Powers v. Buckey

RobiNsoN, J. Tbe plaintiff brings this action to annul bis marriage with defendant and appeals from a judgment against bim. In January, 1819, at Moorbead, Minnesota, be was duly married to defendant. Sbe bad been twice married and believed eacb husband to be dead or divorced. Tbe marriage was contracted and solemnized in good faitb and without any fraud or deception. On tbe evidence it stands unim-peaebed. Until seven years ago tbe parties lived together as husband and wife and had two children, a son, now forty-one years old, and a daughter, thirty-nine years. Tbe ages of tbe parties are sixty-seven and .sixty-four. He lives in Canada, sbe in Cass County, North Dakota. Eacb is well-to-do and has a good property and neither claims any property of tbe other. Tbe plaintiff sues to annul bis marriage on the ground that at tbe time it was solemnized husbands number one and two were not either dead or divorced. There is no question, only on Buckey, or husband number two. Tbe plaintiff examined bis record and testifies that Buckey married another woman on October 23, 1879, and [138] died in 1916, leaving two sons and three daughters. Now the presumption is that he did not marry until some time after he obtained a divorce, and the plaintiff has wholly failed to prove that each husband was not either dead or divorced. There is no testimony that either ever .showed up or made any claim to his wife. This is no Enoch Arden case. There is a time for all things under the sun, a time to speak and a time to keep silent. The time for plaintiff to speak or to bring this action, if any cause existed, was forty years ago before the conception of his son and his daughter. Now is the time to keep silent. Suits to annul a marriage, like other equity suits, must be brought within a reasonable time; a suit in equity must appeal to equity and good conscience. Counsel cites authority to show that if there was any defect in the ceremonial marriage there was a good common-law marriage — and that is true. The rule is that a common-law marriage — a contract of marriage de prsesenti and followed by cohabitation — is everywhere' good unless the statute declares it to be void. Prior to chap. 91, Laws 1890, a common-law marriage was expressly recognized • in this state. Schumacher v. Great Northern R. Co. 23 N. D. 231, 136 N. W. 85. For more than five years prior to the statute the parties were living together as husband and wife under a contract of marriage de prassenti when there was no claim of any impediment to the marriage. Hence it may be said they were doubly married. Furthermore it must be confessed that the suit is based on a stale, a very stale, claim and it makes no appeal to equity. We do not overlook the statute on the annulment of marriages, but it has no application to this case. Judgment affirmed and action dismissed. Birdzell, Ch. J., and CheistiaNsoN and Grace, JJ., concur.