Walker v. Walker

• Decision Date: 14 June 1928
• Docket Number: 6 Div. 110
• Parties: WALKER v. WALKER.
• Court: Alabama Supreme Court

117 So. 472

218 Ala. 16

WALKER v. WALKER.

6 Div. 110

Supreme Court of Alabama

June 14, 1928

Appeal from Circuit Court, Jefferson County, Bessemer Division J.C.B. Gwin, Judge.

Bill by Johnnie Walker against Emma Walker to annul the marriage between the parties. From a decree for complainant, defendant appeals. Reversed and rendered.

Goodwyn & Ross, of Bessemer, for appellant.

Mathews & Mathews, of Bessemer, for appellee.

SAYRE J.

Appellee on his bill for that purpose, had a decree annulling the marriage between himself and appellant on the ground that, at the time of that marriage, appellant had a husband, living and undivorced. Appellee and her first husband were married in September, 1912. They lived together about four months after which the first husband, Jackson, disappeared--left for parts unknown. Three years later, in September, 1915, the parties to this cause contracted a ceremonial marriage, and thereafter, for more than 10 years, lived together as man and wife. In January, 1922, a child was born to them. In 1926 their troubles began. She accused him of being too intimate with another woman; he charged that she was entirely too familiar with another man; and then, in March, 1927, the bill in this cause was filed.

The facts heretofore stated, along with one or two others doubtfully evidenced and of small consequence, present a case of confused and conflicting presumptions. If Jackson was alive at the time of the ceremonial marriage between the parties to this cause, the inexorable policy of the law will not permit it to be considered as anything but adulterous and unlawful. McLaughlin v. McLaughlin, 201 Ala. 482, 78 So. 388. On the other hand, a marriage, in fact, having been shown, the law presumes that it is valid, and casts the burden on him who questions it to establish its invalidity--this because the law presumes morality, not immorality; marriage, not concubinage; legitimacy, not bastardy. Pittinger v. Pittinger, 28 Colo. 308, 64 P. 195, 89 Am.St.Rep. 198, editorial note. There is also the presumption that the life of a person continues for 7 years after he is last heard from, and that his death will be presumed after the lapse of that time. Id. And, according to many authorities, in a case like this, the courts presume in favor of the established status that the former marriage has been dissolved by a decree of divorce. Id. These presumptions, or most of them, are stated in Fuquay v. State (Ala.Sup.) 114 So. 898; but that case involved the criminal law. And if a woman contracts a second marriage in the belief, however ignorantly entertained, that she may do so, but when, in fact, her first spouse is alive, and the parties to the second marriage, intending matrimony, not concubinage, live together as man and wife until the lapse of 7 years after the first husband is last heard from, an actual marriage is thereby established. Klipfel's Estate v. Klipfel, 41 Colo. 40, 92 P. 26, 124 Am.St.Rep. 96, editorial note. For, in this, as in many other states, the common-law marriage has long been recognized. Wall v. Williams, 11 Ala. 826; Tartt v. Negus, 127 Ala. 308, 28 So. 713; Herd v. Herd, 194 Ala. 613, 69 So. 885, L.R.A.1916B, 1243; and the other cases cited in Fuquay v. State, supra.

None of the presumptions referred to is conclusive. They are based upon experience and public policy and established to facilitate the ascertainment of truth in the trial of causes. Turner v. Williams, 202 Mass. 500, 89 N.E. 110, 24 L.R.A. (N.S.) 119...