[Sheriff of Lanarkshire.
Subject_Husband and Wife — Nullity of Marriage — Rights of Innocent Husband over Property of Guilty Wife where Marriage Null owing to Prior Marriage.
Sheriff — Jurisdiction — Action between Husband and Wife.
S. was married to M. in 1838, who in 1841 deserted her. In 1854 S. went through a ceremony of marriage with W. without taking any sufficient means to ascertain whether M. was still alive. In 1875 W. discovered for the first time that there had been a prior marriage with M., and on inquiry found without any difficulty that he was still living. Prior to this, by arrangement between W. and S., the sum of £65 had been deposited with two persons as trustees for behoof of S. in liferent and her two children by W. in fee. In a competition between S. and W. as to this money, held (1) that in point of fact the money was part of the proceeds of S.'s own industry; and (2) that in the peculiar circumstances of the case she was entitled to have it paid to her.
Question—Whether where a marriage was a nullity from bigamy, the guilty wife forfeits all her rights in favour of the innocent husband, and whether the jus mariti operates as in the case of a lawful husband?
Where a party had married a second time while her first husband was still alive, by arrangement between the parties, a sum was conveyed to trustees for behoof of the wife and the children by that marriage. Upon its subsequently being ascertained by the second husband that his marriage was null, a dispute arose as to the right to the sum in question. Held that as judging from the pleadings it was possible that in the result it might be held that the fund in question belonged to the wife irrespective of whether there was a marriage or not, the action was not incompetently brought in the Sheriff Court.
Agnes Burnside Sharp was married to James Miller in 1838. He left her in 1841, having enlisted in the East India Company's service. She thereafter, on the 8th December 1854, went through a ceremony of marriage with Henry Wright, and they lived together as man and wife until 12th February 1875, when she left his house, as she averred, on account of his cruelty. Shortly after this took place Wright discovered that at the time he went through the marriage ceremony with Agnes Sharp her first husband (Miller) was alive, and that he was still alive.
On 25th February 1874, before Wright suspected the existence of the prior marriage, and following upon the difference which led to a separation, a sum of £62 was put in bank in the names of Claud Hamilton and John Stewart as trustees for behoof of Agnes Sharp in liferent and her two children by Wright in fee. That sum formed the fund in medio in this multiplepoinding, which was brought by the trustees in question as nominal raisers, the real raiser being Wright, and Sharp being the only other claimant. Neither the children nor the first husband were called or appeared. Wright claimed that the whole fund in medio should be made over to him; Sharp that it should continue to be held by the nominal raisers in trust, or alternatively that it should be paid to her. She averred that in point of fact the money was hers, being the product of a drapery business which she carried on before and after her marriage with Wright. He denied this, and averred that the money was his own.
Wright pleaded—“… (2) The claimant having been induced to entrust the fund in medio to the nominal raisers, in the belief that the said Agnes Burnside Sharp was his wife, he is entitled, now that it turns out that she never was the wife of the claimant, to payment of the same. (3) The handing of the money to the nominal raisers under the circumstances above set forth was an act which was revocable by the claimant; and as he has since revoked it, he is now entitled to the fund in medio.”
Sharp pleaded, inter alia—“(1) The fund in medio having been paid over to the pursuers by or with consent of both claimants for a specified purpose, ought to be allowed to remain with pursuers until that purpose is fulfilled… .(3) The interest of third parties, viz., the children of said marriage, in said fund in medio being imperilled by this action, they ought to be called for their interest. (4) The said Agnes Burnside Sharp having had in her possession a greater sum than the fund in medio prior to and at the date of her marriage with the said Henry Wright, or at all events a larger sum being then due to her by her customers, she is entitled to get payment of the fund in medio now that the said Henry Wright repudiates the said marriage.”…
The Sheriff-Substitute ( Guthrie), and on appeal the Sheriff ( Clark), dismissed the action, on the ground that it involved directly and primarily a question of status which could not competently be tried in the Sheriff Court. Wright appealed, and the First Division on Nov. 7, 1878 recalled the interlocutors of the Sheriffs and remitted to the Sheriff to allow the parties a proof of their averments before answer.
The Sheriffs seem to have proceeded on the assumption that the first question is, Whether there is a marriage subsisting between these two claimants? But it appears to me that this is not only not the first question, but that it is a question which may never arise in this case at all. The money was deposited with the nominal raisers certainly with the knowledge of both parties. The terms of that deposit are not in writing, and therefore must be proved by witnesses. Now, that proof may show that the terms are such that this money belongs to the wife or alleged wife, whether there was a marriage or not, or that, on the other hand, and on the same alternative, it belongs to the husband or alleged husband. And in either of these events it is quite clear that the question is one which the Sheriffs may competently dispose of. It may no doubt turn out that the terms of the deposit are such that the property of the money depends upon whether the parties were married or not. But it is quite premature at present to say that the right to this fund cannot be determined in this competition of multiplepoinding.
I am therefore for recalling the interlocutors of the Sheriffs and remitting the case for proof before answer.
A proof was accordingly taken, the result of which sufficiently appears from the judgments infra.
Thereafter the Sheriff-Substitute ( Guthrie) pronounced this interlocutor—“Finds that the claimants Henry Wright and Agnes Burnside Sharp or Miller went through a ceremony of marriage on 8th December 1854, and lived together as husband and wife till 1875 Finds that on or about 25th February 1875; the fund in medio was placed by the said parties in the hands of the nominal raisers in trust for behoof of the said Agnes Burnside Sharp or Miller in the event of the death of the said Henry Wright: Finds that at the said 8th December 1854 James Miller, to whom Agnes Burnside Sharp or Miller was married in 1838, was alive; and finds, therefore, that the marriage between her and Henry Wright is void and null: Finds that the fund in medio is the proportion of the funds jointly possessed by the claimants in February 1875, which belonged to Agnes Burnside Sharp before the said 8th of December 1854, or had been earned by her exertions, and therefore ought in the circumstances to be paid to her: Therefore …. ranks and prefers the said claimant Agnes Burnside Sharp to the fund in medio in terms of the second alternative of her claim….
“ Note:—… This sum (viz. the £62) is the fund in dispute in the present multiplepoinding, which has been raised by the claimant Wright. He desires to have the money paid over to him on the ground that his marriage to Mrs Miller in 1854 was null, in respect that her former husband James Miller was then and still is alive; and he pleads, alternatively, that even if he is not proved to be alive, the provision of £62 was a donation inter virum et uxorem, which he (Wright) is entitled to revoke. Mrs Miller, on the other hand, asks that Messrs Hamilton and Stewart should retain the money on the original trusts, or pay it over to her, pleading that if her marriage with Wright is good, it was an irrevocable provision, because really made out of her own funds; and that if the marriage is not valid, the money is hers, as it was from the first.
The evidence is in some respects very meagre, but enough is proved to make the case free from any difficulty. Mrs Miller was married in 1838 to James Miller, who left her in March 1841, enlisted, and was sent to India. She had, according to her own account, two letters from him, in 1844 and 1845, after which she says she heard no more from him or of him except that his uncle had got a letter from a missionary stating that he was just dying. ‘I did not think,’ she says, ‘after that there was any use making any inquiry about him, and I did not do it.’ Nor does it appear that anything was heard of Miller until after the parties ceased to live together in 1875, when Wright made some inquiries, which led him to the conclusion that Miller is still living and has risen to a respectable position in the Indian army. Both parties appear to me to have been somewhat remiss in regard to the proof of Miller's existence, for the real raiser Wright has left the matter to depend upon some documents from the India Office and
The Sheriff ( Clark) recalled this interlocutor, and ranked and preferred Wright to the fund in medio, adding this note:—
“ Note.—[ After stating the facts] … It appears to be the law of Scotland (see Fraser on Husband and Wife, second edition, vol. i. p. 152) that when a marriage is a nullity in consequence of the fault of one of the parties, and without any fault upon the other side, the innocent party shall preserve his or her rights intact as though the marriage had been effectual; and that, as in the present case, where the husband is the innocent and aggrieved party, he retains his jus mariti as regards all moneys and estate over which it would have extended if the marriage had been valid, except in so far as these may be claimed by the real husband. Upon that ground, therefore, I apprehend that in this case the male claimant is entitled to prevail. It must be observed that if the marriage between the two claimants had been valid, any funds possessed by her at the date of such marriage, or any funds which she afterwards acquired by her own industry would have fallen under the jus mariti of her husband, because there was no marriage-contract creating separate estate, and the recent Act declaring the earnings of a married woman during her coverture to be separate estate had not yet come into operation. It cannot be said that the arrangement by which the funds were placed in the hands of the nominal raisers can now receive effect in favour of the female claimant, inasmuch as that arrangement, and all that took place in consequence, proceeded on the essential error of supposing that the two claimants were married persons. That being so, this arrangement becomes of no value, and the male claimant becomes entitled to those funds under his jus mariti, except in so far as the claims of the real husband are concerned. Upon no ground, therefore, can the female claimant have any right to the fund in medio. I have been induced to find the female claimant liable in expenses, inasmuch as she is entirely responsible for the deception practised upon the male claimant, and for his occupying his present most unsatisfactory position. By her conduct in concealing from him her previous history at the time of her pretended
Mrs Sharp or Wright appealed, and argued—The money was in fact hers; at anyrate it stood in her name, and the onus was consequently on Wright. Admitting, therefore, that there had been no marriage, the rights of parties ought simply to be determined by the agreement, and that was in favour of the appellant. The Sheriff's law was wrong. At anyrate it had not been proved that the appellant was in mala fide in concealing the first marriage.
Argued for Wright—The money was Wright's, but even if it was not, it ought to be made over to him. For he had through a long period of years treated Mrs Sharp as his wife, and supported her, he being in optima fide, and she being in the knowledge that her first husband was alive, or at least having taken no steps to ascertain the truth. At the time the deposit was made he could undoubtedly have appropriated the money, whose-ever it was, but relying upon his jus mariti he had allowed the deposit to be made, at the best as provision for his supposed wife. It was equitable, therefore, that he, and not the guilty wife, should have the money. [ Lord Shand—Do you mean that if the supposed wife had had £10,000 left to her, that her husband could appropriate it simply because she had deceived him into the marriage?] It was not necessary to go that length here, but the principle on which the Sheriff proceeded would lead to that result.
Authorities— Brymer v. Riddell, Feb. 19, 1811, reported as Bell's Report of a Case of Legitimacy under a Putative Marriage; Craig v. Galloway, July 17, 1861, 4 Macq. 267.
At that time Mr Wright was not aware that his supposed wife was married to another man when she went through the ceremony of marriage with him; but I do not think it doubtful that she was aware, and at all events she was bound in the circumstances to have been aware, that her first husband was alive, and in consequence that her marriage with Wright was a nullity. In this stage of matters Wright claims the whole of this money, whether contributed by himself or by her; she, on the other hand, claims what she herself contributed, estimated at £65.
It seems that on receiving her share of £65 she deposited it with two persons as trustees, to be held by them for behoof of herself in liferent, and her two sons Harry Wright and William Sharp Wright in fee. But it does not appear to me that there is such a jus quæsitum in these children as to entitle them to come forward (which they have not done) and claim that the fee of that money shall be made effectual to them. It does not appear that more was intended than that if Mrs Wright happened to die without using or disposing of the money it should go to them. The only question is, whether her share of £65 is her own or belongs to Wright?
The Sheriff-Substitute has found in favour of Mrs Wright holding that she is entitled to retain the amount which she had earned by her own industry. But the Sheriff has altered this, and held that the money belongs wholly to Wright, and this on the ground entirely of a doctrine which he quotes from Fraser on Husband and Wife—that when the marriage turns out to be a nullity from bigamy, the guilty wife forfeits all her rights in favour of the innocent husband, and that the jus mariti is as effectual in his favour as if the marriage had been a lawful marriage.
Now, I do not think it necessary to say whether this is sound law or not. If the wife had a fortune or considerable capital, an important question of that kind might arise. But assuming the general law to be as stated by Mr Fraser, it does not appear to me that it could reasonably be applied to a small sum like that here in dispute, earned by the wife's industry, and required for her present subsistence. I cannot deal with a sum of that kind on such great principles.
Well, then, they had agreed to divide the money—the marriage turns out a nullity—so that in point of fact the parties have no relationship to one another. Wright did not know that at the time of the agreement, but it seems to me that the result of that in the circumstances would simply be a restitutio in integrum; that is not proposed, and on the whole I concur with the Sheriff-Substitute that the agreement ought to be considered final.
The Court recalled the interlocutor of the Sheriff, and ranked and preferred Agnes Burnside Sharp or Wright to the fund in medio.
Counsel for the Claimant Sharp or Wright (Appellant)— Dickson. Agents— Morton, Neilson, & Smart, W.S.
Counsel for the Claimant Wright (Respondent) — Brand. Agent— Adam Shiell, S.S.C.