Darling v. Dent

• Decision Date: 04 March 1907
• Parties: DARLING v. DENT
• Court: Arkansas Supreme Court

100 S.W. 747

82 Ark. 76

DARLING v. DENT

Supreme Court of Arkansas

March 4, 1907

Appeal from Woodruff Circuit Court; H. N. Hutton, Judge; reversed.

Judgment reversed and cause remanded.

J. T Patterson and J. F. Summers, for appellants.

1. Marriage is a civil contract, the validity of which depends not on forms, ceremonies or witnesses, but upon the consent of competent parties only. Kirby's Digest, § 5171; 2 Greenleaf on Ev. § 460; 1 Bishop on Mar. & Div §§ 435, 449; 96 U.S. 82. Where parties have lived together as husband and wife, acknowledging themselves to be such, and reputed to be such among their relatives and friends, the law will presume, in the absence of other evidence, that they have been legally married. 19 Am. & Eng. Enc. of Law (2 Ed.), 1204-5; 56 Am. Dec. 208; 22 Id. 156, 157; Id. 41; Id. 563; 58 Id. 758; 19 Id. 703; 92 Id. 713; 68 S.W. 727; 83 Id. 238. "Whatever be the form of ceremony, or, if there be no ceremony, if the parties agree presently to take each other for husband and wife, and from that time on live professedly in that relation, proof of these facts would be sufficient to constitute proof of a marriage binding on the parties," etc. 31 Mich. 130: 28 Ark. 22.

2. Every intendment of law is in favor of matrimony. A marriage having been shown in evidence, whether regular or irregular, and whatever the form of the proofs, the law raises a presumption of its legality, and this presumption increases with the lapse of time through which the parties are cohabiting as husband and wife. 84 Tex. 411; 1 Bishop, Mar. & Div. (6 Ed.), § 459; 20 Tex. 732; 18 Tex. 102; 3 Tex. 433.

H. F. Roleson and Harry M. Woods, for appellees.

1. A mere illicit intercourse, though extending over a long period, can never have the effect of validating or consummating a marriage dependent upon cohabitation to complete it. Cohabitation and repute can never amount to marriage. It is "a mode of proving the fact of marriage, rather than a mode of contracting marriage." Rodgers on Dom. Rel. § 96. While cohabitation is always evidence tending to prove a marriage contract by inference or presumption, yet it need not be accepted as conclusive proof. It is always permissible to show that cohabitation, though apparently matrimonial, is really otherwise, and that the parties are living in illicit intercourse. Id. § 97; Bishop, Mar. & Div. §§ 961, 962, 964; 7 L. R. A. 799; 1 N.W. 98; 28 Ark. 25.

2. While the law is ready to indulge all reasonable presumptions in favor of marriage and legitimate cohabitation, this rule is never extended to cases where the relations of the parties, in their origin, are illicit and unlawful. Where in its origin the relationship between the parties is illicit, there is no reason to presume, in the absence of an affirmative showing, that they have changed their mode of cohabitation, or have since married each other. The presumption of a continuance of such illicit relations is not affected because a disability of marriage, existing in one of the parties at the beginning of the relations, is subsequently removed, where no visible change in the manner of living is made to appear. Rodgers, Dom. Rel. § 99; Id. p. 68, note; 12 N.E. 737; 59 S.W. 284; 14 L. R. A. 364, and notes; 7 N.E. 408.

MCCULLOCH, J. BATTLE, J., absent.

OPINION

MCCULLOCH, J.

This is an action to recover a tract of land in Woodruff County, and the sole issue in this case is whether or not the plaintiffs are the legitimate children and heirs at law of Henry Darling; the legality of the marriage between their parents being disputed by the defendants. The jury found for the defendants on this issue, and the plaintiffs appealed.

Sallie Blackwood, the mother of the plaintiffs (who married again since the death of Darling), first intermarried with one Williams in Woodruff County, and afterwards they separated, and she went to Texas with Darling. Williams went to Texas later, and died shortly after his arrival there. Mrs. Blackwood claims to have intermarried with Darling in Texas a day or two after the death of Williams; that they lived together in Texas as husband and wife for six or eight months, and then removed to Howard County, Arkansas, where they lived together until the death of Darling about eleven years later; that they were married in 1883, and Darling died in 1894. The plaintiffs were the issue of this union.

Mrs. Blackwood testified that Williams mistreated her, and that she and Darling went to Texas together for the purpose of procuring her divorce from Williams, and agreed to marry as soon as the divorce could be procured; that they lived near the town of St. Joe, and immediately after Williams's death they took the train and went to another town, and were married there at a hotel in the presence of a number of persons; that they remained there a day or two, and then went to Ft. Worth, Texas, and thence to a place called Roanoke, where they lived until they removed to Arkansas. She was unable to state the name of the town where they were married, or the names of any persons present. She did not know whether the marriage ceremony was performed by a minister of the gospel or a justice of the peace, or whether a license was procured, but testified that the usual marriage ceremony was performed by some one, either a minister or officer, and that he had some papers or a book in his hand from which he read. Her testimony was given by deposition more than twenty years after the alleged marriage occurred.

Several residents of Howard County, who knew them while they lived there, testified that they lived together as husband and wife, holding themselves out as such in the community, had children born, and were regarded as respectable people, and were generally regarded as husband and wife in the community where they lived. One of the witnesses testified that Darling asked him, on his death bed, to look after his wife and children after his death. Gertrude Darling, the eldest of the plaintiffs (about 19 years old), testified that from her earliest recollection her parents were regarded as husband and wife, and demeaned themselves as such.

The defendants introduced the depositions of the county clerks of several counties in the part of the State of Texas in which the alleged marriage is said to have taken place, and they testified that the marriage records of their respective counties did not show any marriage license having been issued to these parties. Other testimony was introduced tending to show that, prior to the death of Williams, this woman and Darling lived together as husband and wife, and also that she stated to certain parties after the death of Darling that they had never been legally married.

The court gave numerous instructions at the request of plaintiffs, and refused others asked by them, and gave the following, over their objection, at the request of the defendants:

"9. The jury are instructed that marriage is a civil contract entered into between a man and woman, both of whom are equally competent to enter into the relationship. It may be consummated by a form prescribed by statute or by some other formal method or by a formal agreement between the parties. Some of these methods are necessary to constitute marriage. Mere cohabitation, however long continued, does not constitute marriage. Such cohabitation...