Smith v. Fuller

• Decision Date: 12 July 1906
• Citation: 108 N.W. 765
• Parties: SMITH v. FULLER ET AL. SMITH v. GRIFFITH ET AL. SMITH v. RICHARDS ET AL. SMITH v. GROBE.
• Court: Iowa Supreme Court

108 N.W. 765

SMITH

v.FULLER ET AL.

SMITH

v.GRIFFITH ET AL.

SMITH

v.RICHARDS ET AL.

SMITH

v.GROBE.

Supreme Court of Iowa.

July 12, 1906.

Appeal from District Court, Pottawattamie County; N. W. Macy, Judge.

Action in equity to establish dower or widow's share in several tracts of land. There was a decree in each case for the defendants, and plaintiff appeals. As plaintiff's alleged right in each case depends upon the same state of facts the several appeals have been submitted upon one record and are to be disposed of in one opinion. Reversed and remanded.Jacob Sims, for appellant.

Turner & Cullison, W. H. Kilpack, and Ira R. Stitt, for appellees.

WEAVER, J.

The record discloses without substantial dispute the following facts: In April, 1872, the plaintiff, then an unmarried woman, was united in marriage with one Sylvanders at Farmington, Iowa. The parties lived together in apparent harmony until July, 1872, when Sylvanders left home with the ostensible purpose of making a business trip to Burlington, Iowa, and has never since been heard of by any one so far as is revealed by the testimony. Thereafter plaintiff continued to live in Lee county, Iowa, until September, 1875, when she claims to have married one Frank E. Smith, who had for some time been a resident in that vicinity. During at least a part of the time he resided in that vicinity and before he made the acquaintance of plaintiff, Smith had lived for a time with a woman known to the witnesses simply as “Net” or “Nettie.” The nature of their relations was quite probably meretricious, and in the year 1874, or early in the year 1875, this woman appears to have gone away, or in some manner passed from the sight and knowledge of the neighbors. Who she was, where she was from, where she went, whether married to Smith, and, if so, whether she is dead or divorced, no one professes to have the slightest knowledge. It does appear that after she passed out of this history Smith sought an acquaintance with plaintiff and began showing her some attention and finally proposed marriage. In September, 1875, they drove together to the town of La Grange, Mo., with the declared purpose of marriage, and there, as she swears, a marriage ceremony between them was performed by a justice of the peace. On the same day, or very soon thereafter, they returned to Lee county, Iowa, announced their marriage to their friends and lived together there or in that vicinity as husband and wife for about seven years, excepting one year of that time, during which Smith was absent. The testimony is ample and undisputed that they called themselves husband and wife and held themselves out to the world as bearing that relation, and on at least one occasion joined as husband and wife in the execution of a mortgage. One child was born of this union. In the year 1882 Smith left, saying that he was going to Council Bluffs; but there is no evidence that he expressed any purpose of abandoning the plaintiff, or that he in any manner denied or repudiated her as his wife. From that time plaintiff claims not to have had any word from him for nearly 20 years, except that she heard and believed that he was dead. Some 7 years after Smith disappeared she was married to one Dickinson, residing in that vicinity, and lived with him as his wife until his death in 1902. It appears, also, that when Smith left the plaintiff he took up his home in Pottawattamie county, Iowa, where in the year 1889 he married one Anna Norton, with whom he lived until her death. Thereafter he was married to another woman, one Mrs. Scheyli, from whom he was later divorced. In the year 1902, soon after death and the divorce court had released the parties as above stated from their last prior matrimonial entanglements, Smith returned to the plaintiff, and in November, 1902, a marriage ceremony was performed between them, and they lived together until his death put an end to the chapter of their connubial complications. Plaintiff says that the reason that this last marriage ceremony was performed was because, since their separation, she had married and lived with another man and she thought that in order to live with Smith again she ought to be married to him. It is admitted of record that during the period between his separation from plaintiff and their final reunion in 1902 Smith became vested with the title and ownership of the several tracts of real estate involved in these controversies and made conveyances thereof under and through which the appellees derive their title, and that plaintiff never relinquished her dower right, if any she had, in any part of said property. It is shown also that the court records of the counties of Lee, Van Buren, and Pottawattamie, the only counties of which either Smith or plaintiff was a resident, during the period of their separation, disclose no decree of divorce or divorce proceedings between them. Such is the substance of the case as made by the evidence.

1. It is evident from the foregoing statement that the first and most vital question to be considered is whether the plaintiff was in fact married to Smith in the year 1875 as she claims to have been. It is true that if record evidence were to be held essential to establish the fact of marriage then she must fail for there is admitted lack of such testimony. But this court has repeatedly held that record evidence of marriage is not required to prove the marriage relation. For instance in State v. Williams, 20 Iowa, 98, we announced the rule that parol proof of the marriage followed by cohabitation and recognition as husband and wife will sustain the allegation of marriage in an indictment charging bigamy. In State v. Williams, where the charge was adultery, we held that the testimony of the husband or the wife to the marriage, followed by cohabitation as such, operated to raise such a presumption of the fact as to make it incumbent on the defendant to rebut it. In State v. Nadal, 69 Iowa, 478, 29 N. W. 451, another case of bigamy, the rule was reaffirmed, and marriage held to be established by testimony of the wife alone corroborated by the fact of cohabitation, notwithstanding the husband's later desertion. It thus appears that had Smith been prosecuted for bigamy on account of his marriage to Anna Norton or to Mrs. Scheyli, the testimony given in this case would have been sufficient to sustain a finding of the prior marriage with plaintiff. In Casley v. Mitchell, 121 Iowa, 96, 96 N. W. 725, not unlike the case at bar, in some of its principal features, we said “record evidence of marriage is not necessary and it may be proved with any kind of evidence whether direct or circumstantial.” See, also, Commonwealth v. Dill, 156 Mass. 226, 30 N. E. 1016;Leighton v. Sheldon, 16 Minn. 243 (Gil. 214); Commonwealth v. Hayden, 163 Mass. 453, 40 N. E. 846, 28 L. R. A. 318, 47 Am. St. Rep. 468;Gibson v. Gibson, 24 Neb. 394, 39 N. W. 450;Bailey v. State, 36 Neb. 808, 55 N. W. 241. The declarations of parties who are living or cohabiting together that they are married, and the admissions of either or both such parties that the marriage relations exist, have often been held sufficient to establish the fact of marriage. Barnum v. Barnum, 42 Mo. 251; Williams v. State, 54 Ala. 131, 25 Am. Rep. 665; In re Taylor, 9 Paige, Ch. (N. Y.) 611; Christy v. Clark, 45 Barb. (N. Y.) 535;Teter v. Teter, 101 Ind. 137, 51 Am. Rep. 742; Durand v. Durand, 2 Sweeny (N. Y.) 321; Clayton v. Wardell, 4 N. Y. 230;Hayes v. People, 25 N. Y. 390, 82 Am. Dec. 355. The fact that the parties have joined as husband and wife in the execution of deeds and releases is admissible in proof of marriage. Greenleaf's Ev. § 462. Indeed, this court, following the rule which obtains in New York and many other states, recognizes the validity and binding effect of a so-called “common-law marriage,” treating the relation as one based on contract or mutual agreement of which the formal ceremony constitutes merely the evidence or statutory solemnization. Any mutual agreement between the parties to be husband and wife in præsenti, followed by cohabitation, constitutes a valid marriage. Blanchard v. Lambert, 43 Iowa, 228, 22 Am. Rep. 245. Cohabitation alone is probably not sufficient to raise the presumption of marriage but, if the parties cohabiting intend present marriage, it is immaterial how the intention is evidenced. McFarland v. McFarland, 51 Iowa, 570, 2 N. W. 269. Indeed, the woman may be entitled to marital rights if she intends present marriage and the man does not, provided they cohabit and their conduct is such as to justify her in believing that he intends present marriage. Borton v. Borton, 48 Iowa, 697; McFarland v. McFarland, supra. And where the parties have lived together as husband and wife, acknowledging themselves as such, and are so reputed and treated among relatives and friends, these facts are held sufficient proof of a marriage contract, even though there be an entire failure of evidence of a formal ceremony. Fenton v. Reed, 4 Johns. (N. Y.) 52, 4 Am. Dec. 244;Boone v. Purnell, 28 Md. 607, 92 Am. Dec. 713;Lowry v. Coster, 91 Ill. 182;Peet v. Peet, 52 Mich. 464, 18 N. W. 220;Proctor v. Bigelow, 38 Mich. 282;Shorten v. Judd, 60 Kan. 73, 55 Pac. 286;Williams v. Williams, 46 Wis. 464, 1 N. W. 98, 32 Am. Rep. 722;Thompson v. Nims, 83 Wis. 261, 53 N. W. 502; Taylor v. Robinson, 29 Me. 323; Durning v. Hastings, 183 Pa. 210, 38 Atl. 627;White v. White, 82 Cal. 427, 23 Pac. 276, 7 L. R. A. 799; White v. Lowe, 1 Redf. Sur. (N. Y.) 377; Jones v. Reddick, 79 N. C. 292;Richard v. Brehm, 73 Pa. 140, 13 Am. Rep. 733.

Under these rules the marriage of the plaintiff and Smith in the year 1875 is established by the record before us beyond any reasonable doubt, unless the conceded facts concerning the relations of these parties with other persons are to be held sufficient to require a different conclusion. It is not denied that plaintiff was married to Sylvanders in 1872, and that...