By the Court, Shattuck, J.:
The view taken by the court in this case renders it unnecessary to consider any of the matters inserted by the bill of exceptions, excepting those presented by the instructions asked by the defendants and given by the court. These instructions were in these words: “The legal effect of the decree read in evidence in the cause of John Murray v. Winnifred Murray was to dissolve the marriage relation then existing between them. It left both of them free to contract other marriage relations if they saw proper to do so.”
[22] “In case of two conflicting presumptions, namely, the presumption of life and the presumption of innocence, the latter presumption ought ordinarily to prevail. And although you may believe from the evidence that in 1849, the defendant, Mary Ann Murray, was then the wife of one Allen; if you further find that about that time said Allen went away to Missouri from the state of Illinois, where he then resided, and that a friend accompanied said Allen to Missouri, and returned in the latter part of the year 1849, and delivered to said Mary Ann a ring rvhich Allen owned and had with him at the time of his alleged death,.and at the same time told her that Allen was dead, and that she never heard of him being alive thereafter; and that sometime in 1852, said Mary Ann intermarried with John Murray, and that said Mary Ann and John Murray thereafter lived together as husband and wife, and had children born to them. Then, in such case, you ought to presume that the first husband of Mary Ann (Mrs. Allen) was dead at the time of fluid second marriage; and in such case the law raises such a presumption in favor of the legitimacy of children born of such marriage.”
“If you believe from the evidence that said Mary Ann and John Murray were married in the state of Indiana, about the year 1852, and the defendants, John Murray, jun., and Maria Dodge were born to them of said marriage, then said John and Maria are lawful heirs to said John Murray, sen., and would be entitled to share his estate equally with any other lawful heirs or children said John Murray, sen., may have left surviving him.”
“The jury is not at liberty to review the question of divorce between John and "Winnifred Murray. That question is settled by the decree read in evidence, and it is the dirty of the court to declare to you the legal effect of that decree, and of the jury to take the law as given you by the court.”
“The question of fraud in procuring the divorce by John Murray against "Winnifred Murray is not a question before the jury; all those questions were settled by the court that rendered the decree, and all the matters stated in the com[23] plaint were found by the court, and the record imparts verity, and cannot be contradicted except by showing that the court making the decree had no jurisdiction of the parties to the suit or the subject-matter.”
To these instructions the plaintiff excepted generally without specifying any particular proposition to which his exception was directed. The plaintiff then asked the court to give certain instructions, which were embodied in nine distinct paragraphs, which the court refused to give, and the plaintiff again excepted generally to the refusal, not pointing his exception to any particular paragraph refused. This state of the case renders it proper for this court to declare the rules relative to exceptions of this kind, and it is' this: 1. When any part of a charge given is sound, a general exception to the charge as a whole cannot be sustained; 2. To maintain an exception to a refusal to charge an entire series of propositions, each one of the propositions must be sound; 3. An exception to such portions of a charge as are variant from the requests made by a party, not pointing out the variance, cannot be sustained. (Beaver v. Taylor, U. S. Supreme Court, Oct. Term, 1876, Law and Eq. Rep., vol. 2, 648; 11 N. Y. 416; 1 Wallace, 644; 2 Id. 328; 40 N. Y. 556.)
Applying the first of these rules to the instructions given, if any proposition embodied therein is sound as applied to this case, then the exception must fail. If the whole is unsound as applied to this case, then the exception may be sustained. After careful consideration of the whole charge given, we think it embodies three propositions: one as to John Murray’s capacity to contract marriage in 1852; another as to Mary Ann’s being free to marry in 1852; and another as to the legitimacy of the defendants, Maria Dodge and John Murray, jun. The latter proposition, however, is dependent upon the other two, and results from the law and facts assumed by them.
The proposition relative to John Murray’s right to marry in 1852 is based upon the assumption that he was duly divorced from Winnifred by the decree offered in evidence, from the Indiana, Pike county, circuit court. The propo[24] sition of the plaintiff was that that decree, if not to be pronounced void on its face, could at least be attacked, and the presumption arising therefrom overcome by evidence of want’of notice to the defendant, Winnifred, want of jurisdiction, and fraud practiced on Winnifred in the procuring of the decree. There was evidence given tending to show fraud, want of notice, and want of jurisdiction. The instructions given by the court withdraw all this from the consideration of the jury, and the court virtually decided for the jury the question of John’s divorce, and declared that the decree was conclusive, and that the jury must not go any farther on that subject.
-, This raises a question as to the effect of decrees obtained as this was in a sister state, and it is proper that/the rule which we adopt should be clearly stated.
This court has decided, Tustin v. Gaunt, 4 Or. 305, that a domestic judgment of a superior court cannot be collaterally impeached by evidence outside the record, but may be impeached by what appears upon the face of the record, if thereby a want of jurisdiction is shown.
It has also decided that a domestic judgment or decree not showing on its face a want of jurisdiction can be impeached by a direct proceeding, wherein the recitals of the judgment or decree apparently shoAving complete jurisdiction may be denied and put in issue by direct allegations. (Heatherly v. Hadly, 4 Or. 1.) It has also decided that whenever the form of action or suit allows, a party seeking the benefit of a judgment or decree must plead it. (Ellen Murray v. Mary Ann Murray, suit in equity decided at this term.)
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By the Court, Shattuck, J.:
The view taken by the court in this case renders it unnecessary to consider any of the matters inserted by the bill of exceptions, excepting those presented by the instructions asked by the defendants and given by the court. These instructions were in these words: “The legal effect of the decree read in evidence in the cause of John Murray v. Winnifred Murray was to dissolve the marriage relation then existing between them. It left both of them free to contract other marriage relations if they saw proper to do so.”
[22] “In case of two conflicting presumptions, namely, the presumption of life and the presumption of innocence, the latter presumption ought ordinarily to prevail. And although you may believe from the evidence that in 1849, the defendant, Mary Ann Murray, was then the wife of one Allen; if you further find that about that time said Allen went away to Missouri from the state of Illinois, where he then resided, and that a friend accompanied said Allen to Missouri, and returned in the latter part of the year 1849, and delivered to said Mary Ann a ring rvhich Allen owned and had with him at the time of his alleged death,.and at the same time told her that Allen was dead, and that she never heard of him being alive thereafter; and that sometime in 1852, said Mary Ann intermarried with John Murray, and that said Mary Ann and John Murray thereafter lived together as husband and wife, and had children born to them. Then, in such case, you ought to presume that the first husband of Mary Ann (Mrs. Allen) was dead at the time of fluid second marriage; and in such case the law raises such a presumption in favor of the legitimacy of children born of such marriage.”
“If you believe from the evidence that said Mary Ann and John Murray were married in the state of Indiana, about the year 1852, and the defendants, John Murray, jun., and Maria Dodge were born to them of said marriage, then said John and Maria are lawful heirs to said John Murray, sen., and would be entitled to share his estate equally with any other lawful heirs or children said John Murray, sen., may have left surviving him.”
“The jury is not at liberty to review the question of divorce between John and "Winnifred Murray. That question is settled by the decree read in evidence, and it is the dirty of the court to declare to you the legal effect of that decree, and of the jury to take the law as given you by the court.”
“The question of fraud in procuring the divorce by John Murray against "Winnifred Murray is not a question before the jury; all those questions were settled by the court that rendered the decree, and all the matters stated in the com[23] plaint were found by the court, and the record imparts verity, and cannot be contradicted except by showing that the court making the decree had no jurisdiction of the parties to the suit or the subject-matter.”
To these instructions the plaintiff excepted generally without specifying any particular proposition to which his exception was directed. The plaintiff then asked the court to give certain instructions, which were embodied in nine distinct paragraphs, which the court refused to give, and the plaintiff again excepted generally to the refusal, not pointing his exception to any particular paragraph refused. This state of the case renders it proper for this court to declare the rules relative to exceptions of this kind, and it is' this: 1. When any part of a charge given is sound, a general exception to the charge as a whole cannot be sustained; 2. To maintain an exception to a refusal to charge an entire series of propositions, each one of the propositions must be sound; 3. An exception to such portions of a charge as are variant from the requests made by a party, not pointing out the variance, cannot be sustained. (Beaver v. Taylor, U. S. Supreme Court, Oct. Term, 1876, Law and Eq. Rep., vol. 2, 648; 11 N. Y. 416; 1 Wallace, 644; 2 Id. 328; 40 N. Y. 556.)
Applying the first of these rules to the instructions given, if any proposition embodied therein is sound as applied to this case, then the exception must fail. If the whole is unsound as applied to this case, then the exception may be sustained. After careful consideration of the whole charge given, we think it embodies three propositions: one as to John Murray’s capacity to contract marriage in 1852; another as to Mary Ann’s being free to marry in 1852; and another as to the legitimacy of the defendants, Maria Dodge and John Murray, jun. The latter proposition, however, is dependent upon the other two, and results from the law and facts assumed by them.
The proposition relative to John Murray’s right to marry in 1852 is based upon the assumption that he was duly divorced from Winnifred by the decree offered in evidence, from the Indiana, Pike county, circuit court. The propo[24] sition of the plaintiff was that that decree, if not to be pronounced void on its face, could at least be attacked, and the presumption arising therefrom overcome by evidence of want’of notice to the defendant, Winnifred, want of jurisdiction, and fraud practiced on Winnifred in the procuring of the decree. There was evidence given tending to show fraud, want of notice, and want of jurisdiction. The instructions given by the court withdraw all this from the consideration of the jury, and the court virtually decided for the jury the question of John’s divorce, and declared that the decree was conclusive, and that the jury must not go any farther on that subject.
-, This raises a question as to the effect of decrees obtained as this was in a sister state, and it is proper that/the rule which we adopt should be clearly stated.
This court has decided, Tustin v. Gaunt, 4 Or. 305, that a domestic judgment of a superior court cannot be collaterally impeached by evidence outside the record, but may be impeached by what appears upon the face of the record, if thereby a want of jurisdiction is shown.
It has also decided that a domestic judgment or decree not showing on its face a want of jurisdiction can be impeached by a direct proceeding, wherein the recitals of the judgment or decree apparently shoAving complete jurisdiction may be denied and put in issue by direct allegations. (Heatherly v. Hadly, 4 Or. 1.) It has also decided that whenever the form of action or suit allows, a party seeking the benefit of a judgment or decree must plead it. (Ellen Murray v. Mary Ann Murray, suit in equity decided at this term.)
But we think that if a party seeks a benefit under a judgment or decree of a superior court of a sister state, in an action where such judgment cannot be pleaded, as in this case, being an action to recover real property under our statute, he may offer it in evidence; .and inasmuch as his adversary has had no opportunity to attack- it in our own court by a direct proceeding, and should not be required to go into the foreign state to attack it in the court where it Avas rendered, he may attack it and impeach it by evidence of want of notice to the party, and by evidence of fraud in [25] procuring it; notwithstanding such decree or judgment may by its recitals appear regular and show jurisdiction. (People v. Dowell, 25 Mich. 247; Kerr v. Kerr, 41 N. Y. 272; Hoffman v. Hoffman, 46 N. Y. 30.) We therefore hold that it was error in the circuit court to withdraw from the consideration of the jury the evidence tending to show want of notice and fraud in procuring this Indiana divorce.
As to the proposition that Mary Ann Allen was free in 1852 to marry a second time, the charge starts out with the statement of a general rule that, if standing by itself, would probably be held correct, but cónnected as it is with what immediately follows, we think it involved error. It may be true that innocence is to be presumed, and that when the presumption of life is brought in conflict with the presumption of innocence, the latter should prevail; yet the court here carried this instruction so far as to charge the jury that if they believed certain matters testified to by Mary Ann, mostly hearsay, they ought to presume that Allen, the former husband of Mary Ann, was dead in 1852, when she married Murray, although Allen had not been absent at that time more than three years. Ordinarily the death of a party would not be .presumed until after an absence of seven years without being heard from. But if within the seven years the presumption of life is to be overcome by the presumption of innocence, then the entire case and circumstances under which a "party claims such force for this presumption of innocence ought to be carefully considered.
We think, therefore, that it was error to instruct the jury that upon the narrow statement of facts set forth in the instruction they ought to presume that Allen was dead; in other words, that Allen’s death was a conclusive presumption. The jury should rather have been told to consider all the evidence relating to Allen’s going away, and why, and for what reason he went as appearing by the proof, and then preferring to find innocence rather than guilt, say whether or not they believed Allen dead when Mary Ann married the second time.
The correctness of the third proposition, as to the legiti[26] macy of John, jun., and Maria, is dependent entirely on the correctness of the other two involved in the charge. Those two being deemed erroneous, the charge as a whole is deemed erroneous, and the exception is therefore sustained.
The judgment below will be reversed and the cause remanded for a new trial.