Summary
In Ridley v. Compton, 215 Miss. 532, 61 So.2d 341, this Court said: " But a claim of common law marriage is regarded with suspicion and will be closely scrutinized, and in order to establish a common law marriage, all the essential elements of such a relationship must be shown to exist.
Summary of this case from Ladnier v. Ladnier's EstateOpinion
No. 38490.
December 1, 1952.
1. Marriage — common law marriage, valid.
Common law marriages are recognized as valid in this state.
2. Marriage — matrimonial relationship — creation of — existence, how shown.
The matrimonial relation may be created by consent of the parties, per verba de presenti, followed by cohabitation thereunder, and its existence may be shown by the acts and declarations of the parties.
3. Marriage — common law marriage — claim of closely scrutinized.
A claim of common law marriage is regarded with suspicion and will be closely scrutinized and in order to establish such a marriage all the essential elements of the relationship must be shown to exist.
4. Marriage — cohabitation — definition.
The word "cohabitation" as used in the marriage laws means the public assumption by a man and a woman of the marital relation and dwelling together as such, thereby holding themselves out to the public as being man and wife.
5. Marriage — common law marriage — essentials of.
It is essential to a common law marriage that both parties must intend in good faith to live together in the relation of husband and wife and that the union shall be permanent and exclusive of all others, and the agreement between them to that effect must be unequivocal and free from any reservations, mental or otherwise, to the full extent that when consummated by cohabitation nothing less than a decree of divorce by a court of competent jurisdiction can dissolve the relation.
6. Marriage — common law marriage — existence of — question for jury, when.
In an action at law when the dominant question is whether there was a common law marriage between two parties involved, and the evidence is substantially conflicting, the issue is properly submitted to the jury under correct instructions.
Headnotes as approved by Kyle, J.
APPEAL from the circuit court of Washington County; ARTHUR JORDAN, Judge.
Howard Dyer, Jr., and Joseph E. Wroten, for appellant.
I. A marriage good at common law is valid in this state. Sims v. Sims, 122 Miss. 745, 85 So. 73; Sykes v. Sykes, 162 Miss. 487, 139 So. 853. Counsel for the appellant does not anticipate that the appellees will take issue with the above statement of the law and therefore will content themselves with no additional citations in this regard.
II. To establish the necessity of a common law marriage, it is only necessary to show an agreement between the parties that they are husband and wife followed by cohabitation. Hunt v. Hunt, 172 Miss. 732, 161 So. 119; 8 R.C.L. 392, Sec. 13; Barton v. State, 165 Miss. 355, 143 So. 861.
The undisputed proof of record is that the appellant moved into the home of Sallie Kidd in 1935 and that except for short periods of time he lived there continuously and is still living there. Sallie Kidd admitted that the appellant paid no rent, slept in the same bed with her, paid insurance premiums, that she had him there as a husband. The other witnesses for the appellees all stated in effect that from what they observed, the parties in question were not husband and wife. However, they all admitted that Ridley lived there over a period of many years. It is understandable that Ridley did not assert to Mrs. Scott Watson that he was Sallie Kidd's husband for the reason that it would mean a monetary loss to both of them had he done so.
Price McIlwain, for appellees.
Counsel for appellees concede the statement of counsel for appellant that a marriage is good at common law in this state and make no argument against the cases cited in support of that statement, insofar as they merely support that statement. However, we deny that the case of Hunt v. Hunt, 172 Miss. 732, 161 So. 119, 8 R.C.L. 392, Sec. 13, cited by counsel for the appellant, has any bearing on the case before this Court, for in that case the Court said, "We are not confronted here with a case where no marriage license was issued . . ." We do, however, call the Court's attention to the following statement in that case: "The word `cohabitation' as used in the marriage laws means the public assumption by a man and a woman of the marital relation, and dwelling together as such, thereby holding themselves out to the public as being man and wife." We contend that this definition was not met in the instant case for that the overwhelming testimony shows that the two parties in question did not hold themselves out to the public as man and wife; that the woman never wore the man's name, she paid her own taxes, was on her church roll as "Sallie Kidd," paid her own insurance premiums with the exception of since she became ill, and then merely "guesses" that Ridley may have paid them since then. Numerous witnesses stated that these two were not man and wife, not only from what they observed did they make this statement, but from statements made directly to them by Sullivan Ridley himself that Sallie was too old for him, was nothing to him, and that he was merely a roomer at her house. No denial of these statements was made by Ridley.
The case of Barton v. State, 165 Miss. 355, 143 So. 861, cited by counsel for appellant, is of no assistance to counsel for appellant, for in that case the Court said, in quoting from 38 C.J. 1317 and 1318, the following: "The agreement between the parties must be unequivocal and free from any reservations, mental or otherwise . . ." Certainly the case in question was not unequivocal and free from any reservations when, in each instant where it would better serve the welfare of Sullivan Ridley in holding himself out as a "free" man from a marital standpoint, wherever any record of financial responsibility might devolve upon him, he refused to in any manner assert that Sallie Kidd was his wife. There is not one word of testimony in the record that Sullivan Ridley ever introduced anyone to Sallie as his wife, that they were seen together publicly as man and wife, that she never wore his name herself, and that he never tried himself to give her his name, except in the instance concerning the purchase of the war bond, when he included her name as "Sallie Ridley," admitting that Sallie knew nothing of this. To contend that the placing of "Sallie Ridley" on this bond in order to assist in establishing a husband and wife relationship is not our intention, for we make no such contention. We do not believe that such was his intention, but that the placing of this name merely took place because it was necessary that he place someone's name thereon to receive the proceeds of the bond in case of his death, he knowing that he could cash the bond whenever he saw fit to do so, and that Sallie need not know anything about it. She did not know anything about it. If such contention be made on the part of Ridley himself, it shows to be a self-serving act, and one in which Sallie did not acquiesce or have any knowledge of. He has no right to claim her as his wife when it serves his own purpose so to do, and then disclaim her as his wife when it likewise serves his own purpose so to do. In this particular case cited by counsel for appellant the Court said: "Even if appellant had any right or title in the premises or to the possession thereof, which he did not have, he heard and acquiesced in the statement that he was only a visitor or guest there . . ." In the case before this Court Sullivan Ridley not only heard and acquiesced in the statement that he was only a roomer at the home of Sallie Kidd, but he himself made such statement, never revealing at any time that he claimed Sallie for a wife in any manner whatsoever. As in the case cited, his own acquiescence, admissions, statements, and actions, coupled with his "silence" on the subject, takes from him the right to now ask for aid at the hands of the Court.
Counsel for the appellant must admit that illicit cohabitation, occasionally or numerously, cannot establish the relationship of a common law marriage. Quoting from 38 C.J. 1323, 1324, ". . . and the parties must have recognized and treated each other as husband and wife, holding each other out as such, so as to create the reputation that they are married." Certainly the overwhelming weight of the testimony in the case before this Court discredits any assertion that the conduct of these two people created the reputation that they were married. We assert that the conduct and statements of Sullivan Ridley were entirely to the contrary.
We cannot find that the record in this case meets the essential requirement of a common law marriage, to-wit, the mutual agreement of the parties in any manner whatsoever to take each other as husband and wife; and certainly the essential requirement of holding each other out to the public, professedly as husband and wife, is not met.
The appellees, Alex Compton and Ruth M. Compton, husband and wife, as plaintiffs, filed their affidavit and complaint in the County Court of Washington County against the appellant, Sullivan Ridley, as defendant, seeking to obtain possession of a small parcel of land in the City of Greenville, with the dwelling house located thereon, which the plaintiffs alleged was being unlawfully withheld from them by the defendant. The plaintiffs alleged in their declaration that they had acquired title to the property by deed of conveyance from Sally Kidd dated September 6, 1951, that they were entitled to possession of the property under their deed, and that the defendant was wrongfully depriving them of possession. The defendant answered the declaration and in his answer said that he was not guilty of the wrong complained of.
Upon the trial of the case in the county court, the defendant sought to prove, in defense of the action, that he was the common law husband of Sally Kidd; that the property described in the plaintiffs' declaration was the homestead property of Sally Kidd at the time the above mentioned deed was executed, and that he had a homestead interest in the property; that he had not signed the deed of conveyance, and that the deed was therefore void; and that the plaintiffs were not entitled to the possession of the property. The case was submitted to a jury under proper instructions of the court and the jury returned a verdict in favor of the plaintiffs. The court thereupon entered a judgment for the plaintiffs, and directed that a writ be issued to the sheriff commanding him to put the plaintiffs in possession of the property. From that judgment the defendant prosecuted an appeal to the circuit court. The circuit court affirmed the judgment of the county court, and the case is now before us on appeal from that judgment.
The appellant's attorneys argue only one point on this appeal, and that is that the court erred in refusing to grant the instruction for a directed verdict requested by the defendant. It is therefore necessary that we state briefly the essential elements of a common law marriage as set forth in the decisions of our own Court, and that we then examine the testimony for the purpose of determining whether the instruction should have been granted.
(Hn 1) Common law marriages are recognized as valid in this State. Sims v. Sims, 122 Miss. 745, 85 So. 73; Sykes v. Sykes, 162 Miss. 487, 139 So. 853; Jones, et al. v. Lamensdorf, et al., 175 Miss. 565, 167 So. 624.
(Hn 2) The matrimonial relation may be created by consent of parties, per verba de presenti, followed by cohabitation thereunder, and its existence may be shown by the acts and declarations of the parties. Floyd, Executor, et al. v. Calvert, 53 Miss. 37. (Hn 3) But a claim of common law marriage is regarded with suspicion and will be closely scrutinized, and in order to establish a common law marriage, all the essential elements of such a relationship must be shown to exist. 55 C.J.S., p. 911, Marriage, par. 45 b; U.S. Fid. Guar. Co. v. Smith, 211 Miss. 573, 52 So.2d 351.
(Hn 4) "The word `cohabitation' as used in the marriage laws means the public assumption by a man and a woman of the marital relation, and dwelling together as such, thereby holding themselves out to the public as being man and wife." Hunt v. Hunt, 172 Miss. 732, 161 So. 119. And, as stated by the Court in the case of Barton v. State, 165 Miss. 355, 143 So. 861, (Hn 5) "It is, of course, among the essentials of a valid common law marriage that both parties must intend in good faith to live together in the relation of husband and wife, and that the union shall be permanent and exclusive of all others. 38 C.J. 1317, 1318. The agreement between the parties must be unequivocal and free from any reservations, mental or otherwise, to the full extent that, when consummated by cohabitation, nothing less than a decree of divorce pronounced by a court of competent jurisdiction can dissolve the relation."
The chief witnesses for the plaintiffs were Ruth Compton, who was one of the plaintiffs, and Sally Kidd, the grantor in the deed to the plaintiffs. Ruth Compton testified that she had known Sally Kidd since 1925; that Sally's husband died in 1930; and that Sullivan Ridley, the defendant, had lived in the house with Sally most of the time since 1935, but had occupied a separate room in the house; that Sally, who was very old at the time of the trial, had been living with her brother in Issaquena County for more than a year prior to the date of the trial. Ruth testified further that Ridley was living in Sally's house as a roomer; that he had never claimed Sally as a common law wife, and that he had always said that Sally was too old for him; that she had never seen or heard anything that indicated that Ridley and Sally were husband and wife.
Sally testified that Ridley was not her husband, and had never been her husband, and that she had never agreed to be his wife. She stated that her name was Sally Kidd, and that her name appeared on the church rolls and on the records of the country welfare department as Sally Kidd, and that the insurance policy which she owned was issued in the name of Sally Kidd. She stated that she had worked for her own living, washing, ironing, and hoeing and picking cotton; and she denied that Ridley had furnished money for her support. She said that Ridley lived in the house as a roomer but paid no rent. Upon cross-examination she admitted that she had slept with Ridley sometimes, but denied that she had slept with him as his wife.
A.T. Phillips testified that Ridley had told him that "Sally is nothing to me, I just room there." Beatrice Garner testified that Sally had gone by no other name than that of Sally Kidd; that Ridley and Sally had told her that they were not husband and wife; that Ridley had told her that Sally was nothing to him, that she was too old for him. Mary Collins testified that Ridley had told her that Sally was not his wife, and that he was just rooming at her house. Inez Compton testified that Ridley had said to her "You know I'm not her husband." Three other witnesses for the plaintiff testified that they had known Ridley and Sally both for many years and that they had never seen any indication that Ridley and Sally were husband and wife, and that Sally never used any other name than that of Sally Kidd. The county welfare agent stated that Ridley had told her in Sally's presence that he was a roomer in the house.
Sullivan Ridley testified that he was the common law husband of Sally, and had lived with her as her common law husband; that he had paid for food and other necessary supplies for Sally, and had paid her medical expenses and the premium on her insurance policy. He testified that he purchased several $25 war bonds in 1943; while he was working in Texas, and had the bonds made payable to him or "Mrs. Sallie Ridley." He stated that he had cashed all of the bonds except one to pay Sally's doctor's bills when she was sick. He admitted that Sally had never told him to have her name placed on the war bonds. He stated that he had never been married before. He was asked whether he was sure that he had never been married. His reply was, "No, you can look all over Arkansas, Tennessee and Mississippi, everywhere, you won't find no license for me to marry nobody." He admitted that he did not tell the county welfare agent that he and Sally were husband and wife, and that when he filed his application for social security he did not declare Sally as his wife. He admitted that Sally went by the name of "Sally Kidd." Lucy Redd, a witness for the defendant, testified that she had seen Sally and Ridley in bed together and that she always considered them to be husband and wife. Simuel Thomas testified that Ridley had told him that Sally was his wife.
(Hn 6) We think that under the conflicting evidence the case was properly submitted to the jury for its decision, and that the jury was amply justified in concluding that the evidence was insufficient to establish a common law marriage between the defendant and Sally Kidd. It is admitted that the instructions which the court granted correctly stated the principles of law applicable to the issue presented by the pleadings and the proof. There was no error in the court's refusal to grant the peremptory instruction requested by the defendant, and the judgment of the lower court is therefore affirmed.
Affirmed.
Roberds, P.J., and Alexander, Hall and Holmes, JJ., concur.