This was- an action brought to recover possession of a lot of land to which the plaintiffs claimed title. The plaintiffs claimed to be the next of kin of Amanda A. Clark. The defendant, Charles B. Norman, claimed that he had been lawfully married to Amanda A. Clark, and was therefore her sole heir. There was a verdict for the plaintiffs, and the defendant’s motion for a new trial having been overruled, he excepted. The evidence introduced at the trial disclosed that Charles B. Norman had been married to six women: First, in the State of Florida, in 1864 or 1865, to Henrietta Prescott, who died in 1869. Second, in Harris county, Georgia, in 1866, to Anna Hancock, who is still in life. Third, in
1. When this case was called in its order for argument the death of the plaintiff Martha A. Goode was suggested, and an application was filed by C. C. Goode asldng to be made a party to the case in her stead, claiming that she had departed this life while domiciled in the State of Alabama, and that he was in her last will appointed executor of the same, which had been duly probated in the proper court in the State of Alabama. He filed with his application “ a properly authenticated exemplification of the letters testamentary” which had been issued to him by the Alabama court. John M. Mills also presented an application to be made a party to the case in the place of Martha A. Goode, alleging that he had been, by the ordinary of Gwinnett county, Georgia, appointed temporary administrator of the deceased, who, although a non-resident of the State at the time of her death, owned property in that county. Section 3521 of the Civil Code provides: “When a person at the time of his death is domiciled in another State, and administration is there regularly granted on his estate, either to an executor or administrator, such executor or administrator, if there be none appointed in this State, may institute his suit in any court in this State to enforce any right of action, or recover any property belonging to the deceased, or accruing to his representative as such.” It not appearing that the deceased made a will appointing an executor, which has been probated in this State, and there being no .permanent administrator appointed by the courts of this State, by the very terms of this section C. C. Goode, as executor of the will probated in Alabama, is entitled to be made a party to the case in this court; and as he has complied strictly with the law as contained in section 3522 of the Civil Code with reference to filing copies of his letters
2. The evidence shows that Norman was married to Anna Hancock in strict conformity to the laws of Georgia, this being proved by a certified copy of the marriage license issued by the ordinary of Harris county, authorizing the marriage, and which had been re-tan ed by the person.performing the ceremony and properly recorded in the office of the ordinary. Thus there is proof of an actual marriage between these parties. This marriage is valid, if each of the parties at the time the same was contracted had capacity to make a contract of this character; and the same never having been dissolved, Anna Hancock would still be the lawful wife of Charles B. Norman. It is contended, however, that Norman was incapacitated from making a valid contract of marriage at this timé, for the reason that he was already married to Henrietta Prescott. Norman testified as a witness in the case, and swore that he was married to Henrietta Prescott in Florida in 1865, but he did not state the circumstances under which he was married, who was present, what was the character of the ceremony, or who officiated; and therefore the statement by him, that he was married, is merely a conclusion of his from the facts surrounding his relations with Henrietta Prescott,which are not detailed by him but are ref erred to in the testimony of other witnesses. There was no evidence showing that Norman was married to Henrietta Prescott according to any formality, and
Applying the principle of the ruling above referred to to the facts of the present case, when the marriage to Henrietta Prescott, proved by the presumption arising from cohabitation and repute, came into competition with the actual marriage to Anna Hancock, shown to have taken place in strict compliance with the law, the actual marriage to Anna Hancock must prevail, and it must be, for the purposes of the case disclosed by the present record, held that she was the lawful wife of Charles B. Norman. Under this view of the case the defendant was incapacitated from contracting a lawful marriage with Nancy Meredith in Kentucky, and it is therefore unnecessary to determine whether he has been lawfully divorced from her. And he was also incapacitated from marrying Amanda A. Clark in 1883, is therefore not her heir at law, and the plaintiffs as the sisters and niece of Amanda A. Clark were entitled to recover from him the lot of land in controversy'.
3. As there was sufficient evidence to authorize the verdict, the judgment of the trial judge in refusing to grant a new trial will not be reversed, unless he has committed some error requiring the granting of a new trial. It is alleged that the court erred in a paragraph of his charge in which he was stating what was the law of Florida on the subject of marriage. There is no specific assignment of error on this charge. A careful examination of the brief of evidence fails to disclose a copy of any law of the State of Florida, and, so far as it appears from this record, the law of Florida was not in evidence, as it should have been before it could have
4. Upon a careful examination of the record we find no error which, in our opinion, required the granting of a new trial. It is unnecessary, for the reason above referred to, to deal with those assignments of error relating to the charge with reference to the divorce from Norman, granted Nancy Meredith in Kentucky. Besides this, the charge on the subject of the Kentucky divorce was favorable to the defendant; the court distinctly charging that if the jury found that there had been a divorce granted to Nancy Meredith in Kentucky, the defendant was also divorced and had a right to marry again. The testimony of the defendant, to the effect that he had learned but did not know that Henrietta Prescott died in 1869, was properly ruled out, as it was clearly hearsay. The evidence offered by the defendant to show that the greater part of the purchase-money of the lot in controversy was paid by him was properly ruled out as immaterial and irrelevant. The action was a simple action to recover land, and only the question of title was involved. The evidence offered was not sufficient to show a resulting trust in favor of the defendant as to the whole property; and even if it could be held sufficient to show such a trust as to a portion of the property, there was no prayer in the answer asking that he be decreed the owner of such part of the property as was paid for with his money. In the absence of a prayer to this effect, the answer, notwithstanding it alleged that he had paid a portion of the purchase-money, must be considered simply as defensive; and the mere fact that he had paid a part of the purchase-money would not defeat those claiming under the holder of the legal title.
Complaint was made that the judge erred in charging the jury that the burden of proof was on the defendant to show that his
There was no error in refusing to grant a new trial.
Judgment affirmed.