Le Brun v. Le Brun ex rel. Randall

Miller, J., delivered the opinion of the Court. The hill in this case filed in February, 1879, prays that a ceremonial of marriage between the parties may he declared and adjudged a nullity, upon the ground that the defendant was the lawful wife of another man who was living. at the time this ceremony was performed. It charges, in substance, that on or about the 7th of March, 1849, the said Julia was lawfully married to Charles ⁵⁰⁰ Randall, a Prussian, as complainant believes, but then a resident of Baltimore City; that after living together for several years, as man and wife, Randall abandoned her and left the city for parts unknown to complainant; that subsequently, on the 25th of April, 1866, the said Julia, professing to be a single woman, without disclosing to him that Randall was, to her knowledge, then living, went through the ceremonial of a marriage with complainant ; that at the time she not only knew that Randall was alive, but subsequent to the ceremony and without complainant's knowledge, she corresponded with him, and received from him letters and money; that in such ignorance, complainant, for some years, continued to live with her as her husband, and during this period she bore two children of whom he is the reputed father; that some years since she left his house and they have ever since lived apart; that still professing to be his wife, she filed a bill for divorce a mensa et thoro and for alimony, on which, in November, 1874, a decree for such divorce was passed, and by a subsequent decree complainant was directed to execute a deed of certain property to a trustee, to secure to her, during her life, the annual payment of $183.50 as alimony, which he did, and by common consent another deed, as á substitute therefor, was executed in November, 1875; that throughout all these proceedings complainant well supposed she was his lawful wife, and, as such, entitled to the alimony provided by the deed, but he charges that during all this time she well knew that her true and lawful husband was living, and continued to receive letters and remittances from him long after her pretended marriage with complainant, of all which she studiously kept him in total ignorance. He further charges that such acts and conduct on her part were a deliberate fraud upon his rights, and the application for such divorce, a perversion and mockery of a Court of' justice, and the decree, and the deeds executed thereunder, ⁵⁰¹ are as much nullities as the ceremonial of marriage, and should he so declared; that said Randall, so far as known, has never returned to this State since the abandonment of his wife, and complainant is not able to say whether he is now living or dead, but not having been heard from for a long time, he charges that he is now dead.

In her answer the respondent admits her marriage with the complainant in April, 1866, that they have two children, one of whom is now twelve, and the other seven years of age, and avers that in consequence of his cruel treatment she was forced to leave him, and shortly thereafter, in August, 1874, filed a bill for a divorce a mensa et thoro, on the ground of his cruel treatment: that he answered that bill under oath, and alleged as a defence thereto, that her former husband, Charles Randall, was still alive, that she had corresponded with and received money from him, that his marriage with her was null and void, and subsequently filed a cross-bill in the same cause, praying to have the marriage annulled upon the same grounds alleged in his present bill; that in that cause a decree was passed on the 2nd of November, 1874, granting the divorce prayed, dismissing the cross-bill and granting alimony as stated, that he executed the deeds referred to, providing for her alimony, and as late as January, 1877, she united with him in a deed conveying part of his property; that in all these proceedings he voluntarily acknowledged her as his lawful wife, and she avers that by the decree in the former case dismissing his cross-bill, and by the execution of the deeds referred to, he is precluded from coming again into a Court of equity, seeking the same relief upon the same grounds. She admits that in March, 1849, she married Charles Randall, and lived with him as his wife until October, 1856, when she avers he abandoned her and shipped as a seaman on board a vessel bound for Liverpool, and since that time she has never seen or heard from him; that at the time of her ⁵⁰² marriage with complainant she had neither heard from, or seen her former husband for over nine years, and had every reason to presume him dead, and she therefore avers that he was dead; that before her marriage with him she informed complainant of all these facts, and at the time of the marriage he had full knowledge of them. She further avers that Charles Randall was illiterate, and could not read manuscript or write; that in 1862 or 1863, during the late civil war, a man of his name was reported killed on a United States’ gunboat on the Mississippi river, whom she believed to be her former husband. She denies that after her marriage with complainant she corresponded with, or received either letters or money from Randall, either with or without complainant’s knowledge, and she denies in toto every allegation of the bill to that effect.

She denies that she ever knew that Randall was alive after he abandoned her, or that she in any way so acted as to perpetrate a fraud on the rights of the complainant, and avers that he is her true and lawful husband; that the provisions made for her in the trust deeds are barely sufficient for her support, coupled with the scant proceeds of her daily labor, rendered necessary by his cruel treatment, compelling her to live apart from him, and ought in all good conscience to be upheld, otherwise she will be left to perish in her declining years and weak health. After general replication to the answer, testimony was taken directed mainly to the question whether the first husband was alive at the date of the second marriage. Before considering the testimony it is well to notice the source of authority, and the principles upon which the Courts proceed in such cases. Suits for nullity of marriage have been very rare in this State, buttbe power of a Court of equity to declare a marriage null and void, when a proper case is made out, cannot be questioned.

The authority of the Court, however, to act in such cases, is not derived from the powers conferred by the divorce laws, although a ⁵⁰³ divorce a vinculo may be decreed upon some of the same grounds upon which a marriage may be declared a nullity. Code, Art. 16, sec. 25. If the marriage be procured by abduction, terror, fraud, or duress, the Court, in declaring it a nullity, acts in virtue of its general jurisdiction in matters of fraud affecting contracts, and by the marriage Act, (Code, Art. 60, sec. 8,) express authority is given to the Courts to inquire into, hear and determine the validity of any marriage, and may declare any marriage within the prohibited degrees of kindred or affinity, “or any second marriage, the first subsisting,” null and void. These are the two sources of jurisdiction, and if in the present case it he derived from either, it is plain the parties themselves are made competent witnesses by the Evidence Act of 1864, ch. 109.

Such was the judgment of this Court in the unreported case of Hoffman vs. Lorenz, decided in June, 1873, ( 38 Md., xi .) But while the Courts are thus clothed with jurisdiction, the peculiar nature of the subject to be dealt with, requires that the power should be exercised with extreme caution, and only where the allegations of the bill are sustained by clear, distinct and satisfactory evidence. This position is sustained by an unbroken current of authority. Marriage has been considered, among all civilized nations, as the most important contract into which individuals can enter, as the parent, not the child of civil society. The great basis of human society throughout the civilized world, is founded on marriages and legitimate offspring ; and where an existing marriage is proved, it is not to be exposed to the danger of being set aside by any species of collusion, or by the mere declarations of either of the parties, and should only be brought in question upon the most undisputed proofs.

Shelford on Marriage and Divorce, 573; Fornshill vs. Murray, 1 Bland, 481 ; Piers vs. Piers, 2 House of Lords Cases, 331; Gaines vs. Relf 12 How., 472 . Where, as in the present case, a marriage de facto is fol ⁵⁰⁴ lowed by cohabitation and issue, there is not only the-ordinary presumption in favor of its validity, but, being assailed upon the ground that a former marriage of the woman is still subsisting, the crime of bigamy on her part is involved in the charge, and the law always presumes against the commission of crime and in favor of innocence, Jones vs. Jones, 48 Md., 391 ; Rex vs. Twyning, 2 Barn. & Ald., 386. We cannot, therefore, pass a decree in this case, which will bastardize the issue and impute crime to the woman, unless the fact that her former husband was alive, at the date of her second marriage, is clearly established by such proof as all the authorities upon the soundest of reasons, indicate and require. How then stands the proof in the record upon this question ?

The first marriage was in March, 1849, and the second in April, 1866, as stated in the bill and answer. There was, therefore, an interval of seventeen years between the two, and this is followed by the lapse of nearly thirteen years before the present hill was filed. It is also-proved that the woman had