Meister v. Moore

ERROR to the Circuit Court of the United States for the Western District of Pennsylvania.

This was ejectment, brought Oct. 9, 1873, by Bernard L. Meister, for the possession of certain lots of ground in Pittsburg, Pa.

Both parties claimed under William Mowry, the plaintiff, as the alience of the alleged wife and daughter of said William, and the defendants, as the vendees of his mother, in whom the title of the property vested, if he died unmarried and without issue.

The plaintiff, to maintain the issue on his part, introduced evidence tending to prove that, some time in the year 1844 or 1845, said William went from Pittsburg to the Saginaw Valley, in the State of Michigan, and there became acquainted with Mary, the daughter of an Indian named Pero; that, in the latter part of the year 1845, Mowry and Mary were married, and thereafter lived and cohabited together as man and wife, and had one child born to them, named Elizabeth; that said Mowry died intestate, some time in 1852, at Pittsburg, leaving no issue living at his death save said Elizabeth, who afterwards married one Isaacs; and that they, Aug. 27, 1873, conveyed the demanded premises to the plaintiff.

The defence was—

1. That the plaintiff's evidence, even if true, did not, under the statute of Michigan, regulating the solemnization of marriage, establish a valid marriage between William Mowry and the Indian woman.

2. That that evidence utterly failed to establish a valid marriage at common law.

The Revised Statutes of Michigan upon the subject of the solemnization of marriages, adopted in the year 1838, and in force at the time of the alleged marriage, enact as follows:--

'SECT. 6. Marriages may be solemnized by any justice of the peace in the county in which he is chosen; and they may be solemnized throughout the State by any minister of the gospel who has been ordained according to the usages of his denomination, and who resides within this State, and continues to preach the gospel.'

'SECT. 8. In the solemnization of marriage no particular form shall be required, except that the parties shall solemnly declare, in the presence of the magistrate or minister and the attending witnesses, that they take each other as husband and wife. In every case there shall be at least two witnesses, besides the minister or magistrate, present at the ceremony.'

'SECT. 14. No marriage solemnized before any person professing to be a justice of the peace or a minister of the gospel shall be deemed or adjudged to be void, nor shall the validity thereof be in any way affected on account of any want of jurisdiction or authority in such supposed justice or minister: Provided, that the marriage be consummated with a full belief on the part of the persons so married, or either of them, that they have been lawfully joined in marriage.

'SECT. 15. The preceding provisions, so far as they relate to the manner of solemnizing marriages, shall not affect marriages among the people called Friends, or Quakers, nor marriaged among the people called Menonists; but such marriages may be solemnized in the manner heretofore used and practised in their respective societies.' Rev. Stat. 1838, pp. 334, 335.

The court below charged the jury that the validity of the alleged marriage must be determined by the laws of Michigan; and that, if they found that neither a minister nor a magistrate was present thereat,-and such was the plaintiff's proof,-it was invalid under the statute of that State, and their verdict should be for the defendants.

There was a verdict for the defendants. Judgment was rendered accordingly, whereupon the plaintiff brought the case here.

Mr. H. W. Weir for the plaintiff in error.

A statute regulating the forms of marriage is merely directory, and, unless it contains an express clause of nullity, a marriage per verba de praesenti is valid. 1 Bishop, Mar. & Div., sects. 277 a, 279, 280, 283 et seq.; The State v. Worthington, Chicago Legal News, June 16, 1877; Commonwealth v. Jackson, 11 Bush (Ky.), 679; 2 Greenl. Evid., sects. 461, 462. Such is the ruling of the Supreme Court of Michigan. Hutchins v. Kimmell, 31 Mich. 126; Proctor v. Bigelow, Jan. Term, 1878, not yet reported.

Mr. M. W. Acheson, contra.

The judgment below is not erroneous. People v. Slack, 15 Mich. 198; Holmes v. Holmes, 1 Abb. (U.S.) 525; Milford v. Worcester, 7 Mass. 48; Ligonia v. Buxton, 2 Me. 95; Roche v. Washington, 19 Ind. 53; The State v. Samuel, 2 Dev. & B. (N. C.) Eq. 177; State v. Patterson, 2 Ired. (N. C.) L. 346; Bashaw v. State of Tennessee, 1 Yerg. (Tenn.) 177; Grisham v. State of Tennessee, 2 id. 589; Robertson v. The State, 42 Ala. 509.

Affirmative statutes which introduce a new rule or prescribe a specific mode of doing a thing imply a negative of all that is not within their purview. Slade v. Drake, Hob. 298; Stradling v. Morgan, Plowd. 206.

A contract in contravention of statutory provisions which contain nothing from which its validity can be inferred, is void. Mitchell v. Smith, 1 Binn. (Pa.) 118; Bank v. Haldeman, 7 Watts & S. (Pa.) 233.

MR. JUSTICE STRONG delivered the opinion of the court.