University of Michigan v. McGuckin

• Decision Date: 19 March 1902
• Docket Number: 10,080
• Citation: University of Michigan v. McGuckin, 64 Neb. 300, 89 N.W. 778 (Neb. 1902)
• Parties: UNIVERSITY OF MICHIGAN, APPELLANT, v. DANIEL L. MCGUCKIN ET AL. APPELLEES
• Court: Nebraska Supreme Court

89 N.W. 778

64 Neb. 300

UNIVERSITY OF MICHIGAN, APPELLANT, v. DANIEL L. MCGUCKIN ET AL. APPELLEES

No. 10,080

Supreme Court of Nebraska

March 19, 1902

APPEAL from the district court for Douglas county. Heard below before KEYSOR, J. Rehearing of case reported in 62 Neb. 489 Reaffirmed. HOLCOMB, J. dissenting.

AFFIRMED.

Wright & Stout, for appellant.

The fact of copulation after a promise per verba de futuro is simply evidence from which the court may presume a new promise or a promise de praesenti; and the fact of living together is not itself marriage, but is simply evidence from which the court may presume that a promise was made. This presumption, which ordinarily would arise from continued copulation, in the case at bar, is overcome by the positive finding that no new promise was made and the relation was meretricious at its inception. Having been meretricious at its inception, it is presumed to continue meretricious until there is positive evidence of a change or a new promise. So that in this case, even if the court had not specifically found that there was no change and no promise de praesenti and no promise at any time when the parties were capable of entering into the relation, the court could not find from the findings of fact that any new promise existed. As to what constitutes a common-law marriage: Schuchart v Schuchart, 61 Kan. 597; United States Trust Co. v Maxwell, 26 Misc. [N. Y.], 276; Williams v. Herrick, 43 A. [R. I.], 1036, and authorities cited on former argument, 62 Neb. 489.

I. R. Andrews and J. J. Breen, contra.

AMES, C. DUFFIE and ALBERT, CC. concur. HOLCOMB, J. dissents.

OPINION

AMES, C.

This cause is resubmitted upon arguments and briefs upon a rehearing granted from a former decision in the same cause, the opinion in which was filed on the 10th day of July, 1901. The case was submitted upon a record containing the pleadings and findings of fact of the trial court, only.

The principal question discussed upon the reargument, and the only one with which we think it requisite to deal in this opinion, is that of the validity of the alleged marriage between the appellees Anna McGuckin and Daniel L. McGuckin. The findings of fact relative to this inquiry are copied in the former opinion and need not be repeated here. The district court found, as a conclusion of law, that they were sufficient to establish the validity of the marriage. In this conclusion this court in its former opinion concurred. The facts found are many of them evidential, rather than ultimate, in character. The beginning of the cohabitation was meretricious, each of the parties having a lawful spouse then living; but both these obstacles were soon afterwards removed by decrees of divorce, and thereafter the parties not only continued for a long term of years to live together as husband and wife, and to enjoy the repute of that relation, but continuously represented themselves to the public and individuals as being such. During the time, and before the making of the mortgage in question, five children were born of the union, whom their parents unitedly represented to the public, and caused to be baptized into church, as the children of lawful wedlock. That these facts and certain others, recited in the finding, would, if standing alone, be sufficient evidence of marriage, can not be doubted, and is explicitly admitted by counsel for the appellant in both brief and argument. But in connection with them, and as a part of the same finding in which they are set forth, the court also found that, although the parties made promises to marry prior to the obtaining of the divorces, yet that such promises "were the only promises ever made, and that no new promise was made after the obtaining of the divorce by Daniel L. McGuckin, nor was there any apparent change in their manner of living or holding themselves out as husband and wife." Counsel thereupon insists that a lawful marriage could have had its inception only in a promise or agreement of marriage after the removal of the legal obstacles thereto; that the evidential facts found are of no significance, except as...