Mayes, J.,
delivered the opinion of the court.
The record shows that Pinkie Townes married Charley Diamond in Madison county on the 18th day of October 1894, and that Charley Diamond is still living in the county where this marriage was celebrated. It also shows that about ten years afterwards — that is to say, on the 24th day of December, 1904 —Pinkie Townes, then going under the name of Pinkie Diamond, married lake Tucker, and this second marriage also took place in Madison county. It is undisputed that Pinkie Diamond, who married Jalee Tucker in 1904, and Pinkie Townes, who married Charley Diamond in 1894, is one and the same person. Jake Tucker procured a policy of insurance in the Colored Knights of Pythias for the sum of $400, and, having died, Pinkie Tucker brings this suit to recover the amount of the insurance, claiming that she was his lawful wife at the date of his death. The Knights of Pythias deny liability to her on the policy, because they say she was not the wife of Jake T.ucker at the time of his death; that she was, at the time she married Jake Tucker, married to Charley Diamond; that she had never been divorced from Charley Diamond. The record shows that Pinkie Tucker only lived with her first husband, Charley Diamond, a short while after their marriage and left him — some of the witnesses testifying that after she left Charley Diamond she continuously lived and stayed in Madison county up to the time she contracted the second marriage; others testifying that she left Madison county and went to Greenville, Miss., for two or three years, returning then to Madison county, and continuing to live there up to the time of suit. It is conclusivley shown that no divorce was ever granted in Madison county, and Pinkie [507]*507Tucker, plaintiff in this case, testifies that she never instituted suit for a divorce from Diamond in any county; but Diamond said he had obtained a divorce, but she did not know whether he got the divorce or not. At all events, it is apparent from the record that she never filed a divorce suit herself, nor was she served with summons of any divorce suit instituted hy her first husband, Charley Diamond, either at 'Greenville or in Madison county. Prom 1894 to 1904, it is shown that the only two' places where she resided was in Washington county for perhaps three years, and the balance of the time in Madison county, and Charley Diamond, her first husband, lived in Madison county from the time of the marriage to date of suit.
On this state of facts the court gave the following instruction, viz.: “The court further instructs the jury that, even though you believe from the evidence that Pinkie Tucker was. married to Charley Diamond before she married Jake Tucker, you are hound to presume a divorce from Charley Diamond, unless it is conclusively proved hy positive evidence that no divorce-had been granted before the second marriage.” This instruction does not announce the law correctly. By it a higher degree-of proof is required than is ever required in a criminal case. It is universal law that the presumption in favor of 'the validity of a formal marriage is one of the strongest known to the law, because of its sacredness and public importance; but after all it is but a presumption of law, not conclusive, and therefore capable of being overcome hy such testimony as satisfies the mind of the jury that there is no valid marriage. With the strong-presumption raised hy the law in favor of the validity of marriage, an alleged marriage is not to be declared invalid except upon the clearest and strongest proof; but, when competent evidence has been submitted going to disprove marriage, the weight and sufficiency of that evidence is a matter for the jury, subject to the power of the court to set aside the verdict in any case-when their conclusion is not warranted hy the facts. Demonstration is never required, and when the jury are told that they [508]*508are bound to presume a divorce from tbe first husband before the second marriage was contracted, “unless it is conclusively proved by positive testimony that no divorce had been granted before the second marriage,” the instruction in effect requires demonstration, and excludes from evidence all circumstances tending to show that no divorce had been granted. The case of Railway Co. v. Beardsley, 79 Miss., 417, 30 South., 660, is a leading case on this subject; but all that is held in that case is simply that when a marriage is duly proved it will be presumed to be valid, although it may be shown that there is a former wife or husband living, unless the party assailing the second marriage prove the negative fact that no divorce had ever been granted from the first wife or husband. By this case, referred to above, no degree of proof is attempted to be established which will warrant the conclusion that there was no divorce. It merely establishes on whom lies the burden of showing that there was no divorce from the prior marriage. No case that we have found in the boohs anywhere goes to the extreme of holding that, in order to rebut the presumption raised in favor of the validity of a marriage, the party assailing it must offer conclusive evidence in order to rebut the presumption. If this were the law, it would in effect place the presumption beyond the realm of controversy, since there are not many instances where the proof can arise to that degree of certainty where it may be said to be conclusive. If the proof was sufficient under all the circumstances of the case to produce conviction in an unprejudiced mind that no divorce had been granted, then it was as high a degree of proof as the law required.
In the case of Schmisseur v. Beatrie, 147 Ill., 210, 35 N. E., 525, it is held that a person attacking a marriage on the ground that a former spouse of one of the'parties is living must show that the first marriage has not been dissolved. Still, he is not required to make plenary proof of such negative averment. In the case of Pittinger v. Pittinger, 28 Colo., 308, 64 Pac., 195, 89 Am. St. Rep., 206, it is stated that: “The presumption of the [509]*509dissolution of a prior marriage, whether by death or divorce, should be indulged with caution. We apprehend that such presumptions sometimes have been made with very little justification. A rule of law which allows an artificial or technical force to be given evidence, which warrants such presumptions, beyond its natural tendency to convince the mind, and requires courts- and juries to presume -as true that which probably is false, cannot but be fraught with dangerous consequences. In case there is a conflict of presumptions, it would appear more reasonable-that the one should yield which has the lesser probability to sustain it, rather than that- the one in favor of innocence and of' the validity of the subsequent marriage should prevail” — citing Clayton v. Wardell, 4 N. Y., 230; O’Gara v. Eisenlohr, 38 N. Y., 296; Northfield v. Plymouth, 20 Vt. 582—590. In the case of Williams v. Williams, 63 Wis., 58, 23 N. W., 110, 53 Am. Rep., 253, 257, it is said: “There is no rigid presumption against the continuance of the life of one of the parties to a prior-marriage in order to establish the innocence of the other party to a subsequent marriage; much less is there any rigid presumption of the dissolution of the first marriage by a divorce prior to. the second in order to establish such innocence. Probably there are cases in which the facts and circumstances were such as to justify the inference that the former marriage had been dissolved by a divorce; but the rule indicated authorized no absolute presumption of law to that effect.
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Mayes, J.,
delivered the opinion of the court.
The record shows that Pinkie Townes married Charley Diamond in Madison county on the 18th day of October 1894, and that Charley Diamond is still living in the county where this marriage was celebrated. It also shows that about ten years afterwards — that is to say, on the 24th day of December, 1904 —Pinkie Townes, then going under the name of Pinkie Diamond, married lake Tucker, and this second marriage also took place in Madison county. It is undisputed that Pinkie Diamond, who married Jalee Tucker in 1904, and Pinkie Townes, who married Charley Diamond in 1894, is one and the same person. Jake Tucker procured a policy of insurance in the Colored Knights of Pythias for the sum of $400, and, having died, Pinkie Tucker brings this suit to recover the amount of the insurance, claiming that she was his lawful wife at the date of his death. The Knights of Pythias deny liability to her on the policy, because they say she was not the wife of Jake T.ucker at the time of his death; that she was, at the time she married Jake Tucker, married to Charley Diamond; that she had never been divorced from Charley Diamond. The record shows that Pinkie Tucker only lived with her first husband, Charley Diamond, a short while after their marriage and left him — some of the witnesses testifying that after she left Charley Diamond she continuously lived and stayed in Madison county up to the time she contracted the second marriage; others testifying that she left Madison county and went to Greenville, Miss., for two or three years, returning then to Madison county, and continuing to live there up to the time of suit. It is conclusivley shown that no divorce was ever granted in Madison county, and Pinkie [507]*507Tucker, plaintiff in this case, testifies that she never instituted suit for a divorce from Diamond in any county; but Diamond said he had obtained a divorce, but she did not know whether he got the divorce or not. At all events, it is apparent from the record that she never filed a divorce suit herself, nor was she served with summons of any divorce suit instituted hy her first husband, Charley Diamond, either at 'Greenville or in Madison county. Prom 1894 to 1904, it is shown that the only two' places where she resided was in Washington county for perhaps three years, and the balance of the time in Madison county, and Charley Diamond, her first husband, lived in Madison county from the time of the marriage to date of suit.
On this state of facts the court gave the following instruction, viz.: “The court further instructs the jury that, even though you believe from the evidence that Pinkie Tucker was. married to Charley Diamond before she married Jake Tucker, you are hound to presume a divorce from Charley Diamond, unless it is conclusively proved hy positive evidence that no divorce-had been granted before the second marriage.” This instruction does not announce the law correctly. By it a higher degree-of proof is required than is ever required in a criminal case. It is universal law that the presumption in favor of 'the validity of a formal marriage is one of the strongest known to the law, because of its sacredness and public importance; but after all it is but a presumption of law, not conclusive, and therefore capable of being overcome hy such testimony as satisfies the mind of the jury that there is no valid marriage. With the strong-presumption raised hy the law in favor of the validity of marriage, an alleged marriage is not to be declared invalid except upon the clearest and strongest proof; but, when competent evidence has been submitted going to disprove marriage, the weight and sufficiency of that evidence is a matter for the jury, subject to the power of the court to set aside the verdict in any case-when their conclusion is not warranted hy the facts. Demonstration is never required, and when the jury are told that they [508]*508are bound to presume a divorce from tbe first husband before the second marriage was contracted, “unless it is conclusively proved by positive testimony that no divorce had been granted before the second marriage,” the instruction in effect requires demonstration, and excludes from evidence all circumstances tending to show that no divorce had been granted. The case of Railway Co. v. Beardsley, 79 Miss., 417, 30 South., 660, is a leading case on this subject; but all that is held in that case is simply that when a marriage is duly proved it will be presumed to be valid, although it may be shown that there is a former wife or husband living, unless the party assailing the second marriage prove the negative fact that no divorce had ever been granted from the first wife or husband. By this case, referred to above, no degree of proof is attempted to be established which will warrant the conclusion that there was no divorce. It merely establishes on whom lies the burden of showing that there was no divorce from the prior marriage. No case that we have found in the boohs anywhere goes to the extreme of holding that, in order to rebut the presumption raised in favor of the validity of a marriage, the party assailing it must offer conclusive evidence in order to rebut the presumption. If this were the law, it would in effect place the presumption beyond the realm of controversy, since there are not many instances where the proof can arise to that degree of certainty where it may be said to be conclusive. If the proof was sufficient under all the circumstances of the case to produce conviction in an unprejudiced mind that no divorce had been granted, then it was as high a degree of proof as the law required.
In the case of Schmisseur v. Beatrie, 147 Ill., 210, 35 N. E., 525, it is held that a person attacking a marriage on the ground that a former spouse of one of the'parties is living must show that the first marriage has not been dissolved. Still, he is not required to make plenary proof of such negative averment. In the case of Pittinger v. Pittinger, 28 Colo., 308, 64 Pac., 195, 89 Am. St. Rep., 206, it is stated that: “The presumption of the [509]*509dissolution of a prior marriage, whether by death or divorce, should be indulged with caution. We apprehend that such presumptions sometimes have been made with very little justification. A rule of law which allows an artificial or technical force to be given evidence, which warrants such presumptions, beyond its natural tendency to convince the mind, and requires courts- and juries to presume -as true that which probably is false, cannot but be fraught with dangerous consequences. In case there is a conflict of presumptions, it would appear more reasonable-that the one should yield which has the lesser probability to sustain it, rather than that- the one in favor of innocence and of' the validity of the subsequent marriage should prevail” — citing Clayton v. Wardell, 4 N. Y., 230; O’Gara v. Eisenlohr, 38 N. Y., 296; Northfield v. Plymouth, 20 Vt. 582—590. In the case of Williams v. Williams, 63 Wis., 58, 23 N. W., 110, 53 Am. Rep., 253, 257, it is said: “There is no rigid presumption against the continuance of the life of one of the parties to a prior-marriage in order to establish the innocence of the other party to a subsequent marriage; much less is there any rigid presumption of the dissolution of the first marriage by a divorce prior to. the second in order to establish such innocence. Probably there are cases in which the facts and circumstances were such as to justify the inference that the former marriage had been dissolved by a divorce; but the rule indicated authorized no absolute presumption of law to that effect. Each case must be determined upon its own facts and circumstances, and such inferences as should fairly be drawn from them.”
. Any competent evidence which in the judgment of the jury is sufficient to overcome the very strong presumption which the law raises in favor of the validity of the marriage is sufficient to prove that no divorce had been granted. In this ease the territory in which these parties have lived was very much circumscribed. In the nature of things, and on the testimony in this record, considering the fact that the record shows, that the plaintiff and her former husband had only lived in two-[510]*510counties in this state throughout this entire period of time, it was impossible that a divorce could have been granted in any except one of these two places. It is undisputably shown that no divorce was obtained by either party in Madison county, and it is also shown that she had not obtained one in Green-ville, and that no summons had been served on her while there of any suit instituted by her husband. If a divorce had been obtained by the husband, it is extremely improbable that it could have been done without the knowledge of the wife under the •circumstances shown by this record. The first husband is still alive, and in the county where this suit was instituted. This is all shown by the record. We do not say whether the evidence offered by the appellant showing’ the former marriage of Pinkie Tucker with Charley Diamond, the fact that Charley Diamond is still alive and was alive at the date of the second marriage, the fact that he has always resided in Madison county and that the records show that no divorce has been granted there, the fact that while Pinkie Tucker resided in Greenville she instituted no suit against Charley Diamond for divorce either there or elsewhere and that she was not notified of any suit having been instituted against her, are sufficient to overcome the presump-, tion of the validity of the second marriage or not; but we do say that these were all matters for the consideration of the jury, without being told, as they were, that, if this evidence did not conclusively show that no divorce had been granted, they were bound to find in favor of the validity of the second marriage. It was not necessary for the evidence to be conclusive.
Instruction No. 3, given for plaintiff, is subject to still further criticism; but we do not deem it necessary to further discuss it, since the main objection to it is the same as that already pointed out in this opinion. The fact that Pinkie Tucker and Charley Diamond did not both continue to live in Madison county from the date that they were married until the time when Pinkie Tucker married Jake Tucker does not preclude the jury from reaching the conclusion, on the other testi[511]*511mony in the ease, that no divorce had ever been granted dissolving the first marriage, and the part of the instruction which announces this is error. We direct that in the report of the case this instruction be set out in full.
Reversed cmd remanded.