author: Mr. Justice Shore

text:
    William F. Cartwright et al. v. Abel A. McGown.

      Filed at Springfield June 17, 1887.

    1. Marriage—of the elements of a valid marriage—at common law, and under the statute. Marriage being a civil contract, by which a man and woman agree to take each other for husband and wife during their joint lives, unless it is annulled according to law, and to discharge towaid each other the duties growing out of the relation assumed, may be entered into without any license from the State, in the absence of a statute making it essential, by declaring a marriage without it void. The only essentials at common law are, that the parties must be capable of assenting, and that they must, in fact, consent, to assume the new relation.
    2. Where the consent to marry is manifested by words de presentí, a present assumption of the marriage status is necessary; but it is not essential that there shall be any other formality, apart from the agreement itself, nor that it shall be made before witnesses. The consent must not be attended by an agreement that some intervening thing shall be done, or that the contract shall be publicly solemnized.
    3. While the statute prescribes certain formalities to be observed in marriages, and certain steps to be taken to preserve the evidence of the same, it does not declare a marriage void which is legal by the common law, merely because not entered into in accordance with its provisions.
    4. But a simple marriage ceremony will not necessarily constitute a valid marriage. Capacity and consent are absolutely essential, while celebration is only contingently so. Sexual intercourse, which the parties know to be contrary to law, can not form even an element of marriage.
    5. Same—presumptions in support of an assumed marriage. Where the celebration of a marriage is once shown, the contract of marriage, the capacity of the parties, and in fact everything essential to its validity, will be presumed, until the contrary is shown.
    6. The presumption, however, of the capacity of a man to many at a given time, may be overcome by proof of his prior marriage, and that his wife by that marriage was then living and undivorced.
    7. In many cases the presumption in favor of innocence, and against im-. morality and guilt, is so strong as to give rise to the presumption of a marriage; but no such presumption will arise if it will involve one of the parties in guilt,—as, when a man is cohabiting with two women, or when one of the parties has been proven to be married to some one else.

      8. Same—cohabitation and repute—as bearing upon the question of the existence of the marriage relation. Where parties competent to marry have agreed to marry at some future time, and they afterward have copula, lawful only in the married state, in the absence of any evidence to the contrary they will be presumed to have taken each other for husband and wife, and changed their future promise to marry to one of present marriage. In such case, the copula will be presumed to have followed the then present assumption" of the marriage relation, and to have been the result of the consummation of the actual marriage.
    9. This kind of a common law marriage is to be distinguished from cases of seduction, or sexual intercourse followed by a promise of marriage, or cases where the intercourse is illicit in its inception, and known to be such. It is not sufficient to agree to present cohabitation, and a future regular marriage when more convenient, or when a wife dies, or when a ceremony can be performed.
    10. While cohabitation and repute do not constitute a marriage, they are evidence tending to raise a presumption of marriage, of more or less strength, according to the circumstances of the case. The cohabitation must be matrimonial, and not meretricious, in order to give rise to such presumption.
    11. Where a marriage in fact is not shown, either by record evidence or by witnesses present at its celebration, the long continued cohabitation of the parties, their reputation of being man and wife, and their recognition as such in society, will afford evidence of their marriage in some legal mode, unless it is shown that their cohabitation commenced illegally. Marriage may be shown by circumstantial evidence.
    12. The presumption in favor of marriage from evidence of cohabitation, is rebutted and overcome by proof of its being meretricious in its inception. When shown to have been illicit in its origin, it will be presumed, in the absence of anything showing otherwise, that its continuance was of the same character, and illegal.
    13. And so cohabitation and common reputation of a marriage, if shown to have grown out of or to have had its origin in an assumed but void marriage, will afford no evidence of a lawful marriage. No marriage can be presumed from illicit sexual intercourse.
    14. Where a marriage ceremony is shown to have been performed between a man then having a living undivorced wife, and another woman, there being nothing to indicate to their neighbors and friends that the same was void for any cause, the repute of his mawiage will be presumed to have resulted from the marriage shown to have been thus celebrated, and will not afford evidence of any other marriage than the illegal one.
    15. Where cohabitation is commenced under a marriage which is void by means of an impediment to its lawful consummation, the removal of the impediment alone will not change it from being meretricious, and render it matrimonial. But the parties may, by consenting to and assuming the marriage relation, effect such a change.

      16. Where the proof fails to show that either of the parties had any knowledge of the removal of the impediment to their lawful mai'riage, it will not be presumed, in the absence of evidence to that effect, that they have changed their relations to each other, and assumed the status of marriage.
    17. A man was lawfully married in 1841, in the State of Kentucky, and abandoned his wife in about a year after. He came to this State, where he was married to another woman in 1843, his former wife still being alive and undivorced. In 1846 his first wife obtained a divorce. He continued to live with his second wife up to his death, in 1868, during all which time he treated her as his wife. The proof showed that the second wife had no knowledge of the prior marriage until after his deafh, and failed to show that he ever had any notice of the divorce, and no subsequent marriage with his second wife was shown: Held, that such a marriage after the divorce could not be presumed, under the circumstances.
    18. Same—presumption of divorce, in favor of a second marriage. Courts, in favor of a second marriage, will sometimes presume the death of a prior husband or wife when not heard from for a much less period than seven years, and for the same reason they will often presume a previous divorce when there is shown to be reasonable time and opportunity to procure one.
    19. Where the proof showed that a man was married in 1841, in the State of Kentucky, that he abandoned his wife in about a year after, and came to this State, where he was again married to another woman in 1843, and that the first wife procured a divorce in 1846, and was living after his death, in 1868, it was held, there could be no presumption that he had obtained a divorce prior to his second marriage.
    20. Same—mistake of name in license. A marriage in fact, between parties having the legal right to marry, will not be invalidated by a mistake in the spelling, of one of their names, as, where the name of the woman was Zerelday Cacey, but was spelled in the license “Seralda,” and in the minister’s certificate, “Serelda. ” Every reasonable and fair presumption will be indulged for the purpose of upholding and sustaining a marriage and establishing the legitimacy of the offspring.
    21. Same—marriage void if entered into during existence of prior one. Until a prior valid marriage is terminated by the death of one of the parties, or otherwise, the parties thereto are absolutely incapable, in law, of entering into a second marriage; and if a second one is solemnized, it will be null and void, without any decree so declaring it. Its invalidity may be shown in any court, either in the lifetime of the parties or after their death, in any case where it may be drawn in question.
    22. Limitation—laches in filing bill for partition. A party seeking the partition of land, in equity, -will not be denied relief on account of laches, when he would not be barred from his action for his interest in the land in a suit at law.

      23. Same—under the law of 1839. A defendant to a bill for partition, not having any color of title, can not invoke the limitation law of 1839. To •establish a bar under that law, the defendant’s possession and payment of taxes for seven successive years must be under color of title.
    Writ of Error to the Circuit Court of Montgomery county; the Hon. Jesse J. Phillips, Judge, presiding.
    This was a hill filed by William F. Cartwright and others, the brothers, sisters and mother of Braxton B. Lewis, deceased, and the heirs of his deceased brothers and sisters, for the partition of certain lands of which the said Lewis died •seized. The bill is framed on the theory that the deceased left no lawful issue capable of taking from him by inheritance.
    It appears that Lewis was, on April 29, 1841, lawfully married to one Sarah James, in Caldwell county, in the State of Kentucky; that he lived with her there for about one year, when he abandoned her, left Kentucky and came to this State, where he resided up to the time of his death, which was on January 10, 1868. One child was born of this marriage, which died in infancy. On February 26,1845, the said Sarah filed her bill, in the circuit court of Caldwell county, against the said Braxton B. Lewis, for a divorce, charging desertion for over three years, and defendant’s marriage in Illinois, which resulted in a decree of divorce on December 12, 1846. It appears from the records of the county clerk’s office in Montgomery county, in this State, given in evidence, that on December 8, 1843, said Lewis was formally married to one Zerelday Cacey, under a license issued out of said clerk’s •office, the ceremony having been performed by one J. W. Woods, a minister of the gospel, who certified to the fact of the marriage. In the license Miss Cacey’s name was written ■“Seralda” Cacey, and in the minister’s certificate “Serelda” Cacey. Lewis lived with Zerelday, as his wife, up to the time •of his death, and always recognized and treated her as his lawful wife. They had four children born unto them, which Lewis always recognized as liis own. Three of these children

      died in their early infancy, and prior to his death. Only one of them, Mary A., survived him. She was born October 31, 1851, and was married to Abel A. McGown February 20,1868. On January 9, 1870, she' gave birth to a son, Oliver F. McGown. She died July 10, 1870, leaving this son as her only heir-at-law. He died July 10, 1870, leaving his father, Abel A. McGown, his only heir. Zerelday Lewis died intestate February 4,1885.
    The bill made Abel A. McGown a party defendant, charging that he claimed some interest in the premises. He answered the bill, and set up the marriage of Lewis with Zerelday Cacey, in Montgomery county, in this State, without stating when it was celebrated; charged the making of valuable improvements by him upon the lands, and the payment of all taxes for more than seven successive years, with possession, and setting up the Statute of Limitations and laches as a bar to the relief sought. On the hearing, upon the pleadings and proofs, the bill was dismissed, and the complainants below prosecute this writ of error.
    Mr. A. N. Kingsbury, and Messrs. Lane & Cooper, for the plaintiffs in error:
    The marriage in 1843 being void by reason of the existence of a prior valid marriage, was Lewis ever afterward married to the second wife ? A pretended common law marriage is set up, but no time, place or circumstances under which it was made is given, or whether any person was present or not.
    A marriage entered into by parties having another husband or wife living, does not become lawful by a removal of the impediment.
    The reputation relied on to prove a second marriage in this State could never have existed, and could not have been proved, but for the record evidence of their marriage. But for the prior marriage, the reputation might have afforded evidence in this case.

      When Lewis and Miss Cacey were married, he was under disability, and there was no contract. She supposed she was lawfully married, and so thought until after Lewis’ death, and hence there was no new contract, as she supposed there was no necessity for it.
    Cohabitation, though evidence of marriage, can not make a valid marriage. (Carter v. State, 44 Ala. 29.) Living together as man and wife is not marriage, nor is an agreement to so live. Litlers v. Cady, 10 Cal. 533; Hensley v. Morgan, 47 id. 723.
    Where the relations had their origin in illicit intercourse, no presumptions arise, and to show it was not continuous requires proof of actual marriage. (Clark v. Cassidy, 64 Ga. 663.) Nor does it matter that the innocent party to the second marriage was ignorant of the first marriage. Clark v. Cassidy, 62 Ga. 412.
    When the connection is illicit in its origin, and continues, it is incumbent on those setting up a second marriage to show where and when it occurred. Barnum v. Barnum, 42 Md. 297; Jones v. Jones, 48 id. 391. See, also, Dickerson v. Brown, 49 Miss. 373; Randh v. Pegram, id. 756; Floyd v. Calvert, 53 id. 37; O’Gora v. Eisenlohn, 38 N. Y. 296; Carlyle v. Wood, 63 Mo. 514.
    Cohabitation on a promise of marriage can not constitute a marriage, even when continued after obstacle to is removed. Foster v. Hawley, 8 Hun, 71; Duncan v. Duncan, 10 Ohio St. 181; State v. Whaley, 10 S. C. 503; Williams v. Williams, 46 Wis. 464.
    Persons having a husband or wife living are not competent to contract marriage, and no presumption of marriage can be indulged from the cohabitation of such parties. Hebblethwaite v. Hepworth, 98 Ill. 126; Stoltz v. Doering, 112 id. 234.
    Mr. James M. Truitt, for the defendant in error:
    The presumption of marriage arising from cohabitation, is one of the strongest presumptions known to the law. See 1 Bishop on Marriage and Divorce, sec. 457, note 3; Strode v. Magowan, 2 Bish. 627; Lawson on Presumptive Evidence, 104-107; Hynes v. McDermott, 91 N. Y. 451; Morris v. Davis, 5 Cl. & Fin. 163; Piers v. Piers, 2 H. L. Cas. 321.
    Plaintiff in error undertook to prove a statutory marriage, •and for that purpose offered a marriage license for the marriage of Lewis with Serelda Cacey, certified to by James Wood, who is not shown to have been qualified to perform the ceremony, that the parties were married by him. This evidence is insufficient, first, because the names of the parties are different,—“Serelda” certainly not being Zerelday; and second, the identity of the parties is not shown. 2 Greenleaf on Evidence, sec. 461; 3 Phillips on Evidence, sec. 3, p. 436; Wedgewood’s case, 8 Greenlf. 75; Commonwealth v. Norcross, 9 Miss. 492; Birt v. Barlow, 1 Doug. 171; Harmon v. Harmon, 16 Ill. 85.
    In State v. Hodgskins, 19 Me. 155, it was held necessary to prove that the person who performed the ceremony had authority to do so, which was not done here.
    If the contract of marriage was made per verba de presentí, as allowed by the common-law, it is sufficient. Post v. Post, 70 Ill. 484; Hebblethwaite v. Hepworth, 98 id. 126.
    If, by the law of the place where the parties dwell, a mere ■present mutual consent constitutes a valid marriage, then, if they are living together in a connection which both desire -should be matrimonial, but an impediment renders the marriage void, valid marriage will instantly arise on the removal of the impediment, while the mutual wish for marriage continues; and it is immaterial whether the impediment was known to the parties or not. Bishop on Marriage and Divorce, (6th ed.) sec. 505; Schouler on Dom. Relations, 43; Fenton v. Reed, 4 Johns. 52; Rose v. Clark, 8 Paige, 573; Donnelly v. Donnelly, 8 B. Mon. 113; Blanchard v. Lambert, 43 Iowa, 228 ; Collins v. Collins, 80 N. Y. 1; Physick’s Estate, 2 Brewst. 179; State v. Worthington, 23 Minn. 528; DeThorn
      v. Attorney General, 1 App. Cas. 686; Breadalbane’s case, Law Rep. (2 H. L.) 269.
    As to the presumption- of a marriage between Lewis and Zerelday Cacey, see Blanchard v. Lambert, 42 Iowa, 228, and Donnelly v. Donnelly, 8 B. Mon. 113.
    Counsel argued various other points, and considered the cases ciled by the plaintiff in error, and discussed the evidence at some length.
   Mr. Justice Shore

delivered the opinion of the Court:

The right to have partition of the lands described in the bill, depends upon the fact whether Braxton B. Lewis, at his death, left any lawful issue capable of taking from him by inheritance. He left one child, Mary A., his other children having died while mere infants. It is not denied by the plaintiffs in error that he was formally married to one Zerel•day Cacey, mother of this child, December 8, 1843, in Mont.gomery county, in this State, under a license issued out of the office of the clerk of the county court of that county, nor •that he afterwards lived and cohabited with her, as man and •wife, up to his death, and recognized the issue of such cohabitation as his children; but it is claimed that this marriage was absolutely null and void, for the reason that Lewis had, :at the time of its solemnization, a lawful wife then living in Caldwell county, in the State of Kentucky, from whom there was no divorce.

The marriage of a man and woman, where one of them has a husband or wife by a prior marriage, who is then living and undivorced, is void, and not merely voidable. Being a nullity, no decree is necessary to avoid the same. Reeves v. Reeves, 54 Ill. 332; Drummond v. Irish, 52 Iowa, 41; Blossom v. Barrett, 37 N. Y. 434; James v. James, 5 Blackf. 141; Teft v. Teft, 35 Ind. 44; Glass v. Glass, 114 Mass. 563; Martin v. Martin, 22 Ala. 86.

A void marriage is good for no legal purpose, and its invalidity may be shown in any court, between any parties, either in the lifetime of the parties thereto, or after their death. There can be no doubt of the fact of the prior marriage of Lewis to Sarah James, in Caldwell county, Kentucky, and that he abandoned her in less than a year after their marriage, and came, shortly after, to Montgomery county, in. this State, and that such prior wife obtained a divorce from him in the circuit court of Caldwell county, Kentucky, in-December, 1846, some three years after his second marriage. The 'first marriage is satisfactorily shown by the record evidence thereof, and the testimony of many witnesses who were-present at its celebration and knew the parties.

Defendant in error contends that the evidence does not sufficiently show that the marriage with Zerelday was in 1843, or at any time prior to the divorce in Kentucky, but that the-facts and circumstances are such as to afford presumptive evidence of a common law marriage after the divorce. The-marriage certificate on file in the proper office, shows that this marriage was celebrated on December 8, 1843, by one-J. W. Woods, a minister of the gospel. The proof also shows-that Woods was a minister of the gospel, and that Lewis-cohabited with this woman, as his wife, up to his death, and that she was always reputed to be his wife. No importance is-attached to the fact that the woman’s name in the marriage-license was written “Sera-Ida,” and in the minister’s return thereon “Serelda. ” The evidence shows, beyond dispute, thatZerelday Cacey was the person named in the certificate of marriage and the license. If this was the only marriage of Lewis, there could be no doubt of the sufficiency of the evidence to establish the same. It could not be invalidated by any mistake in the spelling of a name. Every reasonable and fair presumption will be indulged for the purpose of upholding a marriage, and establishing the legitimacy of the offspring. When the celebration of a marriage is once shown, the contract of marriage* the capacity of the parties, and, in fact, everything necessary to the validity of the marriage, in the absence of proof to the contrary, will be presumed. Caujolle v. Ferrie, 26 Barb. 177; Fleming v. People, 27 N. Y. 329; Strode v. Magowan, 2 Bush, 627; 1 Bishop on Marriage and Divorce, sec. 457; Lawson on Presumptive Evidence, 104-107; People v. Calder, 30 Mich. 85; State v. Kean, 10 N.H. 347.

The presumption of the capacity of Lewis to enter into the marriage contract with Zerelday Cacey, December 8, 1843, is overcome by proof of his prior marriage in Kentucky, and that his wife by that marriage was still living and undivorced at that time. This proof established the fact that the second marriage in 1843 was a nullity, conferring no marital rights whatever. A simple marriage ceremony will not make man and woman husband and wife. Capacity and consentí are absolutely essential, but celebration only contingently so./ (Thompson v. Thompson, 114 Mass. 566 ; Merriam v. Walcott, 61 How. Pr. 377; Rundle v. Pegram, 49 Miss. 751.) Nor can sexual intercourse, which the parties know to be contrary to law, form even an element of marriage. Peck v. Peck, 12 R. I. 485; Port v. Port, 70 Ill. 484.

This formal marriage being void, do the facts and circumstances proved create a presumption of a lawful marriage of Lewis and Zerelday after the divorce in 1846 ? No record of any subsequent marriage has been produced, nor has any witness testified directly as to any such marriage; but it is strenuously insisted that the evidence will justify the court in presuming a common law marriage of the parties after the impediment to their legal union was removed.

While our statute prescribes certain formalities to be observed in marriages, and certain steps to be taken to preserve the evidence of their celebration, it does not declare a marriage void which is legal at the common law, merely because not entered into in accordance with its provisions. (Port v. Port, 70 Ill. 484.) A marriage is a civil contract, made in due form, by which a man and woman agree to take each other for husband and wife, during their joint lives, unless it. is annulled by law, and to discharge towards each other the duties imposed by law upon such relation. Bach must be-capable of assenting, and must, in fact, consent, to form this, new relation. If a statute forbids the solemnization of marriage without a license, still, in the absence of a clause of nullity, the marriage will be good though no license was had, (1 Bishop on Marriage and Divorce, sec. 284.) The proof here fails to show any license for the marriage of Lewis after the divorce,' but, on the contrary, the clerk of the county court, the keeper of the public records relating to marriages, testified that he had carefully examined those records, and failed to find any other marriage license than that issued in 1843, nor is there any direct evidence of any marriage of the parties after the divorce, per verba ele presentí, or per verba ele futuro• cum .copula; but the court is asked to infer such a marriage from the long continued cohabitation of the parties, and their reputation of being married at some time. When the consent to marry is manifested by words de presentí, a present assumption of the marriage status is necessary. As said in Van Tuyl v. Van Tuyl, 57 Barb. 237: “As the law stands, a valid marriage, to all intents and purposes, is established by proof of an actual contract, per verba de presentí, between' persons of opposite sexes, capable of contracting, to take each other for husband and wife, especially where the contract is r followed by cohabitation. No solemnization or other formal(ity, apart from the agreement itself, is necessary. Nor is it essential to the validity of the contract that it should be made before witnesses, ”—citing Clayton v. Wardwell, 4 N. Y. 230; Cheney v. Arnold, 15 id. 106; Tummalty v. Tummalty, 3 Bradf. 372; Hubback on Succession, chap. 4, sec. 1. On the other hand, it is not sufficient to agree to present cohabitation and I a future regular marriage when more convenient, or when a wife dies, or when a ceremony can be performed. (Robertson v. State, 42 Me. 509; Duncan v. Duncan, 10 Ohio St. 182; Beverson v. Beverson, 47 Cal. 621; Fryer v. Fryer, Rich. Eg 85; Van Tuyl v. Van Tuyl, 57 Barb. 235; 1 Bishop on Marriage and Divorce, sec. 262.) To constitute marriage, the ' consent must not be attended by an agreement that some intervening thing shall be done before the marriage takes effect, as, that it be publicly solemnized. 1 Bishop on Marriage and Divorce, sec. 249.

In Hantz v. Sealy, 6 Binn. 405, the plaintiff and defendant had long lived in adulterous intercourse, although they considered themselves as lawfully married. In fact, they had entered into a marriage contract which was void, because the-defendant had a former wife living, from whom he had been separated by consent, but not legally. After a legal divorce was procured, they were advised by their lawyer to celebrate-a new marriage. The defendant said: “I take you (the plaintiff) for my wife, ” and the plaintiff, being told if she would say the same thing the marriage would be complete, answered, “To be sure, he is my husband,—good enough.” The court held 'that these words of the woman did not constitute a present contract, but alluded to the past contract, which she always asserted to be a legal marriage.

Where parties competent to contract have agreed to marry at some future time, if they have copula, which is lawful only in the married state, in the absence of any evidence to the-contrary they will be presumed to have become actually married by taking each other for husband and wife, and to have changed their future promise to marry, to one of present marriage. In such a case the copula will be presumed to-have been allowed on the faith of the marriage promise, and that .the parties, at the time of such copula, accepted each other as man and wife. (Port v. Port, 70 Ill. 484; Hebblethwaite v. Hepworth, 98 id. 126.) This kind of a marriage must be distinguished from cases of seduction, or sexual intercourse followed by a promise of marriage, and eases where the intercourse, in its inception, is illicit, and is known to be such. Cheney v. Arnold, 15 N. Y. 345; Duncan v. Duncan, 10 Ohio St. 181; 1 Bishop on Marriage and Divorce, sec. 261.

The evidence in the record is amply .sufficient to show that Lewis and Zerelday lived and cohabited together as husband and wife for a period of about twenty-five years, and that during all this time he treated her as a man would a wife, and her children as his own, and that they were reputed as husband and wife. But it must be borne in mind that cohab- [ itation and repute do not constitute a marriage, but are only | evidence tending to raise a presumption of marriage, of more i or less strength, according to the circumstances of the case, ; and that the cohabitation must not be meretricious, but mat- ! rimonial, in order to give rise to this presumption. (1 Bishop on Marriage and Divorce', sec. 266.) Where a marriage in . fact is shown by direct evidence, as in this case, there is no necessity for presuming its existence. Presumption must yield to the superior force of direct and positive proof. In this case there was an actual marriage ceremony performed in 1843, by which Lewis and Zerelday were apparently and ostensibly married. Their cohabitation thereafter, and reputation as to being married, might very naturally and properly be referred to the fact of this apparent marriage, there being nothing to indicate to their acquaintances and neighbors that it was void. If no actual marriage ceremony had been shown, the cohabitation and repute proved might be referred to some supposed informal, common law marriage.

This cohabitation and repute is not shown as evidence of the ceremonial marriage in 1843, but of some other kind of marriage entered into some time after the divorce in December, 1846. Is such cohabitation and repute based upon a supposed common law marriage, any more than upon the formal marriage, shown by the records to have been entered into in 1843 ? The habit and repute shown in this case might just as well, and more naturally, arise from the marriage in, 1843. If this evidence could, by any known rule, be so limited as to show a cohabitation and repute from some day after the divorce, when no impediment existed, it might afford evidence of a common law marriage of the parties by their own acts. If the cohabitation and repute were the result of the assumed marriage in 1843, which was void, it was illicit, and not matrimonial, and - no marriage can be presumed from illicit sexual intercourse.

Their cohabitation being meretricious in its inception, at least so far as Lewis is concerned, was it changed by the divorce in Kentucky, and rendered thereafter matrimonial ? This would seem to depend upon the intention of the parties, and the fact whether they had knowledge of the divorce removing the only impediment there was to their marriage. There is no proof in the record that either Lewis or Zerelday had ever been informed of the divorce, or that she ever knew that he had a former wife. Without knowledge of the re-, moval of the impediment they could not have intended a second marriage, or have attempted to enter into another marriage. Courts can not marry parties by mere presump-u tion, without their consent. In the absence of consent, the'' status of marriage is never created by any government. The law compels no one to assume the matrimonial status. Without assent, no statute or constitution can create this relation. (Dickerson v. Brown, 49 Miss. 373.) In Turpin v. Public Administrator, 2 Bradf. 424, the surrogate said: “When parties are living in a meretricious state, a promise to marry on some future condition does not effect a marriage by a mere continuance of that connection. ”

What evidence is there that Lewis ever consented to, or even desired, to change his connection with Zerelday from an illicit to a matrimonial one ? He took no steps to remove the impediment to his marriage with her. The divorce was not sought by him, but was obtained by his former wife in 1846. If he had no knowledge of this divorce, it can not be presumed that he would have married the same woman. If he had notice of the divorce, and desired to change his con- ■ nection with Zerelday into that of marriage, it was an easy matter for him to have had solemnized a legal marriage, or for the parties in some public manner to have indicated an intention to enter into that relation; but this was never attempted.

It may be said that the holding of Zerelday out to the world as his wife, showed a desire to change his connection with her to that of marriage. But little importance can be-attached to this eircumstanc.e, when considered in connection with the other facts of the ease. A concubine is often held out to the world as a wife, to conceal an illicit cohabitation and prevent a criminal prosecution. And in addition to this, if he desired to change his former connection, there was an easy way open to him. The holding of her out as his wife-before the divorce, was a fraud and a deception, and if Lewis; would attempt to deceive the public by creating false appearances prior to December, 1846, why pa ay not his subsequent, acts also have been equally deceptive and fallacious ?

As said before, there is no evidence in the record showing that Zerelday ever knew that Lewis had a wife living at the-time she supposed she married him. She was deceived and imposed upon by Lewis, in his falsely assuming to have capacity to marry her, and in concealing the fact of his prior-marriage to a then living and undivorced wife. Not knowing of the former marriage, she could have had no reason for-desiring a second marriage. If she regarded herself as the, lawful wife of Lewis, it would be a violent presumption toehold that she assented to a second informal marriage. If lshe knew of the prior marriage, then her cohabitation with -Lewis was meretricious in its inception, and could only be changed after the disability of Lewis was removed, and then only by the mutual consent of both. If she had notice of the illegality of her marriage after the divorce, and cohabited with Lewis after that, without a new marriage, it was criminal. If she desired to make her subsequent connection with him lawful, she no doubt would have insisted upon a public or statutory marriage, so as to preserve the evidence of the same. Marriage may be shown by circumstantial as well as by direct evidence. It may, in a proper case, be inferred from continuous cohabitation and repute, when nothing appears to prevent the raising of the presumption created by the proof of these facts. If the cohabitation -was, in its inception, illicit, the presumption of the innocence and morality of the parties is at once rebutted and overcome, and without proof of a change in their relation to each other, it will be presumed that the continuance of the connection of the parties is of the same character. Floyd v. Calvert, 53 Miss. 37.

Bishop, in his work on Marriage and Divorce, (see. 506,) says: “If parties come together, intending and choosing an illicit commerce, there being no impediment to marriage, it can not be presumed, without reasons, whatever the law under ■which they live, that they have altered their choice, for a condition of things once shown is presumed to continue; and it can make no difference in this, that an impediment to marriage, existing when the cohabitation began, was afterwards removed. ”

In the State of Mississippi the constitution provided that all persons who have not been married, but are now living together, cohabiting as husband and wife, shall be taken and held, for all purposes in law, as married, etc. The Supreme Court of that State held that where a person claims to be married thereby, there must be some formal and explicit agreement between the parties that they will and do accept-the new organic law as establishing thenceforth between them a new relationship, or there must be such open and visible change in the conduct and declarations of the parties, that an agreement to accept the new law might fairly be inferred. Floyd v. Calvert, 53 Miss. 37; Dickerson v. Brown, 49 id. 357.

Where both parties are married in the honest belief, founded on an apparently good reason, that they are capable of entering into the marriage contract, when in fact one of them is not, if they .continue to cohabit as man and wife after the removal of the impediment'to their lawful union, the law will presume a common law marriage by the acts of the parties, in the absence of any evidence to prevent such presumption. In such a case there are many strong and cogent reasons for presuming a new marriage after the removal of the impediment, even though the parties may not have known of its removal. There the cohabitation, in ignorance of facts rendering it illegal, is not to be regarded as meretricious or criminal until the parties have knowledge of such facts. Their purpose in such a union is honorable marriage, which the law favors, and not mere illicit intercourse. The fact that Mrs. Lewis had no knowledge of the invalidity of the marriage, and therefore the cohabitation on her part was not criminal, can not validate the assumed marriage, even as to her. If valid as- to her, it must be equally so as to him. A contract not mutually binding, is void for want of mutuality. The most that can be said is, that Mrs. Lewis was not liable to criminal punishment for living with a man she supposed, in good faith, was her husband.

In Randlett v. Rice, 141 Mass. 385, one Alexander, in 1836, was married to A, in the State of Vermont, where he resided with her up to 1863, when he left her and went to Canada with another woman, after whose death, in the same year, he came to Portsmouth, New Hampshire, where he married B, in December, 1864. On September 11, 1867, he married C. A died in May, 1866. Neither Alexander nor A ever procured a divorce. It was contended that the cohabitation of Alexander with B, after the death of his first .wife, A, in May, 1866, .and before his marriage to C, in 1867, was evidence of a marriage between him and B, and therefore his marriage with C, in 1867, was void. The court say: “The cohabitation was the only evidence of a marriage, and in this case the cohabitation points only to the illegal contract of marriage under which it commenced. The parties had no thought of any other marriage. The testimony of the supposed wife shows this, and the fact that she did not know of the existence of the legal wife, and that Alexander did not know of her death, forbids any presumption that they made a new contract in consequence. ”

In Harbeck v. Harbeck, 102 N. Y. 714, which was a bill for a, divorce, the issue was, whether the parties were married, no ceremony having been performed. The plaintiff was formerly the wife of Montgomery, who abandoned her. She lived with the defendant until 1879, passing as his wife, both believing that Montgomery was dead, which was not true. The court said: “That the union between the parties was at first illegal, is conceded. If a change occurred, it was followed by no formal celebration. Nor is there evidence of any present agreement to take each other for husband and wife. And that they ever passed, by contract or by mutual consent, from the state of concubinage to that of marriage, is doubtful, by the admissions of the plaintiff, proven by the testimony of her sister, and by the defendant’s father, and by other witnesses. If that testimony is true, it is difficult to find that she herself regarded the connection as matrimonial, or that its continuanee depended upon anything more binding than the inclination or will of the defendant. It is true that he assumed the character of husband and she that of wife, and reported themselves in that relation to their associates and others,” etc.

In Appeal of Reading Fire Ins. Co. 113 Pa. 204, the Supreme Court of Pennsylvania say: “Undoubtedly they lived together for a long time, under circumstances to prove intimate sexual relations; but cohabitation and reputation, alone, are not marriage—they are merely circumstances from which a marriage may sometimes be presumed. It is a presumption, however, that may be rebutted by other facts and circumstances. (Hunt’s Appeal, 86 Pa. St. 294.) When the relation between a man and a woman living together is illicit in its commencement, it is presumed to so continue until a changed relation is proved. Without proof of subsequent actual marriage, it will not be presumed from continued cohabitation and reputation of a relation between them which was of illicit origin. Here the evidence establishes, with sufficient certainty, that in its inception the relation between the appellee and Eiegel was illicit, and there is no sufficient evidence to create a legal presumption of any subsequent marriage. ”

It is said that the presumption in favor of innocence, and against immorality and guilt, is so strong as to give rise to the presumption of a marriage. This is so in many cases, but such presumption of marriage will not arise if it will involve one of the parties in guilt,—as, where a man is cohabiting with two women, or where one of the parties is proved to be married to some one else. Williams v. State, 44 Ala. 44; Case v. Case, 17 Cal. 598; Harrison v. Lincoln, 48 Me. 205; Jones v. Jones, 45 Md. 144; Emerson v. Shaw, 56 N. H. 418; Senser v. Bower, 1 Pa. 450; Weinberg v. State, 25 Wis. 370. The courts, in favor of a second marriage, will often presume the death of a prior husband or wife, when not heard from for a much less period than seven years. Commonwealth v. Boyer, 7 Allen, 306; Rex v. Twining, 2 B & A. 386; Greenborough v. Underhill, 12 Vt. 604; Harris v. Harris, 8 Bradw. 57; Dixon v. People, 18 Mich. 84; Yates v. Houston, 3 Texas, 449; Senser v. Bower, 1 Pa. 450; Johnson v. Johnson, 114 Ill. 611. So they will often presume a pievious divorce in order to sustain the second marriage. Blanchard v. Lambert, 43 Iowa, 228; Hull v. Rawls, 27 Miss. 471; McCarty v. McCarty, 2 Strobh. 6; Carroll v. Carroll, 20 Texas, 731; In re Edwards, 58 Iowa, 431. In the present case, the evidence excludes any presumption of the death of the first wife of Lewis, she being alive after his death, and there can be no presumption that she obtained a divorce before his marriage in 1843, as the evidence shows her divorce was not granted until December, 1846, and the established facts will not justify the court in presuming that he procured a divorce from his prior wife. He was married to Sarah James, April 29, 1841, and lived with her about a year, when he left her and came to this State, where he was ostensibly married to Zerelday Cacey, December 8, 1843, only about a year and seven months after his abandonment of his first wife. If he procured any lawful divorce, it must have been in Caldwell county, Kentucky, or in Montgomery county, Illinois. If he procured such a divorce, it was a very easy matter to have shown it. Under the circumstances of this case, and taking into consideration the shortness of the time intervening from his desertion of his first wife and his second marriage, it can not be presumed, in favor of the innocence of the parties and the legality of the second marriage, that Lewis obtained a legal decree releasing him from his prior marriage.

The point is made, that the plaintiffs in error are barred by laches in asserting their rights. The bill was filed March 2, 1885, about seventeen years after the death of Lewis, so that the suit is not barred by the twenty years limitation law. The defendant in error having no color of title, is not in a position to invoke the seven years limitation law. To establish a bar under the limitation law of 1839, the possession and payment of taxes for seven successive years must be under color of title. (Stoltz v. Doering, 112 Ill. 234; Heacock v. Lubuke, 107 id. 396.) As a general rule, courts of equity follow the law in applying the Statute of Limitations. The plaintiffs in error not being barred at law of the right to assert an interest in the lands, are not precluded by laches from maintaining this bill.

The decree of the circuit court will be reversed, and the ' cause remanded.

Decree reversed.


source: Caselaw Access Project

author: Mr. Justice Mulicey

license: Public Domain

text:
    Franklin Osburn et al. v. Harry G. McCartney.

      Filed at Ottawa May 12, 1887.

    1. Practice—after reversal and remandment, and affirmance in part— proceedings in the tHal court. A decree for the partition of land left by a. deceased testator to certain devisees, was reversed by this court, for the reason the bill was prematurely brought, it holding that the devisees had, as yet, no vested interest under the will; and the cause was remanded, for further proceedings in conformity with the opinion then filed. The trial court thereupon dismissed the bill as to the lands: Held,, that the dismissal was the only order that could have been made to give effect to the decision of this court.
    2. Where a decree'for the partition of land, and finding the interest of the several parties, is affirmed by this court, although the cause may be reversed on some other point, and remanded, the circuit court will-have nothing to do-except'to complete the partition on the basis of the decree; and the judgment of affirmance will forever settle the rights of the parties in the partition, and the whole matter will become res judicata.

    3. Conflict of laws —judgments and decrees in another State—hour far conclusive in the courts of this State. The judgment or decree of the courts of another State, giving a construction to a will of a testator resident, in that State, and settling the rights of the devisees under the will, will be conclusive as to the personal estate left by the testator wherever found, and as to lands left by him situate in that State, but not so as to the rights of the devisees to lands of the testator in this State. As to such lands, our own courts will construe the will.
    Appeal from the Circuit Court of Cook county; the Hon. M. F. Tuley, Judge, presiding.
    Mr. N. M. Jones, for the appellants:
    The same general principles which regulate the vesting of devises of real estate, apply, to a considerable extent, to gifts of personalty. Jarman on Wills, (5th Am. ed.) 449.
    This court has construed the devise to mean, that there-should be no division of the estate until the youngest child became twenty-one years of age, and that ought to be final. That being so, there should be no division of the city lots until one is made 'of the acre property.
    Messrs. Williams & Thompson, for the appellee:
    The order of reversal of the decree, so far as it relates to the sixty-seven lots in Cook county, in effect was an affirmance of the decree as to those lots, (Manufacturing Co. v. Wire Fence Co. 119 Ill. 30,) and nothing remained but to carry into execution that part of the decree.
   Mr. Justice Mulicey

delivered the opinion of the Court:

This is a partition proceeding, commenced in the circuit court of Cook county, by the children of Henrietta W. Osburn, against Harry G. McCartney, for the partition of certain real estate in Cook county, and for a construction of the will of their grandfather, Griswold E. Warner, through whom all the parties claim. McCartney is the only child and heir of Jennie W. McCartney, a deceased daughter of the testator. As the sole representative of his deceased mother, it was claimed by his counsel that he was entitled, under the will, to one-half of the property sought to be partitioned. On the other hand, the Osburn children contended that the property was given to all the grandchildren as a class, and that he was therefore only entitled to an equal share with others,—that is, to one-ninth.

The property in controversy consists of certain lands of which the testator died seized, together with sixty-seven lots bought by his executors after his death, and paid for by them out of the undivided personal estate held by them in trust for said grandchildren, according to their respective interests as fixed by the will. The circuit court, by its decree, sustained the claim of the Osburn children as to the lands disposed of by the will, but denied it as to the sixty-seven lots,—in other words, the decree directed a per capita division to be made of the lands, and a per stirpes division of the lots, among the claimants. On appeal to this court by McCartney, it was substantially conceded by counsel for the Osburn children, that the decree as to the lots was correct, and so this court held; and while it also substantially concurred in the construction given to the will by the lower court, it was nevertheless thought, and held, that the suit, so far as the lands were concerned, was prematurely brought, on the ground that the complainants in the bill had as yet no vested interest in them, and the decree, therefore, except as to the sixty-seven lots, was reversed, and the cause remanded for further proceedings in conformity with the opinion then filed. (See McCartney v. Osburn et al. 118 Ill. 403.) The mandate of this court having been filed in the circuit court, and the cause replaced upon the docket, the apjjellants filed a motion to dismiss the entire proceeding, which being overruled, they then moved the court to stay the proceedings until the youngest child of Mrs. Osburn attained its majority, it being the time when the property, as held by this court, was to vest in interest. This motion was also overruled. The court thereupon proceeded with the partition of the lots, and entered a final decree dismissing the bill as to the lands, to reverse which the present appeal is prosecuted.

It is manifest that the action of the court below was in strict conformity with the decision of this court. The suit having been prematurely brought as to the lands, it was properly dismissed as to them. So far as they are concerned, that was the only order that could have been made which would have given effect to the decision of this court. As to the lots, the decree below was affirmed, and of course, so far as they are concerned, nothing remained for the court to do but to go on and complete the partition upon the basis of the decree. The decree, as affirmed, fully settled the rights of the parties in and to the lots in question, and it is not within the power of this court to change or in any manner unsettle them, even if it had the disposition to do so, which it has not. The whole matter was and is res judicata.

But if this were not so, the decree as respects these lots is clearly right, and defensible on well settled principles of law. It will be found from the former opinion filed in this ease, that Griswold Warner, the testator, was a resident of the State -of Pennsylvania, and was domiciled there at the time of his death; that after his death, and prior to the commencement -of this suit, a controversy arose in that State between the present parties, in respect to their respective rights under the will, which resulted in a decree of court sustaining the claim of McCartney to one-half of the property, real and personal.

That decree was subsequently affirmed by the Supreme Court of Pennsylvania, and is still in full force and effect. The decision in that case, on the plainest principles of law, con•clusively settled the rights of the parties to so much of the realty devised as lies in Pennsylvania, and to the entire personal estate, wherever situated or found, but it did not at all affect the title of the real property outside of that State. The lots, however, as we have just seen, were purchased after the testator’s death, and were paid for with money and effects •one-half of which belonged to appellee. This being so, it follows, that he, in equity, was entitled to one-half of the lots themselves. The partition and division of them having been made upon this basis, the decree was therefore clearly right. But, as already said, the matter is res judicata, and, consequently, is no longer open to question.

The decree will be affirmed. Decree affirmed.

Mr. Justice Magruder took no part in the decision of this case.


author: Mr. Justice Magruder

text:
    Lewis W. Pitcher v. The Board of Trade of the City of Chicago.

      Filed at Ottawa September 26, 1887.

    1. Corporation—expulsion of members—powers—conclusiveness. Where a person becomes a member of a corporation, under and subject to-the conditions of its charter, and agrees to be governed by its rules and regulations and by-laws passed in pursuance of the charter, among which is one-providing for the trial and expulsion of members for certain causes, and he-is charged with one of the offences named, and expelled, and the proceedings, against him appear to have been regular and in accordance with such rules, and regulations, the sentence of expulsion will be conclusive on him, the-same as the award or judgment of any other tribunal, and the merits of the-expulsion can not be inquired into by the courts.
    2. Board of Trade of Chicago—expulsion of members—powers of the board—how far its action conclusive. Under section 6 of the charter of' the Board of Trade of the city of Chicago, which provides that the corporation “shall have the right to admit or expel such persons as they may see fit, in the-manner to be prescribed by the rules, regulations and by-laws thereof, ” the-corporation may properly adopt a rule providing for the trial and expulsion of a member for a violation of its rules, by its board of directors; and such, expulsion will be binding and conclusive on such member, he having agreed, to submit to and observe ail such rules, regulations and by-laws as might be-adopted. It is not essential to the validity of the act of expulsion, that the-power should be exercised by the body of the corporators themselves, rather-than by the board of directors.

      3. So where a member of the board of trade in the city of Chicago has been-tried and expelled on charges of misconduct preferred in accordance with its-rules and regulations, to which he has assented, and by which he has agreed to be bound, the judgment of expulsion will be binding on him, and can not be collaterally attacked in the courts of law, on the ground that two of the directors trying him were not citizens of .the United States, or that two of them were prejudiced against him and not impartial triers, or that some of the triers did not hear portions of the evidence, but read the same after it was written out, or because the prosecuting witness was improperly sworn before a notary public.
    A. Injunction—of carrying out sentence of expulsion from membership in board of trade. A bill for injunction will not lie at the suit of an expelled member of a corporation against the incorporation, to restore him, on the ground that the expulsion deprives him of a valuable pecuniary and property-interest in his membership.

      Appeal from the Appellate Court for the First District;— heard in that cpurt on appeal from the Circuit Court of Cook county; the Hon. M. F. Tulet, Judge, presiding.
    Messrs. Bisbee, Ahrens & Decker, for the appellant:
    The board of directors had no authority to try and expel .•appellant. That could only be done by the corporation. Its by-laws or regulations, which are illegal or void for want of power, can not bind a member, though assenting thereto. An expulsion is a forfeiture, and is not favored in law. People v. Cotton Exchange, 15 N. Y. 216.
    Proceedings to disfranchise must be strictly pursued. Rex v. Sutton, 10 Mod. 76; Evans v. Philadelphia Club, 50 Pa. St. 127.
    The presumption is in favor of the member, and against the validity of the alleged expulsion. People v. Medical Society, 32 N. Y. 187.
    . A charter granting a power to expel, in general terms, is limited to infamous offences, to offences against his duty to the corporation, and to offences compounded of the two; and, also, such power to expel, when granted to the corporation, can not be delegated to a committee. State v. Chamber of Commerce, 20 Wis. 8.
    By-laws which vest in a majority the power of expulsion for minor offences, are void, and expulsions made under them will not be sustained in a court of justice. Evans v. Philadelphia Club, 50 Pa. St. 127.
    The power to disfranchise can only be exercised by the entire association. Medical Society v. Weatherly, 75 Ala. 248; Commonwealth v. German Society, 15 Pa. St. 251.
    -The tribunal was not an impartial one. In all courts all the triers must be indifferent as to the parties and as to the issues. Gates v. People, 14 Ill. 433; 1 Bishop on Criminal Proc. sec. 903; Insurance Co. v. Schueller, 60 Ill. 466; Railroad Co. v. Adler, 56 id. 344; Fleming v. State, 11 Ind. 234; Hutchinson v. Lawrence, 67 How. Pr. 38.

      The examination of witnesses should be in the presence of the whole court or body of triers. DeHart’s Military Law, 173, 150, 151, 92, 25; Hough on Court Martial, 666.
    Two of the trial court were aliens, and therefore incompetent to act.
    That the proper remedy is by bill, and not at law, see Montague v. Dudman, 2 Ves. Sr. 397; State v. Grocey, 11 Nev. 223 ; Beebe v. Guinault, 29 La. Ann. 795; Olery v. Brown, 51 How. Pr. 92.
    If the club has no property, equity will not relieve from such expulsion. Littleton v. Blackburn, 33 L. T. Bep. (N. S.) 641 ;. White v. Brownell, 4 Abb. Pr. 92.
    Cases where a court of equity has interfered and declared an expulsion void, and enjoined a corporation from depriving-the member of his rights: Fisher v. Keane, 11 Law Rep. (Ch. Div.) 353; Leach v. Harris, 2 Brewst. 271.
    Mr. C. Beckwith, also for the appellant:
    Buies providing for the expulsion of a member of a corporation must not be in violation of the charter or the general laws of the land. The corporation is the owner of property of great value, and membership in it is property of pecuniary value. A rule, for violation of which a forfeiture of property-rights may be declared, should specify certain acts or omissions of which a- member must be proved guilty before a-forfeiture can be declared.
    Statements not under oath are not evidence, and can not be made the basis of a finding upon which a man can be-deprived of his right of property.
    The corporation had no power to delegate its authority to-enforce its rules, to its board of directors, or to any other-committee. State v. Chamber of Commerce, 20 Wis. 8; Medical Society v. Weatherly, 75 Ala. 248; Commonwealth v. German Society, 15 Pa. St. 251.

      According to the rule of all tribunals undertaking to administer justice, the prosecutor is not allowed to act as a trier. All triers should be indifferent, both as to the parties and the issue. Gates v. People, 14 Ill. 433; Insurance Co. v. Schueller, 60 id. 466; Railroad Co. v. Adler, 56 id. 344; Fleming v. State, 11 Ind. 234; Rice v. State, 16 id. 298; Joyce v. Whitney, 57 id. 550 ; Rex v. Edmunds, 4 B. & A. 471; Willis’ case, 45 Howell’s State Trials, 643; Stewart v. State, 15 Ohio St. 155; Rafe v. State, 20 Ga. 60; Commonwealth v. Hussey, 9 Pick. 496; Spear v. Spencer, 1 Iowa, 534; 1 Bishop on Crim. Proc. secs. 903, 911.
    In cases of like nature, all the authorities establish the rule, and it is conceded, that the accused is entitled to a fair and impartial trial. Fisher v. Keane, 11 L. R. (Ch. Div.) 353; Hutchinson v. Lawrence, 67 How. Pr. 38; Evans v. Philadelphia Club, 30 Pa. St. 127; People v. Medical Society, 32 N. Y. 187; People v. Cotton Exchange, 15 id. 216; State v. Chamber of Commerce, 20 Wis. 8.
    A trial upon statements not under oath, and a finding from hearsay, has not the semblance of a fair trial.
    In England, when a club has no property, equity will not relieve from an expulsion. (Littleton v. Blackburn, 33 Law Times, 641.) But if the club has property, or extends to a member privileges of a pecuniary value, the court will exercise its power, (Fisher v. Keane, 11 L. R. Ch. Div. 353.) So in this country. Evans v. Philadelphia Club, 50 Pa. St. 157; Olery v. Brown, 51 How. Pr. 92; White v. Brownell, 4 Abb. Pr. 162; Ryan v. Brown, 18 Mich. 196; Leach v. Harris, 2 Brewst. 571; Diggins v. Chamber of Commerce, 99 Wis. 45.
    Mr. Sidney Smith, for the appellee:
    During the pendency of a suit by mandamus, to compel his restoration to membership, appellant filed this bill for an injunction to restrain the appellee from interfering with or preventing him from free access to the exchange hall, and from conducting business therein pending the mandamus case. In other words, praying a court of equity to restore him to membership in advance of a decision at law—a merely mandatory injunction, which this court has held should not be granted. Fisher v. Board of Trade, 80 Ill. 85; Baxter v. Board of Trade, 83 id. 146.
    The proceedings were regular, and were authorized by the rules of the association, and the charges were sufficient. The appellant appeared, and was heard in his defence, and the charges were sustained by a unanimous vote of the board of directors.
    The objection that the board of directors had no power to try and expel, is unfounded. The charter gives the association power to adopt rules “for the government of the corporation, (sec. 1,) and to expel members, ” in manner to be prescribed by the rules. (Sec. 6.) Pitcher signed an agreement to abide by and be subject to the rules, etc., of the association,' and “he stands convicted by the sentence of a tribunal of his own choice, which, like an award of arbitrators, concludes him. ” Black v. Van Dyke, 2 Whart. 309.
    The validity of these rules conferring this power, has been repeatedly affirmed by this court. People v. Board of Trade, 45 Ill. 112; 80 id. 134.
    In the last case, the power and jurisdiction of the board of directors to try was expressly challenged, but this court sustained the power, and so have the courts elsewhere. State v. Managers, 40 N. J. L. 295; People v. Com. Assn. 18 Abb. Pr. 271; High on Ex. Legal Rem. sec. 292; State v. Chamber of Commerce, 47 Wis. 670.
    The objection alleging that Pitcher was not guilty, goes simply to the merits. The merits will not be reviewed. The finding of the directors is conclusive. Angell & Ames on Corp. sec. 418.
    The objection that two members of the board voting for conviction were not citizens, (though untrue,) is groundless. No such qualification is prescribed by the charter or rules. Sec. 6 of Charter; sec. 1, rule 10.
    The objection that some of the directors voting were absent when some of the testimony was taken, unexplained, would, at most, be mere error, which could not be thus collaterally attacked; but this testimony was preserved in writing, and, with the assent and approval of Pitcher, was read in the presence of all who voted.
    The objection that the testimony' before the board was not under oath, has a three-fold answer: Neither the charter nor rules to which Pitcher assented require testimony under oath. Pitcher made no such objection when the testimony was introduced. Lastly, it was, in fact, under oath, administered by a notary public.
   Mr. Justice Magruder

delivered the opinion of the Court:

May 13, 1886, appellant was expelled from the Board of Trade of the city of Chicago. On the 8th of June thereafter he filed his bill in the circuit court of Cook county and obtained a preliminary injunction restraining the board from interfering with his “access into and upon the exchange hall of the board * * * and from carrying on his business therein” as he had theretofore done. After issue joined, a motion to dissolve the injunction was heard upon sworn answer and bill, and affidavits, and certain documentary proofs. The circuit court dissolved the injunction and dismissed the bill for want of equity. Its decree has been affirmed by the Appellate Court, and from the latter court the case is brought before us by appeal.

The first point made by appellant is, that the “Board of Trade of the city of Chicago” can not delegate the power of expulsion to its board of directors, and that his expulsion is illegal as having been the act of the directors, when the power to bring it about rested with the body of the corporators.

The main authority relied upon in support of this position is the case of State v. Chamber of Commerce, 20 Wis. 63, where an act provided that corporations organized under it should “have the right to admit as members such persons as they may see fit and expel any members as they may see fit.”

The language of appellee’s charter (vide Private Laws of 1859, page 13) is, however, much broader and more comprehensive than the Wisconsin law. The first section of that charter empowers the corporation to “make such rules, regulations and by-laws from time to time as they may think proper or necessary for the government of the corporation hereby created, not contrary to- the laws of the land. ” The sixth section provides that the corporation “shall have the right to admit or expel such persons as they may see fit in manner to be prescribed by the rules, regulations and by-laios thereof.”' The third section provides that “the officers shall consist of a president, one or more vice-presidents and such other officers as may be determined upon by the rules, regulations or by-laws of said corporation.”

In pursuance of the authority conferred by the first and third sections, the government of the board was, by section 1 of rule 1 of its standing rules, “vested in a president, two-vice-presidents and fifteen directors, who, including the president and vice-presidents, shall be known as the board of directors,” etc.

Under the authority of the sixth section of the charter, the board adopted the ninth section of rule 4, which provides, that “when any member of the association * * * shall, violate any of the rules, regulations or by-laws of the association, or * * * shall be guilty of making or reporting any false or fictitious purchases or sales; or * * * shall be guilty of any act of bad faith or * * * of any dishonorable or dishonest conduct, he shall be censured, suspended or expelled by the board of directors as they may determine from the nature and gravity of the offence committed. * * * An affirmative vote of at least twelve members of the board of directors shall be necessary to expel. ’’

We think that the ninth section of rule 4, as here quoted, comes fairly within the meaning of section 6 of the charter. The latter section gives the corporation the right to expel such persons as they may see fit in such “manner” as may be prescribed by the “rules,” regulations, etc. Expulsion by the action of the directors is one mode or manner of expulsion; expulsion by a majority vote of all the corporators is another1 mode or manner of expulsion. A rule prescribing the former mode is as much authorized and justified by the language of the charter as a rule prescribing the latter mode. State v. Milwaukee Chamber of Commerce, 47 Wis. 670.

Various other objections are made by appellant. He complains that two of the directors were not naturalized citizens of the United States, and that two of them were prejudiced and not fair and impartial triers of his case, that some of them did not hear portions" of the evidence, but read it after it had been written out, that the prosecuting witness was improperly sworn before a notary public, and that appellant was not guilty of the charges preferred against him.

We think that the judgment of expulsion is binding upon the appellant and can not be collaterally attacked for any of the reasons here specified.

Section 1 of rule 10, which was in force, except as to the amount of the initiation fee, when appellant became a member of the association, requires, as one of the conditions of admission to membership, that the applicant shall sign “ an agreement to abide by the rules, regulations and by-laws of the association and all amendments that may be made thereto. ” When appellant became a member, on or about the 6th of October, 1878, he signed an agreement to respect and be governed by such rules, regulations and by-laws.

Appellant was charged with keeping fictitious accounts, one called “Hedges, ” which was alleged to be his own firm ■account, and one called “Sam Weed,” which was alleged to •be his own individual account, and with making purchases ■or sales on account of “Hedges” or “Sam Weed,” which, if they turned out to be profitable, would remain in these accounts, so that he or his firm, would reap the profits, but, if they resulted unprofitably, would be transferred to the accounts of his customers, so that the latter would be forced to bear the losses.

When these charges were made, the board of directors proceeded as directed by section 16 of rule 4; they appointed a committee of their own number to make a preliminary examination into the charges; the committee made the preliminary examination and reported in favor of a full investigation ; thereupon appellant was notified to appear before the board of directors; he did appear, pleaded not guilty, a trial was had, testimony was heard, the charges were sustained and he was expelled. ,

Section 13 of rule 4 provides for the re-admission, upon certain terms, of an expelled member by an affirmative vote of twelve members of the board of directors, and such readmission may be granted without the payment of initiation fees, if it is proven that he has been expelled on false testimony, or that there was error in the decision against him. Appellant presented his petition for restoration to membership, but the same was not granted.

What is the law applicable to the state of facts here recited ? When the appellant became a member of the Board of Trade under and subject to the articles and conditions of its charter and by signing an agreement to be governed by the rules, regulations and by-laws passed in pursuance of that charter, he, of course, became such member under and subject to the rule, which imposed expulsion as a penalty for the offence with which he was charged, and under and subject to the rules, which directed the mode of investigating and trying such offence. The proceedings against him appear to have been regular and in accordance with the rules and the provisions of the charter. The expulsion is, therefore, conclusive against him. “The sentence is like an award made by a tribunal of the party’s own choosing; * * * The society being empowered by its charter to act judicially, its sentence is just as conclusive as that of any other judicial tribunal.” Angell & Ames on Corp. (11th ed.) sec. 418; High on Ex. Legal Rem. (2d ed.) sec. 292.

The merits of appellant’s expulsion can not be re-examined by us in this proceeding. The minor irregularities, of which he complains, were waived by his appearance before the board of directors and the submission of his case for trial by them without objection either to the manner in which that body was constituted, or to the mode of its proceeding. Appeal of Aaron Sperry et al. 116 Pa. 391.

The learned judge of the circuit court undoubtedly dismissed the bill because we have several times decided that a bill for injunction will not lie in cases of this kind. (Fisher v. Board of Trade, 80 Ill. 85; Baxter v. Board of Trade, 83 id. 146; Sturges v. Board of Trade, 86 id. 441.) The facts in the Baxter case are like those in the case at bar; there, as here, a petition for mandamus was first filed and was at once followed by the filing of a bill for an injunction- pending the determination of the mandamus proceeding. It is sought, however, to distinguish that case from the present one on the ground that the irreparable injury there complained of consisted merely in the loss of speculative profits, and that the expulsion was not enjoined because the object of the injunction was to enable a member “to speculate upon the rise and fall of the products of the country.” On the other hand it is claimed here, that the appellant has a valuable pecuniary and property interest in his membership, and that his expul- - sion deprives him of the legitimate profits, which he would be able to make in a large and profitable business.

We pass no opinion upon the distinction thus sought to be made between the case at bar and the Baxter case. The discussion of such a distinction is rendered unnecessary by the views herein expressed as to the finality of the judgment of expulsion against the appellant by reason of its having been rendered by a tribunal of his own choosing, and under rules by which he pledged himself to abide.

The judgment of the Appellate Court is affirmed.

Jaclgment affirmed.


author: Mr. Justice Mulket

text:
    Jonathan Ogden v. Town of Lake View.

      Filed at Ottawa September 27, 1887.

    1. Special assessments—requisites of the ordinance, as to character, ■description, etc. An ordinance for the construction of a system of sewerage, which fails to specify the nature, character, locality and description of the man-holes and catch-basins, is invalid, and can not be made the basis of special assessments.
    2. Same—of the petition—its requisites—recital of ordinance. A petition to the county court for the assessment of the cost of a local public improvement, containing a recital of the ordinance, is the foundation of the application, and if it fails to contain such recitals, it will confer no authority on the court to act.
    3. Amendment—leave to amend is not an amendment of itself—of amendment of record pending appeal or error. The grant of leave to amend a petition for the levy of special assessments, does not amount to an amendment. Under such leave, the party is not bound to make the proposed amendment, and after judgment and writ of error brought, the record can not be so amended by showing an amendment to the petition.
    4. While, within certain limitations, a record, even after appeal or writ of error, may, upon proper notice, be so amended as to make it truly state what actually occurred in court, and which should have been entered of record at the time, it can not be amended by interpolating into it matters that did not actually take place. That would be to make a new record.

      5. Leave was granted to a petitioner to amend his petition, which was not done. After judgment and writ of error brought, the record was amended by showing the interpolation of the proposed matter in the petition: Held, that such amendment was unauthorized, and could not be considered.
    Writ of Error to the County Court of Cook county; the Hon. Bichard Pbendergast, Judge, presiding.
    Messrs. Wilson & Moore, for the plaintiff in error.
    Mr. H. H. Anderson, for the defendant in error.
   Mr. Justice Mulket

delivered the opinion of the Court:

This writ of error brings before us, for review, a judgment of the county court of Cook county, confirming a special assessment made by the town of Lake View, for the purpose of constructing and maintaining a connected system of sewers in and along certain streets and avenues in said town. It appears from the supplemental record, filed after the cause was taken on call in this court, that while it was pending in the county court, to-wit, on the 20th of September, 1886, the defendant in error, by its counsel, applied to the court for leave to amend the petition by adding thereto, with proper reference therein, an ordinance of the town of Lake View, entitled “An ordinance for the construction and laying of sewers and drains in the town of Lake View, and to regulate the same, ” approved July 21, 1882, and that the county court thereupon granted such leave. But it further appears, that no such amendment was in fact made, and that the court, acting upon the hypothesis that the amendment had been made, proceeded in the cause to final judgment.

It is clear that the ordinance set out in the original record, which provides for the construction of certain sewers, manholes and catch-basins, does not, so far as the mañ-holes and catch-basins are concerned, conform to the requirements of section 135 of the City and Village act, in this: that it fails to specify “the nature, character, locality and description of the-improvement. ” It has been repeatedly held that an ordinance which does not do this is invalid, and that any assessment founded upon it is equally so. (Levy v. City of Chicago, 113 Ill. 650; City of Sterling v. Galt, 117 id. 11; City of Kankakee v. Potter, 119 id. 324.) That the ordinance last, passed, and which alone was set out in the petition, was not sufficient in the respect mentioned, is, in effect, conceded by the filing of the supplemental record, which it is claimed cures-the defect in question.

In the view we take of the case it is unnecessary to express-any opinion upon the question whether an ordinance providing for the construction of a local improvement like the present, will be sufficient, which merely refers to some other-ordinance for a description of the nature and character of the improvement, for, conceding that would be a substantial compliance with section 135, above referred to, still we do not-think the judgment in the present case can be sustained upon that theory. It is evident that the view suggested can only-be sustained upon the theory that by such reference the ordinance, or such part or parts as are referred to, are incorporated into and become a part of the ordinance containing; such reference, and so, being a part of it, must be set out in the petition, as1 required by section 138 of the act in question.. (1 Starr & Curtis, p. 494.) The petition containing a recital of the ordinance, as contemplated by that section, is the foundation of the proceeding before the county court, and where-it fails to contain such recital it will confer no authority on* that court to act at all.'

That at the time the judgment in this case was rendered,, the ordinance of July 21, 1882, was not recited in or annexed to the petition, as required by section 138, is a conceded fact; and such was the case at the time the present writ of error was sued out. Moreover, the only fact shown by the supplemental record is, as already stated, that leave was granted! defendant in error to amend its petition by making the ordinance last above named, a part of it. The granting of such leave certainly had no other effect than to confer on defendant in error the power to make such amendment. After obtaining such leave the defendant in error was not at all bound to make the amendment, and until it was made, the petition remained just as it was before the application was made, and so it remained until the suing out of this writ of error. To permit the amendment to be made afterwards, was simply to-permit the making of a new record. This, of course, can not be permitted. While, within certain limitations, a record, even after error brought, may, upon proper notice, be so-amended as to make it truly state what actually occurred in court, and which should have been entered of record at the-time, yet it can not be amended for the purpose of interpolating into it matters which did not actually take place. If orders of the court could be entered nunc pro tunc, as was attempted to be done in this case, so as to cure mistakes of the parties or their counsel, or to interpolate into the record orders which the court intended to make but in fact never did make, no one would be safe in appealing from an adverse decision. That this can not be done is too plain to admit of serious discussion, and is fully settled by the authorities.. Freeman on Judgments, sec. 68.

The judgment in this case not being warranted by the record before the court at the time it was rendered, and the subsequent attempt to cure the defect in the proceeding not being authorized by the general principles of law relating to amendment of records, it follows it must be reversed. It is therefore ordered that the judgment of the county court be-reversed, and the cause remanded for further proceedings in. conformity with this opinion.

Judgment reversed.