Main v. Main , 113 Miss. 165 ( 1916 )

Etheridge, J.,

delivered the opinion of the court.

Marriage is not only a contract between the parties affecting their personal rights, but is a legal status affecting materially the public; and the public as well as the parties have an interest in the marriage status. And although the marriage contract, like all other contracts, in order to he valid, requires the assent of both parties, still, where the marriage ceremony has been performed with all the requisites and usual solemnity of those rites, the proof must be clear and convincing before the marriage will be annulled so as to make it void ab initio.

“Where it is sought to annul a marriage contract on the ground of duress, it must be shown by clear, satisfactory, and convincing- evidence that the duress dominated throughout the transaction so as to disable the one influenced from acting as a free agent at the time of the marriage.” Beeks v. Beeks, 66 Fla. 256, 63 So. 444.

In the instant case it is sought to annul the marriage and make it void from the beginning, the effect of which will be, if permitted, to render the child born a bastard and to place upon the woman in the case the stigma of impurity; and it is a familiar rule of law that, where a situation arises under which one person will suffer wrong and injury because of the situation, the law will favor the one who is not responsible for the situation, if that be reasonably possible under the circumstances. In the present case the proof for the complainant, if taken alone, is far from being satisfactory and convincing. It appears that the marriage, or so-called marriage, was solemnized in 1903, and the bill was not filed until some twelve or .thirteen years thereafter. Under the appellee’s testimony, he lived for some years in the town where the relatives lived, separate from the woman, without any effort being made to molest him. The courts were open during all this time to the annullment if the marriage was brought about by duress. We find from the letters in the record that he had solicited Mrs. Main to procure a divorce at his expense on any ground which she.-might choose as a ground for divorce and he would pay the expense of this procurement. It appears from the appellant’s testimony (which is not disputed by the appellee, though he testified) that he had written her a letter soliciting her to come to Natchez and live with him as his wife, which she refused to do. It appears that the letters written, while not expressly recognizing the marriage, necessarily recognized it in urging the appellant to procure a divorce from the appellee. It appears that the appellee was reared in the town of Tracy, Minn., where the, alleged marriage took place, and, if the facts relied on by appellant for annulment of the marriage were true, it would have been an easy matter to have established the facts by evidence of other parties living in that place. His family and friends and (presumably) relatives lived there, and some person must necessarily have been familiar with the facts; yet the only witness produced is one who moved to Tracy shortly after the alleged marriage, and who did not know either the appellant or appellee until after the marriage, and who was not at the time of taking his deposition a resident of that place, and who testifies that he had no personal knowledge of the facts he undertook to testify to. As stated, this testimony of itself it not as strong as ordinarily it should be in a case of this kind to procure an annulment of the marriage, which requires a higher degree of proof than the ordinary civil contracts between parties. When this testimony is considered with the testimony for the appellant and the witnesses on her behalf, three of whom are old citizens and residents, and shown to be men of character and standing in that community, it so completely outweighs the testimony of the appellee and his witness as to make it impossible to uphold the judgment in this case annulling the marriage. Some authorities go to the extent of holding that where a marriage is entered into, so as to escape the consequences of a situation like the one before us now, either from fear of prosecution or violence of the' relatives, the court ought to deny an annulment at all because of the responsibility for the condition that arises resting upon the party alleged to have been coerced. 19 Am. & Eng. Enc. Law., 1189. While we do not mean to hold that annulment will not be granted where the proof is clear that duress was used, we believe in this case that the great weight of proof is with the appellant, and that the appellee failed to meet the requirements, imposed by legal rules, to annul the marriage.

There being a cross-hill praying for alimony pendete lite and permanent alimony, and there being no evidence in the record as to a reasonable attorney’s fee, we think that the decree of the chancellor should be reversed, the bill of complaint dismissed, and the cause remanded, with directions of the court below to make such allowance for alimony and attorney’s fee as may be proper.

Reversed and remanded.