Opinion
No. 32155.
May 25, 1936.
1. PLEADING.
Where petitioner claimed entire estate as only child and sole heir of intestate father, refusal to allow petitioner to amend petitions so as to strike allegations that, before petitioner's conception and birth, intestate and petitioner's deceased mother entered into common-law marriage contract in Mississippi, and insert words that intestate and deceased mother were married in Alabama, held not error, where proposed amendment contradicted proof offered to support original averments and was not proposed until after conclusion of testimony and arguments.
2. MARRIAGE.
Under statute expressly requiring a license as essential to validity of marriage, attempted common-law marriage alleged to have been contracted in Mississippi before adoption of amendment providing that requirement should not invalidate any marriage good at common-law was void (Ann. Code 1892, sec. 2864; Code 1906, sec. 3249).
APPEAL from chancery court of Harrison county. HON. D.M. RUSSELL, Chancellor.
R.A. Wallace, of Gulfport, for appellant.
The fact of marriage cannot be established by proof of general reputation, and it is not competent to introduce evidence of general reputation to disprove the existence of the marriage.
Henderson v. Cargill, 31 Miss. 367; McAllum v. Spinks, 129 Miss. 237, 91 So. 694; Greenleaf on Evidence, page 119, sec. 103; Rex v. Eriswell, 3 Term. R. 307; Gregory v. Baugh, 4 Ran. 711.
The court erred in denying leave to the petitioner, appellant here, to amend his petition to correspond with and conform to the proof made in the case, he having moved the court for such leave before the case was closed.
The pleader erred in stating in the petition that the appellant's father and mother entered into a marriage contract in Biloxi, Mississippi, prior to the year 1903; that there was no ceremonial marriage joining the appellant's father and mother as husband and wife; and that the contract so entered into by them was in all respects legal and lawful as a common law marriage under the laws of the State of Mississippi. The evidence introduced in the case shows conclusively that such averments are erroneous. By the motion to amend, the appellant sought to strike out the erroneous averments, and substitute therefor the averment that "in the year 1903, the petitioner's father, Vincent John Olivari, and his mother, Mrs. Eva Elizabeth Lyons Olivari, were married in the State of Alabama," to conform to the proof made.
Campbell v. Gullatt, 43 Ala. 57; Fuquay v. State, 114 So. 898; McClurkin v. McClurkin, 90 So. 917.
If it be true, as the learned Chancellor held it to be, which wo do not concede, that the laws of this state, in effect in the year 1903, prohibited the marriage shown by the uncontradicted evidence to have existed between the parents of the appellant from the year 1903 to the year 1912, when his mother died, then, the law presumes they entered into a valid marriage contract in Alabama, the place of the residence of the mother, and where both ceremonial and common law marriages were legal; and this presumption strengthens the evidence for the appellant that is relied upon to support the motion to amend the petition.
Lapsley v. Grierson, 1 H.L. Cas. 498; Schuchart v. Schuchart, 61 Kan. 597, 60 P. 311.
The decisions are almost unanimous in holding that marriage is a civil contract between a man and a woman to be husband and wife, but, when executed, it becomes a status, or relation, between them, which cannot be dissolved except by judicial decree or death; and that, when that status, or relation, between a man and woman is established by competent evidence, the law presumes a valid agreement between them at the inception of the marriage, and that they were duly married.
38 C.J. 1272, sec. 1; Henderson v. Cargill, 31 Miss. 367; Dickerson v. Brown, 49 Miss. 369; McAllum v. Spinks, 129 Miss. 237, 91 So. 694; Succession of St. Ange, 109 So. 909; Oliphant v. Long Leaf Lbr. Co., 112 So. 500; Jewell v. Jewell, 42 U.S. 219, 11 L.Ed. 108; Travers v. Reinhardt, 205 U.S. 423, 27 Sup. Ct. 563, 51 L.Ed. 865; Meister v. Moore, 96 U.S. 76, 24 L.Ed. 826.
It is a principle of universal application that a marriage valid where made is valid everywhere, except those that violate the expressed public policy of a state.
We respectfully submit that the testimony in this case, standing uncontradicted by competent testimony as it does, is amply sufficient to establish a valid marriage, wheresoever it was contracted, and whether it be classified as a common law marriage or ceremonial marriage.
18 R.C.L., pages 421, 422, 423 and 424, sections 46, 47, 49 and 51; Henderson v. Cargill, 31 Miss. 367; McAllum v. Spinks, 129 Miss. 237, 91 So. 694; Succession of St. Ange, 109 So. 909; Oliphant v. Long Leaf Lbr. Co., 112 So. 500; Jewell v. Jewell, 42 U.S. 219, 11 L.Ed. 108; Travers v. Reinhardt, 205 U.S. 423, 27 Sup. Ct. 563, 51 L.Ed. 865; Nims v. Thompson, 83 Wis. 261, 53 N.W. 502.
It is respectfully submitted that the trial court erred in denying the appellant leave to amend his petition.
Section 391, Code of 1930; Russell v. Denson, 98 Miss. 859, 54 So. 439; Greenwood Gro. Co. v. Bennett, 101 Miss. 573, 58 So. 482, 598; Hart v. Potter, 80 Miss. 796, 31 So. 898.
It should be borne in mind that the facts established by the uncontradicted testimony in this case raises one of the strongest presumptions known to the law, and, standing unrebutted as it does, it is conclusive that a valid marriage existed between the appellant's parents at the time he was born.
18 R.C.L. 416, sec. 39; 38 C.J. 1321, sec. 98; Jewell v. Jewell, 42 U.S. 219, 11 L.Ed. 108; Meister v. Moore, 96 U.S. 76, 24 L.Ed. 826; Travers v. Reinhardt, 205 U.S. 423, 51 L.Ed. 865; Henderson v. Cargill, 31 Miss. 367; Floyd v. Calvert, 53 Miss. 37; McAllum v. Spinks, 129 Miss. 237, 91 So. 694; Sims v. Sims, 122 Miss. 745, 85 So. 73; Sykes v. Sykes, 162 Miss. 487, 139 So. 853; Succession of St. Ange, 109 So. 909; Oliphant v. Long Leaf Lbr. Co., 112 So. 500; Howard v. Kelly, 111 Miss. 285, 71 So. 391, Ann. Cas. 1918E, 1230.
Whatever directions marriage statutes may give respecting its formation or solemnization, the majority of the courts have held a marriage good notwithstanding the statutes, unless they contain express words of nullity.
18 R.C.L. 397, sec. 18; Reed v. Harkrader (9th C.C.A.), 834; Meister v. Moore, 96 U.S. 76, 24 L.Ed. 826; Travers v. Reinhardt, 205 U.S. 423, 27 Sup. Ct. 563, 51 L.Ed. 865; Furth v. Furth, 97 Ark. 272, 133 S.W. 1037, Ann. Cas. 1912d 595, 598-602; Huard v. McTeigh, 113 Or. 279, 232 P. 658, 39 A.L.R. 528, 538-550.
The attention of the court is directed to the last paragraph of Section 2367 of the Code of 1930, which is as follows: "The failure to comply with the provisions of this section shall not affect the validity of any marriage duly solemnized, followed by cohabitation, nor the validity of common law marriages as heretofore recognized in the state." The language of the statute undoubtedly means common law marriages that were recognized, first, by this honorable court in its decisions, and, next, by the Legislature prior to the enactment of this code section.
Hargroves v. Thompson, 31 Miss. 211; Henderson v. Cargill, 31 Miss. 367; Carson v. Carson, 40 Miss. 349; Dickerson v. Brown, 49 Miss. 357; Rundle v. Pegram, 49 Miss. 751; Taylor v. State, 52 Miss. 84; Floyd v. Calvert, 53 Miss. 37; Sims v. Sims, 122 Miss. 745, 85 So. 73; Sykes v. Sykes, 162 Miss. 487, 139 So. 853.
Mize, Thompson Mize, of Gulfport for appellees.
Where both parties to an alleged marriage contract are deceased, the status must be proven by circumstances tending to either prove or disprove the marriage relation. The general repute as to how the parties to the alleged relation were looked upon by their neighbors and acquaintances is admissible in evidence. The rule is that the parties must be generally recognized as man and wife to give validity to a so-called common law marriage and the rule even goes further and says that if the reputation in the community to which the parties are known is divided, that the presumption is that there was no valid common law marriage.
1 Jones Commentaries on Evidence (2 Ed.), page 99; Schwingle v. Keifer, 105 Tex. 609; Reed v. State, 205 S.W. 619; Whittaker v. Schenault, 172 S.W. 202; Grigsby v. Reib, 153 S.W. 1130.
The allowing of an amendment is discretionary with the court. Unless this discretion is abused, the chancellor's actions will not be disturbed. The trial of the case had gone on for several days and was long and tedious. Had the first amendment been allowed, it would have rendered the petition demurrable and the respondents could have shown that it was in such vague and indefinite terms that they would have been entitled to a bill of particulars setting up where the marriage took place and when it took place. The court did not abuse its discretion in refusing the first amendment. Had the petitioner stated, as the court asked, where the marriage took place and when it took place, the respondents would not have had to go to further trouble for a bill of particulars. Every one would have been greatly inconvenienced, out a lot of expense and court costs if the amendment had been allowed. As stated before, the action of the Chancellor is absolutely discretionary in allowing amendments and his discretion was not abused here. Thereupon, when the Chancellor was rendering his opinion and had announced that in his opinion that common law marriages were not valid in Mississippi during the period that the marriage was alleged to have taken place, the petitioner asked to amend again by changing the situs of the alleged marriage contract to Mobile, Alabama. The petitioner was simply trifling with the court. The motion to amend came too late, the decision had really been rendered or was in the process of being rendered. The record showed no testimony on which it could be remotely presumed that a common law marriage took place in Mobile, Ala., between Vincent John Olivari and Eva Lyons and such amendment could not have possibly conformed to the proof. It is true that during the progress of a trial an amendment can be allowed to conform to the proof, but we know of no instance where an amendment was ever allowed after a case was in the process of being decided where the facts would under no condition conform to the proof that had been made. There is not any evidence in the record to support the proposition that the purported marriage took place in Mobile.
Miazza v. Yerger, 53 Miss. 135; Clark v. Hull, 31 Miss. 520.
We are of the opinion that common law marriages were not permitted in Mississippi from 1892 until the adoption of the Code of 1906. In our opinion, said common law marriages were valid until the adoption of the Code of 1892. Section 2864 of the Mississippi Code of 1892 is as follows: "A marriage shall not be contracted or solemnized unless a license therefor shall first have been duly issued, and such license shall be essential to the validity of a marriage."
This statute specifically requires a license to have been issued before a marriage could be celebrated and further states that no marriage was valid unless a license was issued.
In the case at bar, the purported marriage between Vincent John Olivari and Eva Elizabeth Lyons, is said by the appellant to have taken place in 1903 in Biloxi, Mississippi. The petition further shows that the marriage, so said to have taken place, was a so-called common-law marriage. The law as to marriage remained as stated above until the Code of 1906 was adopted.
Code of 1906, Section 3249 (Hemingway's Code, section 2556).
The petition in the case at bar shows the marriage, if any there was, to have taken place in 1903, in Biloxi, Mississippi. Some witnesses for the petitioner stated that there was a marriage and that the time was set in 1903. Nor does petitioner say in his petition that the purported marriage was a ceremonial marriage. He states that it was a common-law marriage. Therefore, no marriage took place, as only ceremonial marriages were authorized by law in Mississippi from 1892 to 1906.
Succession of Marinoni, 148 So. 897, 177 La. 592; Sykes v. Sykes, 162 Miss. 487, 139 So. 853; Sims v. Sims, 122 Miss. 745, 85 So. 73; Howard v. Kelley, 111 Miss. 288, 71 So. 391, Ann. Cas. 1918E, 1230; Blanks v. Southern Ry., 82 Miss. 703, 35 So. 570.
A common-law marriage does not mean merely a temporary agreement to domicile together for a time. It is essential that the contract of marriage be entered into with a view of its continuance through life, and then followed by cohabitation and general repute.
Olsen v. Peterson, 32 Neb. 358, 50 N.W. 155; Floyd v. Calvert, 53 Miss. 37; Grant v. Grant's Succession, 105 So. 61; Laurence v. Laurence, 56 N.E. 1071, 164 Ill. 367; Arnold v. Chesebrough, 58 Fed. 833; Cuneo v. Cuneo, 59 S.W. 284; Jackson v. Jackson, 53 A. 31.
On February 19, 1934, Vincent J. Olivari, a resident citizen of Harrison county, Miss., died intestate, and on February 23, 1934, Ben O'Keefe was appointed and qualified as administrator of the deceased's estate. On February 26, 1934, V.J. Olivari, Jr., filed a petition in said cause alleging that petitioner was the only child and sole heir at law of the deceased, Vincent J. Olivari; that petitioner was and is the only issue of the legal marriage of his father and mother. Mrs. Eva Elizabeth Lyons Olivari; that long before the petitioner was born his father and mother were husband and wife and so remained until the death of his mother in the year 1912; that at the time of the conception and birth of petitioner his said father and mother were legally married and at all times maintained the relation of husband and wife; and that petitioner was the only child of said marriage.
On April 13, 1934, the appellant filed a supplemental petition setting forth more in detail the names and addresses of certain nephews and nieces of said Vincent J. Olivari, deceased, who were made parties defendant as claimants of the estate of the deceased, and alleging that "prior to year 1903 his said father, Vincent John Olivari, and petitioner's mother, Mrs. Eva Elizabeth Lyons Olivari, entered into a marriage contract in the city of Biloxi, in said county, and immediately thereafter assumed the relation of husband and wife and continued to live together and cohabit as husband and wife from that time until the death of petitioner's mother in the year 1912; that there was no legal impediment existing to prevent the legality of said marriage and said parties at all times maintained the relation of husband and wife from the date of their said marriage until the death of petitioner's mother aforesaid; there was no ceremonial marriage joining petitioner's father and mother as husband and wife, but the contract of marriage entered into between them was in all respects legal and lawful as a common-law marriage under the laws of the State of Mississippi; your petitioner was born of said marriage union and is the only child of said marriage union, and is the only heir at law of his said father, Vincent John Olivari, decd., and as such is entitled to all of the estate, both real and personal, belonging to his said deceased father at the time of his death."
Both the original and supplemental petitions were sworn to by the appellant, and prayed that petitioner be recognized and decreed to be the sole heir at law of Vincent J. Olivari, deceased, and that the administrator be directed to deliver to the petitioner the entire estate of the deceased. The several defendants answered the petitions, and, after a full hearing upon lengthy testimony offered by the respective parties, the court entered a decree dismissing the petitions, and from this decree this appeal is prosecuted.
After the conclusion of all the evidence, and during the progress of the arguments of the cause, the appellant filed a motion for leave to amend his supplemental petition by striking the words "prior to year 1903, his said father, Vincent John Olivari, and petitioner's mother, Mrs. Eva Elizabeth Lyons Olivari, entered into a marriage contract in the city of Biloxi in said county," and the words "there was no ceremonial marriage joining petitioner's father and mother as husband and wife, but," and the words, "as a common-law marriage under the laws of the State of Mississippi," and to insert in lieu thereof the words, "in the year 1903 the petitioner's father, Vincent John Olivari, and his mother, Mrs. Eva Elizabeth Lyons Olivari, were married in the State of Alabama."
The court entered a decree overruling this motion, which decree recited on its face that the motion was made after all the testimony and the opening argument for the petitioner had been concluded, and while the argument of counsel for the respondents was in progress, and that it was not called to the attention of the court until after the conclusion of the closing argument for the respondents. The decree further recited that: "The court called on counsel for the petitioner to state in his proposed amendments in what state he desired to aver that the alleged common-law marriage took place, and counsel for the petitioner thereupon stated he could not state in what state the alleged common-law marriage took place and did not think it was necessary for him to state or allege in which state the alleged common-law marriage took place. Counsel for respondents objected to the filing of such a petition on the ground that it came too late and on the further ground that such an amendment would render the petition so vague and indefinite as to be demurrable, and the court thereupon declined to permit the amendment and announced that the court was of the opinion that a common-law marriage between 1892 and 1906 was invalid, and the Supreme Court of Mississippi would follow the decision of the Louisiana Supreme Court in the case of Succession of Marinoni, 177 La. 592, 148 So. 888, and was proceeding to discuss the facts in this case when counsel for petitioner stated he desired to amend his petition so as to strike therefrom that the alleged marriage occurred in Biloxi, Mississippi, and aver it occurred in Mobile, Alabama in 1903, to which proposed amendment respondent objected on the ground it came too late and there was no testimony showing such facts, and that it was not an amendment to conform to the proof and the court having further fully considered same is of the opinion that the motion to so amend should be overruled."
The appellant assigns as error the refusal of the court to permit the proposed amendment stated above. Aside from the fact that the amendment was not proposed until after the conclusion of the lengthy testimony and the arguments thereon, and after the court had announced or indicated its decision of the cause, the proposal was not one to amend the petition to conform to the proof offered by the petitioner. The proof offered by the appellant tended to support the original averments of the supplemental petition in reference to a common-law marriage between the father and mother of the petitioner, and the proposed amendments contradicted this proof, and made a wholly different case after the cause had in fact been concluded, and the court committed no error in declining to permit the amendments.
The controlling and decisive question presented by this appeal is whether or not, from the date of the adoption of the Code of 1892 until the adoption of the Code of 1906, common-law marriages contracted in the state of Mississippi were valid.
By the Constitution of 1869, art. 12, sec. 22 thereof, common-law marriages were expressly recognized and validated, but in the Constitution of 1890, this provision was omitted, and when the Annotated Code of 1892 was adopted, section 2864 thereof declared that "a marriage shall not be contracted or solemnized unless a license therefor shall first have been duly issued, and such license shall be essential to the validity of a marriage." Section 2864, Annotated Code of 1892, continued in force without amendment until the adoption of the Code of 1906, when the section was amended and brought forward in the Code of 1906, as section 3249 thereof, by adding to the section, as it appeared in the Annotated Code of 1892, the following language: "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."
This court has not heretofore expressly decided that by section 2864, Annotated Code of 1892, the contracting of common-law marriages was forbidden, but, in several cases, the court has apparently assumed that such marriages contracted after the adoption of the Code of 1892, and prior to the adoption of the Code of 1906, were invalid. In Blanks v. Southern Railway Company, 82 Miss. 703, 35 So. 570, decided in 1904, in discussing appellant's claim that she was the widow of Daniel Blanks, the court said: "Her only pretense of wifehood in her relations with Daniel is based on her claim that there was a valid common-law marriage between them before the Code of 1892, requiring formal celebration, took effect."
In Howard v. Kelly, 111 Miss. 285, 71 So. 391, 392, Ann. Cas. 1918E, 1230, decided in 1916, in discussing the presumption of validity which attaches to both ceremonial and common-law marriages, the court used this language: "It cannot be doubted, however, prior to the adoption of the Code of 1892, that a common-law marriage was recognized as lawful and binding as one contracted in pursuance of a license and the usual ceremony."
In Sims v. Sims, 122 Miss. 745, 85 So. 73, wherein it was held that section 3249, Code of 1906, amending section 2864, Annotated Code of 1892, expressly recognized the validity of common-law marriages, the prevailing opinion written by Chief Justice Smith, and concurred in by Justices Stevens and Cook, apparently proceeded throughout upon the theory that section 2864, Ann. Code 1892, prohibited common-law marriages, while the dissenting opinion therein written by Justice Ethridge and concurred in by Justices Sykes and Holden, vigorously asserted the view that after the adoption of the Annotated Code of 1892, common-law marriages contracted in this state were void, and that the amendment of this section by the Code of 1906 was not intended to, and did not, change the status of such alleged marriages.
In support of the view that section 2864, Ann. Code 1892, did not prohibit common-law marriages, the appellant relies principally upon the case of Meister v. Moore, 96 U.S. 76, 24 L.Ed. 826, and cases in line therewith, which announce the rule that, in the absence of a statute expressly declaring that marriages not contracted or celebrated in the manner therein prescribed shall be void, marriages regularly contracted according to the common law are valid. But section 2864, Ann. Code 1892, expressly declared that a marriage should not be contracted or solemnized unless a license therefor should have first been issued, and that such license "shall be essential to the validity of a marriage," which is the same as an express declaration that any marriage not contracted or solemnized under the authority of a license was void. A common-law marriage, as recognized in this state, may be contracted by agreement between a man and woman that they shall become husband and wife followed by cohabitation, but section 2864, Ann. Code 1892, prohibited the contracting of any marriage, ceremonial or common-law, unless preceded by the issuance of a license therefor, and expressly declared that "such license shall be essential to the validity of a marriage," or, in other words, that any marriage contracted or solemnized without a license therefor shall be void. We do not think the language of the statute will admit of any other construction, and consequently any attempted common-law marriage between the father and mother of the appellant, between 1892 and 1906, was necessarily void.
In a very able and exhaustive opinion by Chief Justice O'Niell in the case of the Succession of Marinoni, 177 La. 592, 148 So. 888, the Supreme Court of Louisiana so construed section 2864, Mississippi Annotated Code of 1892, and reference is made to that opinion for an extensive analysis and citation of authorities from other jurisdictions construing statutes of similar import.
The decree of the court below will be affirmed.
Affirmed.