Topper v. Perry

• Decision Date: 19 June 1906
• Citation: 197 Mo. 531,95 S.W. 203
• Parties: TOPPER et al. v. PERRY et al.
• Court: Missouri Supreme Court

95 S.W. 203

197 Mo. 531

TOPPER et al. v. PERRY et al.

Supreme Court of Missouri, Division No. 2.

June 19, 1906.

1. MARRIAGE—EVIDENCE—DECLARATIONS.

On an issue as to a common-law marriage, declarations of the alleged husband not in the presence of the wife are admissible to disprove the marriage.

2. SAME—MUTUAL AGREEMENT.

When the consent to marry is manifested by words de præsenti, a present assumption of the marriage status is necessary.

3. SAME—EVIDENCE—SUFFICIENCY.

On an issue as to a common-law marriage the woman testified that while she and the man were riding together he said she was his wife, and that a marriage ceremony was unnecessary, if they should hold marriage relations, and that she agreed to hold such relations, and that afterwards he acknowledged her as his wife, but that they did not live openly together until five months thereafter. It appeared that subsequently their neighbors and the woman insisted that a ceremony be performed, and that, because of the man's refusal to have a ceremony, a difficulty arose between the man and the woman's son, in which the latter killed the former. Held, that the facts were insufficient to show a marriage.

Appeal from Circuit Court, Lawrence County; Henry C. Pepper, Judge.

Suit by Anna D. Topper and others against Jane J. Perry and others. From a decree in favor of defendants, complainant appeals. Affirmed.

Wm. B. Skinner and Henry Brumback, for appellant. John T. Burgess and French & Mayhew, for respondents.

GANTT, J.

This is an action brought to determine the title to certain real estate in Lawrence, Barry, and Laclede counties, Mo., under section 650, Rev. St. 1899. The plaintiffs claim title to said real estate, the said Anna, a life estate by way of homestead and dower, as the widow of Ambrose G. Topper, deceased, by virtue of a common-law marriage, and the minor, an estate by homestead and in fee simple as the only child and heir at law of said Ambrose G. Topper. The defendants are alleged to claim title to said real estate as heirs at law of said Ambrose G. Topper, deceased, but plaintiffs deny that they are such heirs, and that they have title, estate or interest whatsoever in said lands. The petition prays that the court shall ascertain and determine the title and interest of the said parties, respectively, in and to such real estate. In their answer the defendants admit that Ambrose G. Topper died intestate leaving no bodily heirs and assert that the defendants are the brothers and sisters of the deceased, the father and mother being dead, and that they are the next of kin and by virtue of the statutes of this state entitled to inherit said property. Further answering, the defendants say that Ambrose G. Topper, deceased, was never married to Anna D. Topper, as she now subscribes her name, neither at common law, or otherwise; that said pretended marriage on the part of plaintiff to said Ambrose G. Topper, deceased, is only a pretense, and only claimed for the purpose of obtaining the property of said Ambrose G. Topper, deceased, and, further answering, they state that they have no knowledge whatever as to the existence of Ambrose G. Topper, Jr., and deny that any child was born to Anna D. Topper of which Ambrose G. Topper, deceased, was the father. They deny each and every other allegation in the petition. The cause was tried at the November term, 1902, of the circuit court of Lawrence county, and taken under advisement until March, 1903, when final judgment was rendered for the defendants. A motion for new trial was filed in due time, and was overruled and exceptions duly saved and an appeal taken to this court.

The evidence, in substance, on the part of the plaintiffs, tended to prove that the plaintiff Anna D. Topper's maiden name was Hoover; that at the time of the trial she was 44 years old; that prior to her alleged marriage to Ambrose G. Topper, she was the widow of one Stringer, and was residing with her brother, Mr. James H. Hoover, near Monett. She testified that her former husband, Stringer, was dead. She had one child before she was ever married and had one child, Ernest Stringer, still living, who was born in 1879; that after Stringer's death, she made her home with her father until his death on the 13th of December, 1890, and after her father's death she resided with her mother until September 13, 1894, and after her mother's death with her brother, for whom she kept house. She testified that she was first engaged to be married to Ambrose G. Topper in April, 1900; that he came to see her every Saturday and Sunday. As to her marriage with Ambrose G. Topper, she testified that he and she had been to a picnic at Aurora, and on the road home midway between Aurora and Verona, he acknowledged her to be his wife, and she acknowledged him to be her husband, he said that she was his wife under obligations and wanted to hold marriage relations with her, and at first she objected, but he persisted that she was his wife. She wanted to have a ceremony before they held marriage relations, and he said it was not necessary, that marriage was simply a contract between a man and a woman, and that she was just as much his wife as she would be if the ceremony was said if they would hold marriage relations, and he insisted and so then she agreed to hold marriage relations with him, and from that time on he acknowledged her as his wife. This was on the night of the 4th of July, 1901. The marriage between Mr. Topper and her was kept secret, and she continued to live with her brother, Mr. Hoover, just as she had prior to the 4th of July, 1901, but it was talked in the neighborhood and they were accused of being married, and she was called Mrs. Topper. On December 9, 1901, she went to live with deceased, Topper, on his farm east of Monett. Before moving into the house on the farm, it was necessary that the same be repaired. Topper had used it for a granary to store his wheat and corn. He went to work to have the house repaired; during that time he was boarding at Mr. J. H. Hoover's. When they got ready to paper the house, he asked her if she could not come down and help him paper it, and she agreed to do so. She went to Peirce City and bought the material and then helped him, and the young man put the paper on the house. Finally, when they got ready to move into the house, they moved all of her things from her brothers down to his place, and from that time she continued to live with him. She stated that Mr. Topper told her that some of the neighbors were coming to his house, and they would be asking questions, and he told her to tell them that they were married. She stated that after they moved into the house she insisted that they have a ceremony performed, and he said it was not necessary, he said, "Annie, you are just as much my wife as Katie is old Bill Jones's wife, and said, "I will show you," and he went up stairs and got a book from his trunk, and brought it down, and read to her that marriage was just a contract for her to agree to be his wife and for him to agree to be her husband. He said that that was all there was of it; that the ceremony was mannish, that it did not amount to anything. She testified that it was true that she was trying to get Topper to have a ceremony performed; that their relations were just the same as if she was his wife, she was not satisfied; she was going to hold on to her contract, was going to follow him, and go with him just the same as if the ceremony was said; that he was good to her, and held out all the time he would be a man, and was going to carry out all of his obligations. Her son, Ernest Stringer, killed Mr. Topper. She was asked if he did not kill him over this question of Topper refusing to marry her according to law, and she answered, they did talk of having the ceremony performed and Mr. Topper had been out to Mr. Jones' in the evening, he was awful angry, and threatened to kill Ernest. Ernest asked him what he meant by telling Jones he was going to fix him (Ernest), and Mr. Topper said, he meant what he said, and got a shotgun, and Ernest got behind her and began to shoot. Ernest insisted upon Mr. Topper procuring a marriage license, and offered to go himself to Mt. Vernon to get it. Mr. Topper said he would attend to his own business. She testified that during her stay at Topper's residence, she slept with Mr. Topper part of the time and part of the time in another room. She named a number of people who addressed her as Mrs. Topper in the presence of Mr. Topper, and that he made no objections to it. Other witnesses testify that they had said to Mr. Topper that they had heard that he was married and that he said "yes, he was married." Others testified that they had been at his house and that he and the plaintiff were living just like man and wife live. One lady, Mrs. Jones, said she talked to him about the relations he bore to Mrs. Stringer, and he said it was no one's business the way they were living, but their own; and that they were man and wife in the sight of God. There was a great deal of talk in the neighborhood about them living together without a marriage ceremony, and the ladies in the neighborhood would not visit her on that account. Other neighbors testified to seeing them riding around the neighborhood in a buggy together. On the part of the defendants various other witnesses testified that Topper said to them that he was not married to plaintiff. Various other witnesses testified that they were not reputed to be married by the neighbors in the neighborhood. P. C. Watson testified that he wanted to buy some ground from Topper in Monett and Topper agreed to sell it to him, whereupon Watson said to him: "It is rumored that you are married, and if you are, we want your wife to come down and sign the deed," and Topper said, "He was not married and his title would be good." Other witnesses testified that they were reputed to be married. All or nearly all of these witnesses...