LAMM, J.
— In November, 1906, plaintiffs sued to try and to determine title to 77.15 acres of land in Pemiscot county, described by metes and bounds in the petition,' and lying on the State line. Prom a judgment for plaintiffs, defendants appeal.
John Jones was the common source of title. His first wife was Emma Perry. By her he had a daughter, Addie, now intermarried with Dave Nelson, her coplaintiff. Some two years after the birth of Addie, John and Emma separated, and Emma (while John was yet alive) married Luther Brown, a minister of the Gospel. Afterward she died. John (it is claimed by defendants and denied by plaintiffs) married Lizzie C. Harrington during the life of his first spouse. Afterwards John was killed. Defendants Talitha, Josie and George Jones are his infant children by her. After John’s death, lizzie O. intermarried with her codefendant William Chism. ' All parties live in Arkansas.
The main issues threshed out below were divorce, marriage and bastardy.
The pleadings, proofs and admissions are such that, unless Addie is estopped to claim an exclusive [586] title, she inherits the land if she be the only legitimate child and sole heir of John Jones. Contra, if the infant defendants are his legitimate children, then Addie inherits only an undivided one-fourth and they the remaining three-fourths. So, if Lizzie C. was lawfully married to John Jones she is endowed. If, however, she was not, then she is not.
, There was another issue, viz.: It is alleged in the answer that Addie and the defendants (as joint plaintiffs) brought a suit against one Briggance (the source or character of Briggance’s title does not appear) to determine title in 1906 to the same land, in the Pemiscot Circuit Court; that such proceeding ripened into a decree vesting’ the title out of Briggance and into them; and that defendants at the instance and by the procurement and asquiescence of plaintiff Addie were put to such efforts, trouble, outlays and expense in and about that proceeding as raised an estoppel, wherefrom they plead estoppel in aid of their title.
By replication Addie admits such Briggance suit, but pleads her minority by way of avoiding the force of the estoppel.
The cause was tried to the court, and though instructions were asked for defendants, yet the nature of the relief soug’ht, together with the issue of estoppel raised by the answer and the form of the judgment, put the case, we think, in equity. We have been inclined to view suits to determine and decree title as of equitable cognizance, except where the issues are so framed by the pleadings as to make the proceeding a law suit. There is nothing in the pleadings in this case showing either party entitled to a jury. In this view of it, we shall review the facts, and determine the case on our own estimate of them, giving to the court below the proper advantage of position in weighing oral testimony.
The facts are these:
[587] Mississippi county, Arkansas, is just across the line from Pemiscot county, Missouri. About 1886 there lived on the North Chickasawba in said Mississippi county John Jones and Emma Perry. About 1886 or 1887 they were married by a justice of the peace. Their families lived not a great way apart and both the Perrys and the Joneses were farmers. After his marriage John cropped in the neighborhood for four or five years. As said, some two years after Addie was born John and Emma separated. There lived not far away one Harrington. Harrington had a daughter, Lizzie O. Emma Jones and Lizzie Harrington were “girls together,” and though-Harrington moved about a, good deal, yet the young women knew each other pretty well. "Whether it was John or Emma at fault in the separation does not appear. The best we can make out is that their ways parted about 1891. They never lived together as husband and wife thereafter, or in any wise recognized any conjugal duty to each other. She returned to her father’s house with her baby, and John raised a crop and stayed in the neighborhood with his acquaintances for a time variously estimated at from -four to eight months, when, to use the phrase of the witnesses, he “ran away” with Lizzie Harrington.
Miss Harrington’s sister “ran away” at the same time with one Reece. They one and all floated in a dug-out or canoe from North Chickasawba to a place or creek called Marked-Tree, there took a train to West Memphis, there crossed the Mississippi river, and went on to Bolivar county in the State of Mississippi. On the way to Bolivar county they stopped at a way station, according to Lizzie’s account, and both ■these run-away couples there hastily married, a man officiating who “looked like” a minister, and there is •faint evidence of a “license.” Reece did not testify and his whereabouts are unknown. Lizzie’s sister .did not testify. She seems to have afterwards married [588] a man named Scallion, bnt whether she is living or dead Lizzie said she did not know. After several months "Jones and she come back to Yarbro, Mississippi county, Arkansas, hard by North Ohickasawba and there, all the testimony shows, they lived together and held each other out as man and wife in the face of all men and to the knowledge of their old acquaintances- and kinsfolk. She was thence forward known as Mrs. Jones. Not far away at the time lived Emma, the first wife, and the testimony tends to show she knew they were consorting publicly together as man and wife and holding themselves out as such. After one or two years they moved a little way north just over the State line into Missouri, about ten miles from Yarbro and North Ohickasawba, and settled on the farm in question, which Jones then bought. "While at Yarbro he took his child, Addie, and kept her in his family. While not quite clear, yet we gather when Jones made that move he took Addie with him and kept her there at his new home with his putative new wife, until he was killed on June 2, 1896. At their new home in Pemiscot county, as in their old in Mississippi county, Arkansas, 'John Jones and Lizzie lived continuously, openly and habitually as man and wife, the neighborhood recognized and treated them as such; and this recognized and reputed relation continued down, as said, to the day of his death. There is no countervailing. testimony on this phase of the case. In the meantime there was born to the twain three children, the infant defendants, and those three, with Addie, supervised and mothered by Lizzie C., made up his household. During all this time, as said, his first wife lived a few miles away in Arkansas. While the testimony on behalf of plaintiffs leaves the matter in doubt, yet it sufficiently appears from other testimony that the first wife intermarried with Luther Brown, a preacher, during the lifetime of John Jones, as said, and had a child by him. Straightway on the [589] death of John Jones the first wife claimed Addie and took her away. There was no record of a divorce by either John or Emma from the other introduced in evidence. The records of Mississippi county, Arkansas, were searched for such record by Mr. Ballard, one of plaintiffs’ attorneys, but he found no such record. Lizzie, testified that before she ran away with Jones, when he asked her to marry him, he told her he had a divorce, that she believed him without making further inquiry, and married him in good faith as a single man. She lived some distance from Osceola, the county seat (thirty miles, with no railroad) and had never been there. We take it the road there at that time lay through swamps and was not an inviting line of travel. She explained her elopement by saying that her father objected to Jones as a suitor for her hand, because he (Jones) was a “widower” and “kind of rough.” On behalf of plaintiffs, the brother of the first wife was allowed to testify over the objections of defendants’ counsel, that Emma Jones was never divorced from John and that John Jones was never divorced from Emma. He testified further that if they had been divorced he would have known of it “by the report.” He was allowed to testify that the community, of North Chickasawba, his home region, would have known of such divorce by “neighborhood rumor, ’ ’ if there had been one; also that once when he called at the house of John Jones in 1895, John and Lizzie “got in a racket” and he heard John say to her they were not married. This she denied. Elsewhere in his testimony he said Jones told him so three' or four times. One Hicks was also allowed to testify, over the objection, that Eeece told him on the return from Bolivar county that “they were not married.”
At the time of the trial the land was not occupied. Most of it was not cleared. The little hit that had [590] been under the plow had again run wild, and we infer the total value was small.
Questions hinging on challenges to some of plaintiffs’ testimony and adverse rulings below are in the case, and if it is necessary to determine those questions the facts ..will appear further along, as well as any other facts vital to the jiistice of the case.
As to the issue of estoppel, it is out of the case on appeal. "When'Mrs. Nelson was on the stand she testified she became of age October 18, 1906. This was after all four children brought a suit through their joint guardian and curator against Briggance to reinvest themselves with title. The Briggance suit was determined on the 8th of August, 1906. The record shows that on that day it was adjudged in that suit that “the plaintiffs” (the four children) “are the owners of the property and the defendants have no interest in the property.” When Mr. Ballard, one of plaintiffs’ counsel in this suit, and plaintiffs’ counsel in the Briggance suit, was on the stand, a question was asked him on cross-.examination intended to elicit facts creating an estoppel. On objection, evidence of that character was ruled out. That ruling was put upon the foot that Addie Nelson was a minor at the time. We do not read the briefs of appellants’ counsel as predicating error of that ruling, or that they claim title through the judgment in the Briggance suit. Indeed, counsel treat the whole matter as of little or no appellate value. There is no plea of res adjudicata in the case and we need not look into that matter or estoppel. Accordingly those questions are put to one side.
A foreword to the opinion may not be amiss, viz: In the presence of blameless and innocent children, and in the presence of a situation made sordid and squalid by ignorance and poverty, all of which appear in the lines and between the lines of this record, the facts (read through judicial blushes) bespeak judicial [591] charity and mercy to the very verge of the law to work ont a just result.
In onr opinion the judgment is wrong and should be reversed. This because:
(a). Of divorce, marriage and bastardy. There is a presumption that when a status is once established it is generally presumed to continue until the contrary is made manifest by the proof. That sensible presumption (subject to exceptions) is of everyday use in the affairs of man, and such presumption is a legal one constantly applied by courts. Under it a status of marriage once shown might be presumed to continue until he who asserts the contrary establishes its discontinuance by divorce. But in all enlightened systems of jurisprudence it has been found necessary to make exceptions to general rules, which by reason of their universality are sometimes found deficient to attain the full ends of justice in a given case. Such exceptions, when well established as grounded on principle, are as potent as the general rule itself. There is a primary maxim of the law that, in favor of life, liberty and innocence, all things are to be presumed. {In favorem vitae, etc.). There is another: A wrong is not to be presumed. There are presumptions springing from the loins of those noble maxims, which are the crowning glory of our law, viz., that the law presumes innocence, not guilt; morality, not immorality; marriage, not concubinage; legitimacy, not bastardy. Accordingly when'the presumption that a marriage once established continues to exist is confronted, under proper proof, by presumptions in favor of innocence rather than crime, in favor of morality instead of vice, the former presumption gives way and the latter obtain. So that the settled law in this jurisdiction is that if A and B are married, and afterward A and C by virtue of a common law or ceremonial marriage consort together as husband and wife during B’s life, under the circumstances disclosed in this rec[592] orcl, the burden of proof that A and B were not divorced (and that consequently the relations between A and 0 are meretricious and criminal) is upon the party asserting the fact, though it is a negative fact and hard to prove. On plaintiffs then was the burden to prove the negative fact that there was no divorce between John Jones and Emma Jones. We have been so lately and fully over this matter, speaking through our brother Graves, in the Johnson case, infra, that it would be unseemly .and smacking of vanity in the writer to attempt to further expound the law. [Johnson v. Railways, 203 Mo. l. c. 401, et seq., and cases cited.] That case was followed in the later case of Maier v. Brock, 222 Mo. 74. [Vide, Plattner v. Plattner, 116 Mo. App. l. c. 412; Bishop v. Brittain Inv. Co., 229 Mo. l. c. 729, et seq.]
That there was at least a common law marriage between Harrington and Jones is sufficiently established. For several years they openly held themselves forth to the world in' the neighborhood of their old acquaintances and kinsfolk by the manner of their daily life, by conduct, demeanor and habit as man, and wife. They assumed that mutual relation apparently in good faith. The community accepted it. Children were born to them. They established a home to which Jones took his child by his first wife and reared her. They seem to have been treated as husband and wife by the relatives of both women. It is unthinkable that in a Christian community however primitive,, the first wife and her relatives would have permitted Addie to remain in the Jones household if they thought bim hatching a brood of bastards in a wanton nest. Did they knowingly subject her to the domination and teaching of an immoral woman? On what decent theory did the first Mrs. Jones remarry except on the assumption she was divorced? The main witness for plaintiffs, the brother of the first Mrs. Jones, puts himself in the attitude of eating salt at Jones’s table in a. [593] house desecrated and dishonored hy flaunted lust, if his theory as a witness he accepted. .
This court has put itself on record as in favor of stringent proof of common law marriages. [Bishop v. Brittain Inv. Co., supra.] We think the proof in this case meets the rigid and wholesome requirement of that ease. It comes within the facts and doctrine of a line of Missouri cases cited in appellants’ brief. (q. v.).
Deeming a common law marriage established, plaintiffs did not successfully carry the burden of showing no divorce. Two or three witnesses who knew the parties spoke of never hearing any one speak of a divorce. They were allowed to tell there was no neighborhood rumor of one. But that character of proof, if of any value at all, is not the cogent proof .required by the law to overcome the strong presumption of-innocence.
Mr. Ballard, as said, one of plaintiffs’ attorneys, described himself on the witness stand as judge of the county court, justice of the peace and notary public in Pemiscot county. Assuming he has the astuteness and learning appurtenant and appertaining to that aggregation, of offices, yet we cannot assume that his investigation of the court records of the courts of another State furnishes the best evidence of their contents. He went to Osceola in Mississippi county, Arkansas, a few days before the trial, searched the records there and was allowed to testify that he found no decree of divorce between John Jones and Emma Jones. The law requires the best proof the ease is susceptible of. It does not require impossibilities and therefore did not require the production in our courts of the records of the courts of a sister State. Where there is a mass of records to examine, the law does not require the production of certified copies of all of them to prove the negative fact that a certain decree cannot [594] be found. Such proof may rest in parol ex necessitate rei. But there'should and could have been furnished the testimony of the custodian of those records, or of other persons who qualified as familiar with them and all of them, in order that the negative fact might be clearly shown. Mr. Ballard testified he examined certain books and indexes. How did the trial court know they were all of the minute books, record books and indexes? All the trial court knew in that behalf he knew from what Ballard testified. How could a stranger to the records like Ballard know? As figs do not grow on thorns, neither does certainty grow on’ uncertainty. In Chilton v. Metcalf, 234 Mo. 27, where evidence of the same character was elicited from the clerk of the court himself, comment is made upon the fact that, the clerk’s evidence did not satisfactorily account for all the records.
While creating suspicion and doubt, yet we hold the testimony too loose and insufficient to clearly prove there was no divorce at Osceola. Moreover, why should we assume the doubtful fact that Emma Jones may not have acquired a residence elsewhere than in Mississippi county, where she herself could have procured a divorce?
It is common learning that under the old common law, in aid of legitimacy- of children, if the husband be shown- to have been “within the .four seas” within a stated period, and was capable of begetting issue, the wife’s child was allowed to be .legitimate. That liberal rule bespeaks an ancient and rooted judicial tenderness toward children. Neither in old nor in modern times has it ever been allowed just to hold a child a bastard unless there is no judicial escape from that dire conclusion.
The premises considered, the Scotch form of verdict, “not proved,” must be our judicial finding on the negative issue of no divorce and on the issue of bastardy. .
[595] (b). There is another view of the case equally conclusive, viz.: In our statute of Descents and Distribution is the following: “The issue of all marriages decreed null in law, or dissolved by divorce, shall be legitimate.” [E. S. 1909', Sec. 342.] That statute once read: “. . . and the issue of all marriages deemed null in law or dissolved by divorce shall nevertheless be legitimate.” [E. S. 1825, p. 328, Sec. 8.] For the first time in G. S. 1865, p. 519, Sec. 11, the statute uses the word “decreed” instead of the former word “deemed;” and as there changed it has been handed down as live written law to this very day. When that change in the statute was first brought to the attention of the courts the notion was indulged that probably the change was a clerical error. [Pratt v. Pratt, 5 Mo. App. l. c. 544.] However, in Green v. Green, 126 Mo. 17, it was held that if the change had only appeared in one revision it could justly be held an inadvertence. But since it appeared continuously in subsequent revisions this court would assume it was intentionally used. On that assumption we held the word “decreed,” in a technical sense, is almost meaningless in practical effect — further, that the Legislature did not intend its meaning should be materially different from the word “deemed” in the original act. [P. 24.] Adopting that view of it on the reasoning of the Green case, then we fall bade upon the exposition of the act as it originally read. There is a wealth of such exposition in our reports. The student in jurisprudence curious to follow the stream of law interpretation up to its original source is referred, for the philosophy and application of that statute, to Lincecum v. Lincecum, 3 Mo. 441; Johnson v. Johnson, 30 Mo. 72; Buchanan v. Harvey, 35 Mo. 276; Dyer v. Brannock, 66 Mo. l. c. 418, et seq.; Boyer v. Dively, 58 Mo. 510; Green v. Green, supra; Gates v. Seibert, 157 Mo. l. c. 272, et seq.
[596] In the Lincecum case a man had a second wife in Missouri and a first wife in South Carolina. The' children of the second marriage were allowed to share in the estate with those of the first. In the Johnson case there was a common law marriage with an Indian woman, a daughter of Keokuk, and children were born thereof. Afterwards Johnson sent Keokuk’s daughter back to her tribe, thereby exercising a tribal law right so to do. Afterwards, on the eve of his marriage to a white woman, he declared himself a bachelor. After-wards he reared his Indian children as his own, educated them and gave them a place in his social circle. We held them legitimate. In the Buchanan case, Harvey, while residing with á band of the Blackfeet tribe of Indians on the upper Missouri, where under Indian custom polygamy was lawful, married two squaws and died in the Indian country, leaving a daughter by each,Susan and Adeline. In the distribution under, an administration in St. Louis, Susan and Adeline were declared legitimate under the doctrine of the Johnson case. In the Dyer case, Wilson contracted a common law marriage with Jane Collins and from that union sprang a daughter Cynthia; five years afterwards during Jane’s lifetime he married Sarah Ann Adams by whom he had a child who survived its mother and died. Afterwards he sent for Jane Collins and Cynthia, lived with them until his death and treated Cynthia as his daughter. Sarah Ann Adams owned real estate which was inherited at hér death by her child by Wilson. We held that he inherited the property from his child by Sarah Ann Adams, and that the descendants of Cynthia (the. latter marrying one Dyer) were the offspring of a legitimate child of Wilson and were entitled to recover the property in ejectment. In the Green case, William Green married in Ireland, abandoned his wife, was never divorced and during her lifetime married in this country,, reporting [597] himself a single man. The children of the last wife were held legitimate.
In construing that beneficent and remedial statute we ought not to apply the discredited and bitter proverb that the fathers have eaten sour grapes and the children’s teeth are set on edge. That proverb was held unjust by noble authority at a very early day. [Ezek. xvni: 2-3; Jer. xxxii: 29-30.] We are bound to construe the statute so as to advance the interest of innocent children for whose benefit the statute was passed and who, for no fault of their own, up to that time were in hard lines. The plain language of the statute, as illuminated by the construction given it by this court, makes children in the fix of the infant defendants legitimate. We confess to an indisposition to bastardize them. by implication or construction. Says Napton, J., in the Dyer case: “We have no authority, upon grounds of public policy or for the promotion of private morals, to make restrictions or exceptions which the Legislature has not seen proper to make.” [P. 419'.] Attending to that language it must be steadily borne in mind, as said, that the reason of the existence, the essential object, of the law was to help blameless children and spare them penury and infamy. We are not unmindful of the precept that the greatest incitement to guilt is the hope of sinning with impunity, but the force of that statute, as indicated by the above quotation, is not spent on promoting the morals of parents. In the Green case some stress is laid on the good faith of at least one of the parties contracting the second marriage. It may well be that in order to constitute a marriage at all there should be an element of good faith, a bona fide intention to marry, as over against an intention to indulge a mere prank, or mere casual sexual commerce, etc. But even on that view of the law, we think.the good faith of Miss Harrington sufficiently appears in this case. She is not to be judged by dainty speculative refinements. [598] Ignorant, immature and taking color from a lowly and primitive environment, we must allow some value to those factors on the question of good faith. Her faith must he seen through her works. Her actions speak louder than any words in showing her good faith when she lived for half a decade after her elopement, fearlessly and openly among her neighbors and acquaintances filling the office of a wife and a mother with the man she then took as her husband. Those officers, courts and grand juries charged with law enforcement in the region seem to have acquiesced in the status she established for herself until Jones died. Neither they nor her neighbors cast any stones at her. Is that not some little evidence they thought her honest?
The views expressed make appellants’ assignments of error relating to the admission of testimony fill no office worth while.
For the reasons set forth the judgment should be reversed and the cause remanded with directions to enter a decree in accordance with this opinion. Let that be done.
Coming into Banc from Division One on a dissent, the foregoing opinion is adopted by Banc as its opinion.
All the judges concur except Graves and Woodson, JJ.r who dissent.