Sims v. Sims

• Decision Date: 14 June 1920
• Docket Number: 21145
• Citation: 122 Miss. 745,85 So. 73
• Court: Mississippi Supreme Court
• Parties: SIMS v. SIMS

85 So. 73

122 Miss. 745

SIMS v. SIMS

No. 21145

Supreme Court of Mississippi

June 14, 1920

March 1920

1. MARRIAGE. In suit to annul defendant wife not entitled to temporary alimony unless marriage prima facie valid.

In a suit by the husband to annul an alleged void marriage, the wife is not entitled to temporary alimony unless it appears at least prima facie that the marriage is valid.

2 MARRIAGE. Validity of "common-law marriage" is recognized by statute.

Under section 3249, Code 1906 (Hemingway's Code, section 2556) which provides that a license shall be essential to the validity of a marriage, but that the section shall not be construed so as to invalidate any marriage that is good at common law, a marriage results from an agreement between a man and woman, qualified for entry into such relation, to become husband and wife, followed by cohabitation, although no license was obtained therefor.

3 MARRIAGE. Void marriage contracted in good faith becomes valid on removal of impediment; new agreement not necessary.

Where a marriage between a man and woman contracted in good faith is void because of an impediment thereto, they become husband and wife if after the removal of the impediment they continue to occupy that relation in fact, although a new marriage agreement was not made by them after the removal of the impediment. And such persons must be deemed husband and wife in this state although the void marriage occurred in another state, provided that after the removal of the impediment they take up their permanent residence in this state and continue to live together openly as husband and wife; such conduct towards each other, taken in connection with their former association, being equivalent in law to a declaration by each of them that they did and were thereafter to occupy the relation of husband and wife.

HON. G C. TANN, Chancellor.

APPEAL from chancery court of Lauderdale county, HON. G. C. TANN, Chancellor.

Suit by O. B. Sims against Mrs. Henrietta M. Sims to annul a marriage, or in the alternative, for a divorce. From an interlocutory decree awarding defendant alimony pendente lite, plaintiff appeals. Affirmed and remanded.

Affirmed and remanded.

W. C. Sams, for appellant.

The marriage between appellant and appellee was void absolutely and not merely voidable. The relation existing between the appellant and the appellee after their attempted marriage in 1893 up until time of separation in 1918 was not a marital relation but was a meretricious relation, the marriage having been void from its beginning.

If there was no marital relation, then there never could have been any marital obligation from the appellant to the appellee. Reed v. Reed, 85 Miss. 127 and 128; McFarland v. McFarland, 64 Miss. 449.

No marital relation exists or ever has existed between the appellant and the appellee; and no marital obligation has ever been due from appellant to appellee. It should not be necessary to cite the authorities from other states in order to secure a reversal in this case. As stated above, it seems to me that the case of Reed v. Reed, in 85 Miss., page 126, is conclusive of the whole matter, but there are abundant authorities from other states holding the same rule and I shall call attention to some of them as follows: Ex Parte Jones (Alabama case), 53 So. 261, et. seq.; Arendall v. Arendall (Florida case), 54. So. 957; Cartwright v. McGown, 3 Am. Ruling Cases Annotated, 287-294.

The only foundation for an order for alimony, suit money, and counsel fees pendente lite is the fact of marriage between the parties. Citing, Banks v. Banks, 42 Florida, 362, 29 So. 318; Rundle v. Pegram, 49 Miss. 751.

"Nor can sexual intercourse, which the parties know to be contrary to law, form even an element of marriage." Citing Peck v. Peck, 12 R. I. 485. Most probably, the appellee will contend that the pretended marriage between appellant and appellee was ratified by appellant because of the fact that appellant and appellee lived together for many years, from 1893 to 1918; but such view is untenable and unsound and contrary to the law as it exists in Mississippi. This contention is completely answered by the case of Blanks v. Southern Railway Co., 82 Miss. 703-709.

A married woman cannot contract a common-law marriage; also, cohabitation however long continued between a married woman and an unmarried man will not ripen into a valid common-law marriage. Blanks v. Southern Railway Co., 82 Miss. 703, et seq.

It is seen that the relation between appellant and appellee was unlawful when it commenced, and continued to be so. If the relation was unlawful or meretrious it was not marital, then there could not and cannot be any marital obligation on the part of the appellant to pay alimony or attorney's fees. See Reed v. Reed, 85 Miss. 126; McFarland v. McFarland, 64 Miss. 449; Cartwright v. McGown, 3 American Ruling Cases, Annotated, page 288 et seq.; Ex Parte Jones, 53 So. 261; Arendall v. Arendall, 54 So. 958; First Col. Banks v. Banks, 29 So. 318.

The Mississippi authorities and authorities from other states above cited, conclusively show that the learned chancellor below committed grave error by granting to appellee temporary alimony and solicitor's fee, but in order to show the unbroken line of authority in Mississippi in support of the contention of the appellant that no alimony and solicitor's fee should have been allowed by trial court, I wish to cite three other cases decided by the supreme court of Mississippi as follows: Robinson v. Robinson, 112 Miss. 224; Aldridge v. Aldridge, 116 Miss. 396 and 397; Clark v. Clark, 115 Miss. 726 and 729; Railway Co. v. Beardsley, 79 Miss. 417, 3 So. 660; Knights of Pythias v. Tucker, 92 Miss. 505, 46 So. 51; Bennett v. State, 100 Miss. 684, 56 So. 777.

I commend to the court and invite their careful reading of the last three cases cited, as well as Reed v. Reed; and when the law as expressed in these opinions shall be applied to the facts as shown by record, in my humble opinion, the decree of the lower court will be reversed and proceedings as to alimony and attorney's fee dismissed. This I earnestly and respectfully ask.

T. V. Brahan and Wallace Walker, for appellee.

We announce as propositions of law and equity, if Sims did know in 1902, that Mrs. Sims was advised, and did obtain a divorce from Perrin at that time, or could, by proper diligence have known it, he condoned her previous conduct up to that time (See 32 Mississippi, page 329), and his continuing to live with her from 1902, to the date of filing this bill, equitably estops him from getting a divorce. (See section 3249, Code of 1996.)

In the foregoing respects, the instant case is differentiated from Reed v. Reed in the 85th Mississippi, page 126, et seq., and the Aldridge v. Aldridge case in 116 Mississippi, page 396, et seq., and while we approve these cases, we earnestly contend that they have no application to the facts of the instant case, neither do the cases cited by counsel in his brief from Alabama, Florida, and other states.

We are glad counsel has cited the Aldridge case by SMITH, C. J., in 116 Mississippi, pages 396 and 397, and which we agree with, as approving the Reed case, for the reason that Judge SMITH says: "We are not here called upon to determine whether or not this rule (Reed case) would apply in view of the provisions of section 1673, Code of 1906, in event appellee had married appellant without knowledge of the facts that renders marriage void," which we contend and which the chancellor believed, the appellee in the instant case was without knowledge at the time of her marriage with appellant of the facts that would render the marriage void, because she thought she was divorced and she told the appellant and gave him sufficient information to have put him upon inquiry at least, and by his conduct he has condoned the marriage, and after living with her for sixteen years is estopped from casting her off. Sims swears that he never knew she was not divorced until 1919, but when asked why he did not investigate after she had told him in 1893 and 1902, about her divorce, says he did not believe what she told him, etc.; see his testimony at page 19.

We have investigated the law of the instant case very exhaustively and have found a case identical with it in 46 American State Reports, beginning at page 791, et seq., styled Bardin v. Bardin, which in our opinion as well as the opinion of the learned Chancellor controls this case. Brinkley v. Brinkley, 50 N.Y. 194, 10 Am. Rep. .

Marriage and Divorce--Alimony--For the purpose of an application for temporary alimony, etc., the fact of marriage need not be so conclusively established as is required for obtaining permanent alimony. If the plaintiff makes a reasonably plain case of the existence of a marriage, although it is denied by the defendant, she should be furnished with the means of temporary support and of conducting the suit until the truth or falsity of her allegations can be ascertained by the proof formally taken in the case. Brinkley v. Brinkley, 50 N.Y. 184, 10 Am. Rep. 460. She is also entitled to temporary alimony where the husband files a bill against her admitting a marriage, but alleging it to have been illegal and void and she denies the facts upon which the supposed illegality is founded. North v. North, 1 Barb-Ch. 241, 43 Am. Dec. 778. When the facts undisputed are such as that from them a presumption arises that the parties were married so that the affirmative rests upon the defendant to repel that presumption, the court has jurisdiction and power to grant temporary alimony and expenses, although marriage in fact is denied, and the opposing papers show facts irreconcilable with the existence thereof, or of...