Thompson v. Clay

Etheidge, J., delivered^ the opinion of the court. Appellant filed a bill in the chancery court alleging that Scott Clay died seized and possessed of certain [194] lands therein described, and left as his heirs Ben Clay, deceased, Dick Clay, and Gr. Gr. Clay; that in 1890 Ben Clay married one Polly Johnson and had one son, Gr. Gr. Clay, Jr., who sold to the complainant his interest in the said land, claiming it to be a one-third interest, and prayed for a partition of the lands. The defendants Dick Clay and Gr. Gr. Clay answered the bill, and one Virginia Clay and Blanche Clay, a minor, intervened as defendants and set up that Virginia Clay was the wife of Ben Clay at the time of his death, and that Blanche Clay was the daughter of said Ben Clay, and that at the time of the suit they were living upon said lands and claiming them as a homestead. An agreed statement of facts is in the record, and the cause was tried upon the agreed statement of facts, coupled with a certificate of M. P. Moore, chancery clerk of Sharkey county, that there was no divorce between Ben Clay and Polly Johnson Clay from August 14, 1890, up to December 31, 1901, at which time the alleged marriage between Virginia and Ben Clay took place. Also a similar certificate from the chancery clerk of Washington county, where the separation between Polly Johnson Clay and Ben Clay took place. By the agreed statement of facts it was agreed that Dick Clay and Gr. Gr. Clay had eachc a ,one-third interest in said land. It was further agreed that Ben Clay was legally married in Washington county to Polly Johnson in the year 1890, and that they lived together as man and wife, and to them was born one son. Gr. Gr. Clay, Jr., through whom complainant claimed title; that some years after their marriage the said Ben Clay and Polly Clay separated; Polly moved to Sharkey county with her child, Gr. Gr. Clay, Jr., and resided there until her death, August 29, 1913; that she died intestate. It was agreed that G. G..Clay, Jr., is over twenty-one years of age, and conveyed to the appellant, and that on November 30, 1901, Ben Clay married in Washington [195] county the appellee. Virginia Clay, and they lived together as man and wife on the said land until January, 1916, when Ben Clay died; that there was born to them a daughter, Blanche Clay, who at the time of the trial was fifteen years of age, and that Blanche and Virginia Clay lived on the said land. It was further agreed that in the event that the court decreed for the appellant certain partition would he made. It was further agreed that the only question upon which proof would he necessary is whether or not G. G. Clay, Jr., was vested at the time of conveyance with a title to the one-third interest of th.e land, and whether or not by reason of the marriage of Ben Clay and Virginia Clay the said Virginia Clay and Blanche Clay acquired, through the interest of Ben Clay, a title to said land, and that either party'shall have the right to make proof on these questions. As stated, the only proof outside of the agreement is the certificates of the clerks of the chancery court of the respective counties where the separation took place between Polly Johnson. Clay and Ben Clay and the residence of said Polly Johnson Clay after said separation. These certificates show that no divorce was granted or divorce- suit filed in either of said counties at the time of the pretended marriage- to Virginia Clay. Inasmuch as these counties are the only counties having jurisdiction to grant a divorce on the facts set out in the agreement, it is established that no divorce was granted, and at the time of said pretended marriage of Ben Clay to Virginia Clay, Ben Clay was a married man and incapacitated from making any other marrige. In the case of Blanks v. Railway Co., 82 Miss. 703, 35 So. 570, It was held that a married woman cannot contract a common-law marriage, and' that cohabitation, however long continued, between a married woman and an unmarried man, will not ripen into a common-law marriage, although from the beginning they agreed to [196] be husband and wife, and constantly claimed and held themselves out to the world to be married to each other. . In the case of Floyd v. Calvert, 53 Miss. 37, it was held that under section 22, article 12, Constitution of 1869, where a person claimed to be married under said section, there must be .shown some formal and explicit agreement between the parties that they will and do accept the new - organic law as establishing thenceforward such relationship, or there must be such open and visible change in the conduct and declarations of the parties that an agreement to accept the new law might fairly be inferred; that the most that this law could do was to offer persons living in ■ such relationship the opportunity of legalizing their union. In Rundle v. Pegram, 49 Miss. 751, it was held that the above section of the Constitution of 1869 did not impose marriage on any except those who are willing and consent to occupy the relation of husband and wife; that it did not intend to sanctify the marital relation between a man and woman because they.were cohabiting together as husband and wife, although such living together may have extended through many years, and although it was public and notorious, and unless the parties intended and in some mode distinct and cognizable accepted the Constitution as legalizing the relation^ .that changing the relation from illegal to legal requires something more than the mere continuance of the living together after all the difficulties in the way of marriage are removed. It will be noted from the agreed statement of facts that there is nothing said in the agreement, nor is there any proof in the record, that there was any agreement between Ben Clay and Virginia Clay after the death of Polly Johnson Clay to marry or to become husband and wife. At the time of the alleged marriage it was clearly void because of the f.act that Ben Clay had a,living wife, and it must be inferred from the [197] facts agreed to in the record'that both parties knew that Jolly Johnson Clay was still living. The relation being illegal in its inception and void for want of capacity in Ben Cay to contract a marriage, it mnst he presumed, in the absence of proof to the contrary, that the relation continued after the death as before. If there was an agreement after the death of Polly Johnson Clay between Virginia and Ben Clay, it must be proven. As the chancellor held that Virginia and Blanche Clay were the legal heirs and entitled to the use of a homestead free from partition proceedings, the- judgment must be reversed, and judgment will be entered here in accordance with the stipulation of the agreed statement of facts awarding complainant a one-third interest and setting apart the land in accordance with said agreement. Beversed, and decree rendered here. Reversed.