Chapman v. Cooper

The opinion of the Court was delivered by

Evans, J.
In these cases we must assume that the plaintiff was lawfully married to Pulliam, and that she married Chapman before the expiration of seven years from the time Pulliam left her. There were rumors both of his death and of his being alive, but no certain evidence of either was adduced. If he was dead, then the second marriage was lawful. If not, then it was unlawful, and the plaintiff is not entitled to dower in the lands of the second husband, for the recovery of which these actions are brought. A period of more than fifty years has elapsed since the date of these transactions, and it is argued that from the great length of time, we ought to presume every thing which is necessary to give validity to the second marriage. In recent transactions, belief is founded on proof, but in matters of antiquity, when time has swept away the witnesses of any fact, there can be no proof. In such cases, the law comes in and supplies the place of proof by presumptions. “ We infer the existence of one fact from the existence of another fact, founded on our previous experience of their connexion.” Where all who axe interested in a fact have, by their conduct, treated it as true, the law presumes it to be so, reasoning from the known principles which actuate human conduct. If one has had undisputed possession of land for twenty years and more, we presume he had a title, because it is the conclusion to be drawn from his *459own conduct, and the conduct of those who were interested to dispute it if it were not so. The fact to be presumed in this case is, the death of Pulliam before the second marriage. The facts are, that more than fifty years ago he left his wife. His actual existence since that time has not been proved. There were rumors of his death, and the contrary. His wife married again, and the legality of that marriage has been acquiesced in by all who were interested in it.

If the question were now, whether he is dead, I suppose there would be no difference of opinion, whether we regarded it as a question of belief or of legal presumption. But this does not solve the question made in the case: — Did he die before the second marriage ?

In the case of McLeod vs. Rogers & Gardner, (2 Rich. 19,) it was held that the presumption of a grant was coeval with the commencement of the possession from which its existence was presumed, and, therefore, the original possession began with title and not in trespass. I think the same is to be inferred from all the cases which have been decided on the principles of the common law.

But there is another rule, in relation to the presumed duration of human life, which has grown out of the stat. 1 Jac. I, c. 11, sec. 2, which exempts one from the penalties of bigamy, whose husband or wife has been absent, and not heard from in the space of seven years; and of which our own statute, on the same subject, is, I think, an exact copy. In the construction of that statute, it has been held, that the only presumption which arises is that of death, and none as to the time of death. 5 B. & Ad. 86 — Knight vs. Nepean, (27 Eng. C. L. Rep. 42). Whether that construction arises from the peculiar wording of the statute I know not, but I can see no reason why, when the presumption depends on the common law acquiescence of twenty years and upwards, we should be restrained from giving the presumption the same effect as to time, that we give to other presumptions.

But there is another view of the case which is in harmony with the rule above stated, in relation to the presumption arising *460from seven years. If the law presumes the duration of human life for seven years, it also presumes that the plaintiff would not commit the crime of bigamy. These are what are called conflicting presumptions, and came under consideration in the case of Rex vs. Twyning, (2 B. & Al. 386). That case was a question of settlement in a Parish. The woman was the wife of a soldier who went abroad and was never heard of afterwards.— She married again in a little more than twelve months after his departure, and the question was, whether the issue of the second marriage were legitimate? Bayley and Best, who heard the case on appeal from the Sessions, held that they were. It was considered as a case of conflicting presumptions, and the question was, which was to prevail. It was said — “the law presumes the continuance of life for seven years, but it also presumes against the commission of crime. It is contended the death of the husband ought to have been proved, but the answer is, that the presumption of law is, that he was not alive, when the consequence of his being so, is that another person has committed a crime.” The correctness of the application of the rule to a case where the husband had been absent so short a time, was afterwards questioned in the King’s Bench, in Rex vs. Harborne, (2 A. & El. 540; 29 Eng. C. L. R. 161). But the principal objection seems to have been, that in the former case, it was laid down as a strict rule of law, and not a ;presumptio juris, good until rebutted. Best on Pres. 61, (37 Law Lib). It is very clear the jury may find the death from the lapse of a shorter period than seven years, if other circum? stances concur. 1 Grenl. Ev. § 41. I agree with Lord Denman in the case of Rex vs. Harborne, that there can be no rigid presumption of law on such questions of fact, without the accompanying circumstances, but I think the facts of the case added to the presumption that the plaintiff is innocent of the crime of bigamy, should have prevailed over the naked presumption that Pulliam was alive at the time of the second marriage, because it was proved he was living five or six years before.

We think the jury, in the first and third cases above named, *461did not give to the circumstances of the case and the presumption of innocence, their due importance and legal effect, and, therefore, the motion for a new trial in these cases is granted.— In the second case, in which the jury found for the- demandant, the motion is dismissed.

O’Neall, Frost and Whitner, JJ. concurred.

Wardlaw, J.
I concur in the result of these cases, but not in all the intimations of opinion which have been made.

If the cohabitation between the demandant and Chapman was adulterous in its inception, mere lapse of time, without other evidence of a subsequent marriage, would not alter its character.

Upon the question whether Pulliam was dead at the time of the marriage to Chapman — the main question of fact in the case — the jury should decide according to the presumptions of law and the belief induced by circumstances which may be shown by proper evidence. From absence, unheard of, for seven years, the fact of death is presumed, but not the time. To fix the time at the end of the seven years would be almost always contrary to the fact — to fix it at the beginning, immediately after the continuance of life had been positively ascertained, would be plainly contrary to truth and common sense. Circumstances may enable a jury to say when it took place, or that it preceded a given event within the seven years. But there must be some circumstances to overcome the presumption that life continues for at least seven years; or if that presumption has been overcome by the lapse of the seven years, to fix at one period rather than another, the time of death left wholly uncertain ; and these circumstances must be shown by the party whose interest it is to establish the time of death anterior to the expiration of the seven years. Hearsay — rumor—report, as distinguished from reputation, cannot be such a circumstance : nor, as I think, can, in a case like this, be the fact that a wife has married within the seven years, and that the presumption of her innocence of the crime of bigamy requires the previous death of *462her first husband to be presumed. That would be applicable in an indictment against her for bigamy, or in a case between third persons wherein the validity of her second marriage was involved, or even in a case where the legitimacy of the children of her second marriage was considered, apart from their rights as her representatives. But in a case where she herself is de-mandant, she must prove whatever, being denied, is essential to the rights she demands: and she can no more rely for evidence upon her own acts than upon her own declarations.