Simmons v. Simmons

• Decision Date: 04 February 1897
• Citation: 39 S.W. 639
• Parties: SIMMONS v. SIMMONS.
• Court: Texas Court of Appeals

39 S.W. 639

SIMMONS v. SIMMONS.

Court of Civil Appeals of Texas.

February 4, 1897.

Appeal from district court, Galveston county; William H. Stewart, Judge.

Action by John Simmons against Frances Simmons for divorce. From the part of the judgment determining property rights, defendant appeals. Reversed.

Spencer & Kincaid, for appellant.

WILLIAMS, J.

At the suit of appellee, a decree was entered by the court below divorcing the parties, and settling their property rights. In this appeal no complaint is made of the judgment, so far as it granted the divorce, the assignments only calling in question the rulings of the court upon questions upon which the right of appellant to a portion of the land in controversy depended. The parties were first regularly married, in accordance with the statute, in 1878. The uncontradicted evidence, however, shows that prior to June 1, 1874, they engaged to marry each other, no time for the consummation of the engagement being fixed, and that they then commenced to live and cohabit together as man and wife, and continued to do so until their final separation, subsequent to 1878. On June 1, 1874, appellee, John Simmons, purchased the lot in question, paying $200 cash, and giving notes payable at different times thereafter, secured by a deed of trust on the property. The payment for the lot was completed before 1878. There is some evidence as to an agreement between John and Frances under which the lot was bought and paid for, the effect of which we do not deem it necessary to determine. It is evident that, if the facts show the existence of a marriage between these parties at the date of the deed, the property became a part of their common estate, and that appellant, on dissolution of the marriage, is entitled to half of it. It is now definitely settled in this state that a marriage according to the common law is valid, whether the statutory regulations on the subject are observed or not. Chapman v. Chapman, 88 Tex. 641, 32 S. W. 871; Id. (Tex. Civ. App.) 32 S. W. 564; Ingersol v. McWillie (Tex. Civ. App.) 30 S. W. 56; Id. (Tex. Sup.) 30 S. W. 869; Holder v. State (Tex. Cr. App.) 29 S. W. 793; Cumby v. Henderson, 6 Tex. Civ. App. 519, 25 S. W. 673. To constitute such a marriage, it requires only the agreement of the man and woman to become then and thenceforth husband and wife. When this takes place, the marriage is complete. There are certain states of fact which, under the rules of evidence, are held to prove the existence of the marriage, that are sometimes mistaken for the marriage itself. Thus, recognition of and cohabitation with each other as man and wife are sometimes spoken of, and are spoken of in the charge in this case, as constituting marriage, when they are simply facts which go to prove the agreement or consent by which the marriage is so accomplished. Marriage may be proven by other evidence besides these facts, and, on the other hand, these facts may exist when there is in truth no marriage. Lewis v. Ames, 44 Tex. 319. There is a doctrine of the law which is sometimes treated as defining a marriage of a character distinct from that which is just explained, viz. that a promise of marriage, followed by carnal intercourse, of itself constitutes marriage. The doctrine is thus stated by Mr. Bishop: "It is that, where parties are under an agreement of future marriage, if then they have copula, which is lawful in the marriage state alone, they are presumed, in the absence of any showing to the contrary, to have arrived at the period of actual marriage, or to have transmuted their future to a...