Duncan research files of
1870 Larimer Co. CO Census
Pg.392, #101-99, DUNCAN, Simon 40 PA farmer $2000-$2200
Mary 36 IRE
Elisabeth 11 WI
Perry 8, Charles 2, Simon 10/12 CO
"Reports of cases determined in the Supreme Court of Colorado; containing cases from December term 1881, April term and December term 1882, and April term 1883" by L.B. France, Vol.VI; ("Colorado Reports") Vol.6, pgs.85 to 89 (California State Law Library, Sacramento, 1/2004)
ISRAEL v. ARTHUR, Administrator; Supreme Court of Colorado; 6 Colo. 85; December, 1881 [December Term].
Error to County Court of Larimer County.
(opinion) BECK, J. This is a motion to dismiss the writ of error.
The points mainly relied upon in support of the motion are the want of proper parties as defendants in error, and that a writ of error does not lie in a case of this nature.
This writ was sued out by the plaintiff in error to reverse a decree of divorce obtained against her at the June term, 1877, of the county court of Larimer county, by her former husband, John Arthur, since deceased.
The writ of error describes the plaintiff in error as Abbie A. Arthur, now Abbie A. Israel, and the scire facias commands the officer charged with the execution of the writ of summon James B. Arthur, administrator of the estate of said John Arthur, deceased, as defendant in error.
The second objection urged is jurisdictional. Counsel say that inasmuch as the decree of the court below concerned only the marriage relations of the parties thereto, there is no one now, since the decease of the plaintiff below, who can represent him in this relation. That if the decree were to be adjudged erroneous, the lower court would be without jurisdiction to retry the cause, for the reason that the bonds of matrimony have been dissolved by death, and the marriage relation no longer exists between the parties.
If a decree of divorce affected the marriage relation only, there would be great force in the argument; but when it is considered that the decree in this case, as in other cases, affects the property rights of the parties as well as their marital rights, it would seem that the same reasons exist for determining its validity as in civil cases generally, notwithstanding the death of one of the parties, and regardless of the fact that the primary relief sought by the bill and afforded by the decree has been confirmed by death, whose decree is irrevocable. (MAD: more omitted here)
Respecting the objection that proper parties have not been brought in, we think the objection well taken.
The plaintiff in error has caused only the administrator of her deceased husband's estate to be summoned as defendant in error. While by all the authorities he is a proper party, it is clear that the heirs at law are not only proper but necessary parties.
No showing has been made here, on either side, that no heirs at law exist, or that such persons, or others, interested in the estate or judgment do exist.
We are of opinion that the proper practice in all cases where the record does not disclose the names of persons who should be made parties to the proceedings in error, is for the plaintiff in error, by himself or attorney, to file with the clerk of this court an affidavit setting forth the names of all persons, so far as known, whose interests would be affected by the proceedings, or who are necessary parties thereto. In addition to this, a proecipe should be filed directing the clerk to issue a scire facias to hear errors, to the persons therein named as defendants in error. (MAD: more omitted here)
But while the objection as to want of parties must be sustained in the present condition of the proceedings, it is no ground for dismissing the writ of error.
It is the scire facias which is at fault, or insufficient. This may be remedied by the issue of an alias, when it is ascertained who are proper parties defendant.
The motion to dismiss the writ of error will be denied, and leave will be given the plaintiff in error to comply with the practice herein recommended, in respect to bringing to the knowledge of the court the names of all persons who should be joined as defendants in error, when an alias scire facias may be ordered to bring them into court.
"Reports of cases determined in the Supreme Court of Colorado; containing cases from December term 1883, April term 1884, and Special October term 1884" by L.B. France, Vol.VII; ("Colorado Reports") Vol.7, pgs.5 to 12 (California State Law Library, Sacramento, 1/2004)
ISRAEL v. ARTHUR, Administrator, et al; Supreme Court of Colorado; 7 Colo. 5; 1 P. 438; December, 1883 [December Term].
Error to County Court of Larimer County.
(opinion) HELM, J. This action was brought by plaintiff in error in the court below for the purpose of establishing her right to the estate of John Arthur, deceased, as sole surviving heir at law. Plaintiff was married to the said Arthur in 1859; there was no issue from the marriage, and, unless divorced, plaintiff was his wife at the date of his decease, and entitled, under the statute, there being no will, to inherit his entire estate.
Defendants in the court below were deceased's brother, who was also administrator of the estate, and certain nephews and nieces, who were interested therein as heirs, provided plaintiff failed in establishing her right thereto.
At the trial, the court admitted, over plaintiff's objection, the records and judgments in two divorce actions brought against her by the said John Arthur during his life-time.
The first of said actions was instituted in the probate court of Larimer county, and on February 9, 1875, a decree of divorce was granted therein. The second was brought in the county court of said county, and on June 12, 1877, a similar decree was again entered.
Two of the errors assigned attack the correctness of the court's rulings admitting in evidence the records of these divorce suits. (MAD: more omitted here) The divorce records before us were offered by the parties to be directly and materially benefited thereby, and we are clearly of opinion that they were subject to collateral investigation. (MAD: more omitted here) A decree of divorce generally affects the property rights of the parties as well as their marital relations. Israel v. Arthur, 6 Col. 85. (MAD: more omitted here)
The records of the divorce proceedings should have been excluded by the court; for error in admitting them the judgment must be reversed and the cause remanded.
We may deplore the effect of these conclusions in this particular case. But the consideration of hardship to these defendants therefrom must not be permitted to influence our judgment upon the questions presented. In the language of Mr. Justice Elbert, in Clayton v. Clayton, supra: "It cannot avail against the greater hardship of concluding parties by adjudications of their most sacred rights in proceedings of which they have no notice, and to which they have nover appeared."
"Reports of cases determined in the Supreme Court of Colorado; containing cases from December term 1883, April term 1884, and Special October term 1884" by L.B. France, Vol.VII; ("Colorado Reports") Vol.7, pgs.12 to 13 (California State Law Library, Sacramento, 1/2004)
ISRAEL v. ARTHUR, Administrator, et al; Supreme Court of Colorado; 7 Colo. 12; 1 P. 442; December, 1883 [December Term]
Error to County Court of Larimer County.
(opinion) HELM, J. John Arthur, now deceased, in his life-time brought suit and obtained a decree of divorce against his wife, who is the plaintiff in error herein. This writ is prosecuted for the purpose of reversing that decree.
The record of proceedings in that cause shows on its face that the court acted without obtaining jurisdiction of the person of the defendant. In the case of Israel v. Arthur et al. ante, p. 5, we have fully considered this record, and declared the proceedings of the county court therein void and of no effect. The judgment and decree must be reversed.
This court has held that the decease of the husband after a decree of divorce is granted, and before proceedings in error thereon are instituted, does not operate to prevent a review and reversal of the decree.
That "when property rights are involved, as in this case, the same reason exists for determining its validity as in civil cases generally." Israel v. Arthur, 6 Col. 85.
"Reports of cases determined in the Supreme Court of Colorado; containing cases from April term 1890, September term 1890, and part of January term 1891" by William E. Beck, Vol.15; ("Colorado Reports") Vol.15, pgs.147 to 155 (California State Law Library, Sacramento, 1/2004)
ARTHUR v. ISRAEL; Supreme Court of Colorado; 15 Colo. 147; 25 P. 81; September, 1890 [September Term].
Error to Larimer County Court.
THE case at bar was once before considered upon writ of error by the supreme court. Israel v. Arthur, 7 Colo. 5. It was then reviewed, and reversed, upon a record presenting the following facts:
Defendant in error in May, 1881, filed her petition in the county court alleging that John Arthur died intestate and without children; that petitioner was his widow; that plaintiff in error, as administrator, being in possession of the property, was speculating with the funds in his own business, and failing to account for interest, profits, etc.; that certain other parties, as brothers, sisters, and descendants of a deceased sister, claimed to be entitled to the estate as heirs at law; that petitioner was, on the contrary, sole heir and distributee, under the statute, of said estate. She demanded that her rights in the premises be recognized, and the administrator be required to render his accounts accordingly. An answer was duly filed by the defendants named, in which petitioner's relationship and right to inherit, as the widow of Arthur, deceased, and the misappropriation of the estate, were denied. As a separate defense, defendants, admitting the intermarriage of petitioner with Arthur, alleged that on February 9, 1875, a decree of divorce was entered by the probate court of Larimer county, in favor of the said Arthur and against petitioner. And, for a further defense, defendants alleged that on June 12, 1877, a second decree of divorce was duly made and entered in said court in favor of said Arthur, and against complainant. Replication was filed denying the new matter in the answer. The proofs upon the trial were confined to the issues thus made. The two decrees of divorce mentioned in the answer were offered and received in evidence over petitioner's objection. A judgment was duly rendered in favor of the defendants.
Upon reversal by the supreme court of the case thus presented, and by leave of the county court to which it had been remanded, petitioner filed an amendment or supplement to her original petition, in which the facts of such proceeding on error and reversal, together with the conclusion reached by the reviewing tribunal in the premises, were duly set forth. Afterwards, plaintiff in error, also by leave of court, filed a supplemental answer to the original and supplemental petitions. In this supplemental answer it was averred, among other things, that after the divorce decrees were entered, the said petitioner, with full knowledge thereof, and under and in pursuance thereof, and in the life-time of the said Arthur, "entered voluntarily into a contract of marriage with one James H. Israel, and caused and procured the said contract of marriage to be duly and legally solemnized, and, thereunder, took upon herself and assumed the relations of wife to the said James H. Israel, and thenceforward, and at all times thereafter, continuously, by virtue of the said solemnization of said marriage contract, lived and cohabited with the said James H. Israel, as his wife, until, and ever since, the death of the said John Arthur." That prior to the reversal of said cause, although plaintiff in error had continuously, from the commencement of the suit, made diligent and persistent efforts to ascertain the exact relationship existing between petitioner and the said Israel, he had been wholly unable to discover the foregoing facts, and for this reason alone did not plead them in bar at an earlier period. That he would sooner have ascertained these facts but for the following reasons, viz.: That, in October, 1873, petitioner abandoned the said Arthur and eloped and fled to remote and unknown parts with the said Israel, and thereafter, and until the divorce decrees were entered, and the marriage contract was solemnized, lived and cohabited with said Israel in a state of adultery, representing herself as his wife. That upon learning of the decrees of divorce, and procuring the solemnization of marriage, as aforesaid, both petitioner and Israel refrained from making the same public because of the desire to conceal and secrete "from their acquaintances and neighbors the illicit and adulterous relations previously sustained towards each other, and to prevent the scandal and disgrace which must necessarily have arisen from a public marriage, or from a marriage taking place at their usual place of abode," and in the usual way. And, finally, that it was only through confidential confessions of petitioner to certain friends, which were kept secret until after the determination of her writ of error, that plaintiff in error became aware of the facts connected with her said marriage to Israel.
To the matters contained in said supplemental answer petitioner demurred on the ground that they were not sufficient in law to constitute a defense. Upon the hearing, the court below sustained this demurrer; and, as leave to plead over was not requested, entered final judgment against plaintiff in error. To reverse this judgment the present proceeding was instituted.
CHIEF JUSTICE HELM delivered the opinion of the court. - The present controversy has been once before submitted to this court for adjudication. There was then, however, nothing in the record to show that Mrs. Israel, after deserting Arthur, and prior to the divorce decrees, had been guilty of immoral conduct; neither was there anything, aside from these decrees, to indicate that she had not, up to the commencement of proceedings therefor, conducted herself as a good, true and affectionate wife; or that subsequent to the entry thereof, and with knowledge of the same, she had, during Arthur's life-time, remarried, and lived and cohabited with another man as his wife. The single question then presented, wholly unembarrassed by any of these considerations, was whether or not the decrees, which were void because the records showed affirmatively that there was no jurisdiction over the person, should have been received in evidence and given the same force and effect as if valid and binding. The court held that they should not; and, for error in their admission, reversed the judgment.
The record now before us, on the contrary, discloses a voluntary acceptance by petitioner of the privileges resulting from the divorce decrees, as well as antecedent conduct on her part, that is highly reprehensible from both a legal and a moral standpoint. That petitioner's purpose was to secure the estate of deceased was known then as now; but the question as to whether she may accomplish this purpose obviously rests at the present time upon very different considerations from those formerly brought to our attention.
We cannot accept the assertion of counsel for defendant in error that the decision of the court upon the former case is decisive of the present review. We still adhere to the opinion that the decrees in question were void, and not merely voidable; but assuming such invalidity, and giving to the declaration of this court reciting that fact all the force and effect of a final adjudication thereof, we feel warranted in holding that petitioner's right to the estate of Arthur may still be inquired of.
It is to be hoped, for her sake, that the conduct of petitioner is not correctly set forth in the supplemental answer; but the averments of this pleading in that behalf are, by the demurrer, temporarily confessed, and for the purposes of the present decision must be treated as true.
The question, therefore, now presented for determination may be stated as follows: When the wife, without cause, deserts her husband and home, and for years lives in adultery with another man, and afterwards, upon learning that a divorce has been obtained by her deserted husband, causes a marriage ceremony with her paramour to be solemnized, and continuously lives and cohabits with him as his wife, may she, upon the subsequent decease of her abandoned husband, take advantage of the fact that the divorce decree is void for want of proper service of process, and successfully assert against other heirs her right, under the statute of descents and distributions, to the deceased 's estate as his widow? An affirmative answer to this question would be so shocking to good morals, to sound public policy and to the simplest principles of justice, that we shall decline to give it unless coerced into doing so by cogent and firmly established rules of law.
As a matter of law, petitioner must, uncer the circumstances, be presumed to have known before Arthur's death that the divorce decrees were invalid; and it is fair to assume that such in fact was the case, as, besides the grounds upon which the legal presumption rests, she so promptly after that event asserted their invalidity. Had she properly challenged those decrees during the life-time of Arthur she would have incurred the hazard of a restoration of conjugal relationship, or of his procurement of a binding divorce. Either of these results was evidently objectionable to her, and both were carefully avoided. She voluntarily elected to postpone action until such time as she might secure all the benefits of the marriage contract without discharging any of its burdens. Abandoning for years the performance of every marital obligation and duty, she awaited until death had rendered such performance impossible, and then boldly hastened to seize all the pecuniary advantages conferred by law upon the faithful wife and bereaved widow. Under these circumstances, petitioner cannot complain if we insist upon treating the present controversy as one relating solely to property rights, unaffected by those legal considerations which give to marriage and the family their peculiar status, with accompanying special privileges and protection.
But if the divorce decrees receive the same treatment as judgments, or decrees in ordinary controversies relating to damages or property, petitioner's action must fail; for one who accepts and retains the fruits of a void judgment cannot afterwards repudiate his action and take advantage of its invalidity.
The foregoing principle has numerous other salutary applications; as, for instance, that one, having accepted the benefits of an unconstitutional law, cannot, as a general rule, rely upon such unconstitutionality as a defense, even though the invalidity has been adjudicated in another suit. Also, that a corporation, having exercised the privileges of its franchise, when sued for its negligent or malicious tort, shall not successfully invoke, as a defense, the plea of ultra vires. And in many cases the same inhibition applies after the benefits of otherwise binding corporate contracts have been enjoyed.
We discover, upon principle, no sufficient reason why petitioner's conduct in the premises should not produce just as effective an estoppel as if she had received the proceeds of a void judgment for money. By her subsequent marriage with Israel during Arthur's life-time, she accepted, so far as was within her power, the benefits or privileges of the divorce decrees. The fact that she did not then know that those decrees were void is a matter of no more consequence than is the ignorance in this respect of one who, knowingly in all other particulars, receives the fruits of an ordinary void judgment at law. That, at the time of her marriage with Israel, she understood the decrees to be valid, is, if true, only an additional earnest of her acquiescence in the result, and sincerity in accepting and taking advantage of the benefits supposed to follow. Besides, had she believed them void, her obliquity would be even deeper than it is; because to her other alleged offenses would be added that of intentional fraud upon Israel, who may have thought that he was contracting a valid marriage.
We are not unmindful of the fact that the analogy between accepting the fruits of void judgments at law and accepting the pecuniary benefits, if any there be, together with the privileges of void divorce decrees, is not perfect in all respects. But the importance and justice of recognizing an estoppel in the latter case may be far more weighty than in the former. The immediate parties are not alone concerned. The public is always, and other individuals are usually, profoundly interested. Public policy, as well as private interest, requires that, so far as may be consistent with fundamental principles of law, one who has attempted to profit by a supposed divorce, and has exercised the resulting privilege of remarriage, shall not, for the mere purpose of obtaining property, be permitted to repudiate his election and thus demonstrate the invalidity of his second marriage, together with the unconscious adultery of his second wife, and the illegitimacy of her children, if any she have by him.
Were petitioner attempting, in the light of the present record, to have the divorce decrees held void, her attempt would be futile. And the fact that upon another and different record this court was induced to declare such nullity is, as already suggested, not conclusive of her right to the property in question. It clearly appears from the admitted averments of the supplemental answer that petitioner herself is responsible for the failure of defendant to sooner plead in bar the facts which operate in the nature of an estoppel by conduct; and since, if these matters had been known in the first instance, petitioner would not, for the purpose of securing Arthur's estate, have been permitted to show the invalidity of the divorce decrees, we unhesitatingly conclude that she should not now be allowed to take advantage of such invalidity, in order to accomplish the same result.
The application of a doctrine analogous to that of equitable estoppels to cases which, in essential particulars, strongly resemble the one at bar, is by no means a novelty.
In two or three of the foregoing cases the principle of estoppel was applied where wives had abandoned their husbands and formed adulterous relations with other men, or had simply renounced the marriage tie and forsaken the marital obligations, but where in fact no divorce proceedings were instituted. In at least two of the others the learned judges who prepared the opinions dwell upon laches as well as acquiescence. These decisions are, in the main, well considered, and we have no disposition to reject the particular reasons, so far as applicable, given in support thereof, but we prefer to rest our conclusion especially upon the specific grounds hereinbefore considered.
Petitioner's demurrer to the supplemental answer should have been overruled. The judgment of the court below is accordingly reversed, and the cause remanded for further proceedings.
"Colorado Reports : cases adjudged in the Supreme Court of Colorado at the September term 1892, January and April terms 1893" by T.M. Robinson, Vol.18, pgs.158 to 164 (California State Law Library, Sacramento, 1/2004)
ISRAEL, Plaintiff in Error, v. ARTHUR, Administrator, Defendant in Error; Supreme Court of Colorado; 18 Colo. 158; 32 P. 68; January, 1893 [January Term].
Error to the County Court of Larimer County. Petition by Abbie A. Israel to the county court to be recognized as the widow and heir of John Arthur, deceased, and to be adjudged sole distributee of his estate, he having died without children. Petition denied. Petitioner brings the record of the proceedings to this court by writ of error. A sufficient statement of the facts of this litigation will be found in Israel v. Arthur, 7 Colo. 5, and Arthur v. Israel, 15 Colo. 147.
(opinion) This cause in different phases has been several times before this court. In Israel v. Arthur, 7 Colo. 5, the decrees of the county court whereby John Arthur undertook to obtain a divorce from his wife Abbie were held to be void for want of jurisdiction. The matter then considered by the court was limited to the question of the validity of said decrees as they appeared of record; and upon the face of the record, without more, the decrees were held insufficient to debar Mrs. Israel from asserting her claim as widow and heir to John Arthur, deceased.
The next time the controversy came before this court, (Arthur v. Israel, 15 Colo. 147,) the question presented arose upon the demurrer by Mrs. Israel to the amended answer of the administrator, James B. Arthur, resisting her petition to be recognized as the widow and heir of John Arthur. The amended answer set up a new state of facts in connection with said decrees of divorce. The new facts showed Mrs. Israel in a new light, and, in the opinion of the court, gave her a different legal status in relation to the controversy. Upon mature consideration the amended answer was held to be sufficient in law to debar or estop her from claiming any property rights as the widow of the said John Arthur, deceased. The court did not change its views of the law as to the facts appearing of record in 7 Colo. supra; but simply declared the law applicable to the new state of facts introduced into the record by the amended answer, as admitted by the demurrer.
Upon the remanding of the cause to the county court, Mrs. Israel filed a replication to the amended answer, and upon the issues thus formed a trial was had, resulting in a finding and judgment adverse to her petition. She now brings the record to this court, and assigns error, to the effect that the finding and judgment of the county court are against the evidence, and contrary to the law.
Upon the record now presented, according to the plainest principles governing appellate procedure, the only question for us to determine is whether the evidence upon the last trial was competent to prove the allegations of the amended answer. The court having by its opinion in 15 Colo., supra, held the amended answer sufficient in law; and the cause having been again tried by the county court in accordance with that opinion, this court, as well as the county court, must regard that opinion as "the law of the case," so far as the matters and things alleged in said amended answer were established by competent evidence to be the true facts of the case.
From the record the following facts appear to be undisputed. The dates are material to the understanding of other portions of the evidence.
In 1859 plaintiff in error was married to John Arthur. For some years and up to 1873 she lived with Arthur at or near Fort Collins, Colorado. James H. Israel was in the employ of Arthur for about three years prior to 1873, when he went to Iowa.
In the latter part of 1873 plaintiff in error left her husband and joined Israel, and thereafter lived and cohabited with him in Iowa, Missouri and Kansas and in southern Colorado, several hundred miles from Fort Collins.
On February 9, 1875, a decree of divorce was entered by the probate court of Larimer county in favor of said Arthur against the present plaintiff in error; and on June 12, 1877, a second decree of divorce of like import was also entered in the same court. John Arthur died, April 16, 1878.
Other evidence was produced as follows:
Mrs. Elizabeth Sweeney of Fort Collins, wife of the former sheriff, testified that in 1881 Mrs. Israel told witness that she had been married to Israel three times; that the first was a sham marriage, that the second time was after she heard that Arthur had got a divorce from her, and that the third time was after Arthur died. Witness testified that these statements were made at her house in Fort Collins in 1881, during the occasion of the first trial of this cause, but that witness did not communicate them to counsel for the administrator for some years afterwards.
Mrs. Duncan, mother of Mrs. Sweeney, testified that during the occasion of said first trial Mrs. Israel told witness that she had been married twice to Mr. Israel. Witness did not remember having communicated this statement of Mrs. Israel to anyone but her daughter Mrs. Sweeney.
Mrs. Elizabeth Rogers of Weld county, an aged lady, testified that she had been acquainted with John Arthur and his wife Abbie for many years; -- that she saw Mrs. Israel at Fort Collins in 1881, when she came to attend the trial; that Mrs. Israel stayed at the house of witness for several weeks during that time; that Mrs. Israel told witness that she had been married twice to Mr. Israel; that the marriage was after the divorce took place. Witness understood that Mrs. Israel, instead of her first husband, was the applicant for the divorce. Witness further testified that Mrs. Israel said on that occasion that "she thought she had forfeited her right or claim to the estate of John Arthur, and would never have undertaken it (the suit) if other parties had not come and undertaken to carry it through."
The testimony of Mr. and Mrs. James H. Israel was taken by depositions. They concurred in testifying that they never were married to each other until after the death of John Arthur. The following is from the testimony of Mrs. Israel, as set forth in her own printed abstract of the record:
"I was informed by John Arthur in January, 1876, of divorce proceedings to dissolve the marriage relation between him and me. He merely told me that the divorce that he had was not legal and that I was still his wife as much as ever I was. I never heard of any other divorce proceeding prior to his death. * * *
"In 1873 I ceased to live in Larimer county. Since then I have lived in Adair county, Iowa, about one and a half years. I lived in Canon City about a year before going to Adair county. The conversation I had with John Arthur was at Canon City. After leaving Larimer county, besides the places I have mentioned, I lived in Fort Scott, Kan., about three months, and traveled across the plains to Del Norte, Colo., and lived there until I went to Canon City. During all these years I lived with James H. Israel as his wife, and was not known to people with whom I formed acquaintance other than his wife. During that time Mr. Israel and I held ourselves out as husband and wife. This suit was not brought in the name of Abbie A. Israel. There never was any other marriage ceremony performed between Mr. Israel and myself than that on June 18, 1881. * * * The reason why this marriage between Mr. Israel and me was deferred until June was because I did not think we could be legally married before, not having heard of the second divorce. * * * I know Mrs. Elizabeth Rogers; I met her in Fort Collins in 1881. I did not say to her that I had been married to Israel during the lifetime of Arthur. I have a present interest in this suit. I don't remember the I said to Mrs. Rogers then that I would not have brought the suit if other parties had not come forward and agreed to carry it through. * * * During all the time I lived with Mr. Israel, as I have stated, I performed and discharged all the usual and ordinary duties of a wife to him, and cohabited with him as such."
The following is the testimony of Mr. Israel, as shown by said printed abstract: "I became acquainted with petitioner in Larimer county, in 1869. I worked for John Arthur about three years before she left his home. I was working for him when she abandoned his home. I never had illicit intercourse with her before she left him. The first illicit intercourse was in December, 1873. We lived together from 1873 to June, 1881, pretty much the same as we have since. I slept and cohabited with her part of the time. After she returned from Iowa we did not cohabit until we reached Ouray county. She was in Iowa one year or more. She came to Ouray county as Abbie A. Arthur. We had lived in Ouray a very short time when she was called Mrs. Israel. I met her in Wintersett, Iowa, in 1873, when the relations of husband and wife began. I consulted with Mrs. Israel first about her leaving her husband and living with me only by letter. The correspondence was from the latter part of September, 1873. The matter was not talked or considered between us until after she went to Iowa in August, 1873. Mrs. Arthur began the correspondence. We remained in Wintersett City one night; was four or five days in Kansas City. I arrived in Ouray county, June 4, 1877."
From the testimony of Mr. and Mrs. Israel it appears that their cohabitation was broken off for about a year and a half prior to June, 1877. It was fair for the trial court to infer that this was because Mrs. Arthur was informed in January, 1876, by her husband, John Arthur, that the first divorce was not legal. Israel's testimony upon this point was: "After she (petitioner) returned from Iowa we did not cohabit until we reached Ouray county. She was in Iowa one year or more. She came to Ouray county as Abbie A. Arthur. We had lived in Ouray a very short time when she was called Mrs. Israel. I arrived in Ouray county, June 4, 1877." This testimony is most significant, when it is remembered that the second decree of divorce was entered on June 12, 1877.
In view of all the circumstances of the case, the conduct of the parties, and bearing in mind the repeated declarations of plaintiff in error that she had been married to Mr. Israel more than once, the inference is almost irresistible that they assumed the relation of husband and wife at Ouray in June, 1877, in consequence of learning of the second decree of divorce. It is not strange that the trial court did not consider their denial sufficient to rebut such inference. Though there was no express proof of a formal ceremony of marriage, in facie ecclesice, or by a civil magistrate, yet from all the evidence and circumstances of the case the court was warranted in finding that plaintiff in error had actually contracted and consummated a marriage with Israel before the death of her first husband, and so the substance of the issue formed upon the amended complaint was proved.
By the brief and argument of counsel for plaintiff in error we are now asked to reconsider the decision announced in 15 Colo., supra. It is urged that the decision is contrary to sound legal principles, and in violation of rights guaranteed by the Constitution of the United States. These views were fully poresented when that decision was announced, but upon due consideration were not approved. As before stated, we regard the former opinion as controlling in this particular litigation; hence, we shall not enter upon a further discussion of the questions therein considered.
The judgment of the county court is affirmed.
Armstrong Co. PA Deeds (SLC 9/15/2012)
34-459/460: RELEASE. [Headed: Simon Duncan & wife to Alonzo M. Duncan] Simon Duncan of Larimer Co., CO Territory in the US, and Nancy Ann his wife, for $200 paid by Elonzo Duncan of Armstrong Co. PA, quit claim to Elonzo Duncan and his heirs our interest in that tract of land in Madison Twp, Armstrong Co. PA, known as the homestead of Alexander Duncan decd, adj. Redbank Creek, land of David L. Duncan, land of P.&J. Crisman and J.L. Miller, together with appurtenances. (no date) /s/ Simon Duncan, Nancy A. Duncan. Wit. Jane B. Sherwood, Amanda H. Ernest. Ack. 8 Oct. 1867 in Larimer Co. CO. Recorded 11 Feb. 1868. (FHL film 1,318,256)
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