* Corpus Juris-Cyc. References: Divorce, 19CJ, p. 34, n. 33; p. 35, n. 35, 36; Marriage, 38CJ, p. 1325, n. 70; p. 1326, n. 71, 72, 73, 74; p. 1328, n. 86; p. 1329, n. 87, 88, 89; p. 1330, n. 91; As to presumptions flowing from marriage, see annotation in 16 L.R.A. (N.S.) 98; 34 L.R.A. (N.S.) 940; L.R.A. 1915E, 187; 34 A.L.R. 464; 18 R.C.L. 816, 818; 3 R.C.L. Supp. 811; 6 R.C.L. Supp. pp. 1065, 1066. This is a suit for the partition of certain lands which were owned by Jonathan Ladner, deceased, at the time of his death. The appellees are children of a second marriage of Jonathan Ladner, and the appellant claims by purchase from the children of Ladner by his first marriage, and the issue presented by the pleadings is whether or not the second marriage of Jonathan Ladner was valid. This case was before this court at the March, 1925, term, on appeal from a decree dismissing the complainants' bill, rendered on bill, answer, cross-bill, and proof, and the decree was reversed and the cause remanded, the ground of the reversal being the failure of the proof to show the invalidity of Ladner's second marriage. The opinion on the first appeal is reported in138 Miss. 461, 103 So. 218, and the substance of the pleadings is there fully set forth. When the cause came on to be again heard in the court below, the complainants requested the court below to render a decree in accordance with the opinion of this court without the hearing of further testimony, which request, over the objection of the defendant and cross-complainant, was granted, and decree was rendered granting the partition prayed for in the bill of complaint, and from this decree an appeal was prosecuted to this court, and the cause was again reversed (142 Miss. 435,107 So. 658), the court holding that:
"When the decree of a chancery court, rendered on bill, answer, and proof, is reversed and remanded generally, it must be triedde novo, and such decree should *Page 829 be then rendered as the pleadings and the evidence then require."
When the cause came on for trial the third time in the court below, practically the same evidence as was offered at the first trial was again introduced, and, in addition thereto, there were introduced the certificates of the chancery clerks of Wayne, Jasper, Jones, Marion, and Lamar counties, to the effect that the records of the chancery courts of their respective counties do not contain any record of a divorce proceeding between E.M. Cunningham and Mrs. Ellen Cunningham, the mother of the appellees in the case at bar. Upon the proof the chancellor found that Jonathan Ladner and Mrs. Ellen Cunningham, formerly Ellen Purvis, contracted a ceremonial marriage at Purvis, Miss., on August 2, 1891; that Ellen Cunningham, formerly Ellen Purvis, married E.M. Cunningham in Jasper county, about 1876; that they lived and cohabited together as man and wife until some time about the year 1882, when they left their home in Wayne county, Miss.; that thereupon E.M. Cunningham carried Ellen Cunningham, his wife, to her father's home in Jasper county, Miss., where she resided until the year 1884, when she moved, with her father, to Purvis, Miss. where she resided when she married Jonathan Ladner on August 2, 1891. The proof shows that, at some time after he separated from his wife in 1882, E.M. Cunningham was engaged in the stave business at Sandersville, in Jones county, Miss., but it does now show how long he was so engaged. It also shows that from the spring of 1885 until February, 1886, he boarded at the home of a Mr. Walters, near Laurel, Miss. After the year 1886, and until long after the marriage of Jonathan Ladner and Mrs. Ellen Cunningham, the whereabouts of E.M. Cunningham are not accounted for in the proof.
In the opinion rendered on the first appeal of this cause (Ladner v. Pigford, 138 Miss. 461, 103 So. 218), it was held that: *Page 830
"Where a marriage is contracted ceremonially, every reasonable presumption will be indulged in favor of its validity."
And:
"The court will presume a divorce in favor of the validity of the marriage where there was a former marriage existing where there is no proof showing that a divorce was not obtained."
It was also there held that the burden of proof was upon the cross-complainant in this cause to establish the fact that no divorce was, in fact, granted to either of the contracting parties prior to the subsequent marriage of Mrs. Ellen Cunningham.
Under the provisions of section 1677, Code of 1906 (section 1419, Hemingway's Code), a bill for divorce must be filed in the county in which the complainant resides, if the defendant be a nonresident of this state, or be absent, so that process cannot be served. The proof in the case at bar wholly fails to show that, prior to 1891, E.M. Cunningham was a nonresident of this state, or was absent, so that process could not be served on him, and consequently proof that no divorce was granted to Mrs. Cunningham in the county or counties where she resided prior to her second marriage was insufficient to overcome the presumption of a divorce. Section 1677, Code of 1906 (section 1419, Hemingway's Code) further provides that, if the defendant be a resident of this state, the bill for a divorce must be filed in the county in which such defendant resides, or may be found at the time, or in the county of the residence of the parties at the time of separation, if the complainant be still a resident of such county when the suit is filed. The proof in this cause shows that for about seven years prior to her second marriage, Mrs. Cunningham did not reside in the county where the separation from E.M. Cunningham occurred, and consequently she could not, during that time, maintain a bill for divorce in that county unless the defendant, E.M. Cunningham, was still a resident of that county. *Page 831 She could, however, have maintained a bill for divorce in any county of the state where E.M. Cunningham resided or might be found at the time. To meet the burden of proof required to overcome the presumption that these parties were divorced, in the absence of proof that Cunningham was a nonresident of the state, or was absent so that process could not be served on him, it was necessary for the cross-complainant to also show the place of Cunningham's residence during the period intervening between the separation and the second marriage, and that no divorce was granted in any county where he resided or might be found at the time. The proof wholly fails to meet this requirement, and consequently this presumption that these parties were divorced must prevail.
The decree of the court below will therefore be affirmed.
Affirmed.