This suit was submitted on briefs and decided September 14, 1927. The opinion is reported in 259 P. 299. A rehearing was granted and the case presented here on oral argument February 14, 1928. It is unnecessary to repeat the facts stated in the former opinion, except as that may be required in order to make clear the reasons for the conclusions reached by the writer of this opinion. Such facts as are so required will be stated in the opinion.
This case requires a construction of Chapter 269, General Laws for 1925. This law originated in the Senate and was designated Senate Bill No. 234. Its title is:
"To legitimatize certain marriages and children the issue thereof."
Its purpose was to legitimate marriages and that purpose is expressed as follows:
"In case a man and woman, not otherwise married heretofore, shall have cohabited in the state of Oregon as husband and wife, for over one year, and children shall be living as a result of said relation, said cohabitation, if children are living, is hereby declared to constitute a valid marriage and the children born after the beginning of said cohabitation are hereby *Page 488 declared to be the legitimate offspring of said marriage."
Our Constitution, Article IV, Section 20, prescribes:
"Every act shall embrace but one subject, and matters properly connected therewith, which subject shall be expressed in the title. * *"
The title to the act now designated by said Chapter 269 specifically states the purpose to be to legitimate marriages. Reading the statute in the light of the title, the language "not otherwise married" and "shall have cohabited in the State of Oregon as husband and wife" must be construed to require the parties to have lived together as husband and wife. The primary meaning of the word "cohabit" is "living together." A father cohabits not only with his wife but his children who are living in the same dwelling. In a sense any two people who are living in the same habitation are cohabiting. To cohabit as husband and wife, however, means not only living together but also entertaining that intimate sexual relation which can only be entertained lawfully between husband and wife. Such cohabitation must be general, open, public, regular and uniform under an agreement between the parties to sustain the marital relation.
"To cohabit is to live or dwell together, to have the same habitation, so that where one lives and dwells, there does the other live and dwell with him, but the conduct of the parties, in order to constitute evidence of marital consent, must, generally speaking, be something more than mere living together; it must be an association, consciously and openly, as husband and wife. It is not a mere gratification of sexual passion; nor casual commerce between the parties, for no presumption can elevate concubinage of whatever duration to the dignity of marriage. It must be a matrimonial *Page 489 cohabitation, entered into with a view of becoming husband and wife, with or without sexual intercourse between them, and it must be a constant and exclusive cohabitation." 18 R.C.L. 430, § 58, and numerous authorities cited under the note; Jones' Com. on Ev. (2d ed.), pp. 99, 100; 11 C.J. 949; McBean v. McBean,37 Or. 195, 204, 205 (61 P. 418); State v. Naylor, 68 Or. 139,144 (136 P. 889).
The word "otherwise," as used in the statute, must be given its ordinary meaning. To do that the phrase "not otherwise married" clearly harmonizes with the title of the act and requires us to construe "cohabited * * as husband and wife" as stating that the man and woman were living under some contract, form or state of marriage. The legislature never intended to elevate a status of concubinage or of lewd and lascivious cohabitation into the sacred status of marriage. The act of the legislature is not an alchemy which can transmute vice into virtue. Where parties, living together under an agreement to so live as husband and wife, openly hold themselves out as such under the belief that they are married, it is competent for the legislature to declare them to be married. Our General Laws define marriage to be a civil contract. Where the parties have directly contracted to live together as husband and wife, they have entered into the civil contract defined as marriage. Our statutes, however, require a marriage to be consummated according to some ceremony or form, evidenced by witnesses and a certificate of some person authorized to perform marriage ceremonies: Or. L., §§ 9720, 9724.
Huard v. McTeigh, 113 Or. 279 (230 P. 658, 39 A.L.R. 528), is authority that common-law marriages are not recognized in the State of Oregon. That case was decided January 27, 1925. Chapter 269 was approved *Page 490 by the Governor just a month thereafter. We believe that chapter was enacted for the purpose of validating marriages theretofore contracted according to the common law where children were the result of such marriages. It is generally known that a number of such cases existed in the state. It had not been determined by this court prior to the decision referred to above that common-law marriages would not be recognized in this state. Indeed, a federal court held May 3, 1920, that common-law marriages had not been abolished and were not prohibited in Alaska: Reed v. Harkrader, 264 Fed. 834. Oregon statutes respecting marriages were then in force in Alaska.
We do not intend to hold that said Chapter 269 applies to common-law marriages only. Where a man and woman are living together under any form of agreement intended to evidence a marriage and children are born as a result of cohabitation between them, we believe that their status would come legally within the term "marriage" as used in said chapter, but we believe that there must be an agreement between the man and woman to be husband and wife; they must believe they are married people; they must hold themselves out generally to the world as being married in order to satisfy the terms of said Chapter 269. Nothing less will satisfy the statute.
Most of the cases cited to support plaintiff's position arose among the former slaves in the southern states. While in a state of slavery the negroes could not contract marriage. They did, however, cohabit as husband and wife under conditions evincing an agreement so to do. They did all that they could do under the conditions of slavery to contract marriage lawfully. After they were emancipated, *Page 491 curative acts were passed by most of the former slave states, declaring the status in which former slaves lived as husband and wife to be a marriage. That marriage was validated and the children legitimated, but in all those cases it was necessary for the parties to have attempted and pretended to have been married and to have cohabited as husband and wife in order to have their status dignified as marriage by said curative statutes: Wallace v. Godfrey, 42 Fed. 812; Watson v. Ellerbe, 77 S.C. 232 (57 S.E. 855); Andrews v. Page, 50 Tenn. (3 Heisk.) 653;Washington v. Washington, 69 Ala. 281; Rundle v. Pegram,49 Miss. 751; Livingston v. Williams, 75 Tex. 653 (13 S.W. 173); Rowe v. Blackburn, 152 La. 704 (94 So. 325).
There is respectable authority for holding that a legislature has no authority to declare a man and woman married who have no desire or intention to be married. Marriage is a civil contract. To compel people to enter into a contract against their wills is to deprive them of the right of property. The right to contract within the law is a valuable property right: 13 C.J. 263-265; Cooley, Const. Lim. (7 ed.), 534; Dunbarton v. Franklin,19 N.H. 257; Floyd v. Calvert, 53 Miss. 37; Bell v. Bell,196 Ala. 465 (71 So. 465).
Waiving the constitutional question, however, we believe the legislature never intended to declare meretricious relations of a man and woman, without any intention on their part to be married or to live as husband and wife, to constitute marriage.
The contention on the part of the defendants is not that said Chapter 269 was invalid because retroactive. The act is in the nature of a curative act which must necessarily operate retroactively. The contention is that, if we give to said Chapter 269 the construction *Page 492 contended for by plaintiff, meretricious relations between a man and woman resulting in the birth of children constitute a marriage, regardless of the intention of the parties to such relation. Then it would be unconstitutional, not because it is retroactive only, but because it was an attempt on the part of the legislature to declare a condition a contract against the intention and will of the parties involved. A contract is formed only by the voluntary act of the parties thereto. Conceding that it is possible for the legislature to say that lewd cohabitation resulting in the birth of children will constitute a marriage, it is very doubtful that such an effect could be given to past conduct. Defendants' argument in their petition for rehearing is not that the act is unconstitutional because retroactive but unconstitutional because plaintiff's interpretation of the act would force upon the parties a contract against their will.
"Cohabitation as husband and wife is a manifestation of the parties having consented to contract such relations inter se. It is holding forth to the world by the manner of daily life, by conduct, demeanor, and habits, that the man and woman who live together have agreed to take each other in marriage, and to stand in the mutual relation of husband and wife." 18 R.C.L. 429, § 57.
Cohabiting together as husband and wife means living together publicly in the face of society, as if the conjugal relation existed; living in the same house in like manner as marks the intercourse between husband and wife: Bush v. State,37 Ark. 215, 218; Olsen v. Peterson, 33 Neb. 358 (50 N.W. 155);Taylor v. Taylor, 10 Colo. App. 303 (30 P. 1049);Robinson v. Robinson, 188 Ill. 371 (58 N.E. 906); note toBecker v. Becker, L.R.A. 1915E, beginning at p. 72; Adger *Page 493 v. Ackerman, 115 Fed. 124, 126; In re Comly's Estate, 185 Pa. 208 (39 A. 890); Travers v. Reinhardt, 205 U.S. 423, 436 (51 L. Ed. 865, 27 Sup. Ct. Rep. 563, see, also, Rose's U.S. Notes).
Evidence of a common-law marriage or that parties who have been cohabiting as husband and wife without having been formally married, in fact contracted a marriage, must be clear and convincing.
"In such a case the fact of contract is not a `presumption,' but is a fact proven by circumstantial evidence. Such circumstantial evidence, if clear and persuasive, establishes the existence of the contract of marriage between the parties as satisfactorily as if the contract had been reduced to writing, or had been expressed in the presence of witnesses in the plainest form of contractual words." Hamlin v. Grogan, 257 Fed. 59.
It is our opinion that the verdict of the jury was not controlling on the judge to whom the case was tried. We think our statute declares the effect of such a verdict.
"Whenever it becomes necessary or proper to inquire of any fact by the verdict of a jury, the court may direct a statement thereof, and that a jury be formed to inquire of the same. The statement shall be tried as an issue of fact in an action, and the verdict may be read as evidence, on the trial of the suit." Or. L., § 404.
This statute defines the force of a verdict of a jury in an equity proceeding. We think it was within the judicial discretion of the Circuit Court to be controlled or not by the verdict of the jury. We do not think that this is the case of an heir at law as used in Raymond v. Flavel, 27 Or. 219, 232 (40 P. 158). *Page 494
This suit was primarily instituted to prove the marriage of plaintiff's mother to John R. Brigham and her right to inherit from him as the child resulting from said marriage. The heir at law referred to in Raymond v. Flavel, above, was a special proceeding under the common-law practice: 1 Daniell on Chancery Practice (8 ed.), 666 et seq.; 1 Whitehouse on Equity Practice, 625, § 383.
"* * this court is permitted to go into the record, to look beyond the jury's findings, adopt them, modify them, or disregard them entirely, and determine the case in accordance with the evidence as presented." Croker v. N.Y. Trust Co., 123 Misc Rep. 460 (205 N.Y. Supp. 761); Fichette v. Cape Charles Bank,146 Va. 715 (132 S.E. 688, 691, 133 S.E. 492); Hill's Admr. v.Hill, 214 Ky. 63 (282 S.W. 760); James v. Cullins, 214 Ky. 179 (282 S.W. 1105, 294 S.W. 111).
"The finding of the jury in such case is merely of an advisory character upon issues of fact, and the verdict may be disregarded and findings contrary thereto made by the chancellor, or, if the verdict be adopted, it is still incumbent upon the chancellor to make findings." Brichetto v. Raney, 76 Cal. App. 232 (245 P. 235).
"* * verdict had no controlling force if it was an equity suit." Order Ry. Conductors v. Jones, 78 Colo. 80 (239 P. 882).
"The function of the jury was to enlighten the chancellor, and in the performance of that duty, to pass upon the credibility of the witnesses in the first instance. The court was not bound by the jury's findings, but was free to disregard them for any reason or without reason; * *" Ayers v. Buswell, 73 Mont. 518 (238 P. 591); Rutherford v. Long Co., 74 Mont. 420 (240 P. 821).
The intent of the legislature was to constitute marriage out of an agreement between a man and woman to be husband and wife when children were born as *Page 495 a result of the cohabitation following such an agreement, notwithstanding the formal ceremony required by the marriage statutes of our state had not been observed. That was the full intent and purpose of said Chapter 269. If it had been the intent of the legislature to legitimate children born out of wedlock it could and would have said so in plan and unmistakable language.
It is not the duty of the court to determine the policy of the state as to marriages. A marriage contract is one peculiarly under the control of the legislature. The question presented by the instant appeal is not one of morals primarily, but one requiring the construction of a statute of the legislature. There is nothing about this statute that requires any other or different treatment than other acts of the legislature. The object of the court should always be to determine the intent of the legislature. To convert cohabitation as husband and wife into lewd and lascivious cohabitation is to do violence to the intent of the legislature as well as the language of the act. The rankest kind of judicial legislation is exercised when a statute prescribing the effect of marital cohabitation is changed so as to make lewd cohabitation a marriage. The legislature prescribed that cohabitation as husband and wife when children were born as a result thereof should constitute a marriage. The intent is plain that the statute was intended to legitimate the cohabitation of a man and woman under the belief that they were married to constitute a marriage when children are the result thereof. That is not only the intent as shown by the body of the act but also the title, which must be as broad as the act itself under our Constitution. Plaintiff's construction of the act is a complete change of the legislative intent. The construction *Page 496 of the act demanded by plaintiff in effect substitutes lewd cohabitation for marital cohabitation. That is judicial legislation purely and simply. It might be more humane and merciful to legitimate all children born out of wedlock where the father may be identified, but that would require legislation. This court should not try to do that by construction.
The burden of proof in this suit is on the plaintiff. There is no direct evidence from either the plaintiff's mother or of John R. Brigham that they were married to each other. There is very slight evidence in the record that they ever cohabited as husband and wife. The testimony of plaintiff herself may be said to constitute such evidence. Plaintiff testified that her father and mother lived happily together for about five years after she was born. The record discloses that plaintiff's mother was married to a Mr. Liddy, who died in November, 1878. Plaintiff was born in October, 1879. In 1880 plaintiff's mother charged said Brigham, whom plaintiff claims to have been her father, with seduction. There is a copy of her complaint in the evidence in which she alleges directly that she was unmarried and that the said Brigham carnally knew and debauched her against her will to her damage. The record also shows that plaintiff's mother failed to sustain her allegations. The evidence is overwhelming also that during the period of five years referred to by plaintiff that her mother was operating a house of ill fame at the corner of Fourth and Alder Streets in the City of Portland. The record also shows that in 1883 plaintiff's mother was married to a man by the name of Thompson, without having been divorced from said Brigham. The evidence is overwhelming that during this same period the said Brigham was residing in a room in the Glisan *Page 497 Block, Second and Ash Streets, Portland, at the time that plaintiff's mother was living at Fourth and Alder Streets and later at Third and Taylor. This is the period during which plaintiff testified that her mother and said Brigham were living together at the St. Charles Hotel and at the Esmond Hotel. Plaintiff testified that said Brigham told her that he and her mother were married in the State of California. Mrs. Britten, a witness for plaintiff, testified that the plaintiff was about a year old when said Brigham and her mother were at The Dalles and had the plaintiff with them; that she had just come from New York state and was introduced to them by her sister; that she inquired if the said Brigham and Mrs. Liddy, plaintiff's mother, were married, and Brigham held up the plaintiff in his arms and said, "Yes, see our marriage certificate," or spoke words to that effect.
The testimony of plaintiff's other witnesses, touching the question of the relation between her mother and said Brigham, follows. L. Comini testified that said Brigham referred to plaintiff's mother in 1893 as Mrs. Brigham. W.P. Swope, who knew said Brigham from 1888 to 1889, testified as follows:
"Q. When you knew Mr. Brigham, did you know him as a married man or an unmarried man? A. You couldn't tell; you never asked people — you never asked a man to pull out a marriage certificate when you met him in those days.
"Q. What was his general reputation as a bachelor? Was he supposed to have a family? A. He was a gay bachelor part of the time. * *
"Q. Who ran that rooming-house? A. I guess Mrs. Liddy or Lydy; we used to call her Liddy.
"Q. Where did Mr. Brigham live at that time? A. He lived there, I guess; that is the understanding I had. * * *Page 498
"Q. Well, that is a fact, that he lived with her always, didn't he? A. Yes, I guess so. * *
"Q. Did he ever tell you he lived there? A. Certainly.
"Q. What was his reputation? A. His reputation was being with her for a number of years.
"Q. Being with her? A. Uh-huh; living with her.
"Q. Living with her, — what relation existing. A. I don't know what you would call it, — whether it was a meretricious relation or a marriage relation or what, — whatever you can call it."
Thomas A. Doud, who knew said Brigham since 1882 and knew his family in New York state, testified as follows:
"Q. What, if anything, did he say about his wife? A. Well, I asked him where the folks was; that is the way he come to tell me about the girl being in The Dalles; he said her mother was dead, and that the girl was living in The Dalles. * *
"Q. Did you know Mr. Brigham's reputation at that time regarding his married status; that is, was he known as a bachelor or a married man? A. Well, I couldn't answer that question; I don't know that. * *
"Q. Did you ever see his wife? A. No, I never did. * *
"Q. When Mr. Brigham had this conversation with you in 1924, of which you speak, did he mention any wife that he had? A. I don't know about the word — I couldn't say positively about the word `wife'; that I asked him that question, — because I had always understood that he had a wife, but I asked him, I says, `Where is the folks?' and he says that the wife is dead and the girl lives in The Dalles.
"Q. Do you recall definitely that he said that his wife was dead? A. I do."
J.F. O'Connor knew said Brigham since 1895 and testified as follows as to Brigham's reputation in 1895: *Page 499
"Q. What was his reputation at that time as to his marital status? That is, was he known as a bachelor or a married man? A. Well, I supposed he was married; I had heard he had a daughter."
John A. McQuinn knew said Brigham from 1884. He testified as follows:
"Q. Did you ever know him as being a married man? A. Never said he was; never told me he was. * *
"Q. You knew that there was a common reputation that he was not a married man? A. Yes; I didn't think he was married, all right, as far as he was concerned; he never told me that he was, and I don't believe that he was married. * * From his conversation I would say it was more in the order of a mistress than a wife, really."
"Q. At that time (1906) did you know Mr. Brigham as a married man? A. No, he wasn't married; I don't think he was ever married."
Doctor W.A. Roberts testified that in 1893 the mother of plaintiff was living at Third and Taylor Streets, and regarding the reputation of said Brigham testified as follows:
"Q. At any rate, it wasn't at Third and Taylor, was it? A. I don't think so; not for him at that time; no, I never took any bill at Third and Taylor, to my recollection."
He also testified that said Brigham was living at that time near the police station. The police station is at Oak Street, near Second. Ash Street, where the other witnesses testified said Brigham lived, is north of Oak Street. The said witness Roberts was working for a dentist at that time as a student and collected the bills of his employer. This dentist had done work for the plaintiff and Roberts attempted to *Page 500 collect their fees from the mother and then from said Brigham.
R.R. Morrill, who knew said Brigham since 1877, testified as follows:
"A. Well, he was a bachelor, and that she was his lady, or his woman; while they were not married, as a matter of fact they should be; now that's about what it means.
"Q. That they were living together as husband and wife, do you mean? A. No, I don't mean that. * *
"Q. What about Brigham's reputation as to being a bachelor or a married man? A. Why, I always understood he was a bachelor; I knew where he was rooming and knew where his store was. * * I never was up to his room, but I did know that he was a bachelor, and that he roomed — I first thought he roomed over the store, but the store was not on Second, — the store was on First; I couldn't — I couldn't positively swear that he roomed on Second and Ash; he did room upstairs, I thought over the store, but I got mixed on that room."
It is a rule of law that evidence of a reputation of marriage must be based on reputation contemporaneous with cohabitation. The birth of plaintiff in 1879 can hardly be the result of cohabitation of her parents in 1884 and thereafter: 38 C.J. 1324; L.R.A. 1915E, 39; 18 R.C.L. 429, § 57.
The evidence of all of the witnesses testifying for plaintiff, except Mrs. Britten, relates to the reputation a number of years after the birth of plaintiff, as is clearly shown from the excerpts in this opinion. Between the birth of plaintiff and the time of the reputation so testified to, plaintiff's mother had sued Brigham for seduction; plaintiff had been married and divorced from a man by the name of Thompson. Both of these events are indisputable and absolutely *Page 501 contradictory of the claims made by plaintiff. In legal contemplation it was impossible for plaintiff to have been born as the result of cohabitation between plaintiff's mother and said Brigham within the meaning of the statute. The statute is plain that the birth must be the result of cohabitation as husband and wife. There is no evidence at all in the record anywhere that plaintiff's mother and said Brigham cohabited as husband and wife during 1878 or 1879. The cohabitation must have been during that period. There is the sworn testimony of plaintiff's mother that they did not so cohabit. She never at any time claimed to be the wife of said Brigham. In her action for seduction she charges the act was committed by force, not under a promise of marriage. A short time before her death she wrote a letter to said Brigham warning him of the designs of her daughter, the plaintiff. The only letters, copies of which were kept by plaintiff, are two letters written after the death of her mother. To say the least, suspicion attaches to the motives of plaintiff in keeping copies of these letters, and this suspicion is not allayed by the very endearing terms used by plaintiff in addressing said Brigham. Both letters seem very extravagant and not natural. Brigham himself denied many times that plaintiff was his daughter and there is other evidence tending to support his denials, but we do not place our decision on the ground that plaintiff is not his daughter. Our position is that in order for her to come within the statute she must have been begotten by her parents while cohabiting as husband and wife.
It will thus be seen that the evidence in behalf of plaintiff herself is far from being uniform to the effect that plaintiff's mother and said Brigham were living together or cohabiting as husband and wife. *Page 502 None of those witnesses testified that they were so cohabiting prior to the birth of plaintiff. Said Chapter 269 expressly prescribes to the effect that the children born after the beginning of said cohabitation are legitimated. None of plaintiff's witnesses go that far. They do not even concur that the relation of plaintiff's mother and said Brigham was reputed to be that of husband and wife.
It is earnestly contended by plaintiff that the evidence offered in behalf of defendants is negative evidence. She urges that their testimony is simply to the effect that the reputation of said Brigham and plaintiff's mother was that they were not married. The evidence is very different from that. It shows positively the residence of these parties in the same city; that they did not live together; that they were not cohabiting as husband and wife; that any relation of that nature between them was that of man and mistress; that their relation was meretricious.
Plaintiff insists in her supplemental brief that her testimony to the effect that her father and mother lived together happily as man and wife for about five years is not contradicted and is corroborated by all of the evidence. Her evidence in that regard, in our judgment, is not worthy of belief at all. She was born in 1879. The five years referred to would cover a period from 1879 to 1884. In 1880 plaintiff's mother sued said Brigham for seduction. Plaintiff's mother, under oath, made the following statements in her complaint:
"That on the twenty-second day of September, A.D. 1878, she was, ever since has been, and is an unmarried woman over twenty-one years of age. That on the said twenty-second day of September, 1878, at Portland, Multnomah County, Oregon, the *Page 503 said defendant did make an assault upon plaintiff, and with force and arms did wickedly, maliciously and wilfully seduce, debauch and carnally know the said plaintiff, and did, on divers days and times between the said date last named and the twentieth day of January, A.D. 1879, at Portland, Oregon, aforesaid, make divers other assaults upon, and maliciously, wickedly and wilfully carnally know plaintiff. * *"
During the period plaintiff's mother and said Brigham must have cohabited in order for plaintiff to have been the result of said cohabitation, plaintiff's mother solemnly alleged, under oath:
"That on the twenty-second day of September, A.D. 1878, she was, ever since has been, and is an unmarried woman over twenty-one years of age."
This sentence is directly opposed to any kind of marriage between the parties. Plaintiff asserts in the face of this indisputable record that her mother and said Brigham cohabitedas husband and wife during that same period. There is as much difference between their cohabitation during said period and marital cohabitation as there is between vice and virtue.
Plaintiff also testified that her mother and said Brigham cohabited as husband and wife for more than a year prior to her birth. It would be impossible for them to have done so because her mother's former husband died within less than a year prior to her birth and it would have been impossible for her mother to have cohabited with said Brigham as his wife when her husband was living and undivorced. Otherwise plaintiff's mother would have been married while her former husband was living: Klipfel'sEstate v. Klipfel, 41 Colo. 40, 49 (92 P. 26, 124 Am. St. Rep. 96). It is also proved beyond dispute in the evidence that in 1883 plaintiff's mother married a *Page 504 man by the name of Thompson without having been divorced from said Brigham.
These citations are inserted herein to show the absurdity and extravagance of the claims of plaintiff in her supplemental brief. We may concede that said Brigham acknowledged the plaintiff to be his daughter. There is considerable evidence to that effect. That is not sufficient to make a marriage out of the meretricious relations between her mother and said Brigham under Chapter 269. The birth of the plaintiff must have been the result of marital relations between her mother and said Brigham in order to bring plaintiff under the provisions of said Chapter 269. There is no substantial evidence of such cohabitation.
Almost a score of witnesses called for defendants, who had known both Brigham and Mrs. Liddy, plaintiff's mother, during the period it is claimed they lived together, testified positvely that they were not living together; stated from their own knowledge the business both parties were engaged in, and that during all of said time said Brigham was known as a bachelor among his acquaintances.
The testimony of plaintiff is not convincing. She was too young to have known anything about the relation between the parties during the period she claims her mother was living with Brigham as his wife. The very fact that she testified that they lived happily together during those five years as husband and wife, in the face of the indisputable record of the action instituted by her mother against Brigham for seduction in 1880, and in the face of the record that during that same period her mother was married to one Thompson, destroys what little value her testimony has in that behalf. *Page 505
There is no evidence of that kind to be found in the record in the instant case. A presumption of marriage can arise on the proven facts of cohabitation and reputation when they unite and are open, public and uniform: Osborne v. Ramsey, 191 Fed. 114 (11 C.C.A. 594); Callery's Estate, 226 Pa. 469 (75 A. 672); Jones' Com. on Ev. (2 ed.), 99-101, § 53; 1 Bishop on Marriage and Divorce (5 ed.), §§ 500-506.
"Common repute, to be significant, should be uniform." Pegg v. Pegg, 138 Iowa, 572 (115 N.W. 1027); Schwingle v. Keifer (Tex.Civ.App.), 135 S.W. 194, 105 Tex. 609 (153 S.W. 1132);Weatherall v. Weatherall, 63 Wash. 526 (115 P. 1078).
Marriage may not be proven by partial or divided reputation:In re Boyington's Estate, 157 Iowa, 467 (137 N.W. 949);Taylor v. Taylor, 10 Colo. App. 303 (50 P. 1049); State v. Wilson, 5 Penne. (Del.) 77 (62 A. 227); Eldred v.Eldred, 97 Va. 606 (34 S.E. 477); Weindenhoft v. Primm,16 Wyo. 340 (94 P. 453); Klipfel's Estate v. Klipfel,41 Colo. 40 (92 P. 26, 124 Am. St. Rep. 96); 38 C.J. 1324.
"It may be inferred that the relation is meretricous where the man acknowledges the woman as his wife only when necessary to continue the deception or when among her friends and relatives, and not among his relatives and business acquaintances.Laurence v. Laurence, 164 Ill. 367 (45 N.E. 1071); 38 C.J. 1325, note 66; Nye v. State, 77 Tex. Cr. 389 (179 S.W. 100);Haley v. Goodheart, 58 N.J. Eq. 368 (44 A. 193, 196);McBean v. McBean, 37 Or. 195 (61 P. 418).
"The presumption of marriage arising from marital cohabitation and repute is not conclusive, but is open to rebuttal, and if it appears that there was in fact no marriage between the parties either by ceremony or by informal contract the presumption is dispelled." *Page 506 38 C.J. 1339; 18 R.C.L. 434; In re Baldwin, 162 Cal. 471, 476 (123 P. 267); McBean v. McBean, 37 Or. 195 (61 P. 418); Jones' Com. of Ev. (2 ed.), 2094.
Many other questions were ably discussed at the oral argument and exhaustively presented in the several briefs filed by both sides. In order for plaintiff to recover it was necessary for her to prove that her mother and said Brigham cohabited together as husband and wife in the State of Oregon for one year. It was not necessary under the statute that such cohabitation should have existed a year prior to the birth of plaintiff. That statement appearing in the original opinion was a mere slip of the pen. It is our belief that plaintiff must have proved an agreement between her mother and said Brigham to live as husband and wife in order for her to come within said Chapter 269. She might have proved this necessary fact by the admission of her mother and said Brigham. She might have proved it by witnesses who heard them make such an agreement. She might have proved it by their cohabitation and holding themselves out as married to the public, to their neighbors, their friends and their relatives. She has wholly failed to prove such an agreement or the cohabitation of her mother and Brigham as husband and wife. Giving to plaintiff the full value of her testimony, the most it establishes is that said Brigham was her father. That is not sufficient. It is necessary not only for him to have been her father, but also that she was begotten as a result of her mother and said Brigham cohabiting as husband and wife.
"In case a man and woman * * have cohabited * * as husband and wife * * and children shall be living *Page 507 as a result of said relation, said relation" is a valid marriage: Chapter 269, Laws 1925.
The decree of the Circuit Court should be affirmed.
AFFIRMED.
BELT and ROSSMAN, JJ., concur.