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It was December, 1852 when the case of McKinney v Clarke came before a Nashville, Tennessee judge who just happen to have the very same surname as the plaintiff/complainant, McKinney.

Before Justice McKinney was the marriage of the former Mary Sullivan, now Mary Clarke. When her first husband Cornelius Sullivan died, Mary inherited a plantation and slaves pursuant to his will; a tidy estate until her debts started mounting, she became a judgment debtor, and the creditors pressed to seize her estate and sell it to pay-off her debts, a process then known as a levy.

There was something fishy about her sudden marriage to the local drunk, John Clarke.

Certainly the complainant, plaintiff thought the marriage opportune because, as was the law at that time, a married woman forfeited her entire personal estate when she married; this included all liabilities for personal debts.


They disappeared into the legal abyss.

Once married, a woman was shielded from her previous private debts and she was for all economic purposes, absorbed into the person of her husband, losing any liability she may have had before her marriage.

John Clarke renderingIt was a statement of law that has long been lost in the evolution of justice, and deservedly so, but still as it was available to Mary Sullivan in 1852, she sought to take full advantage of it, found a local drunk and hoped that this would totally frustrate her hounding judgment creditor.

It did not.

McKinney sued alleging that the marriage was a fraud and ought to be dissolved, and wanted the plantation and slaves back between the cross-hairs of his bill collectors.

Justice McKinney burrowed his forehead deep into his hands and weighed the sanctity of marriage against the rights of a judgment creditor.

This bill was brought to annul a marriage entered into under all the forms of law between the defendants John and Mary Clarke on the ground that said marriage is contracted, not in good faith, but for the sole purpose of defeating the right to the complainant, who was a judgment creditor of said Mary prior to the marriage.

It appears that the defendant Mary, for several years prior to her marriage with defendant John Clarke, was a widow of Cornelius Sullivan, who died in 1846. By his last Will and testament said Cornelius devised and bequeathed to said Mary a plantation and six slaves "during her natural life or widowhood" with remainder to his children.

Sometime prior to the marriage between said Mary Ann defendant Clarke, the complainant recovered several judgments against said Mary in her own right and caused executions to be issued thereon, which are levied upon said tract of land and slaves held by her under the foregoing clause of her former husband's Will.

After the levy, and shortly before the day appointed for the sale of said property, said Mary intermarried with the defendant Clarke...

The main, if not the sole inducement to the marriage, on the part of said Mary was to put an end thereby to the estate vested in her during widowhood ... so as to defeat the complainant's levy and the recovery of his debt.

The motives and conduct of said Mary ... are of a character ... to shock the moral sense of the community, and to outrage all the decencies of social life.... She has not in fact, and perhaps never intended to cohabit with said Clarke, who is proved to be a drunken sot, degraded and reputation and loathsome in appearance and habits....

Marriage is an adequate personal contract and its basis is the mutual consent of the parties. But ... it is something more than a mere contract. It is rather to be deemed an institution of society, founded upon the consent and contract of the parties; and in this view has some peculiarities in its nature, character, operation and extent of obligation, different from what belongs to ordinary contracts. Unlike other contracts, it is indissoluble between the parties.... It continues to exist until a dissolution is pronounced either by the death of one of the parties or by a divorce.

Marriage ... lies at the very foundation of all social order and morality, and constitutes the chief cornerstone of the whole structure of civilized society. To entertain the present bill (to annul the marriage and to subject the property to the satisfaction of the complainant's judgments as if no such pretended marriage taking place), would be an usurpation of jurisdiction conferred upon no human tribunal, and which, consistently with the fundamental principles of society, never can be.

And with that,McKinney, creditor, was doubly frustrated first by the ingenious tactic of his debtor Mary, and then by the judgment of his namesake.

The official record of the case does not say what John Clarke's reaction was to the judge's assessment of his good looks, as "loathsome".

Can you spell obiter?


  • McKinney v Clarke, [1852] USFJDO 1; also at 32 Tenn. (Swan's Reports) 319 (1852)