Opinion
No. 32974.
February 21, 1938.
1. MARRIAGE.
Evidence that plaintiff and defendant lived at the home of plaintiff's parents representing to the family that they were man and wife, that they afterwards moved into a separate home and lived together holding themselves out as husband and wife, and that defendant when accused of statutory rape stated to the sheriff that he and plaintiff were man and wife, warranted a finding that there was a common-law marriage.
2. MARRIAGE.
A marriage valid at common law is recognized in Mississippi (Code 1930, section 2363).
APPEAL from chancery court of Tishomingo county. HON. JAMES A. FINLEY, Chancellor.
Clark Clark, of Iuka, for appellant.
This record clearly shows from the allegations of the bill of complaint and from the proof that these parties cohabited in contemplation, that is because of their mutual agreement to enter into marriage relations at an early date, which under the laws of Mississippi and practically all the other states does not constitute a common-law marriage.
38 C.J., page 1319, sec. 94, and page 1324.
In the case of Eldred v. Eldred, 97 Va. 606, 34 S.E. 377, the court says: "The declarations of parties and other attendant circumstances of cohabitation, all of which are admissible as part of the res gestae to show a virtuous intercourse between man and woman, must, together with the repute originating be contemporaneous with that intercourse and subsequent."
In the case at bar according to the allegations of the bill and of the undisputed proof of the record the cohabitation was subsequent to any declaration of the parties and other circumstances holding themselves out as man and wife which will not constitute a common law marriage.
In 38 C.J., page 1328, sec. 103, we quote as follows: "If intercourse between persons of opposite sex was illicit in its inception because of their failure to enter into a marriage by ceremony or by agreement, it is presumed to continue so and the burden of proving a subsequent inter-marriage rests on the party asserting it."
38 C.J. 1339, sec. 111; Hiler v. People, 47 A.S.R. 221; State v. Worthingham, 23 Minn. 528.
In the case at bar from the pleadings and proof it is clearly shown that whatever agreement there was between the parties to become husband and wife was an agreement in contemplation of marriage and not an agreement in the present tense to then and there become husband and wife. As said in the pleadings all this illicit intercourse was made in contemplation of marriage which under the law does not constitute a common-law marriage in this state. If this were true it would be impossible to convict a person indicted for seduction.
The following cases from Mississippi discuss fully what it takes to constitute the common-law marriage.
Floyd v. Calvert, 53 Miss. 837; Rundle v. Pegrem, 49 Miss. 751; Kinard v. State, 57 Miss. 132; Adams v. Adams, 57 Miss. 267.
We respectfully submit to the court that this cause should be reversed and judgment rendered for appellant.
Jas. A. Cunningham, of Booneville, for appellee.
The learned Chancellor was correct in construing the law and the facts in this case to constitute a common-law marriage.
In the first place, the evidence conclusively shows that they lived together as man and wife and held themselves out to the world as such and agreed to do so as man and wife, and that as a fruit of their marriage there was a child born to them and is involved in this litigation. The learned Chancellor had a right under all these facts and under the law to say that they had consummated a common-law marriage.
18 R.C.L., sec. 39.
The law presumes from such state of facts that a legitimate marriage existed.
Where a man and woman have openly cohabited as man and wife and had the reputation of being such, it will be presumed that they were lawfully married; and where a marriage is proved it will be presumed that it was regular and valid. There is also a presumption in favor of the legitimacy of a child.
22 C.J. 145, sec. 79; Ladner v. Pigford, 103 So. 218.
That common-law marriage obtains in the State of Mississippi is too well known by the court to justify the citation of authorities, but we might cite Sykes v. Sykes, 139 So. 853, and Jones v. Lamensdorf, 167 So. 624.
We respectfully submit that the learned Chancellor did right from all the evidence offered in this record to hold that there was a common-law marriage and that this was a legitimate child, and that this woman was Jourdan's legitimate wife, and it is all in the favor of sound public policy and good morality, and the law of presumption does not have to be strained from the set of facts here presented to sustain the learned Chancellor in reaching the aforesaid conclusions.
This is an appeal from the judgment of the chancery court of Tishomingo county awarding the appellee, Eunice Jourdan, alimony and attorney's fees in a suit by her against the appellant for support and attorney's fees in the litigation therefor. It is contended by the appellant that there was no valid marriage, under the facts shown in the record.
It appears from the record that in February, 1934, the appellant and the appellee, under an arrangement for an early marriage, had sexual relations, and that the appellee became pregnant therefrom; that in the following August the appellant came and lived at the home of the appellee, they having represented to the family that they were man and wife. Both appellant and appellee lived at the home of her father from August until February of the following year, when they moved into a separate home, and there lived together, holding themselves out as husband and wife. It appears that while they were living at the home of appellee's father they did not occupy the same bed or the same room, and the child was born in November, 1934, during that period. In July, 1935, the appellee became ill and was carried to a hospital, where she had a major operation. She was entered in the hospital as Mrs. Eunice Jourdan, but after leaving the hospital she returned to her father's home, and appellant did not thereafter live with her. Some time after this separation the county attorney, at the instance of the appellee or her family, made an affidavit against the appellant for a statutory rape, being an offense under section 1123, Code 1930, where the male, older than the female — she being over twelve years of age and under eighteen — unmarried and of good character previously, has sexual relations with her. When the sheriff went to serve this writ on the appellant, he stated to the sheriff that he and Eunice were man and wife.
On the advice of counsel the case against appellant for such offense was dropped, and thereafter the present suit was filed, when the appellee and her father both testified to the facts above stated, as to the representation made both by the appellant and the appellee that they were married, and as to their living together, as above stated. There was other testimony that they lived together in a separate place subsequent to their residence at the home of the appellee's father. The appellant did not testify at all. Consequently, the question for decision is whether, under the facts above stated, the chancellor was warranted in finding a common-law marriage, as he did, in rendering a decree for alimony and attorney's fees. A marriage valid at common law is recognized in Mississippi, under section 2363, Code 1930. Howard v. Kelly, 111 Miss. 285, 71 So. 391, Ann. Cas. 1918E, 1230; Sykes v. Sykes, 162 Miss. 487, 139 So. 853, 858. In the case of Sims v. Sims, 122 Miss. 745, 85 So. 73, an unlawful marriage was ceremonially contracted in another state, and the parties thereafter lived together, holding themselves out as husband and wife. This marriage was void at the time it was contracted because one of the parties had not been divorced, after having previously been married. Subsequently the spouse by this former marriage, which rendered the later marriage void at the time it was contracted, died. The parties moved to Mississippi, and continued to live together and hold themselves out as husband and wife, without any specific agreement having been made after the death of the former spouse. The wife afterwards sued for alimony and support; whereupon it was contended that there was no marriage, because there was no specific agreement after the removal of the obstacle which originally rendered the marriage void; but the court held that there was a common-law marriage and sustained the suit for alimony.
We think under these authorities, and under the facts stated, the chancellor was warranted in finding that there was a common-law marriage, which is valid in Mississippi; and the judgment below is affirmed.
Affirmed.