Gilbreath v. Lewis

• Citation: 242 Ala. 510,7 So.2d 485
• Decision Date: 09 April 1942
• Docket Number: 8 Div. 130.
• Parties: GILBREATH et al. v. LEWIS et al.
• Court: Supreme Court of Alabama

7 So.2d 485

242 Ala. 510

GILBREATH et al. v. LEWIS et al.

8 Div. 130.

Supreme Court of Alabama

April 9, 1942

Appeal from Circuit Court, Marshall County; W.J. Haralson Judge.

Marion F. Lusk, of Guntersville, for appellants.

Scruggs & Creel, of Guntersville, for appellees.

GARDNER, Chief Justice.

Complainants file this bill seeking a sale of certain described real estate for division among the tenants in common. This real estate originally belonged to Emmett Gilbreath, and among his heirs was Grover Gilbreath who died in April, 1928. There was no pretense of a ceremonial marriage, but complainants claim to be the legitimate children of Grover Gilbreath through a common law marriage of said Grover with their mother, a party defendant to the bill under the name of Decie King. The two girls are married, the oldest child being now Ophelia Stone and the youngest Margie Lewis. The boy John is over twenty-five years of age.

Upon consideration of the proof, taken by way of examination of the witnesses before the register (Equity Rule 56, 238 Ala XXXIV), the chancellor decreed complainants relief, and from such decree the appeal is prosecuted.

The decree is preceded by a brief statement by the chancellor disclosing his opinion that when these three children were born no common law marriage existed between Grover Gilbreath and Decie King, but that Grover was in fact the father. We are in accord with this conclusion. The chancellor, however concluded a common law marriage, with recognition of the children by Grover (Title 27, § 10, Code 1940), was established by the proof of the relationship between Grover and Decie King after Grover's return from California, as hereinafter appears, and rested his decree upon that basis. But we find ourselves unable to agree.

All parties resided in Guntersville, Alabama, and Grover's original home was in the two-story white house in Guntersville where his two brothers, Burton and Grady, lived.

It appears, however, that after the birth of these three children, Grover, a dissipated young man and given to much intoxication, was called into the Army, probably 1918, with exact date left to conjecture, but was rejected, and was gone four or five years thereafter, absent in California. But before leaving, and in August, 1917, he executed a deed to much real estate wherein he was designated "an unmarried man". During this period of absence there was no communication between Grover and Decie and no recognition on Grover's part as to any responsibility for the support of these children. It should be added, however reluctantly on our part, that the evidence is clear that Decie's reputation for morality was bad, and indeed the testimony of several witnesses that she was generally regarded as a prostitute appears undisputed.

As previously observed there had been no pretense of ceremonial marriage. There is some hearsay testimony concerning some effort on Decie's part for a marriage license but in that same connection the tendency of the proof was to show intoxicated condition of Grover at the time, and his arrest. We can find no direct proof that his relatives in fact intervened and prevented any marriage. All of this must be left largely to surmise.

But this was many years ago (about 1917) and evidently only a short time before he left for California. During his absence and in 1919 Decie married one Ferd Grizzle. She states they were married at 11 o'clock in the morning and separated that night, and in a few weeks a divorce was granted her husband based upon the ground of adultery. There is indication in the record the husband's father interposed objection. But that is not here important. This divorce decree was in August, 1919. And in October, 1919, under license duly issued, the said Grizzle and Decie were again married by the Judge of Probate of Marshall County. Decie says she does not know how long she lived with Grizzle following this second marriage, but that she did secure a divorce. Whether that divorce was secured before or after Grover's return about 1922 the record is silent. In any event she states she began living with Grover upon his return and so continued until his death in 1928. Grover was, at the time of his death, thirty-eight years of age.

These three children attended school in Guntersville under the name of Grizzle and when the school census was taken Decie gave them each the name of Grizzle. And so they continued. John, a short time preceding the institution of this suit, changed his name to Gilbreath. Aside from this one change, each went through the years by the name of Grizzle.

Decie makes no claim of any agreement of marriage or that Grover made any such representation or promise. Nor did she, so far as this record shows, make any mention of a marriage relation. Nor does anyone in the entire community state that she was ever introduced as the wife of Grover or he as her husband, or that either stated to any person recognizing such relationship. The nearest approach is from the testimony of Morgan, a close friend of Grover's who at one point stated Grover referred to Decie as his wife, but in the same direct examination, in answer to the question whether or not Grover ever told him Decie was his wife, said: "Not directly that way".

Complainants appear to lay great stress upon the testimony of witnesses who state a general reputation that Grover and Decie "lived together as husband and wife". But when closely examined we think it clear these witnesses merely meant to say he stayed at her house most of the time, both night and day, as customary in marital relation. None ever heard either spoken of in the marriage relation. Illustrative is the testimony of Bud Hooper, another special friend of Grover's, who had so testified in a general way, but who afterwards stated he "would not say about the man and wife. She was there and he was there".

As observed in 35 Am.Jur. 331, "the term cohabitation * * * is not always employed in a matrimonial sense, instead of the fixed and comprehensive 'habit' by which the Scotch law characterizes matrimonial cohabitation."

The following quotation from Bishop on Marriage and Divorce, to be found in Topper v. Perry, 197 Mo. 531, 95 S.W. 203, 207, 114 Am.St.Rep. 777, is illustrative: "Cohabitation and reputation are at best only presumptive proofs, and when one of these foundations is withdrawn, what remains is too weak to build a presumption on. There is good sense in the Scotch law, by which cohabitation alone is considered insufficient, and which requires in addition habit and repute, because it is said the parties may eat, live, and sleep together as mistress and keeper without any intention of entering into marriage".

It is clear enough, after his return from California, Grover spent most of his time at the house where Decie and her children lived, and we think it may be said he paid the bills and she would often go with him to the farm. Some of the witnesses show clearly that so far as they could see his "home place" was the Gilbreath house where his two brothers lived. He would go there and occasionally take meals and a bath and one of his brothers would often bring his lunch to him on the farm. Decie states he took meals at her house "part of the time" and when not there "at his brother Burton and Grady's".

He died at the Gilbreath home, though he had only recently been carried there from Decie's house. In White v Hill, 176 Ala. 480, 58 So. 444, 447, appears the following definition of a common law marriage: "To constitute a marriage good and valid at common law--that is, in the absence of a statute otherwise specifically providing--it is not necessary that it should be solemnized in any particular form or with any particular rite or ceremony. All that is required is that there should be an actual and mutual agreement to enter into a...