Edelstein v. Brown

• Decision Date: 27 April 1904
• Citation: 80 S.W. 1027
• Parties: EDELSTEIN v. BROWN et al.
• Court: Texas Court of Appeals

80 S.W. 1027

EDELSTEIN v. BROWN et al.

Court of Civil Appeals of Texas.

April 27, 1904.

Appeal from District Court, Camp County; J. M. Talbot, Judge.

Action by J. M. Brown and others against E. Edelstein. From a judgment for plaintiffs, defendant appeals. Reversed.

M. M. Smith, E. A. King, and Morris & Crow, for appellant. W. R. Heath and Sam. D. Snodgrass, for appellees.

FLY, J.

This is a suit instituted by J. M. Brown and L. B. Brown against appellant to recover their mother's (S. C. Edelstein's) community interest in certain property held by appellant. Appellant answered, denying that he had ever been married to S. C. Edelstein. The case was tried without a jury, and judgment rendered for appellees.

Appellees are the offspring of Mrs. Edelstein's marriage with J. H. Brown, from whom she was divorced on February 9, 1889. On March 24, 1889, she was married to Charles Kraus, from whom she was divorced on June 19, 1890, and on September 30, 1891, she married Charles E. Rupp, from whom she separated in about three months. She obtained a divorce from Rupp on December 16, 1895. During the latter part of 1893, and in 1894 and 1895, S. C. Edelstein lived in San Antonio, Waco, and Dallas, and during the years 1896, 1897, and part of 1898 she lived in Waco and Marlin. In all of these places she was visited by appellant, and they occupied the same room and cohabited with each other. In all of those places, before and after the divorce was obtained from Rupp, appellant and Edelstein held themselves out as man and wife. In the fall of 1898 Mrs. S. C. Edelstein moved to Pittsburg and took up her abode with appellant, and they lived together as man and wife until her death. Appellant introduced her as his wife in Pittsburg, had real estate conveyed to her, and had her to join him in the conveyance of real estate as his wife. She was known as Mrs. Edelstein in San Antonio and other places before she obtained her last divorce, and continued to be known by that name after the divorce. During all the years from the time of appellant's first intimacy with Mrs. Edelstein he was a citizen of Camp county, and resided and did business in Pittsburg, but paid numerous visits to Mrs. Edelstein in the different places in which she lived, and cohabited with her. Mrs. Edelstein died on November 22, 1902. Appellant closed out his business in May, 1903. The trial judge found that a common-law marriage existed between appellant and the woman from the time that the divorce was granted on December 16, 1895, until her death.

Marriage is a civil contract, the consent of the parties to it being all that is required by natural public law. It is true that in most, if not all, of the states of the Union, there are statutes regulating the manner of forming the marriage contract, providing for the performance of ceremonies, and naming those persons who can perform the ceremonies or celebrate the rites of matrimony; but it is held in a number of the states that, in the absence of positive statutes declaring all marriages void that are not performed as directed by law, any marriage made according to the common law would be a valid marriage. Such marriage may be proved by reputation, declarations, and conduct of the parties, and other circumstances usually accompanying that relation. That they addressed and introduced each other as man and wife, their reception among their associates as such, joining each other as man and wife in the conveyance of property, the assumption by the woman of the man's name, and their cohabitation, among other circumstances, form evidences of marriage. To constitute a common-law marriage there must be an agreement, express or implied, to become man and wife, and, while cohabitation is one of the evidences of marriage, cohabitation without the agreement to become man and wife does not raise that relation. Without such agreement antedating it, it is unlawful, and does not form a part of the marriage contract. Illicit intercourse, although extending over a long period of time, does not consummate nor perfect a marriage dependent for completion on cohabitation. Rodg. Dom. Rel. § 96; Cuneo v. De Cuneo (Tex. Civ. App.) 59 S. W. 284. The law, as construed in Texas, will indulge every reasonable presumption in favor of marriage and legitimate cohabitation, but it is the rule that the presumption does not obtain where the relations of the parties originate in immorality and shame. When persons take up a relation to each other in violation of decency and the demands of society, the law will not stultify itself by presuming a marriage, in the absence of affirmative proof that they have repented of their conduct, and have changed the character of their cohabitation, either by a statutory marriage or an agreement to assume the relation of man and wife. Nor is the presumption of a continuance of the illicit relations affected by a removal of a disability of marriage which existed when the relations began, unless there is a visible change in the manner of living. Where it is sought to show that the illicit relations have changed to legal ones, the burden rests upon the party attempting to show such change. Rodg. Dom. Rel. § 99.

The evidence clearly showed that S. C. Edelstein was the paramour of appellant for at least two years before she obtained the divorce, whom he visited in the different cities in which she sojourned. According to the testimony of one of the appellees, he visited his mother in San Antonio in 1893 and found her living with Edelstein as his wife, and he said from that time she was called Mrs. Edelstein. This was at a time when she was the wife of Rupp. Shortly after that time she removed to Dallas, where she lived until 1895, when she went to Waco. She then moved to Marlin, where she stayed until the fall of 1898, when she went to Pittsburg. Before the divorce appellant went to see her frequently and spent two or three days with her, and afterwards there was no change. They represented that they were man and wife before the divorce was granted, just as they did afterwards. Appellant's visits to Mrs. Edelstein were made about once a month. The first evidence of a change from the illicit relations existing between the parties was when Mrs. Edelstein moved to Pittsburg in 1898. Up to that time there was nothing to indicate that they desired to mend the error of their way, forsake the shameful lives they had been living, and repair their wrong, so far as they could, by entering into the marriage relation. The relations had been conceived in sin, and continued in utter disregard of the laws of the state for years. There was no break in the tenor of their lives, after the divorce, to indicate that it had been procured for the purpose of marriage. That it was not so intended appears from the fact that they lived at a distance from each other, contrary to the usual habit and custom of married people. Their mode of life must necessarily carry with it such a grave suspicion as to its continuance in the illicit manner in which it began that those seeking to show a common-law marriage must be required to prove more than declarations of the parties and cohabitation to accomplish the result. The only reason that was offered for the parties living in different towns was that a house could not be procured, which was received from the mouth of Mrs. Edelstein while in Dallas. To sustain that reason, it must be accepted as a fact that there was such a rush for houses in Pittsburg for three years that one of its citizens was compelled to keep his wife in several cities in Texas away from his home because he could not obtain a house there. There was no attempt to prove that such a condition of affairs existed. Every reasonable presumption should, in the interest of morality, be indulged in to support the marriage relation, but the doctrine cannot be carried to such an extent as to transform the position of the mistress into the honorable status of the wife. If there were children whose legitimacy was to be protected, the law would look with tender compassion upon them, and might not be so exacting in requiring proof of a change from an illicit to a legal relation; but it is only a question of money which the children are endeavoring to obtain from the surviving party. The very doctrine of community property had its inception in the theory that the man and wife are equal partners in the business of life, and the acquired property is the product of their joint labors. No such theory has much to sustain it in this case prior to the latter part of 1898, when the parties appear to have turned their backs upon their lives of shame and to have assumed a decent relation towards...