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Show YOUNG- VS. YOUNG. Ann Eliza Not ft Wife; Hence Cannot bo Divorced. The. Decision of the Long Pending Pend-ing Action by the Chief Justice. Alimony Pemlculc Lite Cease-, naI u Decree ol Divorce Denied. STATEMENT OV TtlE CASE. Ann Elizi Young vs. Brigham Young; bill for divorce; The bill states that complainant is a native citizen of the United States, that she wad a resident of this ttrri- tory continuously from the year ISIS until the commencement of thia suit; thai on tho Gti. tUy of April, lSb'S, she and the defendant, Briglum Young, intermarried in Salt Lake county, in said territory; that complainant and defendant lived and cuhab-iiod cuhab-iiod tiL'tUor as husband and wile lor torn-) time after said marriage, and tU it, for the space of about ouw year after said marriage tho defendant acted towards complainant com-plainant willi some decree of kind nrts and attention and contributed towards her maintenance and sup-1 port; not, however, iu a manner proportionate pro-portionate to hi means or to her 'station in life: that she nffrfnrmml the duties of a faithful wile to him; that alter having been marrieJ as alnresaid about a year, the defendant lor some cauee or motivo unknown to her commenced a course of neglect, neg-lect, cruelty and specifically charge desertiuu of plaintiff by defendant without cause. The bill further charges that the defendant owns property worth several millions of dollars and that he has a monthly iucome of noLless than $10,000. Tha bill then has the usual prayer for temporary alimony, divorce and permanent per-manent alimony, and closes with the prayer for general relief Buch as the nature of the case shall require, and as equity and good conscience shall jnstity. Tho bill was filed July 28, 187iS, and a summons issued and served on thatViav. Tbe amended answer which was filed July 21th, 1875, denies that plaintiff and defendant inteimarried on tbe 6th of April, 1S0S, or at any other time, at Silt Like city, or at , any other place; and further denies that plaintiff now is, or over was, the wife of the defendant. In further answering the defendant says, on information in-formation and belief that prior to April 6th, 1SGS, to wit, on the 10th day of April, 1S03, the plaintiff was married to ene James L. Dee, who was still living at the timeot filing said amended answer; and that from the lOtn day of April, IStiS, was and is the lawful husband of said plaiutifl'; that tho defendant is now advised that tho said plaintiff and the said Dee had , never Deen divorced, but that on the 6th day of April, 180S, aud at the time the ceremo oy hereinafter referred to, he, the defendant, was informed and believed that the plaintiff and said Dee had, prior thereto, been legally divorced. The said answer further alleges that ou the 10th of January, 1S34, at Kirlland, Ohio, the defendant being then unmarried, was duly and lawfully law-fully married to one Alary Ann Augell, by a minuter ol the gospel, who Wus then aud there, by the lawn of said state of Ohio, authorized to solemnize marriages ; that said marriage was then and there fully consummated, and that the said Mary Ann Angell, who is Btill living, then and there became, and ever since then has been the lawful wife cf the defendant, and that the plaintiff on the Olh day of April, lSofi, and before and Bince then, knew and had lull knowledge and information of such marriage, etc., with said Mary Ann Angell. Tne said answer then avers that o:i the 0th day of January, 1824, an act regulating marriages was duly ua;so1 by the general assembly of Ohio, aud , that said act was in force from aud j alter June let, 1824, hitherto, and mats an exhibit of said act, as part of said answer; and then avers that in pursuance of the provisions of tbe aaid law, the defendant was married to Mary Ann Angell, on the 10th day of Januiiy, 1S34; that said marriage was then and there fully consum-j mated, aud tiiat tlie said Mary Aim Augell then and there became and ! ever 6ince then has been and now is the wife of the deleudant; nil of1 which facts were on the 0th day of ; April, 1868, well known to tho plaintiff. plain-tiff. The defendant in his answer further fur-ther says that "on tho Olh day of April, 1S0S, at Salt Lake city, in ths territory of Utah, the said Mary Ann Angell being then living and the wife of defendant as aforesaid, as plaintiff iheu and there well knew, a ceremony cere-mony was performed to unite the plaintiff aud defendant in a celestial, plural or polygamous marriage, and that the plaintiff ilu-u aud there knew that said marriage, so entcrod into between the said plaintiff and the defendant, was a celesli.il, plural or polygamous marriage. But the defendant de-fendant denies that on the oaid Gth day of April, or at any other time, he and the said defendant entered into any other or different marriage than that hereinbefore stated and, act forth." The answer further denies Lhe general gen-eral allegations of desertion, cruelty, aud further denies tho allegations of apecitic acts of neglect, ill-treatment, etc., charged in the complaint; and on the contrary alleges that he has "aUvays anJ t all timos furnished her with all means necessary to pro-euro pro-euro Eier suitable provisions, medi-ciuss medi-ciuss and medical attendance," and charging in substance that he has done all that adutiful husband should or could do to his wife, and that the plaintiff left him without just cause. Tne ansncr further denies that tbe defendant is worth Bover.il millions of dollars, and thit his monthly income in-come is 40,000; but alleges that he is not worth more than fcOuO.OOO and that his monthly income is not more than $0,000, aud that lie has a family; ot sixty-three persons depending upon him lor support. The answer also denies "that $l,O()0, or any other Hum exceeding" $100 per month, would be a reasonable allowance to tho plaintiff tor the maintenance, education aud proper medical attendance attend-ance of the plaintiff and her children duriug this litigation;" and then prays the judgment of the court that he be hence dismissed, with his cosls herein. Under our system of practice the new maUer affirmatively pleaded in the answer, is denied oy forco of the statute, without a formal replication. HIE DECISION. The first question presented by these pleading, and that which ia of superlative importance in this cause is, wag the alleged marriage between plaintiff and defeudaut ou the 0th of April, 1S0S, of such validity as to eutitle the plaintiff if any ot her charges of cause fora divorce, h re sustained by lhe evidence, to a decree for divorce? This U affirmed by the plaintiff in her complaint, and denied in the answer of tho defendant, not upon the ground that the marriage i contrast, or tho certniouy under which it w:ia p'irforriic I w.'.s s-void s-void or irregular under tho laws ol this territory, but fur the dual n,u alleged that-First that-First The plaintiff" wai lh-;n under un-der disability to coutr-u-l a m ir. inye, and, Second That the defendant was then under much disability. "Marriage is the civil status of one man and one woman, united in law for life, under the obligations to discharge to each other and tho community those duties and obligations which the community, by its laws, hold io-cumbenton io-cumbenton persons whose association is formed ou the distinction of sex. lis source is the law of nature, whence it has flowed into the mu- nicipal laws of overy civilized country, coun-try, and into the general laws ol nations; And since it can exist only i in pairs, and since none are compelled, com-pelled, but all, who are capable, are permitted to assume it, marriage may he said to proceed from a civil contract con-tract between one man aud one woman of needful physical and civil capacity. While the contract ia merely an executory agreement to many, it does not differ edicntially from other executory, civil contracts it does not superinduco the status and, on its violation, an action may be maintained by the party injured tr recover damages from the other. But when tho contract is executed in what the laws regard as a valid marriage, mar-riage, its nature as a contract is merged in the highor nature of tho .lull,, r,,t tlto nat-Mci arn ll,i.nnurnl.. ward governed by the law of husbiud and wife." Bish , Mar. end Dir., sec. 3. The defendant admits a marriage de facto between plaintiff' and defendant, defend-ant, at the tim'j mentioned in tho complaint; but says it was a celestial, plural, or polygamous marriage, and therefore legally void, and of no binding bind-ing force. What the defendant meaus by a celestUl or plural marriage mar-riage is not clear to a lawyer; but if, as is clearly intimated by his testimony, testi-mony, he means to assert that polygamous marriages are authorized author-ized by a direct revelation given to him as the prophet, priest and revelator of bis church, by a communication from the highcouit of heaven. X ran nnlv infni- tlif 1m received the revelation from a ruiuii-ter ruiuii-ter whose credentials were not issued by that court, but who received them, if any he had, from a power whoio 1 domains lie in a different and opposite direction. Otherwise our creator j must havo made a most egregeous i mistake either in the communication thty (?) sent or in our creation; fori most certainly every instinct of our common humanity, as well as every, dictate of our Christian civilization, 1 revolts at the very idea ol a poiygam j ous relation; and I doubt very much that if Uie defendant's faith iu such a 1 revelation were genuine, ho would deny the validity of Buch a marriage to escape the forfeit of a tew dolhrs to py for the necessaries of an abused victim. The ; at the same time, the one dejurc and the other de facto, is commonly and appropriately termed polygamy; and a de facto under such circumstances is a polygamous marrhie. i Tbe defendant alleges that the marriage between p!.iint;ff and de-1 fendant was polygamous; I First Because tho plaintiff had been previously married to one James L. Der, who was then Btill living in this territory, find from whom she hud not been legally divorced; that she had been so mairied to s-id Dee clearly appears, and it the testimony ' rolating to thu active part which the defendant is alleged to have taken in securing tho decree of divorcement is true, it crimes with very ill grace for him uow to allege that such decree wus nr.rl is illegal and void. ' T: w testimony shows that at the i Doceuibrr term, 1S6-5, of the probate : court of Sralt Lake county, and terri-' lory of Utah, a decree of divorce was' had by thu plaintiff iu her suit Against the bo'U Poo, iti ".hat tho j said probate court had jurisdiction juris-diction of the persons who , wore purlins to said suit; that the said I James L. Dee had received a proper ! aud limfeiy warning of tho application ' tor divorce according to section 5 of! lour stalutos, in rotation lo divorce, I and although lhe said probate court' may not then have ha.l jurisdiction of i thesuhject matter, yet the said de-! creo was duly executed, and no ap- ' peal could have b?eu liken Irom it ! on or alter the 231 of June, 1S74. Section 3 of the act of congress, entitled en-titled "An act in relation to county and judicial officers iu the territory of Utah," approved June 23d, 1S74, among other things, says: "All judgments and decrees heretofore rendered by the probate courts which have been executed and tho time to appeal from which has by the existing exist-ing laws of said territory expired, are hereby validated and coulirmed." By this act of congress llio er.id decree of divorce of plaintiff from said D-e, although originally irregular and voidable, was made valid and lawful; and the plaintiff at the timeof her alleged marriage with defendant, was competent to make a valid marriage contract, although she had been one married to the said James L. Dee. The defendant further charges that Lhe said marriage bctweep plaintiff and defendant was polygamous; secondly, sec-ondly, because of the defendant's incompetency in-competency in this, that on, or about the 10th day of January, 1S34, at Kirlland, Ohio, he, the defendant, was married lo one Mary Ann Angell, according to tho laws of Ohio, and that Bhe, tho said Mary Ann Angeil, was on the 6th day of January, Janu-ary, ISliS, nod still is, his lawful wife. By the second section of the act of the legislature of the state of Ohio, in regard to marriages, which act was in forco at the timo of Baid alleged marriage, mar-riage, and etill ie in force, it ia provided pro-vided as follows: "It Bhall ba lawful for any ordained minisler of any religious re-ligious Bociety or congregation within this state, who has or may hereafter obtain a license or that purpose, as hereinafter provided, or for any justice of tho peace, in his county, or for tho several religious societies agreeable to the rules and regulations, regula-tions, of their respective churches to join together ns husband and wife, all persons not prohibited by this act." This appears to be and is the only section ol the statutes of Ohio which provides for any ageucy by which j persona might be joined together as husband and wife. Three distinct; agencies are provided for that purpose, pur-pose, 1st, A minister of any religious society so-ciety or congregation, who has a li-I li-I cense for that purpose; 2d, A justico ot the peace iu the ' propor couuly; and, j 3-1, Religious societies acting in ao cordauce with the rules and regula-j regula-j linns of their respective churches. I In the case at bar neither of these agencies was em ploy od. According to the proof Sidney Rigdon was neither a justice- of the peace nor a minister of any religious society or congregation who had a license lor that purpose; nor does it appear from tlio proof that the marriago was por-lornied por-lornied by a religious society, in accordance ac-cordance with its rules and regulations. regula-tions. Where- a statute provides, that a justice of tbe peace or a licensed mir i.sler of a church shall perform the marriage ceremony in order to make the marriage in conformity with such r!:tLutn, it must affirm Uivuly nppoar that the justice of tho peace acted in his official capacity, or that (ho minister min-ister of the church had tho qualifying licence to perform th.i rilo. Mangue Mimjua, 1 M:s. 11. 240; Mi I lord f.f. Vorccnler, 7 Masd. K. 4S. It must be observed, however, that tho statute of Ohio has no clause prohibiting pro-hibiting nor a declaration of nullity as to any marriage contract made otherwise than in the mode prescribed hy the Btatute. In the case of Carmicbael vs. tho Slate of Oiiio, 12 Ohio St. R. oj;i, tho court below charge the jury that "it made no dif ference whether the person solemniz-mg solemniz-mg the marriage- was authorized to do so or not; that if solemnized by whomsoever, it was a marriage if fol- ilch "j i'i.auuiiuu as nusoanu anu wife." Tiiis was assigned for error and the case was reviewed by the supremo court of that stat?, on this single point, and iu a very elaborate elab-orate and able opinion written writ-ten by Judge Ghnlson, and concurred in hy the whole court, the conclusion was arrived at that the charge ot the court below was not erroneous, and that a contract of marriage per vcrbade presrnti, followed fol-lowed by cnhitbitalion as husband and wife was a valid marriage under the laws of Ohio, notwithstanding the statute- above referred to. The argument argu-ment and the authority above refcrn d to in that opinion, commend themselves them-selves very strongly to the conscience and judgment of this court, and the conclusions arrived at in that case-are case-are verv readilv udnnted j firm!ihie to the case at bar. The facts in proof herein clearly show a gool common law contract of marriage between the defendant and Mary Ann Angell, in Kirlland, Ohio, on or about tho 10:h day of January, 1834, which was followed by cohabitation cohabita-tion aa husband and wife then and hitherto. Therefore the defendant haviog at the time of his de facto marriage with the plaintiff, another lawful wife, such de facto marriage was polygamous and totally null aud void. It further appears from the proif that Buch coercive means and influences as are totally inconsistent with that of freedom free-dom of choice and personal preference prefer-ence which should always characterize character-ize a marriage contract, were bv the defendant brought to bear upon the plaintiff to induce her to enter inlo i this polygamous relation; that for that reason alone such de fwJo mar-1 mar-1 ruige was voidable on her part. Without going further into the discussion dis-cussion of the questions in this case, the court finds: 1st. That the plaintiff and the defendant, de-fendant, on or about the Gth day of April. 1S6S, in Salt Lake citv, in the county of Salt Lake, and territory of Utah, wero married de facto but not dt jure. -rid. That at the time of such dc facto marriage the plaintiff was competent com-petent to enior into a valid contract of marriage, but the defendant was not, because ho had a lawful wife then living. 3d. Tliat the nerann ffiiHnotr Tf;. don) who performed the marriage ceremony at the marriage between defendant and Mary Ann Angell, in Kirlland, Onio, in 1S34, had no license authorizing him to perform such ceremeny; none was needed to make the marriage valid. 4th. The plaintiff and defendant cohabited together as husband and wife for several years after the de facto marriage. 5th. Tho defendant deserted, ill-treated ill-treated and npglec:cd the plaintiff after said de facto marriage. Olh. That such de facto marriage was induced and effected by undue influences and eoercivo mons, used on behalf of and by the defendant. COSCLL'SIONS OF LAW. 1st. The plaintiff is not entitled fo a decree of divorce. 2J. That the alleged marriage between the plaintiff aud defendant was and is polygamous, and therefore null and void ab initio, and should be bu decreed by the court. 3 J -That during the time the plaintiff wus with tho defendant as a polygamous wife she was Berviug him as a married servant and would be entitled to reasonable compensation for her services; but having received in this imtance in the form of alimony pendente lite, more than such serving as shown by the proof to be rf:4?onably worth, she should go hence without further compensation. M. SCHAEFFER, Judg3. DECREE OF COL-KT. Ann Eliza Young vs. Brigham Young; decree: 1S77, April 20th. And now on this day this cause came on to be heard on bill, amended answer and exhibits and testimony, and the same being lizard the court having heard the arguments ar-guments of McBride for complainant aud Williams & Sheeks lor the defendant, de-fendant, the court takes ths matter under advisement. 1877, April 27. And new the court having duly considered the Bame, and having made its findings herein, which findings are herewith filed, it is ordered, adjudged aud decreed by the court that the alleged marriage between be-tween the plaintiff and defendant on the Olh day of April, 1S0S, was, and the same is hereby decreed to have been and to bo null and void, ab initio. It is further ordered, adjudged and decreed that all orders nud decrees heretofore made by this CDtirt, in this cause, for tho payment of temporary alimony, by tho defendant tO-the plaintiff, which have not been complied com-plied with, nor paid or collected, be and the same are hereby revoked and annulled. It is further ordered, adiudged and decreed that thedefendaut herein pay the coats of this suit. M. Schaeffer, Judge. Leave is hereby given to either or both parties hcr-jin to file exceptions lo any or all of the findings, or to the order and decree herein, withtu three days from tho filing hereof. M. SCHAEFFER, Judge. |