Fenton v. Reed

4 Johns. 52

• Court: New York Supreme Court
• Decided: February 15, 1809
• Status: Published

Opinion

Per Curiam.

The marriage of the plaintiff below with William Reed during the life-time of her husband John Guest, was null and void. It was of no legal avail whatever, and not sufficient to constitute them husband and wife de facto. This has been the uniform and well-settled rule of the common law. (1 Roll. Abr. 340. pl. 2. 357. pl. 40. 360. F. Cro. Eliz. 858. 1 Salk. 120.) The statute concerning bigamy does not render the second marriage legal, notwithstanding the former husband or wife may-have been absent above five years, and not heard of. It only declares, that the party who marries again, in consequence of such absence of the former partner, shall be exempted from the operation of the statute, and leaves the question on the validity of the second marriage just where it found it. Elizabeth Reed was then the lawful wife of Guest, and continued so, until his death in 1800; and the true question is, whether there was evidence sufficient to justify the court below in concluding that she was after-wards married to Reed. Though the court below may have decided upon erroneous grounds, yet if upon the return there appears to be other and sufficient reasons to justify their decision, the judgment ought to be affirmed. It is stated, that there was not proof of any subsequent marriage in fact, and that no solemnization of marriage was shown to have taken place. But proof of an actual marriage was not necessary. Such strict proof is only required in prosecutions for bigamy, and in actions for criminal conversation. (4 Burr. 2057. Doug. 171.) A marriage may be proved, in other cases, from cohabitation, reputation, acknowledgment of the parties, reception in the family, and other circumstances from which a marriage may be inferred. (4 Burr. 2057. 1 Esp. Cases, 213. 2 Bl. Rep. 877. Peake’s Cases N. P. 231.) No formal solemnization of marriage was requisite. A contract of marriage made per verba de presentí amounts to an actual marriage, and is as valid as if made in facie ecclesiæ. (6 Mod. 155. 2 Salk. 437. Peake’s Cases, 231.) In the present case, there existed strong circumstances, from which a marriage subsequent to the death of Guest might be presumed. The parties cohabited together as husband and wife, and under the reputation and understanding that they were such, from 1800 to 1806, when Reed died; and the wife, during this time, sustained a good character in society. A jury would have been warranted, under the circumstances of this case, to have inferred an actual marriage, and the court below had sufficient ground to draw that conclusion; and as they have drawn it, and their decision being a substitute for a verdict, we will not disturb it.

Judgment affirmed.