Boatman v. Curry

Soott, Judge, delivered the opinion of the court. There is nothing in the point that the lease was not filed with the justice before suit was brought. The defendant was no party to the lease, and of course it could not be the foundation of an action against him. There is nothing in the record in relation to an assignment of it. Besides, it is no ground for dismissal that the instrument — the foundation of the action — is not filed with the justice; at most, such failure can only cause a continuance, if one is necessary to a fairt rial. The deed of a married woman may be void; but if it is void [438] why insist on its execution being proved ? No doubt, when the loss of an instrument is established, its execution must be proved before it can be read. (1 Starkie, 349.) How that is to be done will depend on the circumstances of the case, taking care not to allow an inferior degree of evidence when it appears that evidence of a higher degree is attainable. But though the deed of a married woman may be void, yet when she becomes discovert, there is nothing that prevents her from acquiescing in the contract stated in the deed; and if she docs so and both parties agree to it, they will be bound by it, and it is not for third persons to object to the validity of such an agreement. It was allowable for the defendant to show that the marriage established by evidence of reputation and cohabitation was illegal and void. The proof of marriage by cohabitation was sufficient in this form of action, and the defendant could not change the nature of the evidence necessary to prove a marriage by any averment he might make that there was no marriage between the parties, or by an attempt to raise an issue on the specific denial that there was an actual marriage. But though a marriage may be proved by evidence of cohabitation, yet it is competent for a party to show that it was illegal and void. (2 Starkie, 221, 939.) The judgment must be reversed for the giving of the first instruction asked by the plaintiffs. It is wholly unfounded in law. The statement of the proposition therein contained is sufficient for its refutation. Nor is it helped by the rule that all the instructions given in a cause must be considered together. The proposition contained in the instruction is an independent one, and of itself warranted a verdict. Besides, if the rent of the farm was eighty dollars a year, although the defendant may have enjoyed it for six months, yet it may be his enjoyment was not as beneficial as that of him who enjoyed it for the six preceding months. The occupancy of the defendant may have been for a time when no crop could have been made. In the absence of all agreement as to the amount of rent to be paid, the plaintiffs could only recover [439] the value of the enjoyment to the defendant. Judge Ryland concurring, the judgment will be reversed and the cause remanded ; Judge Leonard absent.