MAY 10, 1949.
Annulment. Before Judge Pharr. Fulton Superior Court. February 1, 1949.
Walter A. Sims, for plaintiff.
Stanley P. Meyerson, for defendant.
1. It is now the well-settled law of this State that, where there is more than one marriage, the law presumes the last marriage to be valid; and the burden is upon the one attacking it to overcome this presumption by proving its invalidity. Nash v. Nash, 198 Ga. 527 ( 32 S.E.2d 379); Reed v. Reed 202 Ga. 508 ( 43 S.E.2d 539). Where a party to a ceremonial marriage attacks its validity upon the ground that the opposite party to the marriage contract was incapable of entering into a valid marriage because of a previous undissolved marriage, the party attacking the second marriage is not aided by the presumptions, ordinarily existing, of the continuance of a valid marriage, once proved, and of the continuance of life for seven years (Code, § 38-118); such presumptions must yield to the presumption of the validity of the last marriage, founded upon the presumption that the former marriage had been dissolved by divorce or death. Nash v. Nash, supra.
2. The presumption as to the validity of the second marriage can be negatived only by disproving every reasonable possibility. The invalidity of the marriage attacked must be shown by clear, distinct, positive, and satisfactory proof. Reed v. Reed, supra; Brown v. Parks, 173 Ga. 228 ( 160 S.E. 238).
3. Applying the foregoing principles to the evidence in this case, the presumption that the prior marriage had been dissolved by divorce was not overcome by the admission of the wife that she had not obtained a divorce form her former husband, because "mere proof that one party had not obtained a divorce is not sufficient, for the other party might have obtained a divorce which would remove the legal impediment." Reed v. Reed, supra.
4. Excluding hearsay testimony, which, though unobjected to, is without probative value, the evidence in this case showed merely that a former spouse of the defendant was last seen by her in 1927, about six months after their separation, which was slightly less than seven years prior to the second marriage; and that neither party to the present litigation knew whether the former spouse was living or dead. Such evidence was clearly insufficient to overcome the presumption that the former marriage had been dissolved by death. "Where the presumption of the validity of a marriage, arising from the performance of a ceremony, conflicts with the presumption of a continued life of a former spouse of one of the parties, if neither is aided by proof of facts or circumstances stances corroborating it, the presumption of the validity of the second marriage will prevail over the presumption of the continuance of life of the former spouse." Murchison v. Green, 128 Ga. 339 ( 57 S.E. 709, 11 L.R.A. (N.S.) 702). The presumption that the first marriage was dissolved by death prevails irrespective of whether the time elapsing between the date the former spouse was last heard of and the second marriage was ten months or ten years. See Murchison v. Green, supra, and Nash v. Nash, supra, where the first marriage occurred in 1928, the wife admitted last seeing her first husband alive in 1934, she remarried in 1935, and the court held, "The evidence did not exclude the possibility of his having died before the date of her second marriage."
5. Under the foregoing rulings, the trial judge did not err in the judgment rendered.
Judgment affirmed. All the Justices concur.
No. 16631. MAY 10, 1949.
Edward Longstreet brought an action against Annie Bell Longstreet, seeking to annul a marriage between the parties. The petition alleged that the plaintiff and the defendant were married on November 13, 1933, and thereafter the plaintiff discovered that the defendant had a living husband, Early Jenkins, and that the marriage between the defendant and Early Jenkins, which occurred on July 15, 1927, had not been dissolved; that the purported marriage between the plaintiff and the defendant was null and void for the reason that the defendant at the time of the purported marriage had a living husband and was unable to contract a lawful marriage. The petition prayed that the marriage between the parties be decreed to be null and void.
On the trial, it was agreed that all questions of law and fact be passed upon by the judge without a jury. The evidence submitted was as follows: The plaintiff testified: "I know Annie Bell Bridges, and I married her on September 13, 1933, under that name. I never knew of her being married before, but learned later that she had been married previously to Early Jenkins. She told me so after we were married. He was living at the time I married her in 1933. Here is the certificate I got from the Court of Ordinary of Cobb County showing the marriage. She admitted that she had never been divorced. I have been separated from her about two years now, and I haven't lived with her in two years. . . I never saw Early Jenkins before we were married. Have never seen him. From what she told me, he was living after we were married. I was introduced to his brother and sister and they spoke of his whereabouts, which I don't recall where it was. They knew where he was at that time, but I never saw him. I could not swear he was alive at the time I got married. His brother and sister spoke of Early Jenkins after I had married, but they did not say where he was. My wife was with me at the time I was introduced to them. They said Early Jenkins was out of town somewhere. No one claimed that he had died. No one claimed that he is dead now."
The defendant testified: "I was married to Early Jenkins on July 4, 1927, and we lived together about three months. I haven't heard from him or seen him since that time. I have never heard or seen him in twenty-two years. I did not know at the time I married Edward Longstreet whether he was living or dead. I don't remember introducing any of his people to Edward Longstreet. I haven't heard anything at all from my first husband, Early Jenkins, after two or three months we lived together. I married Edward Longstreet September 13, 1933, and we lived together until the last two years. We lived together approximately thirteen years. I saw Early Jenkins last about six months after we separated. He was in Rockdale Park, where he lived. I do not know where he now lives — whether he is living or not. We were married by Reverend Johnson on the 15th day of July, 1927, in Cobb County. That's where the license is supposed to have come from."
Trying the case without a jury, the court rendered a judgment denying the prayers of the plaintiff's petition. To this judgment the plaintiff excepted.