O'Malley v. O'Malley , 46 Mont. 549 ( 1913 )

MR. JUSTICE SANNER

delivered the opinion of the court.

In this action the appellant seeks to have herself declared the owner of a one-third part of certain real estate as dower.

The complaint is in two causes of action. In the first she pleads that she and one Michael O’Malley were married in April, 1903, and remained husband and wife until November 26, 1904, when they were divorced; that during the coverture Michael O’Malley was seised of certain lots in the city of Livingston, which he conveyed, on April 1, 1905, to the respondent, she not joining in the conveyance; and that Michael O’Malley died in January, 1911. In the second cause of action it is alleged that she and Michael O’Malley, on February 21, 1905, “entered into a legal contract of marriage each with the other, and did on said date and at said time actually intermarry pursuant to the terms of said contract and consent to become husband and wife; that said contract and marriage so entered into between said plaintiff and Michael O’Malley was thereafter followed by a solemnization and by a mutual and public assumption of the marital relation, and said plaintiff and Michael O’Malley thereafter and up to and until the death of said Michael O’Malley cohabited and lived together as husband and wife ’ ’; that during the period of this marriage Michael 0 ’Malley was seised of the lots referred to in the first cause of action, which were conveyed on April 1, 1905, by him to respondent without her joinder or consent.

The answer admits the first marriage, the. ownership of the lots by Michael O’Malley up to April 1, 1905, the conveyance to the respondent, and the death of Michael O’Malley; denies all the other substantial allegations of the complaint, and, by way of affirmative defense, pleads the decree of divorce entered on November 26, 1904. The case was tried to the court sitting with a jury, which returned a general verdict and special findings in favor of respondent, and judgment was entered accordingly. The appellant moved for a new trial, which was denied, and from the order denying her motion for a new trial she prosecutes this appeal. Twelve alleged errors are specified, but, as will -be seen in the sequel, only three questions are presented:

1. After the appellant had used two of her peremptory [1] challenges she waived her third and fourth. Respondent then exercised his fourth, and in the place thus vacated the juror. Ebert was called. Thereupon appellant sought and was denied a peremptory challenge as to Ebert and assigns this denial as error. There is nothing in this assignment. So far as the record discloses, the proceeding was in substantial conformity with section 6740 of the Revised Codes, and the question presented is essentially settled by the decision of this court in State v. Peel, 23 Mont. 358, 75 Am. St. Rep. 529, 59 Pac. 169. Moreover, this was an equity case; the appellant was not, as a matter [2] of right, entitled to have it tried to a jury, and the verdict and findings were advisory merely, subject to be disregarded by the court. Under these circumstances it would be of no vital consequence if error were committed in its selection. (Ferris et al. v. McNally et al., 45 Mont. 32, 121 Pac. 889.)

2. By the first cause of action, the essential allegations of which are undisputed, the question is raised whether a decree [3] of divorce, absolute on its face and duly entered by a court of competent jurisdiction, bars the subsequent assertion of dower. Upon first impression the mere statement would seem to carry its own answer; but such has not always been the case. Lord Coke tells us: “It is necessary that the marriage do continue, for if that be dissolved the dower ceases; ubi nullum matrimonium, ibi mella dos. But this is to be understood when the husband and wife are divorced a vinculo matrimonii, as in ease of precontract, consanguinity, affinity, etc., and not a mensa et thoro only, as for adultery.” (Coke on Littleton, sec. 32a.) In an interesting discussion in Scribner on Dower, Chapter XIX, where the early American authorities are collated, we learn that these words are to be taken to mean that in cases where under the modern procedure there would be an annulment of the marriage, there would be no dower, but that where under the modern procedure a divorce would result, the contrary, is the rule indicated by Coke. (Wait v. Wait, á Comst. (N. T.) 95.) Whether or not the modern rule arose upon a misconception of the effect of Coke’s dictum, no doubt exists as to what that rule is, and that by the great weight of authority it is to the effect that a divorce absolute in the modern sense is a bar to the subsequent assertion of dower. (Day v. West, 2 Edw. Ch. 592; Whitsell v. Mills, 6 Ind. 229, 231; Barrett v. Failing, 111 U. S. 523, 28 L. Ed. 505, 4 Sup. Ct. Rep. 598; Wood v. Wood, 59 Ark. 441, 43 Am. St. Rep. 48, 28 L. R. A. 157, 27 S. W. 641; Bishop on Marriage and Divorce, secs. 706, 708; 14 Cyc. 934; 10 Am. & Eng. Ency. of Law, 2d ed., 200.)

Indeed, we think the matter is settled by the language of our statutes, without any authorities. Section 3708, Revised Codes, reads: “A widow shall be endowed,” etc. The word “widow” is as old as the language itself. Colloquially as well as among the learned, in courts as well as out of them, it has always meant “a woman who has lost her husband by death,” and never, outside of slang and then only with a semi-contemptuous prefix, has it had any application to divorced persons. Section 3642 provides: “The effect of a judgment of divorce is to restore the parties to the state of unmarried persons. ’ ’ If this means anything at all, it means just what it says, and its consequence is that she who was a wife ceases, upon the rendition of a decree of divorce, to have any husband. If, then, only a widow is endowed under the statute, and if, to be a widow, a woman must lose a husband by death, and if a divorced woman has no husband to lose, it is quite obvious from the statutes alone that she can assert no dower after a divorce. We see nothing in Dahlman v. Dahlman, 28 Mont. 373, 72 Pac. 748, or in section 3623 of the Revised Codes, cited by appellant, that militates with this view, and the fact, if it be a fact, that the innocent wife, driven to court by the sins of her husband, is thus placed at a disadvantage, is a consideration to be addressed to a co-ordinate department of this state government.

3. In her second cause of action the appellant alleges that the conveyance to the respondent was made while she was in fact the wife of Michael O’Malley by virtue of a second marriage duly solemnized, or, if not solemnized, then by what is generally termed a “common-law marriage,” or, as our statute puts it, “a mutual and public assumption of the marital relation.” (Rev. Codes, sec. 3607.)

The solemnization of the second marriage is supposed to have occurred on the occasion of the visit by Father Blaere to the bedside of Michael O’Malley when Michael O’Malley was sick and thought likely to die. The appellant testified to a solemnization by Father Blaere; but Father Blaere, when called as a witness in her behalf, testified distinctly and clearly that there was no license and no solemnization; what he did do, he says, was to prepare “the sick man for death in accordance with the rites of his church, and in the course of it he merely blessed the former marriage which had not been sanctioned by. the church; he considered them already married, because his church did not recognize the divorce as a severance of the tie. This court will not undertake to decide between these witnesses; but [4] upon settled principles will uphold the finding of the jury as adopted by the trial court: that there was no solemnization. (Boyd v. Huffine, 44 Mont. 310, 120 Pac. 228.)

The only evidence of mutual consent of the parties to the alleged second marriage is contained in appellant’s narrative of the proceedings before Father Blaere and necessarily involved in his denial. But assuming that there was a mutual consent, did the appellant made out a prima facie ease of “mutual and public assumption of the marital relation”? We think not. [5] Counsel have been unable to furnish this court with any authorities specifically construing this phrase, perhaps because the words are their own interpreter. To us it means a course of conduct on the part of both man and wife toward each other and toward the world, as that people generally would take them to be married. Indispensable to this is cohabitation; and we say with the supreme court of California that “by cohabitation is not meant simply the gratification of the sexual passions, but to live or dwell together, to have the same habitation, so that where one lives and dwells there does the other live and dwell also.” (Kilburn v. Kilburn, 89 Cal. 50, 23 Am. St. Rep. 447, 26 Pac. 636; Yardley’s Estate, 75 Pa. 207; Sharon v. Sharon, 79 Cal. 670, 22 Pac. 26, 131; Hinckley v. Ayres, 105 Cal. 357, 38 Pac. 735.)

Turning, now, to the evidence on behalf of appellant only, we find that after the alleged second marriage Michael O’Malley [6] and the appellant never lived together but maintained separate abiding places; that he visited her in her own house with more or less frequency, sometimes staying overnight, and when he did so the parties occupied the same bed; that this continued for a period of over two years, after which she moved away and the parties never even visited; that only once did she ever sleep with him in his own house; that he bought her supplies and gave her money; that he told two persons that she was his wife, and to others he referred to her as his wife. It is unnecessary to go into the matter at greater length. Suffice it to say, the evidence is far short of establishing that consistent and public course of conduct toward each other as husband and wife, that “treatment of each other in the usual way with married people,” that cohabitation, which we hold to be necessary to constitute a mutual and public assumption of the marital relation. (Hinckley v. Ayres, supra.)

In this view of the ease the other errors assigned are of no consequence. The verdict and findings of the jury as adopted by the court are justified by the evidence, and the motion for a new trial was properly denied. The order is accordingly affirmed.

Affirmed.

Mr. Chief Justice Brantly and Mr. Justice Holloway concur.