Jenkins v. Avery

• Decision Date: 19 June 1952
• Docket Number: 6 Div. 327
• Citation: 257 Ala. 387,59 So.2d 671
• Parties: JENKINS v. AVERY et al.
• Court: Alabama Supreme Court

Page 671

59 So.2d 671

257 Ala. 387

JENKINS v. AVERY et al.

6 Div. 327.

Supreme Court of Alabama.

June 19, 1952.

Jackson, Rives, Pettus & Peterson, Birmingham, for appellant.

Drennen & Drennen, Birmingham, for appellees.

SIMPSON, Justice.

This is a statutory bill to quiet title to real estate situated in Birmingham, Alabama, by the appellees, brothers and sisters of Gus Spratling, who recently died intestate, against appellant, Lesterine Holloway Jenkins. Lesterine claims title to the land as the legitimate daughter of Spratling by a common law marriage theretofore existing between Spratling and her mother, Maude Holloway. There is no warrantable inference from the evidence of any ceremonial marriage between this couple, so the real question, and determinative of the appeal, is whether appellant was the issue of a common law marriage between Gus and Maude.

The evidence was largely ore tenus before the court and the review, of course, is with the usual favorable presumption attending the decision below. The trial court resolved the question against appellant and, after a painstaking study of the record in the light of the governing authorities, we are in accord with that conclusion. While there may have been proof to dispose the judicial mind to the belief that Lesterine was Gus's daughter, the evidence was far from satisfactory in establishing that there was that solemnity of union and sanctity of cohabitation between her mother and her alleged father as husband and wife to lend the slightest credence to the view that there had been a common law marriage of the couple in contemplation of law.

The law governing is well understood and has been restated in some of our recent cases. It is, there must be a mutual understanding to presently enter into the marriage relation, permanent and exclusive of all others, after which there is a public recognition of the existence of the common law marriage. Turner v. Turner, 251 Ala. 295(3), 37 So.2d 186; Murphy v. Jacobs, 249 Ala. 594, 32 So.2d 306; Campbell v. Rice, 245 Ala. 395, 17 So.2d 162; Gilbreath v. Lewis, 242 Ala. 510, 7 So.2d 485.

A brief recital of the facts will, we think, demonstrate the soundness of the conclusion of the trial court. The principals were Negroes who lived on the Spratling plantation in Chambers County, Alabama. In 1916 or 1917 Gus had about reached adulthood and Maude was between fourteen and sixteen years of age. Maude is now dead, but her mother testified that about that era Gus and Maude left the farm one morning for Opelika to do some trading and did not return until the next day; that on their return Gus said they had gone into Georgia and been married by a preacher; that thereafter the couple lived together as husband and wife and on September 3, 1917, Maude gave birth to Lesterine. About the time of Lesterine's birth, or shortly before, Gus departed that country; just when is in dispute, but he first went to West Point, Georgia, working for the railroad and later to North Alabama and Birmingham where he lived until his death in February, 1950. Aside from the testimony of Maude's mother, Lesterine's grandmother, there is no satisfactory evidence of these parties having lived together as husband and wife during the years previous to Lesterine's birth or afterward. The record is also silent, except the testimony of Lesterine's grandmother, of any reputation of cohabitation as husband and wife to rise to the dignity of a common law marriage. Indeed, the evidence is to the contrary. Residents of the community, where Gus and Maude lived prior to the time of Lesterine's birth, testified with almost unanimity that they had never heard of any marriage of the couple or of their living together as husband and wife or that Gus ever held Maude out to be his wife.

The presumptions seem to be against the theory of a common law marriage. As entirely inconsistent with this fact and corroborative of the fact that there had never been any marriage of the couple, Gus left Chambers County shortly before or about the time of the birth of Lesterine, without apparent reason (if she was his legitimate daughter). Maude Holloway remained in Chambers County. A few years later Gus married one Dora Lyle in Birmingham, certifying in the application for marriage license that he had never theretofore been married. The court has approved the principle that the presumption of an actual marriage from the facts of cohabitation etc., is rebutted by the fact of a subsequent, permanent separation without apparent cause and the actual marriage soon thereafter of one of the parties. White v. White, 225 Ala. 155, 142 So. 524.

Gus married Dora Lyle in a ceremonial marriage in 1923 and in 1928 Maude married one Bob Washington in a ceremonial marriage. The marriage license issued to Maude and Bob also showed that Maude had never before been married and carried her surname as Holloway. As against the claimed former relations of Gus and...