James v. James

• Decision Date: 13 June 1923
• Docket Number: (No. 6982.)
• Citation: 253 S.W. 1112
• Parties: JAMES et al. v. JAMES.
• Court: Texas Court of Appeals

253 S.W. 1112

JAMES et al. v. JAMES.

(No. 6982.)

Court of Civil Appeals of Texas. San Antonio.

June 13, 1923.

Rehearing Denied June 29, 1923.

Appeal from District Court, Bexar County; R. B. Minor, Judge.

Action by Charles Robert James, by guardian, against William Henry James and others. Judgment for plaintiff, and defendants appeal. Affirmed.

Collins & Houston, of Dallas, for appellants.

Harris & Hogan and Don. A. Bliss, all of San Antonio, for appellee.

SMITH, J.

In January, 1911, Elijah C. James, an 18 year old boy, and Bea Lawless, a 15 year old girl, mutually agreed to become husband and wife, and thereupon cohabited together. At this time they were living with their respective parents near Somerset, in Bexar county, and continued to do so after making this agreement. A few months later the girl, realizing that she had become pregnant, besought the boy to enter into formal marriage with her, and, while the latter agreed to do so, he persuaded her to go to her sister in Houston, promising to follow and marry her there. In pursuance of this understanding the girl went to Houston, but the boy did not follow her, as he had promised. On October 3, 1911, the girl gave birth to a son, whom she named Charles Robert James, and as soon thereafter as she was able to travel returned to San Antonio.

There the boy met her at a rooming house, and, after a conference between them, at which it seems the girl's mother, sister, and uncle were present, they were formally married by a justice of the peace. At this time young James was under indictment for seduction based on the girl's condition. There is evidence, too, that he married the girl with some reluctance, and perhaps under some degree of duress. About a week after the marriage the couple began living together, but a few weeks later the young husband left his home one morning, telling his wife that he was going to work. She never saw him again, nor heard directly from him. During the next three or four months he wrote his parents, once from Tampico, Mexico, once from Atlanta, Ga., and perhaps another time from some point in Mississippi. In his letters from Tampico and Atlanta he wrote under an assumed name, stating in the one that he had been robbed, in the other that he was ill, and in a hospital, and in each asking for money. His parents in both instances sent him remittances, which were finally returned to them "uncalled for." The jury found, in effect, that, after these communications, the boy was never heard of or from again. Subsequently Bea Lawless was divorced from James, and married Owen Ray, who joins her in this suit. The court charged the jury under art. 5707, R. S., that any person absenting himself for seven years successively shall be presumed to be dead, unless proof to the contrary is shown, and on this charge the jury found that young James was dead, and that he died prior to the decease of his parents, both of whom subsequently died. The jury further found that he was the father of the child born to Bea Lawless, and that after his formal marriage to the latter he "recognized" the child as his own.

Summarized, the facts are that Elijah James and Bea Lawless agreed to become husband and wife, and cohabited together; that as a result thereof Charles Robert James was born to the woman, whom Elijah thereafter legally married; that Elijah was the father of the child, whom he recognized as his own, subsequent to the formal marriage with the mother.

Elijah James was one of several children of Jesse C. and Amanda James, who, in community, owned certain lands lying across the line between Bexar and Atascosa counties. According to the jury's findings, Jesse and Amanda James were both living at the time of the death of their son, Elijah. Subsequent to the latter's death the parents died, intestate, and while possessed of the land mentioned. When the matter of the division of the elder James' estate arose, and partition thereof awarded, Charles Robert James, the son of Bea Lawless James, and the derelict, Elijah, brought this action, through his mother, claiming that portion of his grandparents' estate which would have gone to his father had he been alive. Counsel have very ably presented these primary questions of law:

First. Was there a common-law marriage between Elijah James and Bea Lawless?

Second. Did their formal marriage after the birth of Charles Robert legitimatize the latter, so that, upon the death of his father, Elijah, he succeeded to all the inheritable rights of his said father? And does he, therefore, take that portion of his paternal grandparents' estate which his father, if he had survived them, would have taken?

The trial court submitted the issue of common-law marriage substantially in this language:

"Is it true that on or about January 5, 1911, Bea Lawless and Elijah C. James, by words of present import, mutually agreed to be husband and wife, and in pursuance of such agreement thereafter cohabited, and the result of such cohabitation was the subsequent birth of Charles Robert James?"

The jury answered the question in the affirmative. Bea Lawless was the only witness who testified to the agreement of the parties to be husband and wife, and to the fact of cohabitation. While her testimony as to the agreement was somewhat meager, yet it was sufficient to warrant the jury's finding on that point. Both the evidence and the findings are sufficient to establish the facts of the secret agreement, the subsequent cohabitation, and the birth, as well as paternity, of the child, Charles Robert. But with reference to the issue of common-law marriage neither the findings nor the evidence establish more than this group of bare facts. We do not think these facts, or the finding of the jury thereon, are sufficient to establish a common-law marriage under the laws of this state. The evidence is that the new relation thus secretly assumed by Elijah James and Bea Lawless was not permitted to make the slightest impression upon their outward lives. They were but children at the time, living with and at the homes of their respective parents, and so they continued to live until a month before the child was born, when the girl went to her sister in Houston. If the event meant any more to them than secret cohabitation, it was not disclosed by their attitude towards the public, or towards each other in public. Their modes, manner, and separate places of living, their associations, their friendships, went on without change or interruption, except as they made secret opportunities to exploit their new relation by cohabiting together. So far as the record shows they made and had no plans or hopes or aspirations in common for themselves or for their future. They did not live together; they told no one of their secret agreement, which they kept profoundly locked in their own breasts. They did not by word or act hold themselves out to the public, or to their families or friends, as being husband and wife, or as being anything more to each other than they had ever been. The sole evidence in their lives of any marital relation was the secret agreement, coupled with clandestine cohabitation; to their families, neighbors, friends, and acquaintances there was no evidence whatsoever of the new relation.

Marriage is as much a matter of status as it is of contract, and a mutual agreement to become husband and wife does not amount to marriage unless and until it brings the parties into the normal relation of those who have joined their lives together irrevocably, and for as long as they both shall live. A mere secret agreement, stealthily followed by clandestine cohabitation, is not all that is necessary in this country to constitute a legal, or the true, marriage state. Grigsby v. Reib, 105 Tex. 597, 153 S. W. 1124, L. R. A. 1915E, 1, Ann. Cas. 1915C, 1011; Berger v. Kirby, 105 Tex. 611, 153 S. W. 1130, 51 L. R. A. (N. S.) 182; Schwingle v. Keifer (Tex. Civ. App.) 135 S. W. 194, affirmed in 105 Tex. 609, 153 S. W. 1132. The definition of a common-law marriage propounded as an issue to the jury by the court in this case substantially was:

"Did Bea Lawless and Elijah James, by words of present import, mutually agree to be husband and wife, and in pursuance of such agreement thereafter cohabit?"

The definition of the trial court in Berger v. Kirby Case, approved by the Supreme Court, was:

"A common-law marriage exists when a man and woman enter into an agreement to become 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."

And in the Grigsby v. Reib Case Chief Justice Brown said:

"Marriage is not a contract, but a status created by mutual consent of one man and one woman. The method by which it is solemnized, or entered into, may be by proceedings prescribed by statute, or by mutual agreement with cohabitation, but, however contracted, having the same elements and producing the status of husband and wife. The sole difference which can legally exist is in the method of expressing consent, and the only particular in which a marriage as at common law can differ from the statutory method is the absence of license and the ceremony. The cohabitation must be professedly as husband and wife, and public, so that by their conduct towards each other they may be known as husband and wife. Such marriages may be equally the consummation of a mutual affection which will produce a home and family that will contribute to good society, to free and just government and to the support of christianity — to the common weal. It would be sacrilegious to apply the designation `a civil contract' to such a marriage. It is that and more; a status ordained by God, the foundation and support of good government, and absolutely necessary to the purity and preservation of good society. When the `wedding day' of the parent ceases to be revered by the offspring; there will be a...