Sykes v. Sykes

• Decision Date: 07 March 1932
• Docket Number: 29852
• Citation: 162 Miss. 487,139 So. 853
• Court: Mississippi Supreme Court
• Parties: SYKES v. SYKES et al

139 So. 853

162 Miss. 487

SYKES v. SYKES et al

No. 29852

Supreme Court of Mississippi

March 7, 1932

Division A

APPEAL from chancery court of Monroe county HON. J. A. FINLEY Chancellor.

Suit by Katie Sykes and others against Pauline Sykes seeking cancellation of defendant's claim to, and confirmation of their own, title to realty. The defendant filed a cross-bill seeking to have plaintiffs' claim canceled. From a decree for plaintiffs, defendant appeals. Affirmed.

Affirmed.

Paine &amp Paine, of Aberdeen, for appellant.

The testimony shows the abandonment was from seven to eight years, the appellee, Katie, thus demonstrating by her conduct that she no longer recognized the common law marriage, the essential element of the common law marriage to-wit, "living together and cohabitation," were wanting. The true definition of cohabitation is not a sojourn, nor a habit of visiting, nor even remaining with for a time, but the true definition is, where one lives and dwell there does the other live and dwell with him.

18 R. C. L. 430; 122 Miss. 757.

In excluding the testimony of Martha Clay Sykes the ceremonial Mississippi wife, the court erred.

To exclude the testimony of such a witness the testimony must be directly connected with the litigation.

Love v. Stone, 56 Miss. 449; Combs v. Black, 62 Miss. 931; Cole v. Gardner, 67 Miss. 670.

It is not a valid objection that the testimony of the witness will remotely and collaterally contribute to or create a liability that or may not be vindicated in view of the proceedings. The testimony must be directly connected with the litigation.

Griffith, Admr. v. Lower, 37 Miss. 458; Lamar v. Williams, 39 Miss. 342; Faler v. Jordan, 44 Miss. 283; Garner v. Townes, 134 Miss. 791; Baldridge v. Stribling, 101 Miss. 676.

Under our statute the complaint must make oath that his bill for divorce is not filed by collusion; but in addition to our statute the rule of evidence is that fraud of every kind vitiates all acts which are infected with them and renders them void.

Watts v. Watts, 123 Miss. 812; Greenleaf on Evidence, sec. 51.

The ceremonial marriage in Alabama of appellee and Homer Sykes in 1918, was void because Homer Sykes and Martha Clay Sykes were not divorced until July 20, 1920, and thus the common law marriage of appellee and Homer Sykes did not begin until after July 20, 1920, and only continued until the date appellee abandoned Homer and moved to Detroit. According to the most trustworthy testimony appellee abandoned Homer at least seven years prior to his death in 1930.

A married person cannot contract a common law marriage; both parties must be capacitated to enter into a marriage contract and co-habitation however long continued between a married person and an unmarried person will never ripen into a common law marriage.

Blanks v. Railroad Company, 87 Miss. 703.

A person already married and not divorced cannot marry another and a purported marriage between them is void. Clark v. Clark, 115 Miss. 756; Thomas v. Clark, 120 Miss. 190.

It is well settled in this state that judgments and decrees procured by fraud are void both in equity and at law.

A decree obtained by fraud is void both at law and equity, and may be so treated in any collateral proceeding in either form.

Plummer v. Plummer, 37 Miss. 185; Christian v. O'Neal, 46 Miss. 669.

McFarland & Holmes, of Aberdeen, for appellees.

Counsel for appellant rely on the dissenting opinion of Judge ETHRIDGE in the case of Sims v. Sims, 122 Miss. 745, to sustain their contention that there cannot be a common law marriage in Mississippi since the Code of 1906 was adopted; and we, with equal vigor and earnestness, rely on the main opinion in this same case to uphold our contention that a common law marriage is valid.

But no irregularity in the issuance of or omission in the license shall invalidate any marriage, nor shall this section be construed so as to invalidate any marriage that is good at common law.

Section 2864, Code of 1892; Section 2367, Mississippi Code of 1930.

Common law marriages have been recognized in Mississippi from time immemorial, and, under our recent decisions, are still recognized.

Martha Clay Sykes' testimony was properly excluded by the court because it was purely a collateral attack on the divorce decree granted Homer Sykes in his case against her. If there was any fraud in connection with this case, Katie Sykes had no connection whatever with it; and under the well recognized rules of law, her rights cannot be affected by such fraud.

12 R. C. L. 399, sec. 147; Hester v. Hester, 103 Miss. 13; 9 R. C. L. 456-457, sec. 267.

Argued orally by Geo. C. Paine, for appellant.

OPINION

McGowen, J.

Katie Sykes and McFarland and Holmes, the appellees, filed their suit in the chancery court of Monroe county against Pauline Sykes, the appellant, seeking a cancellation of a claim of title asserted by the appellant, and the confirmation of the appellees' title in and to a certain house and lot in Aberdeen, Mississippi. Katie Sykes asserted title to a one-half interest in said property as the sole and only heir at law of Homer Sykes, she claiming to have been his wife at the time of his death, and it was asserted that she had conveyed a one-half interest therein to McFarland and Holmes.

Pauline Sykes answered the bill denying that Katie was the wife of Homer Sykes, claiming title in the land as the aunt and next of kin to Homer Sykes under the law of descent and distribution, and seeking, on a crossbill, to have the claim of the appellees canceled.

Katie Sykes and McFarland and Holmes filed an answer to the cross-bill denying the allegations thereof.

The court below granted the prayer of the original bill, confirmed the title of Katie Sykes, Ben H. McFarland, and G. M. Holmes to the land in controversy, and ordered a sale of the land for partition between the appellees.

The facts material to be stated are as follows: Homer Sykes and Martha Clay Sykes were ceremonially married in the year 1917, and lived together for a short time. On the 27th day of September, 1918, Homer Sykes and Katie Holoway Sykes, one of the appellees, were ceremonially married in the city of Birmingham, Alabama, and returned in a few months to Aberdeen, Mississippi, and lived together as husband and wife in the house owned by Homer. Immediately upon their return, Homer and Katie joined the Baptist Church as husband and wife.

Several witnesses testified that they frequently declared that they were "man and wife," living together as such in the house, and that Homer collected for the "washing" from white people who employed her for that purpose.

The witnesses were uncertain as to dates, but the positive testimony of one witness is that they lived together until after the year 1925, claiming at all times to be husband and wife, openly and publicly as such.

Other witnesses say that they knew them as husband and wife, living together, as long as four years after they returned from Birmingham, Alabama, but when asked about dates had no memory on...