Cuneo v. De Cuneo

• Decision Date: 07 November 1900
• Citation: 59 S.W. 284
• Parties: CUNEO v. DE CUNEO.
• Court: Texas Court of Appeals

59 S.W. 284

CUNEO v. DE CUNEO.

Court of Civil Appeals of Texas.

November 7, 1900.

Appeal from district court, Bexar county; R. B. Green, Judge.

Action by Lena G. De Cuneo against Charles Cuneo. Judgment for plaintiff. Defendant appeals. Reversed.

Bryan Callaghan and T. F. Shields, for appellant. Lewy & Sehorn, for appellee.

NEILL, J.

This suit was brought by the appellee against appellant for a divorce and partition of their alleged community property. The case was tried before a jury, and upon their verdict judgment was rendered in favor of appellee both for the divorce and her interest in the alleged community property. The appellant denied that he was ever married to appellee, and, as the issue of marriage is the principal one involved in the case, only such questions raised by the assignments of errors as are pertinent to it will be considered.

It is indisputable that the parties were never married by license, or in the manner provided by statute, and that no marriage ceremony of any character was ever performed uniting them as husband and wife. If married, it was what is termed a common-law marriage; and this was the kind of marriage which was sought on appellee's part to establish and by the appellant to disprove. The petition for divorce, which was filed May 8th, alleged that plaintiff was married to defendant about 25 years ago in Bexar county, Tex., and that up to the last few years plaintiff had been living with defendant as his wife. No exception was interposed by defendant to the sufficiency of the petition as to the allegation of marriage, but when evidence was offered to prove a common-law marriage it was objected to upon the ground that the facts constituting such marriage were not alleged in her pleadings. If the allegations were deemed insufficient, the petition should have been excepted to upon that ground. The objection came too late when made to the evidence. But we have been cited to no authority holding that in a suit for a divorce it is essential for the pleader to allege the facts constituting a marriage of any kind, and we know of none. The general rule is that a party is not required to plead his evidence. Marriage is as clearly defined, and its meaning as well known, as, perhaps, any other word in the English language; and when the relation is alleged to exist between parties each knows the facts necessary to constitute it must be proven. 2 Bish. Mar. & Div. § 332; Farley v. Farley, 94 Ala. 501, 10 South. 646. We think, therefore, that whatever evidence was pertinent to the issue, whether it tended to show a marriage valid at common law or by statute, was admissible under the pleadings. Williams v. Williams, 46 Wis. 464, 1 N. W. 98. It is urged by appellant that general reputation is inadmissible to prove marriage in divorce proceedings. "There are many ways in which the contract of marriage may be proven. A frequent mode is to show the reputation as married persons of the parties whose marriage is in issue." Rodg. Dom. Rel. § 93. In most cases marriage is proved by general reputation, cohabitation, and acknowledgment. This species of evidence is admissible in all cases except actions to recover damages for adultery and indictment for bigamy. Tayl. Ev. § 517; Jackson v. Jackson, 80 Md. 176, 30 Atl. 752. "When a man and woman live together as husband and wife, recognizing each other as such, being so reputed among their friends, relatives, and acquaintances, the inference or presumption is that such conduct, holding out, and reputation are inconsistent with anything short of a valid marriage. But the reputation which will be considered in law as sufficient proof of a marriage contract must be uniform and undivided; must be permanent, and not changing; must be in good faith, and not built up for the purpose of shielding either party from disgrace or improper motive. An acknowledgment of the marital relation at one time and a denial at another are not a sufficient holding out or reputation of marriage to establish the status. It must be to all persons, at all times, on all occasions, under all circumstances, to friends, relatives, and strangers alike, and in the fullest sense, uniform, undivided, and continuing." Rodg. Dom. Rel. §§ 93, 94, and authorities cited in note; Williams v. Herrick (R. I.) 43 Atl. 1036. Such reputation, holding out, and acknowledgment do not constitute marriage, but are only evidence of it. The weaker the general reputation of marriage, the less would be its effect in producing the conviction that it really existed. And matters of suspicion, if not sufficiently explained, would, in proportion to their gravity, weaken the proposed inference, or might defeat it altogether. Jackson v. Jackson, supra. From the uniform authority and the principle upon which it is grounded there can be no doubt that the evidence of general reputation introduced by the plaintiff to prove marriage was admissible for that purpose; and as the addresses of various letters written her tend to show she was regarded and addressed by the writers as Mrs. Cuneo, such addresses were admissible as evidence of general reputation.

The court instructed the jury: "That a common-law marriage is valid in the state of Texas, and that the issuance of a license is not necessary to constitute a valid common-law marriage. A common-law marriage exists when the man and woman enter into an agreement to become husband and wife, and live together as husband and wife, and in pursuance of such agreement do live together and cohabit as husband and wife, and hold each other out to the public as husband and wife. Said agreement to become husband and wife may be express or implied. An express agreement is where the parties thereto expressly agree; an implied agreement is one where the conduct of the parties with reference to the subject-matter is such as to induce the belief that they intended to do that which their acts indicate they have done. If you believe from the evidence that the plaintiff and defendant agreed to become husband and wife, as claimed by the plaintiff, and that in pursuance of said agreement they lived together and cohabited as husband and wife, and held themselves out to the world as husband and wife, you will find for the plaintiff on this issue." This charge is assigned as error. That a marriage according to common law is valid, without regard to observance of statutory regulations, is now settled law in this state. Ingersol v. McWillie (Tex. Civ. App.) 30 S. W. 58; Coleman v. Vollmer (Tex. Civ. App.) 31 S. W. 413; Chapman v. Chapman (Tex. Civ. App.) 32 S. W. 564; Id., 41 S. W. 534; Simmons v. Simmons (Tex. Civ. App.) 39 S. W. 639; Cumby v. Garland (Tex. Civ. App.) 25 S. W. 673; Railway Co. v. Cody (Tex. Civ. App.) 50 S. W. 136. Nor do we understand that this proposition is controverted by appellant's counsel. But the objections to the charge are: (1) No issue of such marriage is made by the pleadings; (2) it fails to inform the jury that to constitute such a marriage the parties must be competent to contract marriage; (3) that there was no evidence tending to show facts essential to constitute a common-law marriage; and (4) that evidence did not authorize the submission of an implied agreement of marriage. As to the first objection, nothing more need be said to demonstrate that it is untenable, for we have already held that under the general allegation of marriage any kind of valid marriage can be shown. Rodg. Dom. Rel. § 105. From the facts that the parties are man and woman, were of age at the time of the alleged marriage, it will be presumed, in the absence of proof to the contrary, that no impediment to their marriage existed, and that they were competent to enter into the marriage state. If appellant deemed the evidence was sufficient to raise the issue of plaintiff's incompetency upon the ground that her husband of a prior marriage was living when it is claimed she married him, he should have requested a special charge upon such issue. As the other two objections to the charge go to the sufficiency of the evidence, they will be treated in connection with the assignment of error which complains of the insufficiency of the evidence. In doing so we will first state, as we understand them, the principles of law applicable to the facts in this case by which a common-law marriage is determined. The present consent and agreement between the parties is the gist of a common-law marriage. It requires only the agreement of the man and woman to become then and thenceforth husband and wife. When this takes place, the marriage is complete. Simmons v. Simmons (Tex. Civ. App.) 39 S. W. 639. It is not sufficient to agree upon a present cohabitation and a future marriage. 1 Bish. Mar. & Div. § 262; Cartwright v. McGown, 121 Ill. 388, 12 N. E. 737. It is required that the cohabitation be as man and wife, and in pursuance of the marriage contract. It can, of itself, be no part of the marriage contract except it take place after, and not before, the agreement. Soper v. Halsey, 85 Hun, 464, 33 N. Y. Supp. 105; Farley v. Farley, supra. "A consent de præsenti is essential to such a marriage, and a subsequent marriage is established by a proof of a promise and a copula, on the ground that the copula was a consequence and performance of an anterior promise. The copula does not constitute marriage, but it is taken, when circumstances justify it, as evidence of the performance of a previous promise." Rodg. Dom. Rel. § 87; Simmons v. Simmons, supra. "Cohabitation between a man and woman as man and wife is usually regarded in law as evidence of marriage, and entitled to more or less weight, according to circumstances. The cohabitation necessary to follow a contract of marriage per verba de futuro, must be an actual dwelling together by the parties as husband and wife, and a mutual recognition of each other as such in pursuance of the marriage contract. A mere illicit intercourse, though extending over a...