Grigsby v. Reib

• Decision Date: 26 February 1913
• Citation: 153 S.W. 1124
• Parties: GRIGSBY v. REIB et al.
• Court: Texas Supreme Court

Page 1124

153 S.W. 1124

GRIGSBY v. REIB et al.

Supreme Court of Texas.

February 26, 1913.

Error to Court of Civil Appeals of Fifth Supreme Judicial District.

Action by Jessie Stallcup Grigsby against Eliza J. Reib and others. Judgment of the Court of Civil Appeals (139 S. W. 1027), affirming a judgment for defendants, and plaintiff brings error. Affirmed.

Parks, Patton & Plowman and W. H. Allen, all of Dallas, for plaintiff in error. W. L. Crawford, Jr., and Wendel Spence, both of Dallas, for defendants in error.

BROWN, C. J.

Jessie Stallcup Grigsby, hereinafter styled plaintiff, instituted this suit in a district court of Dallas county against Eliza J. Reib, hereinafter designated defendant. The husband of Mrs. Reib was joined; but, they having been divorced, he was dismissed from the case. G. M. D. Grigsby, a childless widower, and brother of Mrs. Reib, died in 1906, leaving a valuable estate, much of which was claimed and held by Mrs. Reib under her brother's will. There is no question of defendants' title to the property, except as the claim of plaintiff may be superior thereto. We will therefore omit all description of the property, and state the plaintiff's claim.

Plaintiff was keeping what she terms a rooming house in Dallas—in fact, an assignation house—in which girls roomed and received their visitors, and to which men with women resorted for illicit purposes. Adopting the statements of plaintiff and her witness as true, the facts were, in substance, that Grigsby's wife having died, he visited plaintiff in her place, and they agreed to be husband and wife, and then began sexual intercourse; he coming to that house at different times and frequently. They occupied the same room and the same bed, and indulged their sexual desires. Grigsby called plaintiff his wife, and introduced her to some persons as such. Plaintiff continued her business, and sold beer to the girls and their visitors, and to such others as visited her house. Her business was conducted in the name of Jessie Stallcup. She had her bank account in that name. She did not assume the name of Grigsby until after his death. Grigsby died at Jefferson in 1906, and defendants, under lawful claim, took possession of his property, at least of that part in suit which plaintiff claims to have been acquired by Grigsby after her alleged marriage to him, wherefore she claims one-half of it as community property.

The foregoing statement presents the plaintiff's case. We deem it unnecessary to state the facts relied upon by the defendant, because the law which must control can be more clearly stated under this plain condensed statement of plaintiff's claim.

The court gave to the jury this charge: "The court instructs you that a common-law marriage is legal and valid under the law of Texas; and neither the issuance of license or ministerial or official marriage ceremony is necessary to constitute a lawful and binding common-law marriage. All that is necessary to constitute such a marriage is that if the parties mutually agree and consent together to become husband and wife, and thereafter carry out that agreement and live and cohabit together as husband and wife, the marriage would be valid under our law. If you find and believe from the evidence that the plaintiff and the deceased, G. M. D. Grigsby, on or about the 10th day of April, 1905, mutually consented and agreed together with each other to become husband and wife, with the intention at that time of living and cohabiting with each other as husband and wife, and that in pursuance of such agreement, if any, they did professedly live and cohabit together as husband and wife, you will find for the plaintiff that she was the common-law wife of the deceased, G. M. D. Grigsby. If, however, on the other hand, you fail to find that plaintiff and deceased, G. M. D. Grigsby, mutually consented and agreed together with each other to become husband and wife on or about April 10, 1905, or if you find that plaintiff and deceased, Grigsby, did not professedly live and cohabit with each other as husband and wife in pursuance of such agreement, if any, you will find for the defendant, Eliza J. Reib."

The plaintiff in error challenges the correctness of the charge by this proposition of law: "In order to constitute a valid common-law marriage, where the parties have mutually agreed and consented together to become husband and wife, it is immaterial as to whether the husband and wife either carried out the agreement, or whether they either lived or cohabited together as husband and wife." The proposition clearly defines the issue which must be decided by this court in disposing of the case. If the proposition correctly states the law, the court erred in the charge, and the judgment must be reversed.

The marriage asserted in this case, if sustained at all, must find its support and sanction in the common law in force in this state; therefore the first question to be settled is What rule of the common law must govern in arriving at our conclusion? In the year 1840, the Congress of the republic enacted a law (Laws 1840, p. 3) which embraced article 3258 of our Revised Civil Statutes of 1895, which reads: "The common law of England (so far as it is not inconsistent with the Constitution and laws of this state) shall, together with such Constitution and laws, be the rule of decision, and shall continue in force until altered or repealed by the Legislature."

In 1823, by act of Parliament, all marriages in England were required to be performed according to the requirements of the statute; the common law on that subject being thereby abrogated. Laws of England, vol. 16, pp. 278-286.

We must first ascertain what the Congress of the republic intended to designate by the language, "The common law of England." If it was intended to adopt the common law as it was in force in England in 1840, then we have no common law on the subject of marriage, for none such was in force in that kingdom at that date. Our courts have uniformly recognized the existence, in this state, of the common law which permitted marriage without compliance with the statute upon that subject; therefore we conclude that "the common law of England," adopted by the Congress of the republic, was that which was declared by the courts of the different states of the United States. This conclusion is supported by the fact that the lawyer members of that Congress, who framed and enacted that statute, had been reared and educated in the United States, and would naturally have in mind the common law with which they were familiar. If we adopt that as our guide and source of authority, the decisions of the courts of those states determine what rule of the common law of England to apply to this case.

The effect of the act of 1840, supra, was not to introduce and put into effect the body of the common law, but to make effective the provisions of the common law, so far as they are not inconsistent with the conditions and circumstances of our people. Land Co. v. McClelland Bros., 86 Tex. 185, 23 S. W. 576, 1100, 22 L. R. A. 105.

In the courts of the different states of the United States, there are two lines of cases between which we must choose, which Mr. Freeman on his notes to cases in 124 Am. St. Rep. 111, 112, states, in substance, as follows: Both lines of authority rest upon the doctrine that marriage is a civil contract, and that no marriage can be binding which does not rest upon the consent of the parties. One rule is "that a marriage is complete when the parties agree, in words of the present tense, to take each other as husband and wife." That statement of the law is indorsed by Mr. Freeman, in support of which he cites a number of cases. The other rule is stated thus: "An assumption of the marriage status is essential to a common-law marriage, that an agreement presently to be husband and wife is not sufficient to constitute marriage, until it is acted upon by the parties."

The question presented in this case is of first importance; indeed, it lies at the foundation of good society. In Sheffield v. Sheffield 3 Tex. 86, our first Chief Justice Hemphill said: "The nature, object, and important purposes of the contract should have their just influence upon the mind. The parties have pledged themselves, not only for their own happiness, but for purposes important to society, to live together during the term of their natural lives. This engagement is the most solemn and important of human transactions. It is regarded by all Christian nations as the basis of civilized society, of sound morals, and of the domestic affections; and the relations, duties, obligations, and consequences flowing from the contract are so important to the peace and welfare of society as to have placed it under the control of special municipal regulations, independent of the will of the parties. The mutual comfort and happiness of the parties are the principal, but not the only, objects of the engagement. It is intended, also, for the benefit of their common offspring, and is an important element in the moral order, security, and tranquility of civilized society."

In his work on the Conflict of Laws, Judge Story said: "The contract of marriage is the most important of all human transactions. It is the very basis of the whole fabric of civilized society. The status of marriage is juris gentium; and the foundation of it, like that of all other contracts, rests on the consent of the parties. But it differs from other contracts in this: That the rights, obligations, or duties arising from it are not left entirely to be regulated by the agreements of parties, but are, to a certain extent, matters of municipal regulation, over which the parties have no control by any declaration of their will. It confers the status of legitimacy on children born in wedlock, with all the consequential rights, duties, and privileges thence arising; it gives rise to the relations of consanguinity...