Murphy v. Jacobs

• Decision Date: 30 October 1947
• Docket Number: 8 Div. 348.
• Citation: 32 So.2d 306,249 Ala. 594
• Parties: MURPHY et al. v. JACOBS et al.
• Court: Alabama Supreme Court

32 So.2d 306

249 Ala. 594

MURPHY et al. v. JACOBS et al.

8 Div. 348.

Supreme Court of Alabama

October 30, 1947

H T. Foster, of Scottsboro, and H. G. Bailey, of Boaz, for appellants.

Brown Scott & Dawson and Proctor & Snodgrass, all of Scottsboro, for appellees.

SIMPSON Justice.

This is a second appeal. A reversal was ordered on the former appeal because of the absence of parties necessary to a correct determination of the litigation. Jacobs v. Murphy, 245 Ala. 260, 16 So.2d 859. After remandment, further evidence was taken and the cause was submitted for final decree on the whole evidence before the Honorable Virgil Bouldin, Supernumerary Judge and formerly an Associate Justice of this court.

The purpose of the bill was to have appellant (plaintiff) adjudged the common-law wife of the intestate, West Murphy deceased.

The only question for decision now is whether the decree dismissing the bill for want of sufficient evidence to sustain it was erroneous and should be reversed.

After a painstaking study of the record in the light of the governing principles of law, we are clear to the conclusion that the decree of the trial court is abundantly supported by the evidence and should be affirmed. That there were years of cohabitation between appellant and deceased is not controverted and the proof is ample to sustain this contention. But the proof that the two mutually agreed to enter into the matrimonial relationship, permanent and exclusive of all others, after which there was public recognition of the existence of the common-law marriage, is wholly uncertain and unsatisfactory and our conclusion is that the decree of the trial court was well founded in denying relief. So considered, that holding must be affirmed.

The decree appealed from fully and correctly stated the pertinent facts and the law controlling, and we here set out the following excerpts therefrom as expressive of our own views.

'The Law

'Many decisions, several quite recent, have fully defined a common law marriage, the character of evidence required, the presumptions to be indulged, the conclusions to be drawn from varied factual situations. The following excerpts will suffice for the purposes of this case:

"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 matrimonial relation, permanent and exclusive of all others, between the parties capable in law of making such a contract, consummated by their cohabitation as man and wife or their mutual assumption openly of marital duties and obligations.' Sloss-Sheffield Steel & Iron Co. v. Watford, 245 Ala. 425, 17 So.2d 166, 168.

"But where no such ceremonies are required, and no record is made to attest the marriage, some public recognition of it is necessary as evidence of its existence. The protection of the parties and their children, and considerations of public policy, require this public recognition; and it may be made in any way which can be seen and known by men, such as living together as man and wife, treating each other and speaking of each other in the presence of third parties as being in that relation, and declaring the relation in documents executed by them while living together, such as deeds, wills, and other formal instruments. From such recognition the reputation of being married will obtain among friends, associates and acquaintances, which is of itself evidence of a persuasive character. Without it, the existence of the marriage will always be a matter of uncertainty.' Gilbreath v. Lewis, 242 Ala. 510, 7 So.2d 485.

"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 required 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.' Sloss-Sheffield Steel & Iron Co. v. Watford, supra.

'See also, Campbell v. Rice, 245 Ala. 395, 17 So.2d 162; Rogers v. McLeskey, 225 Ala. 148, 142 So. 526; Little v. Burgess, 244 Ala. 447, 13 So.2d 761; Prince v. Edwards, 175 Ala. 532, 57 So. 714; 38 C.J. 1316, et seq.

'The Facts

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'Some forty-five or fifty years before his death in 1941, West Murphy, a single man twenty-five to thirty years of age approached the mother of Della Rooks, then a...