Brokeshoulder v. Brokeshoulder , 84 Okla. 249 ( 1921 )

The attorneys for the defendants in error in their brief on petition for rehearing in this case make serious objection to the rule laid down in the second paragraph of the syllabus in the original opinion by this court in regard to the weight of evidence required in attacking the validity of a second marriage, and which second paragraph of the syllabus reads as follows:

"The presumption arising in favor of the validity of a second marriage is not a conclusive presumption, but is what is known as a rebuttable presumption, and the one contending against the legality of the second marriage is not required to make plenary proof of a negative averment. It is enough that he introduce such evidence as, in the absence of all counter testimony, will afford reasonable grounds for presuming that the allegation is true, and when it is done the onus probandi will be thrown on his adversary."

The rule we lay down is the one set forth in Copeland v. Copeland, 73 Oklahoma, 175 P. 764, and the Copeland Case accepted the rule as laid down in an Illinois case, Schmisseur et al. v. Beatrie et al., 35 N.E. 525, and which rule also seems to be the rule set forth by Mr. Freeman in a note to Pittinger v. Pittinger (Colo.) 89 Am. St. Rep. 193, and the same as set forth in the second paragraph of the syllabus in the original opinion in this case, also based upon the laws adduced in the Copeland Case and the Illinois case, and Mr. Freeman's note. In the Illinois case above cited consideration is given to the rule as contended by the attorneys for the defendants in error, even going so far as to designate the legality of the second marriage as being a strong presumption, and due consideration was also given to this rule in the original opinion by this court. The attorneys for the defendants in error, in their brief, contend that the rule laid down in Copeland v. Copeland should be overturned, since it is not the proper rule. We hold that it is a proper one and is supported by strong reason and by very recent authority, as we shall show hereinafter.

The Illinois case that we have just cited was not the first nor the final pronouncement of the Illinois Supreme Court upon this rule. As to whether the rule of presumption should be designated as a strong presumption or merely a bare presumption, as far as the opinion in this case is concerned, we think it makes no difference. We hold this for the reason that in the instant case it was determined upon the question of the weight of evidence and the consideration of circumstances surrounding these parties and the inferences to be drawn therefrom, and the instant case is not a case that can be tried upon the weight and force to be given a legal presumption. It is a question of weight and sufficiency of proofs. It is true, however, that the rule was determined as to the presumption, and we held that one attacking the validity of a second marriage had to overcome the presumption of its legality, and we held that under the facts and circumstances and relations of the parties and the inferences to be drawn from the same the judgment of the trial court was against the clear weight of the evidence.

As we have heretofore stated, the Illinois case that we have cited was not the first nor the last pronouncement of the Supreme Court of Illinois. In 1887 the Supreme Court of Illinois rendered an opinion in the case of Cartwright et al. v. McGowen, 121 Ill. 388, 12 N.E. 737, while the first case cited from Illinois was rendered in 1893. This last cited case from Illinois states the following:

"The presumption of the capability 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 a man and woman husband and wife. Capacity and consent are absolutely essential, but celebration only contingently so. Thompson v. Thompson, 114 Mass. 566; Merriam v. Wolcott, 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. L. 485; Port v. Port,70 Ill. 484."

On page 740 of the same authority, we find the following:

"The evidence in the record is amply sufficient to show that Lewis and Zerelday lived and cohabited as husband and wife for a period of about 25 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 cohabitation and repute do not constitute a marriage, but are only evidence tending to raise a presumption of marriage of more or less strength, according to the circumstances of the case, and that the cohabitation must not be meretricious, but matrimonial, in order to give rise to this presumption. I Bish. Mar. Div. 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 yieldto 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 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, then 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 was 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."

In the case of Cartright v. McGowen, that we are now discussing, the facts are almost identical with the case at bar. The marriage of Lewis to a second wife after leaving Kentucky and going to Illinois was in 1843, not quite two years after he married his wife in Kentucky. This was held to be an illicit marriage under the facts and the rule of presumption laid down. The first wife procured a divorce in Kentucky in 1846, three years after the illicit marriage. This, of course, removed the impediment in the way of Lewis contracting a legal marriage, and then the question arose as to whether a legal or common-law marriage could be presumed upon continued cohabitation with the second wife. As we have heretofore shown, they held it could not. In support of the contention to uphold the legality of the second marriage, they argued the presumption of the death of the first wife. In discussing this presumption of death, and the facts applicable thereto, this last cited case has the following to say:

"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 cannot 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 year following the rendering of the opinion in the case of Schmisseur v. Beatrie, the Supreme Court of Illinois rendered a decision in the case of Cole v. Cole et al. (Ill.) 38 N.E. 703, in which case said court reaffirmed the doctrine laid down in Schmisseur v. Beatrie, heretofore cited. This last case is also very much in point with the instant case, and we are going to include herein an extended quotation therefrom, giving the facts and the application of the law thereto:

"It is clear from the testimony of Emma Cole, as well as that of other witnesses, that she was legally married to the deceased in Staffordshire, England, on the 13th day of February, 1865, and there lived and cohabited with him for about one year, when he deserted her, and came to this country. She continued to live in England, and still resides there. He never returned to that country. He married one Amelia Hahn, in Sangamon county, this state, in 1875, and lived with her until about 1887, when she obtained a divorce from him; and he soon after went to Brazil, Indiana, and there, on the 18th of September, 1888, married appellant and lived with her until his death, about one year later.

"The question is, was this last marriage void because of the former one to Emma Cole? Counsel for appellant insist, as a matter of law, that, her marriage being proved, the presumption in favor of its validity is such as to cast the burden upon those questioning it to show its illegality, and therefore that, unless Emma Cole has proved that the marriage between herself and George Cole was never dissolved, his marriage to appellant must be held valid. As a general statement of the rule of evidence in this state in such cases, the proposition is supported in Schmisseur v. Beatrie, 147 Ill. 210, 35 N.E. 525, and cases there cited. But counsel for appellee insist upon the authority of the decision by the Supreme Court of Iowa that the presumption in favor of the validity of a second marriage, where the husband or the wife of the first is shown to be living, only places a burden of proving that the first has not been dissolved when it is shown that the acts and conduct of both parties have in some way been inconsistent with the continuance of the marriage relations: and it is contended that without this qualification great injustice may be done an innocent wife, through the willful wrong of her husband. She, it may be said, remains true to her marriage vows. He deserts her, without cause, goes to a foreign country, and contracts a second, void marriage. She may be, and generally is, in such a case, powerless to prove that he had not, at some time, in some jurisdiction obtained a divorce. Shall she, upon a mere presumption of his innocence, be deprived of all her rights, as a wife or widow, because she cannot produce such negative proof? We do not think a fair construction of our decisions could legally lead to such a result. In the Schmisseur Case, supra, we said: 'Although the responsibility was upon the complainants of proving the negative contention that a divorce had not been obtained before the marriage of 1876, yet it is well settled that a party is not required to make plenary proof of a negative averment. It is enough that he introduces such evidence as, in the absence of all counter testimony, will afford reasonable ground for presuming that the allegation is true, and when this is done, the onus probandi will be thrown on his adversary. 1 Greenl. Ev. sec. 78.'

"Suppose, as in this case she did, the wife proves her marriage obligations; that her husband, without cause, deserted her; that she had no knowledge of his second marriage until after his death; that she had no personal knowledge of his having obtained a divorce, and her marriage was never dissolved in the jurisdiction where she lived when he deserted her, and where she continued to live to the time of his death. Would not these facts, in the absence of all counter testimony, afford reasonable grounds for presuming that no divorce was obtained? The validity of the second marriage is presumed only because of the presumption which is always indulged in favor of innocence, because of the presumption that a man will not commit the crime of bigamy. But, the foregoing facts being proved by the unoffending wife, the question of innocence is no longer a matter of presumption. The husband had no valid grounds for divorce. To obtain one, he must have sworn falsely himself, or procured others to do so. If her testimony and that of witnesses testifying on her behalf, is true, as to her conduct and his, he could not, without fraud upon a court, or perjury, obtain a divorce. We think, therefore, the evidence that the wife had done nothing inconsistent with her marital duty was sufficient to overcome the presumption in favor of the legality of appellant's marriage, and shift the burden of proving it upon her. Without having critically examined the Iowa cases cited, we apprehend that the only substantial difference between the rule laid down by them and our own decision is as to the burden of proof, in the first instance, to show that the facts and conduct of the first wife or husband have not been inconsistent with the continuance of the marriage relation."

The case of Barnes v. Barnes, heretofore cited and the first paragraph of the syllabus of which we have quoted, was a case where one Emily Bruce sought to take a portion of the property of Ezra Barnes under the statutes of Iowa as his legal wife at the time of his death. Emily's first marriage was with one John Weidman, and after she had resided with him in Illinois for a couple of years they separated, she going to Iowa and he to Wisconsin. In 1858 she filed a petition for divorce in the county in which she lived in Iowa, and dismissed the same that year after suggesting the death of Weidman, and married Ezra Barnes the same year, with whom she lived until 1869, when she separated from him. After Emily had left him, Barnes married another woman and willed his last wife all his property. The question in the case was, was Emily the legal wife of Ezra Barnes at the time of his death? It appears that John Weidman, the first husband of Emily, a year or more after Emily married Barnes, had married another woman in Wisconsin. The Supreme Court of Iowa, discussing this case, distinguished it from the case of Blanchard v. Lambert, 43 Iowa, 228. It appears that the Blanchard Case was decided upon the rule of presumptions alone, and not upon any evidence. The following is taken from the case of Barnes v. Barnes, found on page 852 of 57 N.W.:

"Plaintiff's first contention is that under the authority of Blanchard v. Lambert, 43 Iowa, 228, the law will presume a divorce dissolving the marital relation between plaintiff and Weidman prior to plaintiff's marriage with deceased, from the fact that both she and Weidman thereafter married. In that case the plaintiff and her former husband, Musgrave, separated in 1858, and the plaintiff married Blanchard nearly nine years thereafter. For several years prior, Musgrave was living with a woman who claimed and whom he claimed to be, and who was reputed to be his wife. The plaintiff lived near by, and knew these facts. Upon these facts, the court says: 'The law presumes that this cohabitation of Musgrave was legal, and not criminal, and that he had obtained a divorce from plaintiff.' The facts upon which that presumption was based are quite different from the facts in this case. In that, Musgrave had lived with and recognized the second woman as his wife, to the knowledge of the plaintiff, before her marriage to Blanchard; in this, the plaintiff's husband, Weidman, did not marry Belle Coplin until after plaintiff's marriage to Barnes. There was no evidence whatever in that case to negative the presumption that Musgrave had obtained a divorce, while in this it is shown by the records of each county in which Weidman and the plaintiff had cohabited and resided that no divorce had been obtained therein. This evidence is not conclusive, as it is possible that a divorce might have been obtained elsewhere, but it is certainly sufficient to rebut the presumption that a divorce had been granted, and especially when that presumption has no better foundation than the facts in this case."

It will be observed that Emily Bruce invoked the presumption of the legality of her marriage with Ezra Barnes arising from the fact of her marriage with Barnes and the fact that John Weidman had also remarried. The defendant in error has invoked the same proposition in the instant case. The Iowa court refused to recognize this presumption as applied to the facts in the Barnes Case, and those facts are identical with the situation in the instant case.

These facts we have fully recited herein, except with the additional suggestions that the record in the instant case does not show that Ruby Brokeshoulder knew of the marriage of Josephine Brokeshoulder and Cammack Brokeshoulder, and the record does show that after Josephine had married Edgar Tubby, some 16 months after Cammack had married Ruby, Edgar and Josephine separated in about a month after their marriage and continued separated. The rule seems to be laid down in the case of Barnes v. Barnes that no presumption can arise of a divorce between Cammack and Josephine by reason of the marriage between Josephine and Edgar Tubby, followed as it was, in a very short time, by a continued separation.

To the same effect as the two cited cases and quoted cases from Illinois is the following from Re Colton, 129 Iowa, 542, 105 N.W. 1008:

"In determining which of two claimants is the widow of the deceased, proof that deceased deserted his second wife without cause and had no ground for divorce, and that no divorce was recorded in the respective counties in which they subsequently lived; aided by the presumption that the residence of each continued to be in the same county in which it was taken up after the separation — overcomes the presumption of divorce in favor of the validity of a subsequent marriage of the husband."

Also the following from the Colored Knights of Pythias v. Tucker (Miss.) 46 So. 51:

"In an action by an alleged wife to recover as beneficiary in a policy on a decedent's life, defended upon the ground that she had another husband living when she married the decedent, it is not necessary, in order to overcome the presumption in favor of a divorce from the first husband, that the defendant conclusively prove that no such divorce was granted, it being sufficient if it elicit proof which, in all the circumstances of the case, will produce a conviction in an unprejudiced mind that no divorce had been granted."

Also the following from Hammond v. Hammond (Tex. Civ. App.)94 S.W. 1067:

"No presumption of divorce from the wife who left him and lived in adultery arises, as a matter of law, upon the remarriage of the husband, whose action for divorce was dismissed."

The three above quoted excerpts are taken from the notes to the case of Smith v. Fuller, 16 L. R. A. (N. S.) found on page 108, and are not exact excerpts from the above cited cases, but are in substance the holdings therein.

It will appear from the case of Schmesseur v. Beatrie, heretofore cited and quoted, that the attorneys contending against the holding in said court contended for the rule of strong presumption, as in the instant case, and discussed the Iowa cases which it was claimed supported the rule of a persisting and strong presumption.

In the year 1909, the Supreme Judicial Court of Massachusetts, in the case of Turner v. Williams,202 Mass. 500, 89 N.E. 110, 24 L. R. A. (N. S.) 1199, discussed the rule of presumptions applicable in support of the legality of a second marriage in a well-reasoned, logical, and plainly stated ruling, and it is in line with the holding in the Copeland Case and the rule laid down in the original opinion in this case. From said case we quote the following:

"The question to be decided was whether the prior marriage of the defendant's intestate was dissolved at the time of her marriage with the plaintiff's testator. Proof that it was valid and subsisting was the burden assumed by the plaintiff, and this burden rested on him throughout the trial. Although there was oral testimony to the effect that this marital relation had been dissolved by divorce, it was nevertheless open to the plaintiff to argue that the statements to this effect were made by interested persons, who were mistaken, discredited, unreliable, deceived, or deliberately attempting to deceive, and therefore not entitled to belief. It is urged in support of the ruling that the law has such a tender regard for solemnized marriage and for the assumption of innocence as to presume strongly that all apparent obstacles were removed, so that its validity may be established. It has often been decided or intimated by way of dictum that death or divorce of one of the parties to a prior marriage will be presumed in order to support such a second one. Potter v. Clapp. 203 Ill. 592-600, 96 Am. St. Rep. 322, 68 N.E. 81; Hunter v. Hunter, 111 Cal. 261, 31 L. R. A. 411, 52 Am. St. Rep. 180, 43 P. 756; Cash v. Cash, 67 Ark. 278, 54 S.W. 744; Re Rash, 21 Mont. 170, 69 Am. St. Rep. 649, 53 P. 312; Alabama V. R. Co. v. Beardsley,79 Miss. 417-424, 89 Am. St. Rep. 660, 30 So. 660; Scott v. Scott, 25 Ky. L. Rep. 1356, 77 S.W. 1122; Montgomery v. Bevans, 1 Sawy. 653-666, Fed. Cas. No. 9735; Erwin v. English,61 Conn. 502-510, 23 A. 753; Lockhart v. White, 18 Tex. 102; Carroll v. Carroll, 20 Tex. 731; Smith v. Knowlton, 11 N.H. 191-196; Greensborough v. Underhill, 12 Vt. 604; Palmer v. Palmer,162 N.Y. 130, 56 N.E. 501. This train of cases appears to have had its origin in R. B. Twyning, 2 Barn. Ald. 386, which 'has been much misunderstood', as is pointed out in Lapsley v. Grierson, 1 H. L. Cas. 498-505, where it is explained. Where there is no extrinsic evidence either way, the legality of a marriage, like sanity, continuance of life, and regularity of acts of public officers, will be assumed. But where it is attacked and evidence is introduced tending to impeach it, then a question of fact arises to be proved in the light of all the circumstances and the reasonable inferences from them. The presumption of innocence is not so much stronger than any other as to compel the assumption of death or divorce in order to infer its existence. The unsoundness of such a contention becomes apparent when applied to every conceivable state of facts. A marriage could not be ruled, as a matter of law, to be valid by reason of the presumption of innocence, if other evidence showed a month or a day before its solemnization one of the parties was living with a legal and youthful spouse of good health and nondangerous employment. The law jealously regards the marriage relation and makes reasonable assumptions in its favor, but it has no special regard for second in preference to first marriage.

"The burden of proof in the absence of conflicting evidence may sometimes determine the result. The state of health, age, occupation, or prospective journey of a given individual may warrant the inference of death within a brief time. But ordinarily whether one is alive on any given date within the period of seven years unexplained absence is a fact to be determined upon all the possibilities arising in a particular case. Circumstances may exist which would make reasonable the inference of a divorce. But there is no inflexible rule by which it can be invoked to protect subsequent nuptials. There is no absolute presumption of innocence which will of itself prove the validity of a subsequent marriage in preference to the continuance of a former one. The validity or invalidity of the marriage drawn in question must be established, by the party upon whom the burden of proof is cast, upon all the facts with the reasonable inferences flowing from them. The law marks no particular consideration as of prevailing consequence in all cases. There is no 'sacramental force' in the presumption of the continuance of life or any other status in its nature likely to endure. Presumptions are rules of convenience based upon experience or public policy, and established to facilitate the ascertainment of truth in the trials of causes. There are a few instances of conclusive presumptions; but where there are conflicting presumptions, one is not, as matter of law, stronger or weaker than another. The whole case, then, is thrown open to be decided as a fact upon all the evidence. It is for the sound judgment of the jury to weigh all the circumstances, including the characters of the persons involved and the probability of different lines of conduct, and determine where the truth lies as a matter of common sense, unfettered by any arbitrary rule. Hyde Park v. Canton, 130 Mass. 505; Com. v. McGrath, 140 Mass. 296-299, 6 N.E. 515; State v. Plym, 43 Minn. 385, 45 N.W. 848; Reynolds v. State, 58 Neb. 49-52, 78 N.W. 483; Williams v. Williams,63 Wis. 58, 53 Am. Rep. 253, 23 N.W. 110; Casley v. Mitchell, 121 Iowa, 96, 96 N.W. 725; Northfield v. Plymouth, 20 Vt. 582-590; Lapsley v. Grierson, 1 H. L. Cas. 498; R. v. Willshire, L. R. 6 Q. B. Div. 366-370; R. v. Harborne, 2 Ad. El. 540; R. v. Lumley, L. R. I C. C. 196."

The following is taken from the notes by the editor to the case of Smith v. Fuller (Iowa) 16 L. R. A. (N. S.) 98, in which it appears that the writer of the note comes to the same conclusion as the case of Turner v. Williams, supra:

"There are to be found in the books frequent judicial expressions, either actually or in effect, of the general rule that, where a marriage is once shown, it is presumed to be valid until the contrary is shown. This presumption may be compared to the trunk of a tree of which nearly all other presumptions arising from marriage are branches.

"Most important of these branches are the presumption that no impediment existed to a marriage proved to have been contracted, and the presumption, where an impediment is shown in fact to have existed in the form of another marriage, that the impediment ceased to exist before the second marriage by reason of the death or the divorce of the former spouse.

"So, therefore, it will be seen that, generally speaking, the presumption in favor of the validity of a marriage shifts to the second marriage of one who remarries during the life of a former spouse.

"But the courts have sometimes refused to indulge this, and other presumptions, and these refusals serve to take them from the category of absolution and inflexibility, to which apparently they have sometimes been regarded as belonging. Therefore, the judicial expressions that any presumption is a matter of general application must be scrutinized in the light of cases that have refused to apply it in certain circumstances, with the result that it may properly be said that, however commendable the spirit may be that presumes in favor of marriage and legitimacy, the presumption, to be warranted, must be justified by the particular facts of a case, and consonant with what most nearly effects justice in such case."

The attorneys for the defendant in error, in their brief, assert that they have been unable to find anywhere in the books, where both spouses to a first marriage have each contracted a subsequent marriage, that either of the subsequent marriages has been held invalid. The case of Barnes v. Barnes, heretofore cited, is just such a case, and the first paragraph of the syllabus reads as follows:

"Where the records of the counties in which a man and a wife have lived show no divorce, there is no presumption of a divorce in favor of the woman because she marries another, though the first husband also marries another, with whom, however, it is not shown that he lived."

The rule of law is: Where, at the time of contracting a second marriage, one of the spouses has a living husband or wife of a former marriage and such former marriage has not been dissolved, such second marriage is a nullity. The rule thus stated is found in 26 Cyc. 904:

"If either of the parties to the marriage had a lawful spouse living and undivorced at the time, the second marriage is absolutely void and may be so declared by decree of court in proper proceedings."

It might be said that in elucidating the principle derived from the cases of Cartwright v. McGowen, Cole v. Cole, and Barnes v. Barnes, that we have elucidated in this opinion, and that in the application that we make of that principle hereinafter to the facts in the instant case we are applying a principle not applied in the original opinion in the instant case. We do not think that we are applying a new principle, or a principle not heretofore applied, but we have greatly elaborated and given a more extended consideration and discussion to the principle, and it appears that this rule that we have discussed, and are now about to make the application of to the facts in this case was touched on, if at all, very lightly in any of the original briefs.

The scope of the principle and its application to the facts in this case do not appear to have been clearly comprehended either by the attorneys interested or by this court up until the time of the consideration of this petition for rehearing, unless it can be considered to be embraced within the scope of the principle discussed in the case of Turner v. Williams, which opinion was cited and quoted from in the original brief by the attorney for the plaintiff in error, and it is also cited in the original opinion, and the principle discussed in the editor's note to 16 L. R. A. (N. S.) page 98. A portion of which note for the purpose of getting the idea we intend to express, we requote as follows:

"Therefore, the judicial expressions that any presumption is a matter of general application must be scrutinized in the light of cases that have refused to apply it in certain circumstances, with the result that it may properly be said that, however commendable the spirit may be that presumes in favor of marriage and legitimacy, the presumption, to be warranted, must be justified by the particular facts of a case, and consonant with what most nearly effects justice in such case."

This principle so expressed we adopted in the original opinion. We have merely elucidated it more fully in this opinion, grasped its scope more clearly, and made a more full and complete application of the facts, circumstances, relations, and inferences to be drawn therefrom bearing upon the question as to which is the right, just, and correct conclusion and is most consonant with reason; and we now proceed to make application of the facts in the instant case that reconfirms us that the conclusion in the original opinion was correct and that the judgment of the trial court was clearly against the weight of all the evidence.

Cammack Brokeshoulder married Ruby Brokeshoulder on July 18, 1914, in Carter county, Okla., and thereafter resided with her in Johnston county, Okla. Not quite two years prior thereto he had left Kemper county, Miss., and moved into the state of Oklahoma, and had left in Kemper county, Miss., his wife, Josephine Brokeshoulder, plaintiff in error, and a child by Josephine Brokeshoulder, and the evidence shows that Josephine Brokeshoulder and her child continued to reside in Kemper county, Miss., for more than one year after Cammack Brokeshoulder had married Ruby Brokeshoulder in Carter county, Okla. The evidence shows from the records of Kemper county and a neighboring county, Neshoba county, that no decree of divorce had been procured by either party in either of said counties, and the record further shows that the husband had not procured a divorce in any of the counties to which he had removed. The evidence, however, does show that Josephine Brokeshoulder contracted a marriage with one Edgar Tubby on the 13th day of November, 1915, more than one year after Cammack Brokeshoulder had contracted his marriage with Ruby Brokeshoulder in Carter county, Okla. Under this state of the record and the proofs and circumstances of the relation of these parties, the marriage of Cammack and Ruby Brokeshoulder on July 18, 1914, in Carter county, Okla., must be held to have been an illegal marriage. If a marriage is illicit in its inception, it is presumed to continue an illicit marriage until the impediment to a legal marriage is removed and a legal marriage subsequent to the removal of the impediment is shown. And under the rules of law prevailing, this burden to remove this presumption rests upon the parties who entered such illicit marriage.

The facts in the case of Cartwright v. McGowen and the case of Rose v. Rose and the case of Barnes v. Barnes, heretofore cited, are almost identical with the instant case. The force and effect of the holdings in the three cited cases, two from Illinois and one from Iowa, in discussing the rule of innocence as applied to the parties under the circumstances such as they are shown to be in those three cases and which we hold to be almost if not exactly identical with the the facts in the instant case, would be to place Josephine in the role of the innocent and Cammack in the role of the guilty person; he having abandoned his wife and child in Mississippi and come into another jurisdiction and in less than two years contracted a marriage in that jurisdiction. The burden would not be placed, under those circumstances, upon Josephine, as held in the case of Cole v. Cole, to prove that Cammack had not procured a divorce in any county to which he had removed, but the record shows that Josephine went farther than the rule laid down in the three cited cases required her to go, since she proved Cammack had not gotten a divorce in any of the counties to which he had removed. She had committed no act up to the time of his illicit marriage with Ruby that would raise any presumptions against her at all. Her marriage with Edgar Tubby did not take place until November, 1915, over 16 months after Cammack had married Ruby. Therefore, there is no rule of presumption that could arise from her marriage with Tubby to aid in legalizing the illicit marriage of Cammack with Ruby. It appears from the record that after Josephine had married Edgar Tubby she only stayed with him a very short time, a month or such, then they separated and did not live together any more. It appears, therefore, that there cannot be any presumption arise from such marriage under such state of facts and under the rule laid down in the first paragraph of the syllabus of Barnes v. Barnes, heretofore quoted. In any event, this second marriage cannot be invoked, and the presumptions, if any, arising therefrom, to give a legal status to the marriage of Cammack and Ruby. Hence the rule being laid down that a marriage illicit in its conception is presumed to continue in that condition until the impediment is removed and a second legal marriage is shown, after the removal of the impediment, and that the burden of rebutting said presumption rests upon the party who seeks to uphold the legality of said second marriage. Under that rule of presumption they cannot invoke a presumption of divorce procured by Josephine from Cammack by reason of her marriage with Edgar Tubby. This is made to appear from the facts in this case, when we have regard to the evidence of Josephine Brokeshoulder in this case. The evidence in this case shows that she was an Indian, and that Cammack Brokeshoulder was an Indian. She nowhere in her evidence stated that she had procured a divorce from Cammack, either by implication or by direct statement. Her direct statements were all to the effect that she had not procured a divorce. Upon cross-examination of Josephine in the trial court, the lawyer for the defendant in error asked her the following questions, to which she made the following answers:

"Q. Why did you marry when you had a husband? A. Well, I just decided he wasn't coming back."

At another place in the cross-examination she was asked the following questions and made the following answers thereto:

"Q. So you just married without a divorce? A. I heard that he had married. Q. That made you think he had a divorce? A. People told me I was divorced."

As heretofore stated, Josephine and Cammack Brokeshoulder were Indians. Our judgment of Josephine from the record is that she was not of a very high order of intelligence, and that she had the Indian way of looking at things. Our inference from her answers to these questions was that, having heard that Cammack had remarried, she assumed that she had a right to remarry also; in other words, that the effect of his second marriage was to divorce her. This would indicate an innocent purpose on her part in entering into the second marriage, and we think that the following rule taken from the case of Hilton v. Roylance (Utah), 69 P. 606, would apply here:

"Where a woman who was married under the sealing ceremony of the Mormon Church obtained a 'church divorce' and, believing such divorce to be valid, went through a marriage ceremony with another man, and lived with him as his wife, she was not thereby estopped, on learning that her divorce was invalid, from asserting her first marriage, and denying the legality of the second marriage."

We come to the conclusion, after reviewing a great number of cases, that the rule as to presumptions arising from the facts and circumstances of the instant case is undoubtedly in favor of the plaintiff in error and against the defendant in error, and the undisputed facts showing as they do that the marriage at the time it was contracted between Cammack Brokeshoulder and Ruby Cathey, now Brokeshoulder, was an illicit and void marriage, the presumption of such illicit and void marriage continues until it is shown that the impediment making it illegal has been removed and a legal marriage consummated after the removal of the impediment. The uncontroverted facts furthermore show that, instead of Josephine being the guilty party in this affair of marriages, Cammack was the guilty party, and that he and Ruby had recklessly entered into a second marriage.

To repeat, the record does not show that Josephine had committed any act inconsistent with her marital relation with Cammack Brokeshoulder up to the time he entered into an illicit and void marriage with Ruby Brokeshoulder, and the only inconsistent act proven subsequent to that illicit marriage on the part of Josephine was her marriage with Edgar Tubby, 16 months after the illicit marriage of Cammack and Ruby, and we think that her explanation of how and why she entered into said marriage, because of her station and relation in life and her views of the marital relation, places her in a position of innocence in regard to the second marriage. She had heard that Cammack had remarried, which was true, and her friends had told her she was divorced, meaning, as we infer from her evidence (she having specifically denied that she had ever procured a divorce herself), that Cammack himself had procured a divorce, or else that Cammack's remarriage had the effect of divorcing her.

The attorneys for the defendant in error, in their petition for rehearing, have for the first time raised a question of estoppel. It is really not necessary for this court to consider this in this opinion on rehearing. This question, not having been raised heretofore, would be held to have been waived, but since it has been raised, we will give it some consideration.

We think that the law and the presumptions and facts, as we have heretofore discussed them in this opinion on rehearing, are themselves sufficient answer to this estoppel question, and the reason we have already adduced is in fact an ample and sufficient answer, showing that no estoppel can arise in this case. The rule as to when an estoppel applies in a marriage controversy is found in 26 Cyc. 867-8, as follows:

"It would seem that where a marriage is void ab initio neither of the parties may by their acts become, as against the other, estopped to deny its existence, although it has been held that where one of the parties by false representations as to the nonexistence of a legal impediment has induced the other to enter into the marriage, he will, where the other has continued to act on such representations after the impediment has been removed, be estopped to deny their truth."

In the brief discussion of this estoppel question, we will state, and it will be a repetition of what we have already stated, that there is no act shown in this record on the part of Josephine Brokeshoulder before and up to the time, and for that matter, even subsequent to the time, of Cammack and Ruby entering into their marriage on the 18th day of July, 1914, that could in any manner be distorted into a plea or an act of estoppel. At the time this second marriage was entered into by Cammack and Ruby, Josephine resided hundreds of miles away from where the transaction took place, and in Kemper county, Miss., where Cammack had married her, where his child by her was born, and from which county he had departed to another jurisdiction, where he had abandoned his wife and child. How in the name of reason and justice this record, up to this time, could be pleaded as an estoppel against Josephine Brokeshoulder, we are unable to see.

There are cases of marital relation where the rule of estoppel may and should be invoked, but it generally arises between the parties to an illicit and illegal marriage where one of the parties was incapable of entering into the marriage relation and had concealed the facts from the other party or specifically represented that they were in a condition to enter into a legal marriage, and the innocent party afterward seeks to invoke the legality of the marriage and the other party seeks to plead an illicit marriage, and property rights arising between them, the courts will not permit the guilty party to plead the illegality of the marriage, and will hold the party estopped to deny the validity of the marriage But this example of estoppel that we have just cited is not the instant case, and no principle of estoppel, we hold, arises from the facts in the instant case.

We have no reason to change the rulings in our former opinion; therefore, the petition for rehearing in this case is overruled.

PITCHFORD, V. C. J., and JOHNSON, McNEILL, MILLER, and NICHOLSON, JJ., concur.