them. He expressed a willingness to have a repetition of the ceremony if she desired that it should be done, but stated that he saw no necessity for it. She did not think it was necessary, and both then declared that "we are man and wife, and will continue to be man and wife"; and it appears that thereafter they cohabited and otherwise lived together as such. They publicly acknowledged each other as husband and wife, assumed marriage rights, duties, and obligations, and were generally reputed to be husband and wife in the community. The plaintiff even visited with and treated them as occupying the marriage relation, and so regarded them, until he heard of the statutory disability which existed when the marriage ceremony was performed.

The plaintiff contends that, as the relation between the parties in the first instance was illicit, the presumption is that the illicit relationship continued after the statutory disability had been removed. If they had entered into a mere meretricious relation, with an arrangement that the illicit cohabitation should be abandoned at the will of either, there would be room for a...