Erwin v. English

This is a complaint to obtain possession of the premises therein described, together with rents and profits. It was originally brought March 25th, 1885, by John Erwin and Mary Erwin, husband and wife. Subsequently Cephalia P. Larkin appeared, and by leave of the court was made a party plaintiff. She afterwards died, her death was suggested on the record, and said John Erwin entered, as her administrator, to prosecute as such administrator. At the term of the court when the case was tried John Erwin, in his individual capacity, and his wife Mary, were dropped as plaintiffs, and the case, with John Erwin, administrator of the estate of Cephalia P. Larkin deceased, as plaintiff, against James English, was tried.

The defendant, in his answer to the complaint, alleges that he has the title to the described premises by deed, and also a title by prescription. He further alleges that the right of action stated in the complaint did not accrue within fifteen years next before the commencement of the suit. The plaintiffs replied that the plaintiff Cephalia P. Larkin, on the 20th of November, 1860, was, and ever since had been, a married woman, the wife of Patrick H. Larkin, who died December 31st, 1882; that the defendant's possession of the land did not commence, nor did the possession of his predecessors in the title commence, until after the marriage of the said Cephalia P. Larkin; and that the possession of the defendant's grantor of said land commenced with the license and permission of Patrick H. Larkin, the husband at that time of the said Cephalia P. Larkin; and the plaintiffs denied the allegation that the right of action did not accrue within fifteen years next before the commencement of the suit. The defendant denied all the allegations of the plaintiffs' reply, except that Patrick H. Larkin died December 31st, 1882, which was admitted.

Upon the trial, John Erwin as administrator having then become sole plaintiff, judgment was rendered for the plaintiff, and the defendant appealed.

The finding states that, to prove that Cephalia Larkin was married November 20th, 1860, the plaintiff offered a certificate of marriage, in connection with the declarations and a written statement of the said Cephalia that said document was her certificate of marriage with the said Patrick Larkin. The following is a copy of the certificate: —

"No. 177. The State of Ohio, Crawford County. I certify that I this day solemnized the marriage of Patrick Larkin with C. P. Bartlett. Witness my hand this 20th day of November A. D. 1860. Briceport, O. L. B. EMLEY, M. of Gospel."

To the introduction of this evidence the defendant objected, on the ground — "1st. That it does not appear upon the face of the certificate who the authority was signing the same. 2d. That it does not appear upon the face of the certificate that the signer of the same held any office which authorized him to perform such ceremony."

The court overruled the objections and admitted the evidence, the defendant excepting, and one of the defendant's reasons for appeal is founded upon the admission of the certificate.

Marriage certificates are treated in this state as original documents, and need not therefore be authenticated as copies. This one is not subject to the objection suggested by Judge BEARDSLEY in Erwin et, ux. v. English,57 Conn., 564, to a certificate in that case, that it does not appear from the certificate itself that the authority who signed it performed the marriage ceremony. The real objection is that the words "M. of Gospel," after the name of L. B. Emley, who signs the certificate, and therein certifies that he solemnized the marriage, are not admissible evidence that it was signed by a minister of the gospel. As already appears the declarations and written statement of the said Cephalia P., who had died before the trial, offered in connection with the certificate, and not objected to, were that the document was her certificate of marriage with Patrick Larkin.

We cannot hold as matter of law that the court erred in admitting the certificate in evidence. There is no law against using abbreviations, though their use is to be deplored in formal documents. The only practical rule we can suggest for such a case as this is, that if the abbreviation be one in common use, or such that it can naturally be understood, the court has a right to understand it, and to treat the abbreviated title as if it had been written in full. Parol testimony has been held to be admissible to explain the meaning of ambiguous abbreviations. It has been held that the characters "N. P." and "J. P." sufficiently indicate respectively "Notary Public" and "Justice of the Peace." and that their use does not vitiate a jurat. Other instances might be mentioned. As the case is presented to as the court below was justified in admitting the certificate.

For the purpose of proving that the marriage between Patrick Larkin and Cephalia P. Bartlett was illegal and void, the defendant offered the deposition of James Craige in connection with evidence that the Mary O'Neill therein named was living at the time of the marriage between said Patrick and said Cephalia. That deposition is as follows: —

"I, James Craige of Crossmaglen in County Armagh, Ireland, of lawful age, being duly cautioned and sworn, depose and say: — I was clerk in the Crossmaglen Roman Catholic chapel in the parish of Upper Creggan, County Armagh, Ireland, during the period that the Reverend Michael Lennon was parish priest of said parish, and am well acquainted with his handwriting. I say the following is a true and correct abstract of the marriage register of said parish of Creggan, which register was kept by and in the handwriting of the said Reverend Michael Lennon at the date of the celebration of the marriage hereinafter referred to, namely, — ``August, 1843. Patrick Larkin and Mary O'Neill. Witnesses, Henry McArdle, Ann O'Neill.' And I further say that the said Reverend Michael Lennon was duly authorized by law to perform the said marriage ceremony at which he officiated as such parish priest as aforesaid. Subscribed, taken, etc."

To that portion of the deposition which purported to be a copy of the marriage register of the parish of Creggan, where it was claimed the marriage ceremony was performed, the plaintiff objected on the following grounds: — "1st. That it does not appear on its face to be a marriage. It may be that it was a mere record of declaration of intention. — 2d. That nothing appears on the face of the register showing that Michael Lennon married these parties. — 3d. That no certificate appears on the face of the record that any one married them. — 4th. That it does not appear that if these parties were married at the time, the person who married them was authorized by law to perform the marriage ceremony. — 5th. That there is no evidence that this register was one required by law to be kept. — 6th. That at most it is a mere declaration by a third person, unknown, not being under oath, and not in the form required by law to make it evidence or make it admissible. — 7th. That it does not appear that they are the identical persons."

Upon the authority of State v. Dooris,40 Conn., 145, we think the purported copy of the marriage register was properly rejected. Indeed it is much less complete than the entries in that case. There is no signature of the officiating clergyman, nor does it appear that he, any where in the register, certified that he married the persons named therein. It is suggested that the case ofState v. Dooris was an information for bigamy, and that of course the strictest proof is required as against one charged with crime. But when the proof depends upon the validity of the form of a marriage certificate or record of marriage, the same rules must prevail whether in a criminal or in a civil proceeding. In order to the admissibility of the record it should at least appear that, under appropriate headings in the marriage register, the date of the marriage, and the names of the parties, had been entered by the officiating clergyman, together with his certificate attached to the record that he married the parties whose names are therein entered. It should further be shown that he was duly authorized to perform the marriage ceremony and was required to keep a record thereof. We are not attempting to prescribe the requisites to a valid copy of a marriage register generally, but only to meet the questions involved in this case. Nor, of course, are we intimating that a marriage may not be satisfactorily proved in the absence of any certificate or copy of record.

If however the court had erred in excluding the copy of the marriage register, and if it also erred in admitting the copy of a decree of divorce granted in Indiana, September 14th, 1860, purporting to dissolve the marriage between said Patrick Larkin and Mary O'Neill, which was offered by the plaintiff and objected to by the defendant, yet the defendant was not injured by such errors. As against the duly proved marriage of Patrick Larkin and Cephalia P. Bartlett, November 20th, 1860, it was not enough for the defendant to prove that Patrick was married seventeen years before to Mary O'Neill. Proof of such previous marriage did not cast the burden upon the plaintiff of proving, either that the former wife was dead, or, if living, that a legal divorce had been granted.

One of the plaintiff's claims, in reply to the defendant's claim of title by prescription, was. that on the 20th of November. 1860, she was, and ever since had been, a married woman, the wife of said Patrick, who died December 31st, 1882. She proved the marriage by competent evidence. Being proved, the law raises a presumption in favor of its legality, upon which she had a right to rely until its illegality was proved. Semper præsumitur promatrimonio. The King v. The Inhabitants of Twining, 2 B. Ald., 386, was a case concerning the settlement of a pauper, and depended upon the legality of a second marriage. The court held that "the law always presumes against the commission of crime, and therefore, where a woman, twelve months after her first husband was last heard of, married a second husband, and had children by him, the sessions did right in presuming, primâ facie, that the first husband was dead at the time of the second marriage; and that it was incumbent on the party objecting to the second marriage to give some proof that the first husband was then alive."

It is stated in Bishop on Marriage Divorce, vol. 1, sec. 457, that when a marriage has once been shown, however celebrated, whether regularly or irregularly, or however proved, whether directly or by circumstantial evidence, the law raises a strong presumption in favor of its legality; so that the burden is with the party objecting, throughout and in every particular to prove, against the constant pressure of this presumption of law, that it is illegal and void.

In the case at bar then, as it was presented to the court, there was no occasion for the plaintiff to prove the divorce, and it mattered not to the defendant that the Irish copy of marriage record was excluded, inasmuch as there was no offer on the part of the defendant to prove, in connection with proof of the first marriage and that the first wife was living at the date of the second marriage, that no divorce had ever dissolved her marriage with Patrick Larkin, all of which steps were necessary in order to overthrow the presumption of law in favor of the marriage of Patrick and Cephalia.

The finding in the case is not as full and explicit as could be desired, and upon the point of the nature of the defend-ant's occupancy is apparently contradictory with itself. We must, however, take the finding as a whole as stating that the defendant would have gained a title by prescription but for the marriage between Cephalia and Patrick Larkin.

This is a finding in favor of the defendant upon the question of title, and he can have no occasion to complain in that behalf, so far as appears from the record, and it leaves only the questions upon which we have already passed for our consideration.

There is no error in the judgment appealed from.

In this opinion the other judges concurred.