I concur in the judgment. I think that the first part of the second finding negatives every allegation of extreme cruelty made by the defendant, and that a separate finding upon that subject was unnecessary. The other errors of law, if they were errors, are of so insignificant a nature as that they could not possibly have changed the result.
It is true that consent lies at the foundation of every marriage, and without consent there can be no marriage. But as was said in Campbell v. Campbell, cited by Mr. Justice Thornton, there are cases in which a tacit consent will be inferred. Even under our code it will be presumed “that a man and woman deporting themselves as husband and wife have entered into a lawful contract of marriage.” (Code Civ. Proc., sec. 1963, subd. 30.) And after a quarter of a century of that kind of deportment toward each other and toward the world, the parties ought to be estopped to deny such presumption. Then the conclusive presumption arising under subdivision 3, section 1962, of the Code of Civil Procedure, ought to prevail: “Whenever a party has by his own .... act or declaration .... intentionally and deliberately led another to believe a particular thing true, and to act upon such belief, he cannot, in any litigation arising out of such ° . . . act or declaration be permitted to falsify it.”