Clark v. Cassidy

Jackson, Justice.

1. It is wholly immaterial when the goods were converted by the defendant, if it was done within the statute of limitations, and about that the record discloses that there is no dispute. Clark was in possession after intestate’s death, and converted the effects sued for within the statute. 57 Ga., 407 .

2. The burden in our judgment was upon Clark to show his marriage to the intestate, as his claim to the goods rested entirely upon that allegation being true. The articles were in her possession — in her house — when she died ; and that fact, with the letters of administration and conversion by defendant, cast the onus upon him of showing title. He claimed title from the intestate by virtue of being her husband and heir, and that she owed no debts, and his is the burden to show that title by producing proof of the marriage. This may be done by record evidence, or by witnesses who saw the ceremony performed, or heard the contract of marriage solemnized, or by such circumstances as *411 the act of living together as man and wife, holding themselves out to the world as such, and repute in the vicinity and among neighbors and visitors that they are such, and indeed all such facts as usually accompany the marriage relation and indicate the faoiyum of the marriage. The evidence in each case is for the jury; the fact to be established is, did that relation exist at the death of this woman ? and this, of course, pre-supposes that at sometime or other the contract of marriage was entered into and legally made. 1 Bish. on Marriage & Divorce, sections 247, 248, 266, 501-540; 1 Greenleaf’s Ev., 105; 2 Ib., 461, 464; Shelford on Marriage & Divorce, marg. p. 99; Reeve’s Dom. Relations, marg. p. 60; Dillon vs. Dillon, 60 Ga., 204 . Code §1701.

3. Under the Code, the preponderance of evidence is considered sufficient to produce mental conviction in civil cases, and that is for the jury to determine. To determine it they may survey the whole field, the number of witnesses to a fact on either side, opportunity of knowing, general deportment, manner of testifying, and any other circumstances tending to throw light on the credit of the several witnesses. In civil cases, the court should not lay stress upon doubts which may exist of the proof of particular facts. It is enough if the evidence satisfies the jury of the truth of the existence of the facts testified to, by the weight or preponderance of it. Code, §3749. 56 Ga., 170 .

4. The reputation that parties are husband and wife existing in the neighborhood wheie they live, without any division of opinion at all, is certainly more conclusive, or rathei’, stronger evidence of the fact that they had contracted marriage, than where that reputation is divided; yet it is all for the jury to consider and weigh, and the court ought not to charge broadly that if it be divided, such reputation is of little or no weight. It might be so divided in the opinion of the jury of the number, character, deportment, interest, manner of testifying, and opportunities of knowledge in the witnesses, that the weight would be overwhelming. It *412 is. for the jury to weigh it without intimation from the court of its opinion in regard to its weight, especially that it is of no weight if divided.

5. If the former marriage of the husband was proven in this case (and there is evidence of it), the presumption is that it exists until the same is rebutted by proof of its dissolution by divorce or death. The party asserting the dissolution by either event, must prove it according to the rules of evidence. Nor does it matter that the innocent party to the second marriage was ignorant of the first ; the second is void if either was married to another when the second was contracted, so far as the parties themselves are concerned. Code, §§1698, 1699, 1702.

6. The verdict of divorce in the case at bar, of intestate and her husband, was rendered in 1866. There was no decree, so far as the record discloses, or order authorizing the guilty party to marry again. That guilty party was this intestate. At that time, without such decree or order, such party could not marry again. Irwin’s Code, §4964. There must be the production of the decree, or legal proof thereof, to authorize the guilty party, found so by the jury, to marry again.

Judgment reversed.