Port v. Port

• Citation: 1873 WL 8632,70 Ill. 484
• Parties: NELLIE PORTv.SARAH PORT et al.
• Decision Date: 30 September 1873
• Court: Supreme Court of Illinois

70 Ill. 484

1873 WL 8632 (Ill.)

NELLIE PORT

v.SARAH PORT et al.

Supreme Court of Illinois.

September Term, 1873.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Cook county; the Hon. WILLIAM W. FARWELL, Judge, presiding.

Messrs. ROSENTHAL & PENCE, for the appellant.

Mr. GEO. W. THOMPSON, and Mr. EVERT VAN BUREN, for the appellees.

Mr. JUSTICE SCHOLFIELD delivered the opinion of the Court:

This record presents only the single question, is the complainant the widow of Silas Port, deceased?

It was proved, by a number of witnesses, that Silas Port and the complainant lived together, in rooms which he had rented at 457 South Clark street, Chicago, from May, 1870, until his death, in March, 1872. During this time, they ate and slept together, and, in other respects, deported themselves towards each other, apparently, as husband and wife. On a few occasions, they attended places of public amusement, where he introduced her as his wife. He frequently spoke of her, in the presence of others, as his wife, and introduced her to some of his acquaintances and friends by that designation.

It is, no doubt, true, that the mere cohabitation of two persons of different sexes, or their behavior, in other respects, as husband and wife, always affords an inference, of greater or less strength, that a marriage has been solemnized between them. Their conduct being susceptible of two opposite explanations, we are bound to assume it to be moral, rather than immoral; and credit is to be given to their own assertions, whether express or implied, of a fact within their own knowledge. Canjolle v. Ferrie, 23 N. Y. 107; 2 Greenleaf's Evidence, sec. 462; 1 Bishop on Marriage and Divorce, secs. 13, 457, and note. But, in the present case, it is admitted no marriage was, in fact, ever celebrated between the parties, in any mode prescribed by our statute. It is claimed, however, that there was a valid common law marriage between them, and it is to this inquiry our attention must be directed.

We are inclined to the opinion, supported as it is by the statements of many of the most eminent text writers, as well as by the decisions of courts of the highest respectability, that, inasmuch as our statute does not prohibit or declare void a marriage not solemnized in accordance with its provisions, a marriage without observing the statutory regulations, if made according to the common law, will still be a valid marriage, and that, by the common law, if the contract be made per verba de presenti, it is sufficient evidence of a marriage; or, if it be made per verba de futuro cum copula, the copula is presumed to have been allowed on the faith of the marriage promise, and that so the parties, at the time of the copula, accepted of each other as man and wife. Bishop on Marriage and Divorce, secs. 253, 254.

This is, however, merely a rule of evidence, and it is always competent, in such cases, to show by proof that the fact was otherwise. 1 Bishop on Marriage and Divorce, sec. 259; Myatt v. Myatt, 44 Ill. 473; Conant v. Griffin, Admr. 48 Id. 410. The rule is well illustrated by the language of Lord CAMPBELL, in The King v. Millis, 10 Clark & Fin. 534, 782, quoted by Bishop in the paragraph last referred to: “If the woman, in surrendering her person, is conscious that she is committing an act of fornication, instead of consummating her marriage, the copula can not be connected with any previous promise that has been made, and marriage is not thereby constituted.” Upon this principle, it was held in Becking's Appeal, 2 Brewst. (Pa.) 202, “a man may live with his kept mistress in such a way as to create a kind of repute of marriage, among some persons; may, in order to gratify her, hold himself out to her acquaintances as her husband; may be a constant visitor, and often eat and sleep at her house; may recognize the fruit of the connection as his children, and manifest affection for them; and yet the evidence may fall far short of that which ought to satisfy the mind that there was an actual agreement to form the relation of husband and wife.” See, also, Physic's Estate, Id. 179; and in a Scotch case, also referred to by Bishop, in sec. 259 ( Forbes v. Countess of Strathmore, Ferg. Consist. Law Rep. 113), “where a countess, after a promise of marriage with her footman, yielded to his embraces, it was conceded, by all the counsel and the court, that marriage would not be presumed, there being such a disparity of rank and circumstances as rendered probable her allegation that she had rather chosen to indulge a licentious passion than degrade herself from her high rank and station in society, by espousing her own menial servant.”

There is no pretense that there was a contract between these parties to marry, per verba de presenti, and we strongly incline to the belief, from the evidence, that Port always refused to agree to marry, at any time. Appellant, it is true, swears that there was a contract to marry in the future, but Olter swears that, about three weeks before Port's death, appellant was crying, and he asked her what was the matter. She replied that her uncle was going to have them arrested for living in a state of adultery; that she had been pleading with deceased to marry her, and he would not do it; that she, in the morning, asked him to marry her, and he answered her in language of contempt, too obscene for repetition. The witness says, on another occasion he said to appellant, alluding to the way in which she and deceased were living together: “It is no way to live, this way.” She replied: “He never will talk marry to me at all, from the first time he ever went with me.” William Port also swears, while they were on the road from Chicago to Cambridge City, Indiana, whither they were taking the dead body of Port for burial, he asked appellant if she was married to the deceased, to which she replied that she was not. He then asked her whether the deceased ever promised to marry her, and she answered that he did not. Each of these conversations is emphatically denied by appellant, and a question of veracity is thus presented, in which she is, to say the least, unfortunate in not being corroborated. William...