Moore v. Jordan, 13444

• Decision Date: 22 October 1959
• Docket Number: No. 13444,13444
• Citation: 328 S.W.2d 343
• Parties: Ike MOORE, Appellant, v. Clemiteen JORDAN, a Feme Sole, et al., Appellees.
• Court: Texas Court of Appeals

Page 343

328 S.W.2d 343

Ike MOORE, Appellant, v. Clemiteen JORDAN, a Feme Sole, et al., Appellees.

No. 13444.

Court of Civil Appeals of Texas, Houston Oct. 22, 1959.

Peter P. Cheswick, Houston, for appellant.

Herschel B. Cashin, Galveston, for appellees Barfield.

M. Leon Kalvort, Houston, for appellee Jordan.

BELL, Chief Justice.

Ike Moore filed suit in trespass-to-try title, seeking to recover title and possession of the West 1/2 of Lot 10 and the East 1/2 of Lot 11 in Block 337 in the City of Galveston, and Lot 22 in Block 61 of Independence Heights School Addition in Harris County. The property had been owned by Sam Moore during his lifetime and Ike Moore claimed as the surviving child of Sam Moore. It was appellant's claim that he was the issue of a common law marriage consummated between Queen Esther Robinson and Sam Moore. Trial was to a jury and the jury, in answer to a special issue answered there was no agreement between Sam Moore and Queen Esther Robinson to become husband and wife. The Court, based on this jury verdict, rendered judgment that appellant take nothing.

Appellant assigns five Points of Error. However, as we interpret four of them, they raise but one basic question and that is as to whether the Trial Court correctly submitted the case to the jury.

Appellant seems to contend that since the parties stipulated the only question involved was whether there was a common law marriage, this is the only issue that should have been submitted to the jury. If the Court had asked the jury whether there was a common law marriage, he would have submitted a law question which, of course, is imporper. Too, the stipulation did not stipulate as to any particular issue to be submitted to the jury, but was merely an agreement that the only general question in issue was whether there was a common law marriage. The Court actually submitted three issues:

1. Whether there was an express or implied agreement to live together as husband and wife.

2. Whether pursuant to said agreement they thereafter cohabited.

3. Whether they held one another out as husband and wife.

The issues were submitted conditionally, an answer to Issue No. 2 being necessary only if the jury in answer to Special Issue No. 1 found there was an agreement. Special Issue No. 3 was to be answered only if the jury found affirmatively to Issue No. 2.

To establish a common law marriage there must be an agreement express or implied between the parties to become husband and wife, cohabitation in pursuance of such agreement, and a holding out by the parties that they are husband and wife. Shelton v. Belknap, 155 Tex. 37, 282 S.W.2d 682. If either element does not exist, there can in law be no common law marriage. When the jury answered there was no agreement between the parties to become husband and wife, this defeated appellant's claim.

Appellant says, however, that an agreement may be established by the fact that the parties held one another out as husband and wife and when the Court conditionally submitted the issue, it deprived him of a jury answer to the question of whether the parties held themselves out as husband and wife. The effect of his contention is that if the jury answered affirmatively to such issue, it would establish such an agreement.

We do not agree. The jury still must answer whether there was an...