The opinion of the court heretofore announced is withdrawn and the following opinion is substituted in lieu thereof.
This is an appeal by complainant, in an original bill in equity, from a final decree denying relief to her but granting relief to her husband on his cross bill. The original bill sought a decree of divorce on the ground of cruelty, and a division of certain property, the title to which was in them jointly.
The answer and cross bill is in two aspects: (1) It seeks a vesture in cross complainant of the interest which the original complainant has in the property, and which she seeks to have partitioned; and (2) an annulment of the marriage between the parties which occurred on December 24, 1952. The cross bill alleges in substance that it is true that the title to the property sought by the original bill to be partitioned between them is in complainant and respondent jointly. But he alleges that the entire purchase price of each of said parcels was paid by him exclusively, and no contribution toward the purchase price of any of it was paid by complainant; that he caused or permitted the title to be taken in their joint names in the belief that prior to the date on which a marriage ceremony between them occurred, she had obtained a divorce from her former husband (one Creecy), but that she had not in fact obtained a divorce from him and, therefore, did not become respondent's lawful wife as she averred in the original bill, and that the placing of an undivided interest in her name in the property mentioned was made in the belief that she was his lawful wife when in fact she was not.
The cross bill further avers that prior to this alleged or purported marriage, complainant had married one Elmer Creecy in Quebec, Canada, and that he is now living in Hattiesburg, Mississippi; that complainant separated from him and thereafter she represented that a divorce had been obtained dissolving the bonds of matrimony theretofore existing between her and said Creecy, and that she was free to remarry, whereupon, and in reliance upon said representations, the respondent entered into a ceremonial marriage with complainant and thereafter lived with her for a number of years in the continuing belief that her former marriage had been dissolved, and in reliance upon her said representations, he conveyed or caused to be conveyed to her a certain interest in said parcels of real estate, and that no contribution toward the purchase price thereof was made by her. The cross bill prayed that their marriage be cancelled and annulled, and that complainant be required to convey to respondent all the right, title and interest in said property which had been owned or purchased by respondent and as to which a deed was made conveying an interest to complainant.
There was no demurrer to the original or cross bill. The cause came on for hearing on evidence, most of which was given ore tenus before the presiding judge. He rendered a final decree in which he first decreed that complainant should execute to respondent a conveyance of her interest in the property which is fully described. And upon default thereof, the register was directed to do so. The decree also annulled and voided ab initio the alleged or purported marriage between the parties which occurred on December 24, 1952. The decree taxed respondent with the costs.
The evidence showed that complainant was born in France and lived in a Catholic orphanage there until she reached a certain age when she was sent to a similar home in Canada where she remained until she was about twenty years of age when she married said Creecy. They later moved to Mobile, Alabama, to reside and continued to live together until 1943 (as she says), but perhaps several years after that. They were both employed, she for a well drilling company in which she had a very responsible
A decree of divorce rendered by a chancery court of Arkansas purported to dissolve the marriage of Creecy with another woman named Emma, to whom Creecy had been married before he married complainant Irene, was introduced in evidence by complainant. That decree was dated October 10, 1946. It was not certified as required by Tit. 7, § 427, Code, nor by the Act of Congress, Revised Statutes, § 905. Respondent objected to its introduction because it was not duly certified. That objection was well taken, but was overruled. The ruling was favorable to complainant and she cannot complain, and respondent is not complaining, so it becomes legal evidence. Under Tit. 7, § 372(1), Pocket Part, Code, objection was not necessary, but when it was made and ruled on that statute, by its terms, does not apply.
We think it clear that Creecy had been married before he and Irene (complainant) were married. Their marriage was void because of such previous marriage by Creecy and was not in the way of a lawful marriage by Irene with respondent Hackmeyer on December 24, 1952. Her statement to respondent that she and Creecy had been divorced was untrue according to the evidence; but her ceremonial marriage with Creecy was void by reason of his previous marriage, and did not cause her marriage with respondent to be void. But after the decree of October 10, 1946, by which the marriage of Creecy and Emma was dissolved, the evidence is abundant that for several years Irene and Creecy continued to live together as husband and wife.
The rule of law in that connection is thus stated in Hill v. Lindsey, 223 Ala. 550, 137 So. 395, 397:
Upon the principle declared in Hill v. Lindsey, supra, such continued cohabitation at a time when both could contract a legal marriage by common law, Irene and Creecy contracted such marriage which the facts and circumstances together with Irene's testimony show was never dissolved. The validity of the marriage between Irene and respondent Hackmeyer is dependent upon the absence of a common-law marriage between Irene and Creecy created after October 10, 1946. To justify his decree annulling the marriage between Irene and respondent, the trial judge must have found that there was a common-law marriage between Irene and Creecy effective after October 10, 1946.
In this connection, the decree uses some very strong language condemning Irene and her testimony. She, through counsel, has taken sharp exception to this finding by the judge and has moved to strike it from the decree, asserting that the decree was prepared by counsel for respondent. But, if so, that circumstance is not reprehensible for such custom is of long standing. 30 C.J.S. Equity § 590, p. 979. It was in the nature of fact finding and its form is not subject to review.
Assuming that Irene stated to respondent Hackmeyer that she and Creecy were divorced, such statement was not harmful until and unless she and Creecy had contracted marriage by common law after October 10, 1946. But such statement was very material and pertinent in respect to her true status on December 24, 1952, when Irene and respondent were married. The evidence does not show that respondent knew of the relations between Irene and Creecy on and after October 10, 1946, but that he thought Irene was free to marry him.
We come now to the action of the trial court in ordering appellant to convey to appellee her interest in the property which was deeded to them jointly. The rule in Alabama is stated in Shipman v. Furniss, 69 Ala. 555, by the court where it said:
That opinion also includes the following:
The opinion in Shipman v. Furniss was written in 1881. In 1907, the following sections were inserted in the Code and are now Tit. 7, §§ 108 and 109:
The undisputed evidence in the instant case is that the appellee relied on appellant's statement that she could lawfully marry him.
Thus, the burden was on the appellant in the instant case to show a sufficient consideration for the taking of the deeds in the joint names of appellee and appellant. And appellant was also confronted with the following principle of law stated in Dorsey v. Dorsey, 259 Ala. 220, 66 So.2d 135, 140:
The principal witness for appellant was appellant herself. The trial court found as a fact that appellant had sworn falsely as to material matters and rejected her testimony pertaining to those matters relating to her claim of pecuniary contributions to the acquisition of the property in question. We have held in a case in equity where the testimony was before the trial court without a jury that if a witness swore a wilful falsehood as to a material fact, it was open to the trial court to find and believe that the testimony of such witness as to other material facts was not worthy of credence. Spring Park Ass'n v. Rosedale Park Amusement Co., 216 Ala. 549, 114 So. 43. We will not disturb the finding unless it is plainly wrong since the trial court saw and heard the witnesses. There is sufficient evidence in the record to support this finding of the trial court.
It follows that the application for rehearing should be granted and the judgment of the trial court affirmed.
Application for rehearing granted, and judgment affirmed.
All the Justices concur.