There must be words of present assent per verba de praesenti. Hunter v. Lynn, 256 Ala. 501, 55 So.2d 849; 38 C.J. 1328; 35 Am.Jur. 334; Turner v. Turner, 251 Ala. 295, 37 So.2d 186; Prince v. Edwards, 175 Ala. 532, 57 So. 714; Clark v. Glenn, 249 Ala. 342, 31 So.2d 507; Whitworth v. Whitworth, 256 Ala. 296, 54 So.2d 575. A man can have but one lawful wife living, and so long as she remains alive and the marriage bond remains in force all his subsequent marriages are, whether meretricious or not, or founded on mistake, are void. Johnson v. Johnson, 245 Ala. 145, 16 So.2d 401; 55 C.J.S., Marriage, § 17, p. 832. Woman's marriage 3 years after disappearance of first husband was invalid if he was then alive, though she heard he was dead. Walker v. Walker, 218 Ala. 16, 117 So. 472; Hill v. Lindsey, 223 Ala. 550, 137 So. 395. Presumption in favor of validity of marriage ceases when proof is made of valid prior marriage of one of the parties.
"The mere fact that the parties could not get together on the time when and the place where they were to have another ceremonial marriage is not sufficient to overcome the presumption of the common-law marriage and the evidence which we think tends to show that they had an actual and mutual agreement to enter into a matrimonial relation, permanent and exclusive of all others, which was consummated by their cohabitation as man and wife and by their mutual assumption openly of marital duties and obligations. See Beggs v. State, 55 Ala. 108; Tartt v. Negus, 127 Ala. 301, 28 So. 713; White v. Hill, 176 Ala. 480, 58 So. 444; Hunter v. Lynn, supra [ 256 Ala. 501, 55 So.2d 849]; Barnett v. Barnett, supra [ 262 Ala. 655, 80 So.2d 626]."
It is the well-settled rule that if parties in good faith marry when in fact a legal impediment exists to their marriage, and they continue to cohabit as man and wife after the removal of the impediment to their lawful union, the law presumes a common-law marriage. Barnett v. Barnett, 262 Ala. 655, 80 So.2d 626; Hunter v. Lynn, 256 Ala. 501, 55 So.2d 849; Hill v. Lindsey, 223 Ala. 550, 137 So. 395. The mere fact that the parties could not get together on the time when and the place where they were to have another ceremonial marriage is not sufficient to overcome the presumption of the common-law marriage and the evidence which we think tends to show that they had an actual and mutual agreement to enter into a matrimonial relation, permanent and exclusive of all others, which was consummated by their cohabitation as man and wife and by their mutual assumption openly of marital duties and obligations.
* * *" This principle is quoted in Hunter v. Lynn, 256 Ala. 501, 506, 55 So.2d 849, and in Barnett v. Barnett, 262 Ala. 655, 658, 80 So.2d 626. Upon the principle declared in Hill v. Lindsey, supra, such continued cohabitation at a time when both could contract a legal marriage by common law, Irene and Creecy contracted such marriage which the facts and circumstances together with Irene's testimony show was never dissolved.
The burden of proof is on appellee to disprove the presumption that the marriage between appellant and decedent was valid. Freed v. Sallade, 245 Ala. 505, 17 So.2d 868; Sloss-Sheffield Steel Iron Co. v. Alexander, 241 Ala. 476, 3 So.2d 46; Ashley v. Ashley, 255 Ala. 313, 51 So.2d 239; Hunter v. Lynn, 256 Ala. 501, 55 So.2d 849; Dorsey v. Dorsey, 256 Ala. 137, 53 So.2d 601. Appellee had the burden of showing that she had not obtained from decedent a divorce while she was living apart from him in each of the several jurisdictions where she resided after separation. Clark v. Glenn, 249 Ala. 342, 31 So.2d 507; Sloss-Sheffield Steel Iron Co. v. Alexander, supra. Appellant did not come into court with clean hands, and her claim that she is the lawful widow of decedent should be denied.
To maintain bill for partition, complainant must have title or perfect equity in interest in land, and mere assertion of claim without showing title or perfect equity will not confer jurisdiction. Copeland v. Copeland, 242 Ala. 507, 7 So.2d 87; Phillips v. Smith, 214 Ala. 382, 107 So. 841. Resulting trust produced by transactions alleged did not create perfect equity which would enable complainant to maintain bill. Smith's Ex'r v. Cockrell, 66 Ala. 64; Goodbar v. Daniel, 88 Ala. 583, 7 So. 254; Davis v. Griffin, 227 Ala. 390, 150 So. 326; Roy v. Abraham, 207 Ala. 400, 92 So. 792, 25 A.L.R. 101; Hunter v. Lynn, 256 Ala. 501, 55 So.2d 849; Hargett v. Hovater, 244 Ala. 646, 15 So.2d 276. Lewis Lewis, Dothan, for appellee.
NO OPINION. See Rule 53(a)(1) and (a)(2)(F), Ala. R. App. P.; Ala. Code 1975, § 35-6-20; Newson v. Protective Indus. Ins. Co. of Alabama, 890 So. 2d 81, 84 (Ala. 2003); Donoghue v. American Nat'l Life Ins. Co., 838 So. 2d 1032, 1035 (Ala. 2002); Cottingham v. McKee, 821 So. 2d 169, 171-72 (Ala. 2001); Lavender v. Ball, 267 Ala. 104, 107, 100 So. 2d 331, 333 (1958); Compton v. Cook, 259 Ala. 256, 259, 66 So. 2d 176, 178 (1953); Hunter v. Lynn, 256 Ala. 501, 507, 55 So. 2d 849, 853 (1951); Bond v. Estate of Pylant, 63 So. 3d 638, 647 (Ala. Civ. App. 2010); and Wilson v. First Union Nat'l Bank of Georgia, 716 So. 2d 722, 727 (Ala. Civ. App. 1998). Thompson, P.J., and Thomas, Moore, and Donaldson, JJ., concur.
In King, our supreme court held: “It is the well-settled rule that if parties in good faith marry when in fact a legal impediment exists to their marriage, and they continue to cohabit as man and wife after the removal of the impediment to their lawful union, the law presumes a common-law marriage.” Id. (citing Barnett v. Barnett, 262 Ala. 655, 80 So.2d 626 (1955); Hunter v. Lynn, 256 Ala. 501, 55 So.2d 849 (1952); and Hill v. Lindsey, 223 Ala. 550, 137 So. 395 (1931)). In the present case, there was no such legal impediment preventing the parties from marrying.
Freed v. Sallade, 245 Ala. 508, 17 So.2d 868; Jordon v. Copeland, 272 Ala. 336, 131 So.2d 696; James v. James, 260 Ala. 511, 71 So.2d 62. The necessary proof to attack the validity of a second marriage on the ground of a prior existing marriage undissolved by death or divorce is met when a search of the records of the counties wherein the parties lived to show no divorce, and the other spouse is proved to be living. Whitman v. Whitman, 255 Ala. 313, 51 So.2d 239; Freed v. Sallade, Supra; Hunter v. Lynn, 256 Ala. 501, 55 So.2d 849; Dorsey v. Dorsey, 256 Ala. 137, 53 So.2d 601. Phillips Watson, Anniston, for appellee.