White v. White

Works, J., dissenting.

I dissent. To my mind the evidence shows conclusively that these parties were never married. Cohabitation and repute may be suffi*454cient to raise a presumption of marriage, and if undisputed authorize a judgment to that effect. But here the testimony of both of the parties shows beyond any question, not only that the intercourse of these parties was illicit in the beginning, but that it continued to be so up to the time of their separation. The positive and direct evidence of both of the parties is, that there never was any promise or agreement to marry or to live together as husband and wife. Therefore, the evidence of cohabitation and repute, which in this case is extremely weak and unsatisfactory, cannot and should not prevail. A mere presumption of a marriage arising from cohabitation cannot stand as against positive evidence to the contrary by both of the parties interested.

Rehearing denied.