Stewart v. Petitioner
| Citation | 34 W.Va. 524 |
| Parties | Stewart v. Vandervort.*(Hoi/r, Judge, absent.) Deeideded |
| Decision Date | 16 December 1890 |
| Court | Supreme Court of West Virginia |
A marriage occurring while section 1, c. 109, Code Va. 1860, was in force between persons, one of whom had a husband then living, is absolutely void without decree. It conferred no right to alimony. Though the parties cohabited since the Code of 1808 took effect, and though a suit to declare the nullity of such marriage was brought under the ('ode of 1868, no alimony can be decreed therein to the woman.
Such marriage, as to the question of its validity or legal character, and on the question of alimony, is to be tested by the law in force when it was celebrated.
8. Construction op Statutes.
A cardinal rule in interpreting statutes is to construe them as prospective in operation in every instance, except where the intent that they shall act retrospectively is expressed in clear and unambiguous terms, or such intent is necessarily implied from the language of the statute, which would be inoperative otherwise than retrospectively. In doubt it should be resolved against rather than in favor of its retroactive operation.
P. 1L Keek for appellant cited, Code (1860) p. 529, s. 1; Code (1868) p. 440; 1 Min. Inst. 272-279, 299, 302; 2 X. V. 596.
Berkshire Sf Sturgiss for appellee. Brannon, Judge:
On May 4, 1848, Asbury Vandervort and Rebecca Jane McClastey were married in Monongalia county, and in 1856 removed to the then far west, to Iowa, there living together until 1860, when one morning before daybreak he arose from his bed, and abandoning his wife and only child, a daughter then about eight years of age, without intimation to either of them of any intention to desert them, went to Illinois, where he remained, moving to several different points, until September, 1888, when he returned to Monongalia county, in this State. In all the twenty eight years from his desertion to August, 1888, there was no communication between him and his wife and child; no tidings whatever came to him of them, nor to them of him; their existence was as if blotted out to him, and his to them. His family, as his brother says, regarded him dead. She states he had been sick for two years, had not worked any for two months, had taken a great deal of quinine for ague, and his mind was weak, but he was not a maniac; that the same week he left she heard he had gone towards the Mississippi river; that she wrote to Virginia to know if he had come here, but friends had heard nothing of him; that she advertised for him in two or three papers. In 1864 the wife and child returned from Iowa to Monongalia county, and on October 1, 1867, after a few months courtship, she and William N. Stewart were married in Monongalia county. Stewart and she cohabited as man and wife until August, 1888. While she was absent visiting in a neighboring county a letter came from the first husband to Monongalia county to his brother, informing the latter that he would soon visit him; and when she reached the depot at Morgantown, on her return home, she was informed reliably of this fact, and advised not to return to Stewart's house; and she and Stewart never afterwards lived together. Early in September, 1888, the first husband appeared in Monongalia.
It clearly appears that Stewart believed the first husband, Vandervort, dead when he married Mrs. Vandervort. lie says that he stated to her before the marriage that he had heard some doubts expressed whether Vandervort was dead, and she replied that he was dead, and that he had taken quinine and lost his reason, had wandered away and was found dead on the prairie thirty or thirty five miles away; that the body was badly decayed; that she did not go to see him, but the evidence from the hair and clothing proved that the body was that of her husband; and that this statement allayed his fear. She says that she got a lady friend to tell him about her husband's death; that before the marriage he said to her that his brother had said there was a probability that her first husband might be living, and she then asked him if this lady had not told him the circumstance, and he said she had told him about the disappearance, and some clothes being found; and that she herself then told him that the clothes were found, and a man answering his description found dead in a corn-field twenty miles from where they lived; and that still later, Stewart still mentioning the subject, she said to him, "Mr. Stewart, I have told you all I know about him, and if you are not satisfied, it is all right;" and he never mentioned it afterwards.
It may be said that she might have had more definite information by tracing her husband up, or at least going to the place where the dead man spoken of by hearsay was. But he had been long gone without a syllable from him, and she living close to his kindred, and hearing nothing, it is probable that she believed him dead, and acting on the legal presumption of death, from seven years' absence without information of his continued life, she married the second time under honest conviction of his death. When she married Stewart he had seven children aged from two months to thirteen years. She says she took charge of his household affairs and children, and discharged her duties faithfully as a wife for Stewart. She says: Having doubt about his legal status, especially in view of the change in the law below spoken of, Stewart brought this suit to have a judicial sentence of the nullity of the second marriage, and a decree was rendered declaring its nullity, but requiring him to pay her five hundred dollars alimony; and to get relief from this alimony he appeals to this Court.
/I To constitute a valid marriage, the parties must not only be willing to marry, but they must not labor under any legal disability. Prior marriage was not, at common law, a canonical disability rendering the contract merely voidable; but it was a civil or legal disability, rendering the sec- ond marriage void absolutely to all intents and purposes, being condemned by the New Testament (Matt. xix. 4-9: 1 Cor. vii. 4) and by the laws of most states. 1 Tuck. Bl. Comm. 93; 1 Min. Inst. 237; 1 Bish. Mar. & Div. § 300. By the statute law in force when this second marriage was solemnized (Code Va. 1860, c. 109, s. 1) it was absolutely void, for it provided that all marriages prohibited by law on account of either of the parties having a former wife or husband then living should "be absolutely void, without any decree of divorce or other legal process." But though such a marriage is void without judicial sentence of its nullity, for obvious reasons such sentence is prudent and advisable, and the same statute in section 4 gave either party right to sue to obtain such a decree. y The question arises whether in granting a decree of the nullity of such a marriage, alimony could be given the woman. Here it is very clear that, without authority of statute, alimony can not be decreed, for it never was a marriage the woman never was a wife. 2 Bish. Mar. & Div. § 376; Schooler, Ilusb. & Wife, § 553. Then is there any statute conferring power on a court to give alimony in such case? Suppose the suit brought before our Code of 1868. Code, (1860) c. 109, s. 12, provides that upon decreeing the dissolution of a marriage and also upon decreeing a divorce, whether from the bond of matrimony or from bed and board, the court shall make such further decree as it shall deem expedient concerning the estate and maintenance of the parties or either of them. Now this is not a suit for divorce from the bond of matrimony or from bed and board under sees. 6 and 7, for causes therein specified; but it is a suit to declare the nullity of the marriage under sec. 4; and therefore this case can not fall under the words of sec. 12, "and also upon decreeing a divorce, whether from the bond of matrimony or from bed and board;" and, if it falls under that section at all, it must be under the words, "upon decreeing the dissolution of marriage."
Here we must recall the fact that this is no marriage. Literally, the expression," upon decreeing the dissolution of marriage," would call for a marriage, not a nullity; for it is a contradiction in terms to talk about decreeing the dissolution of a marriage when that with which we are dealing is not the shadow of a marriage. But though, strictly speaking, this is so, the question occurred to me whether, for the purposes or within the meaning of the language," upon decreeing the dissolution of a marriage," such a marriage could be regarded a marriage in the eye of this Code chapter, especially as it gives a suit to declare the nullity of a marriage, and then provides what may be done upon decree; in other words, would section 12, providing what courts might do as to maintenance upon decreeing, apply to all marriages as to which preceding sections allowed suit to be brought? What marriages do these words," upon decreeing the dissolution of a marriage," relate to? Turning back to section 1, c. 109, Code 1860, we find it providing for diver kinds of defective marriages, stamping some as void absolutely, others as void only from decree, ft reads:
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