Daily capital journal. (Salem, Oregon) 1903-1919, 1911-08-10
Wallace v. Mcdaniel, ct al, MultnO-
mnh COunty.

Elmer Mdlldcet Cross dppblldutf "
Mary f. Mcdaniel Walter Bowman
and William Bowman, appellants.
Appeal from the circuit court Of
Multnomah county. The Hon. Earl
C. Bronaugh, Judge Argued and
submitted July IS, 1911. John Van
Zante and A. II. Tanner C.. NJ. Idle
man on the brief) Attorneys for
cross appellant. Ben G.. DeY CWm.
ID. Fenton and r. A. Lolter on the
brleD. Bean, J. Modified.
This IS a suit in equity, involving
the title to certain real property.
The case originally was commenced
by the defendants against plaintiff as
an action for the possession Of lot IL
and the west two feet OF lots IL and
13, block 15, on Williams avenue,
Portland, Oregon
Il appears that Ida NJ. Bowman,
the intestate, first married John En-
decott, from whom she separated,
there being no children as the issue
OF their marriage. On September 8,
1903, John Endecott commenced a
suit for divorce against Ida NJ Ende-
colt, his wife, in the circuit court for
Unatilla county On September g.
1903. Mrs. Endecott appeared by her
attorney and filed demurrer to the
complaint, which was on the 18th day
of September, 1903, oyyerruled, and
she declined to further plead. There
upon the court heard the evidence
and rendered a decree of divorce In
favor Of plaintiff, John Endecott
against defendant Ida M. Endecott
On March IL, 1904, at about $3.50 p
m, the plaintiff herein, Elmer Wal
lace and Ida NJ Endecott, the di-
vorced wife of John Endecott, inter
married at Portland, Oregon, where
they resided together az husband
and wife until the death Of the latter
on October 10, 1905. A child, which
died prior to the death OF the intes-
tate, was born as the issue Of their
marriage, and the intestate left mel
ther father nor mother living.
The plaintiff filed a cross COM
plant in equity, claiming title as the
heir OF his wife, Ida NJ Wallace, for
merly Ida NJ Endecott, the intestate
and the defendants claim to Inherit
the property in question as her sis
ter and brothers and heirs.
Plaintiff alleges that lot II, block
Is, was purchased on August 6, 1903
for $2100, with the Joint funds oI
himself and Ida M Endecott, for the
mutual benefit OF both; that thereaf.
ter plaintiff purchased and paid foI
the west two feet Of lots ~ and 13 oi
block Is, and made improvements
thereon. the total amount paid by
plaintiif being S665,
The defendants make allegation
that the intestate was their sister
that her marriage on March 70, 1904
occurred prior to the expiration o
the six months following the grant
Ing OF the decree of divorce in the
suit between her and John Endecott
and that her second marriage to Gl
mer Wallace, the plaintiff, was there
fore void, and that on that accoun
they the defendants, are her Lawful
heirs and entitled to the said rea
property.
The trial court rendered decree
In favor of defendants, except MS tt
an equitable interest In the property
amounting to $665, in favor OF plain
tin. Both parties appeal.
Bean, j. The statutes of this state
relating TO marriage and divorce
proylde az follows:
Sec sol. "A husband or wife may
maintain a suit against the other fol
dissolution OF the marriage contract
or to have the same declared void, a'
provided In this chapter"
Sec 5l5 "A decree declaring {
marriage void or dissolved at the
suit or claim of either party shal
have the effect to terminate sucl
marriage as to both parties, eXcep
that neither party shall be capable
OF contracting marriage with thirC
person, and II he or she does no
contract, shall be liable therefor al
II such decree had not been given
until the suit has been heard and de
termined on appeal, or II no appea
be taken, the expiration OF the per
iod allowed by this Code to take sucl
appeal
See, $50, sub-dly 8. "An appeal t
the supreme court, II not taken a
the tilIe OF the rendition of the judg
ment or decree appealed from, shal
be taken by serving and filing tn,
notice OF appeal within six month";
from the entry of the Judgment. or
der or deere appealed from, -.
Sec 502, "All marriages which ar,
prohibited by law on account of con
sangulnlty between the parties, or OF
account OF either of them having
former husband or wife then living
or on account of either OF them be
ing one-fourth or more OF negro
blood, shall, II solemnized within
this state, be absolutely void"
See 70l1 sub-diy /, provides tina
marriage is prohibited, "whel
either party thereto had a wife OF
husband living at the time Of sucl
marriage"
lt is contended upon the part o.
plalnuif that the marriage between
himself and the intostate was yallt
for three reasons: (ll The marriage
even II within the six months per
iod, was not void but only vuldab,e.
GO The decree OF divorce for wan
OF an answer, was rendered upon de.
fault; there was no appeal aud con
sequently See. 5l5. L. o. L., has ne
application thereto; (S) The time al
lowed for appeal from the decree oI
divorce had expired, and no appea
was possible at tho time the secont
marriage took place.
In the case of McLennan v. Me,
Lehman 81 Or tSO where the plaln.
tin, divorcee, contracted mar.
riage with third person % days az
ter her decree of divorce had beer
rendered and prior to the expiration
of the time for taking an appeal IL
the suit II was held that her subse